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§ 108. Construction of state statutes.-Where the issue affecting the title to land is whether a state statute of confiscation accomplished a complete confiscation within the meaning of a treaty, the construction of the treaty is sufficiently involved for the purposes of federal jurisdiction.21

Under the treaty between the United States and Mexico providing for the adjustment of claims of American citizens against Mexico, a sum of money was awarded to be paid to the members of a company who had subscribed money, to fit out an expedition against Mexico. Two parties claimed the proceeds of one of the shares of the company, one as being the second permanent trustee of the insolvent owner of the share, and the other as being the assignee of the first permanent trustee. It was decided by the court of appeals of Maryland that the second permanent trustee did not take the claim under the insolvent laws of that state, and this decision was held by the supreme court of the United States not to be reviewable.22

21 Smith v. State of Maryland, 6 Cranch, 286, 3 L. ed. 225.

22 Williams, Trustee, v. Oliver, 12 How. 124, 13 L. ed. 921; Gill v. Oliver's Executors, 11 How. 529, 13 L. ed. 808. The court said, per Mr. Justice Nelson: "The decision of the court below, therefore, not involving the validity of the treaty, or award of the commissioners, or lawfulness or character of the fund, but simply the right and title to the respective shares claimed on it after the fund had been paid over by the government, and brought into court for distribution according to the agreement of all concerned, and which distribution depended upon the laws of the state, a majority of the court, taking this view of the case, held, that there was a want of jurisdiction, and dismissed the writ of error, and that the decision, whether right or wrong, could not be the subject of review under the 25th section of the judiciary act, as it involved no question, either directly or by necessary intendment, arising

upon the treaty or award, or connected with the validity of either, and if this court were right in the view thus taken of the case, there can be no doubt of the correctness of the conclusion arrived at." The court referred to some cases sustaining this principle but said: "It is not intended, nor to be understood from these cases, that the question, thus material to the decision arrived at, must be confined exclusively and speially to the conclusion of the treaty. act of Congress, etc., in order to give the jurisdiction, as this would be to narrow a view of it. Points may arise growing out of and connected with the general question, and so blended with it as not to be separated, and therefore falling equally within the decision contemplated by the 25th section. The cases of Smith v. The State of Maryland, 6 Cranch, 286, 3 L. ed. 225, and Martin v. Hunter's Lessee, 1 Wheat. 304, 355, 4 L. ed. 97, afford illustrations of this principle."

$109. Protection of inhabitants.-A federal question is presented by a claim that a person who has settled within the territory of an Indian nation is on account of treaties made between the Indians and the United States entitled to reside there free from any legislative interference by the states.2

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When Louisiana entered the Union its inhabitants were admitted to the enjoyment of all the rights, advantages and immunities of the citizens of the United States. Hence the supreme court of the United States will not review a decision of the supreme court of Louisiana, on the ground that it was adverse to a right secured by a stipulation in the treaty of cession of Louisiana for the protection of the inhabitants, in the free enjoyment of their liberty, property or religion, because the operation of this stipulation ceased on Louisiana's admission to the Union.24 A federal question is raised by the question whether proceedings in extradition were violative of and forbidden by the treaty from which extradition was secured.25

§ 110. Award under claims commission.-A convention was concluded between the United States and France in January, 1880,26 by which it was stipulated that "all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the government of France, arising out of acts committed against the persons or property of citizens of the United States, not in the service of the enemies of France or voluntarily giving aid and comfort to the same, by the French civil or military authorities, upon the high seas or within the territory of France, its colonies and dependencies, during the late war between France and Mexico, or during the war between France and Germany, and the subsequent civil disturbances known as the 'Insurrection of the Commune,' and, on the other hand, all claims on the part of corporations, companies or private individuals, citizens of France, arising out of acts committed against the persons or property of citizens of France not in the service of the enemies of the United States, or voluntarily giving aid and comfort to the same, by the civil or military authorities of the

"Worcester v. Georgia, 6 Pet. 515, 8 L. ed. 483.

"New Orleans v. De Armas, 9 Pet. 224, 9 L. ed. 109.

25 Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 225, 30 L. ed. 421. 26 12 Stats. 673.

government of the United States, upon the high seas or within the territorial jurisdiction of the United States during the period comprised between the thirteenth day of April, 1861, and the twentieth day of August, 1866," shall be referred to three commissioners, one of whom shall be named by the President of the United States, and one by the French government, and the third by His Majesty, the Emperor of Brazil. These commissioners were obliged to examine and decide upon all claims of this character presented to them. They allowed a claim to an executor, for injuries done to his testator's property; and on distribution a contest arose among the heirs, the plaintiffs in error, claiming that they were entitled to the whole award, because they were the only heirs and legatees who were French citizens at the time the claim was presented and when the award was rendered; and that no award under the treaty could have been made in favor of the other heirs and legatees, as they were citizens of the United States at that time; and that no executor or person representing the succession of a person who was not a French citizen at the time the damage was suffered and award rendered could have any standing before the commission.

The lower state court sustained the position of plaintiffs in error, and decreed that the entire fund should go to them, onehalf to each. The supreme court of Louisiana reversed this decree, and gave judgment to the effect that the entire fund in the possession of the executor should be distributed proportionally among all the heirs and legatees, both French and American citizens. As the decision of the supreme court of Louisiana was thus against the right asserted by the French citizens as heirs, founded upon this treaty, the supreme court of the United States held that a question was presented within the jurisdiction of the court.27

§ 111. Diverse citizenship sole ground of jurisdiction at commencement of suit.-If, when a suit is commenced in a circuit court of the United States, the jurisdiction is placed, at the commencement of the suit, solely upon the ground of diverse citizenship, the judgment of the circuit court of appeals is final, although subsequently other questions are raised. The supreme court of the United States will, in such a case, dismiss a writ of

"Burthe v. Denis, 133 U. S. 514, 10 Sup. Ct. Rep. 335, 33 L. ed. 768.

107 TREATY INTRODUCED AS PART OF HISTORY OF CASE. [§§ 112, 113

error, should the case be brought to that court, from the circuit court of appeals.28

of

§ 112. Treaty introduced as part of history of case.-A writ of error cannot be maintained where a treaty and award are introduced merely as a part of the history of the case. This does not involve in any way the validity of the treaty or its construction. An appeal or writ of error is allowed to the supreme court of the United States by the fifth section of the act of March 3, 1891, "in any case, in which the constitutionality any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question." But if it is not "suggested in the summons and statement of claim that the validity or construction of any treaty made under the authority of the United States was drawn in question, and no such question was decided either by the circuit court or the circuit court of appeals," and no question is raised by clear and necessary intendment directly touching the validity or construction of a treaty, a writ of error does not lie.29

§ 113. Definite issue as to claim of right.-The supreme court of the United States has declared that to authorize it to revise a judgment of the court below, a definite issue as to the claim of right under the Constitution must be clearly deducible from the record. "A case may be said to involve the construction or application of the Constitution of the United States when a title, right, privilege, or immunity is claimed under that instrument, but a definite issue in respect of the possession of the right must be distinctly deducible from the record before the judgment of the court below can be revised on the ground of error in the disposal of such a claim by its decision. And it is only when

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rectly concerned, the court held that the ground of the judgment did not involve either the validity or construction of the treaty: See, also, Gill v. Oliver, 52 U. S. (11 How.) 529, 13 L. ed. 799; Williams v. Oliver, 53 U. S. (12 How.) 111, 13 L. ed. 915; Baltimore & P. R. Co. v. Hopkins, 130 U. S. 225, 9 Sup. Ct. Rep. 503, 32 L. ed. 913.

the constitutionality of a law of the United States is drawn in question, not incidentally, but necessarily and directly, that our jurisdiction can be invoked for that reason.

§ 114.

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If a

Manner in which cause of action arises to be stated.— If it is claimed that a cause of action depends upon the construction of a treaty, it must be stated in what way it arises. complaint in ejectment states a reliance on a certain article of a treaty and the fifth amendment of the Constitution, without declaring that any right, title, privilege or immunity is derived from either the Constitution or treaty, or indicating how the cause of action is founded upon either, and the court does not decide any question as to the application or construction of the Constitution or validity or construction of the treaty, but holds that the title of plaintiff failed on account of noncompliance with Spanish law, a writ of error will not lie from the supreme court of the United States.31

The right which it is claimed depends upon the treaty must be so set up or claimed as to require the lower court to pass on the question of validity or construction in disposing of the right asserted.32

30 Mr. Chief Justice Fuller in Ansbro v. United States, 159 U. S. 698, 16 Sup. Ct. Rep. 189, 40 L. ed. 311. See, also, as sustaining the same proposition, Carey v. Houston & T. R. Co., 150 U. S. 170, 14 Sup. Ct. Rep. 63, 37 L. ed. 1041; Ex parte Lennon, 150 U. S. 395, 14 Sup. Ct. Rep. 123, 37 L. ed. 1121; Northern P. R. Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. Rep. 740, 36 L. ed. 506; Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. Rep. 777, 39 L. ed. 941. It is not competent for an assignment of errors to import questions into a cause

which the record does not show were raised in the court below and rulings asked thereon, so as to give jurisdiction to the supreme court of the United States under the fifth section of the act of March 3, 1891. Ansbro v. United States, 159 U. S. 698, 16 Sup. Ct. Rep. 189, 40 L. ed. 311.

31 Muse v. Arlington Hotel Co., 168 U. S. 430, 18 Sup. Ct. Rep. 111, 42 L. ed. 531.

32 Borgmeyer v. Idler, 159 U. S. 408, 16 Sup. Ct. Rep. 34, 40 L. ed. 199.

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