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stance the statutes were originally upheld by the State courts, and the decisions were subsequently affirmed by the Supreme

property within the territory of the latter, by donation, testament or otherwise, from or to aliens and subjects of the former.

"It is both wise and conservative for courts to adhere to what has been repeatedly adjudged; and when the intent and meaning of a law has been settled by the uniform and consistent course of judicial construction, the construction becomes, in so far as contract and treaty rights acquired thereunder are concerned, as much a part of the law as the text itself."

Sala's Succession, Sup. Ct. La. 1898, 50 La. Ann. 1009, NICHOLLS, Ch. J.

movable property. The effect of this limited action is to leave Act No. 130 of 1894 (unless unconstitutional) operative upon immovable property as against foreign heirs and legatees, except to the extent that it is controlled and limited under the third clause of the treaty, under the condition of affairs therein specially anticipated and provided for.

"4. Act No. 130 of 1894 is an act raising revenue and appropriating money, and should (under Art. 35 of the Constitution) have originated in the House of Representatives. Having originated in the Senate is decreed unconstitutional.

"5. There is nothing in the language of Act 130 of 1894 making the payment of a succession or inheritance tax by foreigners a con

The parties protested on the ground that they were exempt under the treaty with Spain of 1795, and the decision of the court is stated in the syllabus (pp. 1009-dition precedent to a right of 1010), as follows:

"1. The parties designated by Act 130 of 1894 as those to be charged under its provisions with a succession or inheritance tax are foreign heirs and legatees.

"2. The words personal goods in the first clause of Art. XI of the treaty, entered into on the 27th of October, 1795, and proclaimed on the 2d of August, 1796, between the United States and Spain, refer to and cover movable property only. Real estate or immovable property is referred to and dealt with in the treaty only in its third clause.

"3. The only action taken by the two governments in respect to real estate, or immovable property, was to deal with and provide for the consequences of the special case, where foreigners in either country should be prohibited from inheriting im

inheritance. The law permits the foreigner to inherit, but, having inherited, charges him with the tax. Succession of Pargoud, 13 An. 367; Succession of Rabasse, 49 An. 1405.” 5 The cases relate more to State police powers under the Fourteenth Amendment than as to treaty stipulations, but they are cited as they show the extent to which State laws will be upheld when they relate to the police power.

Spies vs. Illinois, U. S. Sup. Ct. 1887, 123 U. S. 131, WAITE, Ch. J. On application for writ of error to the Supreme Court of the State of Illinois on behalf of certain men condemned to death, known as Chicago Anarchists, the writ was denied upon the ground that no federal question was raised, although the applicants contended that there were violations of treaty rights in

Court of the United States. The Supreme Court has, in regard to treaties, as it has in regard to Federal statutes, ever kept in view the exclusive right of States to regulate their internal affairs and have not allowed either treaty stipulations or Federal statutes to be so construed as to prevent the proper exercise of police powers. The decision rendered by the Supreme Court and the opinion delivered by Mr. Justice Miller, in the Slaughter House Cases1 will also stand, not only the condemnation of the prisoners. The court, however, held that the point had not been raised.

The application was dismissed on various grounds, the record not being in all respects complete. As to the treaty point, the opinion says: "As to the suggestion by counsel for the petitioners, Spies and Fielden-Spies having been born in Germany and Fielden in Great Britain-that they have been denied by the decision of the court below rights guaranteed to them by treaties between the United States and their respective countries, it is sufficient to say that no such questions were made and decided in either of the courts below, and they cannot be raised in this court for the first time. Besides, we have not been referred to any treaty, neither are we aware of any, under which such a question could be raised."

Brooks vs. Missouri, U. S. Sup. Ct. 1888, 124 U. S. 394, WAITE, Ch. J. This was a writ of error in a criminal case which was dismissed on the authority of Spies vs. Illinois. Treaty rights were not involved, but the doctrine in Spies vs. Illinois as to the supremacy of the State in legislation in regard to crimes was affirmed.

In re Kemmler, U. S. Sup. Ct. 1890, 136 U. S. 436, FULLER, Ch. J. In re Shibuya Jugiro, U. S. Sup. Ct. 1891, 140 U. S. 291, HARLAN, J.

McKinney vs. Saviego, U. S. Sup. Ct. 1855, 18 Howard, 235, CAMPBELL, J.

Baldwin vs. Goldfrank, Sup. Ct. TEXAS, 1895, 88 Tex. 249, GAINES, Ch. J. Held that the act of Feb. 8, 1850, of Texas, to investigate land grants in territory ceded to the United States under treaty of Guadalupe-Hildago, 1848, was not a violation of the treaty or an invasion of any right or reservation secured by the Constitution of the State or of the United States.

See also Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, DAVIS, J.

§ 357.

1 The Slaughter House Cases, U. S. Sup. Ct. 1872, 16 Wallace, 36, MILLER, J. In speaking of these cases Mr. Carson, in his History of the Supreme Court says (pp. 459-460): "It was held that the law in question was a police regulation for the health and comfort of the people entirely within the power of State Legislatures and unaffected either by the Constitution of the United States previous to the adoption of the Amendments, or since . . . This decision was severely criticised and in its defense Mr. Justice Miller, who always referred to it in terms of pride, said at an address delivered before the alumni of the Law Department of Michigan on the Supreme Court of the United States at the semi-cen

as a monument of that learned jurist's legal acumen, but of the ability of the Court to discriminate between those powers which Congress can exercise and those powers which the States must be permitted to exercise even under the widest theories of Federal power.

The esteem with which the opinion in the Slaughter House Cases is held, and the salutary effect of that decision, has been referred to by Mr. Carson in his Centennial History of the Supreme Court, and a full quotation therefrom will be found in the notes to this section. The decision has however, been

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tennial celebration of the Univer-eral Government to enforce those sity, June 29th, 1887: Although provisions, no substantial change this decision did not meet the ap- has been made. The necessity of proval of four out of nine of the the great powers conceded by the Judges, on some points on which Constitution originally to the Fedit rested, yet public sentiment, as eral Government, and the equal nefound in the Press, and in the uni- cessity of the autonomy of the versal acquiescence with which it States, and their power to regulate was received, accepted it with great their domestic affairs, remain as unanimity, and although there were the great features of our complex intimations that in the legislative form of government.'" Mr. Carbranches of the Government the son says that this decision is a bulopinion would be reviewed and crit- wark of State authority, the most icised unfavorably, yet no such important and substantial of those thing has occurred in the fifteen erected since the days of Taney, and years which have elapsed since it Mr. Carson quotes the glowing was delivered, and while the ques- terms in which Mr. John S. Wise tion of the construction of these of Virginia expressed himself in reAmendments, and particularly the gard to this decision in his speech Fourteenth, has often been before in reply to the toast of "The Amerthe Supreme Court of the United ican Lawyer," at the breakfast States, no attempt to overrule or given to the Justices of the Supreme disregard this elementary decision Court of the United States by the of the effect of the three new Con- Bar of Philadelphia, Septemstitutional Amendments upon the ber 15, 1887: relations of the State Governments 2" I said that we owed more to the to the Federal Government has American lawyer than to the Amerbeen made; and it may be consid- ican soldier, and I repeat it; for not ered now as settled that, with the all the victories of Grant, or all the exception of the specific provisions marches of Sherman, have by brute in them for the protection of the force done as much to bulwark this personal rights of the citizens and people with the inestimable blesspeople of the United States, and ings of Constitutional liberty as that the necessary restrictions upon the one decision of the Supreme Court States for that purpose, with the in the Slaughter House Cases, deaddition of the powers of the Gen-claring what of their ancient liber

the subject of criticism by some writers whose views are also referred to in the notes.3

ties remained. That decision, tion must be sought in the words worthy to live through all time for of the Amendment; and the deits masterly exposition of what the bates in Congress are not admissiwar did and did not accomplish, did ble as evidence to control the more than all the battles of the meaning of those words.' But Union to bring order out of chaos. nevertheless, these debates are freWhen war had ceased, when quently referred to and are 'valublood was stanched, when the vic-able as contemporaneous opinions tor stood above his vanquished foe of jurists and statesmen upon the with drawn sword, the Surpeme legal meaning of the words themCourt of this Nation, when it spoke selves." in the great decision of the Slaughter House Cases, planted its foot and said, 'This victory is not an annihilation of State Sovereignty, but a just interpretation of Federal power.'"

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Citing Blaine's Twenty Years in Congress, vol. 2, p. 419, as follows: "The contentions which have arisen between political parties as to the rights of negro suffrage in the Southern States, would scarcely be cognizable judicially under either the Fourteenth or the Fifteenth Amendment to the Constitution. Both of those Amendments operate as inhibitions upon the power of

On the other hand Mr. Justice Miller's decision has been criticized and commented upon by many writers on this subject. Wm. D. Guthrie, in his recently published monograph, says: "As what the State, and do not have referhave been called the conservative-ence to those irregular acts of the I would say almost hostile-views of Mr. Justice Miller were clearly in conflict with the intention of the framers of the amendment and for many years dwarfed and dulled the protective power of the amendment, it will be interesting to quote from some of the speeches in Congress, and thus realize the intention of the framers. There is, moreover, today in many quarters a remarkable misconception of the intention and purpose of the framers of the Fourteenth Amendment. The debates upon all these questions are most interesting and convincing, and should always be consulted. It has lately been declared that, 'Doubtless the intention of the Congress which framed and of the States which adopted as distinguished the vote of Louisthis Amendment of the Constitu-iana in the Presidential election of

people which find no authorization in the public statutes. The defect in both Amendments, in so far as their main object of securing rights to the colored race is involved, lies in the fact that they do not operate directly upon the people, and therefore Congress is not endowed with the pertinent and applicable power to give redress. By decisions of the Supreme Court, the Fourteenth Amendment has been deprived in part of the power which Congress no doubt intended to impart to it. Under its provisions, as construed by the Court, little, if anything, can be done by Congress to correct the evils or avert the injurious consequences arising from such abuses of the suffrage

358. California decision in conflict with general rules. -There have also been cases in which State courts have refused to acknowledge the supremacy of treaties, but such instances are few. They are notably in California where an effort was made to uphold the anti-Chinese legislation, which was as we have seen, promptly suppressed by the Federal courts, even, however, earlier than the "Chinese epoch." The Supreme Court of the State1 laid down the rule which it attempted to support by decisions of the Supreme Court of the United States that "A treaty is supreme only when it does not transcend certain limits and that it cannot supersede a State law which enforces or exercises any part of the State power not granted away by the Constitution."3

The same court, however, subsequently decided that the treaty with Prussia of 1828 entitled Prussians to inherit, notwithstanding the State laws of California; two opinions were delivered in that case; one of the Justices declared that he could not see that any danger would result from yielding to the Federal Government the full extent of the powers which it might claim from the plain language, intent and meaning of the grant under consideration. The opinion

domain of civil liberty won by the
terrible exertions of the nation in
the appeal to arms.
I have per-
fect confidence that the day will
come when it will be seen to be in-
tensely reactionary and will be
overturned.' ”

1868, and in the numerous flagrant | neous. It appears to me to have cases which followed that baleful thrown away the great gain in the precedent of unrestrained violence and unlimited wrong. Those outrages are the deeds of individual citizens or of associated masses, acting without authority of law and in defiance of law. Yet when a violated public opinion justifies their course, and when indictment and conviction are impossible, the injured citizen loses his rights as conclusively as if the law had denied them, and indeed far more cruelly."" Also citing:

The Fourteenth Amendment, by William D. Guthrie, p. 21.

§ 358.

1 People vs. Naglee, Sup. Ct. Cal. 1850, 1 Cal. 232, BENNETT, J.

2 Citing the Passenger and License Cases, 5 How. 613; 7 How. 283. (See citations from, and comments on, these cases in §§ 468,et seq., post.) 3 See p. 246, 1 Cal. Rep.

"Prof. Burgess's Political Sc. & Const. Law, vol. I, 225, et seq.: 'From whatever point of view I regard the opinion of the Court in the Slaughter House Cases,- from the historical, political, or juris- 1855, 5 Cal. 381, HEYDENFETL and tic,-it appears to me entirely erro- | BRYAN, JJ.

4 People vs. Gerke, Sup. Ct. Cal.

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