Yet under the ninth article of the treaty of 1794 the parties in an action of ejectment must show that the title to the land was in them or their ancestors at the time when the treaty was made.113 The treaty of 1783 operated upon the condition of affairs existing at that period, and all persons who then adhered to the American states were, whether natives or otherwise, virtually absolved from all allegiance to the British crown. All those, on the other hand, who then adhered to the British crown were considered subjects of that crown. The marriage of an American woman with a British officer did not change her allegiance to her state, as marriage with an alien, whether friend or enemy, creates no dissolution of the native allegiance of the wife, but her subsequent removal with her husband operated as a virtual dissolution of her allegiance, and established her future allegiance to the British crown by the treaty of 1783.114 The title of an alien mortgagee is protected by the treaty. But he would have this right independently of the treaty, as his demand is merely a personal one; the debt being the principal and the land an incident.115 The title that a British-born subject might acquire during the Revolution was defeasible, but after the treaty became completely protected.116 The treaty with France supersedes the Constitution and statutes of Nebraska prohibiting nonresident aliens from acquiring real estate by inheritance or otherwise.117 § 237. Expression of executive department of government.At various times the question of the extent to which treaties would supersede state laws relative to the succession of estates has been considered by the officers of the executive department of the government. In 1857 Mr. Cushing, while acting as attorney general, speaking of the treaty of 1828 with Prussia, which provided for the disposition of personal and real estate in each 113 Harden v. Fisher, 1 Wheat. (U. S.) 300, 4 L. ed. 96. 114 Shanks v. Dupont, 3 Pet. (U. S.) 242, 7 L. ed. 666. 115 Hughes v. Edwards, 9 Wheat. (U. S.) 489, 6 L. ed. 142. 11 Craig v. Radford, 3 Wheat. 594, 4 L. ed. 467. In Lessee of Pollard's Heirs v. Kibbe, 14 Pet. 353, 10 L. ed. 490, involving title to a lot of ground in the city of Mobile, Mr. Justice Baldwin, in a concurring opinion, reviews various cases in which rights secured by treaties have been enforced. 117 Bahuaud v. Bize, 105 Fed. 485. country by the citizens of the other, declared that it was "a stipulation of treaty constitutional in substance and form; which, as such, is the supreme law of the land, and which abrogates any incompatible law of either of the States."' 118 Mr. Livingston, Secretary of State, in a note to Mr. de Sacken, Russian chargé, dated June 13, 1831, stated: "By the Federal Constitution, the several states retained all the attributes of sovereignty which were not granted to the general gevernment. The right of regulating successions in relation to the subject in question is not among those conceded rights; consequently it was reserved to, and is still vested in, the several states. But by the same Constitution it is provided that treaties made under the authority of the general government shall be the supreme law of the land, anything in the constitution or laws of a state to the contrary notwithstanding. This very brief exposition shows at once the cause of the want of comity in the laws of the United States to which you advert, and indicates the remedy which a treaty between the nations would effectually apply." 119 Mr. Fish, Secretary of State in 1874, in a note to Aristarchi Bey, explained that "the estates of decedents are administered upon and settled in the United States under the laws of the state of which the decedent was a resident at the time of his death, and on this account, in the absence of any treaty regulations on the subject, interference in the disposition of such measures as may be prescribed by the laws of the particular state in such cases is not within the province of the federal authorities.'' 120 In 1870, while the government was considering the negotiation of a treaty with Baden regulating inheritances and marriages, Mr. Fish, Secretary of State, owing to doubts that had been raised by extreme constructionists as to the power under the Constitution to conclude such a treaty, doubts which, he said, he did not share, thought it wise, in advance of any negotiations, to secure an expression of opinion from the Senate, through the chairman of the Committee on Foreign Relations. This committee "advised the negotiations of a treaty" for the purposes specified, if possible.121 118 8 Op. Atty. Gen. 417. 119 MS. Notes to Foreign Legations, IV, 396. 120 MS. Notes to Turkey, I, 115. 121 5 Moore Int. L. D. 178; Davis' Notes, Treaty Vol. 1776-1887, 1239; MS. Inst. Prussia, XV, 121. § 238. Dissent from these views.-Mr. Bayard, while admitting that treaties removing disabilities had been held to be valid, stated: "Were the question whether a treaty provision which gives to aliens rights to real estate in the states to come up now for the first time, grave doubts might be entertained as to how far such a treaty would be constitutional. A treaty is, it is true, the supreme law of the land, but it is nevertheless only a law imposed by the federal government, and subject to all the limitations of other laws imposed by the same authority. While internationally binding the United States to the other contracting powers, it may be municipally inoperative, because it deals with matters in the states as to which the federal government has no right to deal. That a treaty, however, can give to aliens such rights has been repeatedly affirmed by the supreme court of the United States; 122 and consequently, however much hesitation there might be as to advising a new treaty containing such provisions, it is not open to this Department to deny that the treaties now in existence giving rights of this class to aliens may, in their municipal relations, be regarded as operative in the states. 123 § 239. In California.-In California at an early day a statute was passed requiring foreigners to procure a license for the privilege of mining in the state, and prohibiting all foreigners who had not obtained such a license from working the mines. A proceeding in the nature of a quo warranto was instituted by the attorney general to procure the opinion of the court upon the validity of the law. Among other grounds urged was that the act was in conflict with treaties with foreign nations, and with the treaty of Queretaro in particular. The court held that the states possessed the inherent power of taxation, and that its limitation and extent must, with respect to subject matter, persons, amounts and times of payment, reside in the discretion of the government of each state, and that if it saw fit to impose the Citing Chirac v. Chirac, 2 Wheat. 259, 4 L. ed. 234; Carneal v. Banks, 10 Wheat. 181, 6 L. ed. 297; Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628. 12 Mr. Bayard, Secretary of State, Treaties-18 to Mr. Miller, June 15, 1886, 160 MS. Dom. Let. 481; 5 Moore Int. L. D. 179. See as a similar opinion expressed by Attorney General Wirt, in 1819, 1 Op. Atty. Gen. 275. burden of taxation upon a portion of the persons within the sphere of its jurisdiction, and specially to exempt others, its legislation, though it might be subject to the charge of being unequal and unjust, would not infringe upon any principle of the Constitution of the United States. As to the objection that the act was in violation of treaties with foreign powers, the court said that it was a sufficient answer to this general objection that the complaint did not state the nationality of any person from whom it was sought to collect the tax, but waiving this point, the court held that the power of taxation over foreigners could not be taken away by Congress or by treaties with foreign nations. 124 124 of People v. Naglee, 1 Cal. 249, 52 Am. Dec. 312. Said the court: "But it is contended that the Act of the Legislature is in violation of treaties of the United States with foreign powers. A sufficient answer to this general objection is, that the complaint does not set forth the nationality of any person upon whom the respondent is alleged to have exercised the functions of his office. It charges that he has exacted the sum twenty dollars each from sundry foreigners in the County of San Francisco for licenses to mine'-without particularizing whether such foreigners were citizens of a nation with which the United States have any treaty relations. It does not state whether they are Mexicans, Chilenos, Englishmen, Frenchmen, Sandwich Islanders or Chinese; and the Court cannot, upon this demurrer, determine whether any treaty has been violated by the respondent. This difficulty alone would, upon this branch of the plaintiff's argument, be a serious objection to his case; inasmuch as it may be more satisfactory to have the whole matter, so far as this Court is concerned, disposed of in all points upon the merits, rather than upon inadvertences which might be supplied. or corrected in a subsequent litigation, we shall proceed to examine this position of the plaintiff's counsel. He insists that the Act is invalid because it is opposed generally to treaties of the United States with foreign powers, and particularly to the treaty of Queretaro. "First, as to treaties generally. Perhaps the most satisfactory mode of testing the validity of the law, under this point, will be to take the treaty with that power to whose subjects as extensive privileges are granted by our country as to those of any other nation. We will, therefore, consider the case as if it involved our treaty relations with Great Britain, and under the supposition that a subject of the Queen of Great Britain was the person from whom the sum of twenty dollars had been exacted. By the 14th Article of the Treaty of 1794 (known as Jay's Treaty), which was substantially renewed by Article 1 of the Treaty of 1815, the subjects of the King of Great Britain, coming from his majesty's territories in Europe, had granted to them liberty freely and securely, and without hindrance or molestation, to come with their ships and cargoes, to the lands, countries, cities, ports, places and § 240. Constitutionality of statutes.—In a later case in California, an act levying on each person of the Mongolian race residing in the state, except such as should take out licenses to rivers within our territories, and enter the same, to resort there, to remain and reside there, without limitation of time; and reciprocal liberty was granted to the people of the United States in his majesty's European territories; but subject always, as respects this article, to the laws and statutes of the two countries respectively. By this treaty, our inhabitants, whilst in the British dominions were to abide by the laws of Great Britain; and the subjects and inhabitants of that country, when in our territories, were to abide by the laws of the United States and by the laws of the respective States where they might be. The only question, then, under this treaty is, whether the Act of the Legislature falls within the scope of the powers of a sovereign nation, and, at the same time, is not included in the category of powers granted by the States to the General Government; for, if it falls within the former, and is excluded from the latter, then it is one of the laws which the treaty itself makes obligatory upon British subjects. But we have seen that the power of taxation, and the power of prescribing the conditions upon which aliens shall be permitted to reside in a State, are attributes of a sovereign nation, which have not, except in certain specified cases, of which the present is not one, been given up to the Federal Government. Our statute, then, is one of the laws or statutes, to which the treaty, by its own terms, provides that the subjects of Great Britain shall be subject. Chief Justice Taney, in speaking of this treaty in Norris v. The City of Boston, and Smith v. Turner (7 How. 472), 12 L. ed. 724, uses the following language: 'The permission there mutually given to reside and hire houses and warehouses and to trade and traffic, is in express terms made subject to the law of the two countries respectively. Now the privileges here given within the several States are all regulated by State laws, and the reference to the laws of this country necessarily applied to them, and subjects the foreigner to their decision and control.' "The Act, then, is not repugnant to that Treaty. But even if the provisions of the statute did clash with the stipulations of that, or of any other treaty, the conclusion is not deducible that the treaty must, therefore, stand, and the State law give way. The question in such case would not be solely what is provided for by the treaty, but whether the State retained the power to enact the contested law, or had given up that power, to the General Government. If the State retains the power, then the President and Senate cannot take it away by a treaty. A treaty is supreme only when it is made in pursuance of that authority which has been conferred upon the treaty-making Department, and in relation to those subjects the jurisdiction over which has been exclusively entrusted to Congress. When it transcends these limits, like an Act of Congress which transcends the constitutional authority of that body, it cannot supersede a State law which enforces or exercises any power of the State not granted away by the Constitution. To hold |