friend at the expense of the loss of such rights secured to American citizens in their own Constitution?

§ 126. A recent opinion of the Supreme Court of the United States tends strongly to sustain these views. In the case of Compagnie Française v. Board of Health1 the question was presented whether a treaty annulled the law of a State passed in the exercise of one of the essential rights of a State-the right of quarantine. The question was clearly made by the pleadings in the case, and it was necessary for its proper decision at least in the opinion of two of the Judges. In a dissenting opinion of Justice Brown, in which Justice Harlan concurred, he clearly shows that this was the issue in the case, when he said:

"If the law in question in Louisiana, excluding French ships from all access to the port of New Orleans, be not a violation of the provisions of the Treaty, . . . I am unable to conceive of a state of facts that would constitute a violation of that provision."

This decision carries with it the weight of the names of Chief Justice Fuller, Justices Gray, Brewer, Shiras, Peckham, and McKenna, who concurred in the opinion of Justice White. The cases of Rocca v. Thompson,2 and Patsone v. Pennsylvania tend strongly to confirm the position of the Court taken in the case of Compagnie Française v. Board of Health, supra.1

1 186 U. S. 380, 46 L. ed. 1209, 22 S. C. 811. 223 U. S. 317, 56 L. ed. 445, 32 S. C. 218. 232 U. S. 138, 58 L. ed. 539, 34 S. C. 281.

For further discussion of this question see Chapter X on "The Police Power."

CHAPTER VI

THE CASES OF CHIRAC V. CHIRAC, HAUENSTEIN V. LYNHAM, GEOFROY V. RIGGS, HOLD THAT THE TREATY POWER MAY REMOVE THE BADGE OF ALIENAGE FROM FOREIGNERS, AND DO NOT HOLD THAT THIS POWER MAY ANNUL THE LAWS OF DESCENT OF THE STATES

§ 127. In Chapter V, page 97, wherein an analysis of the views of Mr. Butler was attempted, Division V is as follows:

"That the treaty power can regulate the descent or possession of property within the otherwise exclusive jurisdiction of the States." "

This Division V was based upon the following statement of Mr. Butler:

"Second, That this power exists in, and can be exercised by the National Government whenever foreign relations of any kind are established with any other sovereign power... in regulating the descent or possession of property within the otherwise exclusive jurisdiction of the States.'

"1

If the distinguished author by this phrase means that under the treaty power of the United States a treaty could be made with France or any other country changing the laws of descent or the tenure of property in the several States of the Union, we must wholly dissent from his position. If, for example, the law of New York prescribed that in case of the death of a child the mother should inherit its real estate, and the law of France prescribed that in such case the father should inherit, we think it clear that a treaty between the United States and France 1 Butler, "Treaty-making Power," Vol. I, p. 4.

providing that the inhabitants of each country might inherit real property in that of the other, according to the laws of their own nationality, would be invalid, null and void, and would not permit the father of a deceased French child to inherit real estate in New York belonging to the child. To hold such a treaty valid, would be contrary to the Constitution, for the tenure of real estate and the laws of its devolution have been recognized from the beginning of the government to this time as residing wholly within the jurisdiction of the States themselves, and, unless the treaty-making power is to be admitted as beyond the pale of constitutional restraint, no such treaty could be binding.

Judge Field, in Fox v. United States,1 speaking for the Court, has enforced this view with his usual power.

"The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated."

§ 128. That the Government of the United States, under its treaty power may change the status of an alien in this country, cannot be denied. The change of that status, it is admitted, may give the right of inheritance which would be unavailing to him but for such change; but this right is conceded to him by reason of the fact that his status as an alien has been changed to that of native, quoad the particular right. All of the cases without exception, decided by the Supreme Court, involving the question of inheritance by aliens, are based upon one principle, and that is the power of the United States, under the treaty power to remove the badge of alienage, which is conceded to be a legitimate exercise of power by the Government of the United States.

1 94 U. S. 320, 24 L. ed. 192.

§ 129. The cases of CHIRAC V. CHIRAC,1 HAUENSTEIN V. LYNHAM, and GEOFROY V. RIGGS,3 represent a line of cases decided by the Supreme Court, in which it is claimed the right of inheritance, provided under treaties between the United States and foreign countries, is secured to the inhabitants of such countries by the annulment of the laws of the States to the contrary. These cases are constantly quoted as sustaining the broad proposition that the treaty is the supreme law of the land, and, as such, may annul the laws of the States. The principle upon which they have been decided shows quite clearly that no such claim can be made for them.

$130. In the case of Chirac v. Chirac the salient facts were as follows: John Baptiste Chirac, a citizen of France, became a resident of the State of Maryland in 1793. In the year 1795 he took the oath of citizenship according to the law of the State of Maryland passed in the year 1779, and the next day received a conveyance in fee of land lying within that State. In July, 1798, he was naturalized under the laws of the United States and in July, 1799, died intestate, leaving as his heirs certain natives and residents of France. His land was escheated to the State. In 1809 his heirs brought ejectment for the land against the grantee of the State of Maryland. At the time of his death the treaty between the United States and France, ratified in 1778, was still in existence, and the first point in the case was whether, under the State law of Maryland, passed in 1780, declaring the rights of subjects of France residing in that State, he had the right to hold this land, or whether it had escheated to the State. The third section of the Maryland act "contains a proviso restricting the privileges granted by the act and declaring that nothing therein contained shall be construed to grant to those who should continue subjects of his most Christian Majesty, and not qualify themselves as citizens of this State, any right to purchase or hold land or real estate, but for 2 100 U. S. 483, 25 L. ed. 628.

12 Wheat. 259, 4 L. ed. 234.

133 U. S. 266, 33 L. ed. 642, 10 S. C. 257.

1

their respective lives or for years." The Treaty of 1778 contains the following provision:

“ARTICLE XI. The subjects and inhabitants of the said United States, or any of them, shall not be reputed au-bains in France, and consequently shall be exempted from the droit d'aubaine, or other similar duty, under what name soever.

"They may by testament, donation, or otherwise, dispose of their goods, moveable and immoveable, in favour of such persons as to them shall seem good, and their heirs, subjects of the said United States, residing whether in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization, and without having the effect of this concession contested or impeded under pretext of any rights or prerogative of provinces, cities or private persons; and the said heirs, whether such by particular title, or by ab intestat, shall be exempt from all duty called droit detraction, or other duty of the same kind, saving nevertheless the local rights or duties as much and as long as similar ones are not established by the United States, or any of them. The subjects of the Most Christian King shall enjoy on their part, in all the dominions of the said States, an entire and perfect reciprocity relative to the stipulations contained in the present article,” etc.2

§ 131. Judge Marshall held that John Baptiste Chirac had the right as a French subject to purchase and hold the land in question, doubtless on the ground that the treaty removed the badge of alienage. This question was not discussed by Judge Marshall further than this brief statement:

"Upon every principle of fair construction, this article gave to the subjects of France the right to purchase and hold lands in the United States."

After the death of John Baptiste Chirac, and his heirs were seized in fee of his estate, subject to certain conditions, the Treaty of 1778 expired and the Treaty of 1800 between France and the United States was ratified. This treaty contained the following provision : 3

471.

1 p. 270.

'Malloy, "Treaties, Conventions, Int. Acts," etc., 1776-1909, Vol. I,

' Id., 499.