Obrázky stránek
PDF
ePub

Constitution, and this treaty had become the supreme law of the land."

Chirac v. Chirac (1817, 2 Wheat. 259.

By an act of Maryland of 1780 French subjects, though empowered to hold real estate, were required, within ten years after inheriting, to settle in and become citizens of the State, or else to enfeoff a citizen of some one of the United States. By Article VII. of the treaty of September 20, 1800, it was provided that, where the laws of either country restrained the exercise by aliens of rights as to real estate, such estate might be sold, or otherwise disposed of," to a citizen of the country where it lay. Held, that this clause conferred a general power to sell which endured for life, and, even where an estate had vested under the act prior to the conclusion of the treaty, substituted the term of life in that regard for the term of ten years under the act.

66

Chirac r. Chirac (1817), 2 Wheat. 259, 276.

A treaty giving to the citizens of a foreign state [Switzerland] the privilege of holding real estate in the United States is a constitutional exercise of the treaty-making power and is the supreme law of the land.

Hauenstein v. Lynham, 100 U. S. 483, citing Chirac e. Chirac, 2 Wheat. 259; Carneal v. Banks, 10 Wheat. 181; Frederickson v. Louisiana, 23 How. 445.

See, as to the treaty with France of 1853, Geofroy v. Riggs, 133 U. S. 258; Bahuaud v. Bize (1901), 105 Fed. Rep. 485.

The treaty of 1828 with Prussia makes provision for the disposition and succession of both personal and real estate in each country by the citizens or subjects of the other. Of this provision Mr. Cushing, when Attorney-General, held 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."

Cushing, At. Gen., 1857, 8 Op. 417.

A different view was expressed by Wirt, At. Gen., 1819, 1 Op. 275, but it has not been sustained by the courts.

See, also, Doehrel r. Hillmer (Iowa, 1897), 71 N. W. 204; Wilcke v. Wilcke (Jowa, 1897), id. 201, 102 Iowa, 173; Opel r. Shoup (Iowa, 1896), 69 N. W. 560.

The treaty between the United States and France, providing that citizens of that country shall not be subjected to taxes on transfers or inheritances to which citizens of this country are not liable, in

States where existing laws permit Frenchmen to hold property, is applicable to Louisiana.

Succession of Rabasse, 49 La. Ann. 1405, 22 So. 767.

A State statute removing the disabilities of alienage as to the holding and disposition of property, if not in conflict with the actual provisions of a treaty, is not an invasion of the treaty-making power of the United States.

Blythe . Hinckley (1900), 127 Cal. 431, 59 Pac. 787.

"By the Federal Constitution the several States retained all the attributes of sovereignty which were not granted to the general government. 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 two nations would effectually apply."

Mr. Livingston, Sec. of State, to Mr. de Sacken, Russian chargé, June 13, 1831, MS. Notes to For. Legs. IV. 396.

Replying to a proposal of the British government for the negotiation of a convention respecting the succession to estates of citizens or subjects of the one party within the dominions of the other, Mr. Cass stated that the authority of the government of the United States to conclude such a convention as would supersede the laws of the respective States on the subject might be considered "questionable; " that suits growing out of a tax on succession in Louisiana were pending before the Supreme Court, and that the President would prefer to delay negotiations at least until those suits should have been definitively determined.

Mr. Cass, Sec. of State, to Lord Napier, British min., Feb. 7, 1859, MS.
Notes to Great Britain, VIII. 199.

In Frederickson v. Louisiana (23 How. 445), the question whether the government of the United States may regulate by treaty or otherwise the inheritance or testamentary disposition of real estate is reserved, as well as the similar question as to other property. In respect of real estate, the Federal government has generally gone no H. Doc. 551-vol 5-12

further in its treaties than to recommend suitable legislation to the States.

Mr. Fish, Sec. of State, to Count de Colobiano, Feb. 1870, MS. Notes to
Italy, VII. 53.

By Art. VII. of the consular convention with France of Feb. 23, 1853,
the President engaged to recommend to the particular States 'that
if, pursuant to their then existing laws, French subjects were not
then allowed to hold real estate in any State, that right might be
conferred upon them." (Mr. Fish, Sec. of State, to the governor of
Maine, May 9, 1870, 84 MS. Dom. Let. 422.)

In 1870 Mr. Bancroft, then American minister at Berlin, was furnished with a full power authorizing him to conclude with the government of Baden a treaty to regulate inheritances and marriages. In sending the full power, Mr. Fish, who was then Secretary of State, said that, in view of doubts which had been raised "by extreme constructionists touching the constitutional power of this government to conclude such a treaty, doubts in which I do not share," and in view also of the action of the Senate on several recent treaties to which the Department of State had "committed the purely executive branch of the government," he had thought it best, in advance of any negotiations, to obtain an expression of opinion from the Senate through the chairman of the Committee on Foreign Relations, the correspondence with whom on the subject he enclosed.

Mr. Fish, Sec. of State, to Mr. Bancroft, min. to Prussia, No. 193, April 22, 1870, MS. Inst. Prussia, XV. 121. The Committee on Foreign Relations "advised the negotiations of a treaty" for the purpose in question if possible. (Davis, Notes, Treaty Vol. (1776–1887), 1239, citing Mr. Sumner, chairman of Com. on For. Rel., to Mr. Fish, Sec. of State, April 21, 1870, MS. Misc. Let.)

"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."

Mr. Fish, Sec. of State, to Aristarchi Bey, May 19, 1874, MS. Notes to
Turkey, I. 115.

"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 power to deal. That a treaty, however, can give to aliens such rights, has been repeatedly affirmed by the Supreme Court of the United States (see Chirac v. Chirac, 2 Wheat. 259; Carneal . Banks, 10 Wheat. 181; Hauenstein . Lynham, 100 U. S. 483); 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."

Mr. Bayard, Sec. of State, to Mr. Miller, June 15, 1886, 160 MS. Dom.
Let. 481.

II. NEGOTIATION AND CONCLUSION.

1. FULL POWERS.

§ 739.

The negotiation and modification of treaties is a prerogative of the Executive, with which the courts cannot interfere.

Frelinghuysen v. Key, 110 U. S. 64; Great West. Ins. Co. v. United States. 19 Ct. Cls. 206; s. c., 112 U. S. 193, to the same effect; Angarica de la Rua v. Bayard, 4 Mackey, 310.

Where a diplomatic representative of the United States is entrusted with the negotiation of a treaty, a full power will be given to him. "In case of urgent need," a compact may be entered into "in the absence of specific instructions or powers;" but in such cases the agreement should be put into the form of a simple protocol, which should contain the explicit statement that it is signed subject to the approval of the signer's government.

Instructions to Diplomatic Officers of the United States (1897), §§ 242, 243, p. 99.

In 1894, when the Chinese and Japanese plenipotentiaries met at Hiroshima, in Japan, to conclude a peace, it was found that the powers of the Chinese plenipotentiaries authorized them "to meet and negotiate the mater with plenipotentiaries appointed by Japan," but directed them to "telegraph to Tsung-li yamên for the purpose of obtaining our command, by which you will abide."

The powers of the Japanese plenipotentiaries authorized them to conclude and sign "preliminaries of peace," and stated that the Emperor had "confided to them full powers for that purpose," and

would ratify all the stipulations they might agree on, if on examination such stipulations were found to be proper and in good and due form.

The Japanese plenipotentiaries declined to accept the powers of the Chinese plenipotentiaries, on the ground that they did not authorize the latter to conclude or sign anything, or even indicate the subject of negotiations, and were silent on the subject of ratification. The negotiations were suspended in order that the Chinese plenipotentiaries might obtain new powers, which they did.

For. Rel. 1894, App. I. 97–106.

2. FORMALITIES.

§ 740.

In transmitting to Congress the consular convention with France,
which Dr. Franklin had concluded, Mr. Jay remarked
Language.
that it appeared to be in the French language, and he
added that it seemed to be expedient " to provide that, in future, every
treaty or convention which Congress may think proper to engage in
should be formally executed in two languages, viz, the language of
the United States, and such other language as the party contracting
with them may prefer."

Mr. Jay, Sec. for For. Aff., to President of Congress, June 23, 1785, 1 MS.
Am. Let. 311.

"Until about the beginning of the eighteenth century treaties between
European powers were generally written in Latin, but it has since
been customary for negotiators of countries which do not use the
same language to prepare their treaties in both languages.

Our treaties with Russia are an exception to the general rule, most of
them being written in French and English." (Mr. Fish, Sec. of
State, to Miss Fraser, Nov. 18, 1874, 105 MS. Dom. Let. 221.)

With reference to the form of treaties with a country where a language other than English is officially employed, the standing instructions of diplomatic officers of the United States contain the following directions: "(a) The texts in the two languages should be engrossed in parallel-columns on the same page, if possible, or on opposite pages of the same sheet. Two separate copies in different. languages are not advisable, although this expedient is sometimes resorted to in eastern countries. (b) In the copy of the treaty to be retained by the diplomatic representative for transmission to this government, the United States should be named first throughout both texts in all places where the alternative change may be made conveniently. Conversely, in both texts, throughout the copy the foreign government is to retain, it should be first named. (c) The language of the respective government should always occupy the

« PředchozíPokračovat »