The rule had already been laid down by Judge Van Ness in 1809 that land in New York vested in alien subjects of Great Britain under the provisions of the treaty notwithstanding the anti-alien laws of the State.3

In People vs. Warren, the defendant had been convicted of employing Italians on city work in Buffalo under a statute of the State which made it a crime for any one contracting with a municipal corporation to employ aliens as laborers upon the work done under the contract.

The court held that the act was unconstitutional as to the State and Federal Constitutions and also that it was void because it was repugnant to the treaty between the United States and the King of Italy of 1871, which provides in Article III, in substance, that resident Italians in the United States shall enjoy the same rights and privileges in respect to their persons and property as are secured to our United States citizens. Other decisions of New York courts are cited in the notes to this section."

3 Jackson vs. Wright, Sup. Ct. N. Y. 1809, VAN Ness, J., 4 Johnson, 75.

4 People vs. Warren, Sup. Ct. Buffalo, N. Y. 1895, 13 Misc. Rep. 615.

5 These provisions of the treaty are quoted in the notes to § 356, of this chapter, post.

6 Jackson VS. Decker, N. Y. Sup. Ct. 1814, 11 Johns. N. Y. 418, SPENCER, J.

Jackson vs. Lunn, N. Y. Sup. Ct. 1802, KENT, J. (afterwards Chancellor), 3 Johnson's Cases, 109.

Orser vs. Hoag, N. Y. Sup. Ct. 1842, NELSON, CH. J., 3 Hill, 79.

Watson VS. Donnelly, N. Y. Sup. Ct. 1859, ALLEN, J., 28 Barb. 653. This was a question involving the right of a British subject to devise lands and of the devisees to dispose of the same.

The opinion goes at length into all of the cases in the Supreme Court and of the effect of a statute

of the State of New York passed in 1825 as to the rights of aliens.

In closing the opinion the court says, pp. 660-661:

"The Court of Appeals held, that land conveyed to an alien pursuant to the provisions of that act might continue to be held by alien heirs and alien devisees of the grantee, until by inheritance, devise or grant the title came to a citizen. The plaintiff, an alien, claimed under a will of an alien, and his title was held valid; and the word assigns,' in the act, was the only word under which a devisee could claim. The opinion of Judge Ruggles is entirely applicable to, and decisive of, the question made under this branch of the case, as to the right of Mrs. Lynch to take as devisee and in turn to devise to her daughter. This being the effect of the treaty of 1794, and the right of alien owners to devise to aliens being guaranteed by

§ 350. The rule in Illinois. In 1897 the Supreme Court of Illinois held that the State act disqualifying aliens must give way if it conflicts with any existing treaty between the United States and Sweden and that the disqualifications imposed by the State act were removed by Article VI of the treaty of 1783, which, although it had terminated by its own limitation, had been revived by Article XVII of the

Buffalo R. & P. Co. vs. Lavery, N. Y. Sup. Ct. 5 Dept. 1894, 75 Hun, 396, BRADLEY, J.

See also cases in New York Surrogate Courts as to right of consul to administer on estates of decedents under treaty stipulations referred to under § 448 of chapter XV; see pp. 333 and 348, post. $ 350.

1 Adams vs. Akerlund, Sup. Ct. Ill. 1897, Magruder, J., 168 Ill. Rep. 632.

it, the act of 1825 could not divest | Gen. Term, 1885, 37 Hun, 476, them of that right, or deprive the DAVIS, J. alien devisee of the right to take and hold the estate. The treaty is the paramount law of the land; and even if it were abrogated by the original contracting parties, the vested rights of citizens, under it, would remain. (Const. of U. S. art. 6, s. 2. Lessees of Gordon vs. Kerr, 1 Wash. C. C. R. 322; Ware vs. Hylton, 3 Dall. 236; Dem vs. Fisher, 1 Paine's C. C. R. 54. 8 Wheat. 494.) It is not necessary then to consider the effect of the act of 1825 upon the devise of Dom- 2 Treaty of Amity and Cominick Lynch, or determine whether merce, concluded April 3, 1783. it destroys the common-law rule U. S. Treaties and Conventions, by which an alien purchaser or edition 1889, p. 1042; Article VI devisee could hold the estate pur-(pp. 1043-4) is as follows: chased or devised, as against all "The subjects of the contracting but the government; by which he parties in the respective States could take the estate, although not may freely dispose of their goods for his own use but the use of the and effects, either by testament, state. (Jackson vs. Beach, 1 John. donation, or otherwise, in favour Cas. 389. Jackson vs. Lunn, 3 id. of such persons as they think 109. People vs. Conklin, 2 Hill, 67.) proper; and their heirs, in whatever The motion for a new trial must place they shall reside, shall rebe denied." ceive the succession even ab intestato, either in person or by their attorney, without having occasion This case is not reported in full, to take out letters of naturalizabut it appears that the rights of tion. These inheritances, as well aliens under the treaty of 1845 with as the capitals and effects which the Grand Duchy of Hesse provided the subjects of the two parties, in for the reciprocal rights as to in-changing their dwelling, shall be heritance of citizens of one party desirous of removing from the place within the territory of the other of their abode, shall be exempted party, were sustained. from all duty called droit de dé

Bollermann vs. Blake, N. Y. Ct. App. 1883, 94 N. Y. 624, EARL, J.

Kull vs. Kull, N. Y. Sup. Ct. traction' on the part of the Gov

treaty of 1827.3 Since that time there have been other decisions to the effect that treaty stipulations are superior to State statutes affecting descent and disposal of property.1

ernment of the two States, respectively. But it is at the same time agreed that nothing contained in this article shall in any manner derogate from the ordinances published in Sweden against emigrations, or which may hereafter be published, which shall remain in full force and vigor. The United States, on their part, of any of them, shall be at liberty to make, respecting this matter, such laws as they think proper.

3 Treaty of Commerce and Navigation, concluded July 4, 1827. U. S. Treaties and Conventions, edition 1889, p. 1058; Article XVII (p. 1064) is as follows:

the

conventions concluded by either party with other nations, during the interval between the expiration of the said treaty of one thousand seven hundred eightythree and the revival of said articles by the treaty of commerce and navigation conclued at Stockholm by the present high contracting parties, on the fourth of September, one thousand eight hundred and sixteen."

4 Schultze vs. Schultze, Sup. Ct. Ill. 1893, 144 Ill. Rep. 290, MAGRUDER, J. The point decided in this case is stated in the syllabus (§ 6, p. 291) as follows:

"The effect of the treaty of the "The second, fifth, sixth, seventh, United States with Bremen is to eighth, ninth, tenth, eleventh, suspend, during the period of three twelfth, thirteenth, fourteenth, fif- years, the operation of the alien teenth, sixteenth, seventeenth, law of this State, which makes noneighteenth, nineteenth, twenty-resident aliens incapable of taking first, twenty-second, twenty-third, lands by descent; and the right of and twenty-fifth articles of the the resident heir or of the heirs treaty of amity and commerce capable of taking under the State concluded at Paris on the third of law, and the right of the State or April, one thousand seven hundred county to take the land by escheat eighty-three, by the Plenipotentia- in default of heirs capable of holdries of the United States of Amer- ing the same, are also suspended ica, and of His Majesty the King during the term of three years of Sweden, together with the first, named in the treaty." second, fourth, and fifth separate articles, signed on the same day by the same Plenipotentiaries, are revived, and made applicable to all the countries under the dominion of the present high contracting parties, and shall have the same force and value as if they were inserted in the context of the present treaty; it being understood that the stipulations contained in the articles above cited shall always be considered as in no manner affecting

The treaty provision referred to is Article VII of the Convention of Friendship, Commerce, and Navigation with the Free Hanseatic Republics of Lübeck, Bremen and Hamburg, concluded December 20, 1827, U. S. Treaties and Conventions, edition 1889, p. 533.

Article VII (p. 535) is as follows: "The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other,

§ 351. The rule in Iowa and Nebraska.-There are at least four cases1 in which the Supreme Court of Iowa held

the territories of one party, such real property would by the laws of the land descend on a citizen or subject of the other, were he not dis

or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances, and to withdraw the proceeds thereof without molestation, and exempt from all duties of detraction."

by sale, donation, testament, or otherwise; and their representatives, being citizens of the other party, shall succeed to their said personal goods, whether by testa-qualified by alienage, such citizen ment or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein said goods are shall be subject to pay in like cases; and if, in the case of real estate, the said heirs would be prevented from entering into the possession of the inheritance on account of their character of aliens, there shall be granted to them the term of three years to dispose of the same, as they may think proper, and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the Government of the respective States."

In Wunderle vs. Wunderle, Sup. Ct. Ill. 1893, 144 Ill. Rep. 40, McGRUDER, J., it was held (p. 54) that "if a citizen or subject of a foreign government is disqualified under the laws of the State from taking, holding or transferring real property, such disqualification will be removed, if the treaty between the United States and such foreign government confers the right to take, hold or transfer real property," and after citing a number of authorities, the opinion continues: "But the treaty, which will suspend or override the statute of the State, must be a treaty between the United States and the government of the particular country, of which the alien, claiming to be relieved of the disability imposed by the State law, is a citizen or subject. A treaty with some other country, of which such alien is not a citizen or subject, cannot have the effect of removing the disability complained of."

1 IOWA CASES.

Opel vs. Shoup, 100 Iowa, 420, Sup. Ct. Iowa, 1896, GIVEN, J.

In this case the question involved was the right of an alien to inherit property in the State of Iowa which he could not have inherited except under the provisions of the treaty with Bavaria of 1845.

that non-resident aliens could inherit in Iowa where treaties of the United States removed disabilities of the citizens of

That part of the opinion which relates to the treaty rights involved is as follows, at pp. 420 to 425:

"This treaty abolishes, as between these governments and the subjects thereof, 'every kind of droit d' aubaine, droit de retraite, and droit de detraction or tax on emigration.'

"Black's Law Dictionary defines 'droit' as equivalent to the English word 'right;' and 'droit d'aubaine' as, 'in French law, a rule by which all the property of a deceased foreigner, whether movable, or immovable, was confiscated to the use of the state, to the exclusion of his heirs, whether claiming ab intestato, or under a will of the deceased.' It is this provision of the treaty that we are called upon to consider. Appellants insist that the provisions of the treaty are not applicable to this case; that confiscation was never applied by any government to property of its own deceased citizens; and that the treaty only contemplates the protection of the citizens of either government, who may die having property in the other. The fault of this argument is in assuming that the protection is for the dead, and that the property remains in the deceased. It is conceded that this property vested in some living person immediately upon the death of Mrs. Hormel. If, under the common law, that person was disqualified by alienage from inheriting it, then this treaty applies and removes that disqualification.

"In the absence of this treaty, Mrs. Opel was disqualified, by alienage, from inheriting this property; but by it the disqualification was removed, and therefore the property descended to her. Our inquiry, then, is as to property in Iowa belonging to a resident and subject of Bavaria.

"Appellants cite Frederickson vs. Louisiana, 23 Howard, 445. 'Fink was a naturalized citizen of the United States at the time of his death, and residing in the city of New Orleans; also, that the legatees resided in the kingdom of Wurtemberg, and are subjects of the King of Wurtemberg.' We had a treaty with that kingdom similar to that under consideration. Louisiana had a statute providing that each and every person, not being domiciled in this state, and not being a citizen of any other state or territory in the Union, who shall be entitled, whether as heirs, legatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this State, or elsewhere, shall pay a tax of ten per cent. on all sums, or on the value of all property which he may have actually received from said succession, or so much thereof as is situated in this state, after deducting all debts due by the succession.' Rev. St. 1876, section 3683. The claim of the state to this tax was resisted, on the ground that it was contrary to the third article of the treaty, and that article alone, and not the second, as in this case, was under consideration. The third article of that treaty relates solely to personal property, and is different in its language from the second, which is identical with the second in this. The court held that the act does not make any discrimination between citizens of