as an act of the legislature, whenever it operates without the aid of a legislative provision. Coffey, At. Gen. ad interim, 1863, 10 Op. 507. (4) STATE CONSTITUTIONS AND STATUTES BY TREATIES. § 778. "A treaty, constitutionally concluded and ratified, abrogates all State laws inconsistent therewith. It is the supreme law of the land, subject only to the provisions of the Constitution." Davis, Notes, U. S. Treaty Volume (1776-1887), 1227, citing Cushing, As to the effect of treaties, see also Wunderle v. Wunderle, 144 Ill. 40. Ware, administrator of Jones, sued one Hylton and others on a penal bond, dated July 7, 1774, for a certain sum of money. Jones was a British subject. The defendants, who were citizens of Virginia, pleaded various acts of the State of Virginia, passed during the Revolutionary war, which, if valid, barred the recovery of the debt. The plaintiff, in reply to this plea, relied upon the provisions of the 4th article of the treaty of peace of September 3, 1783, by which it was provided that creditors on either side should not meet with any legal impediment to the recovery in sterling money of bona fide debts theretofore contracted. The defendants rejoined (1) that the provisions of the treaty were inapplicable to the case, and (2) that the treaty had been violated and suspended by the acts of the British in carrying away negroes, in refusing to surrender the western posts, and in exciting the Indians to war. Held, that the plaintiffs were entitled to recover. Ware . Hylton (1796), 3 Dallas, 199. Iredell, J., who had delivered the opinion in the court below, holding that the plaintiffs were not entitled to recover, alone dissented. The convention of 1800, between France and the United States, enabling the people of one country holding lands in the other to dispose of them by testament, and to inherit lands in the other, without being naturalized, was held to dispense with limitations in a State statute on the alien inheritance. Chirac v. Chirac, 2 Wheat. 259. See, to the same effect, Hauenstein v. Lynham, 100 U. S. 483; Gordon v. A legislative act of the State of Oregon, which prohibits the employment, by contractors, of Chinese upon street improvements or public works, but permits all other aliens to be so employed, is in conflict with the treaty between the United States and the Emperor of China, which secures to the Chinese resident the same right to be employed and labor for a living as the subjects of any other nation, and is therefore void. Baker v. Portland, 5 Sawyer C. C. 566. See Mr. Wharton, Act. Sec. of State, to Mr. Denby, min. to China, No. 553, Sept. 24, 1890, For. Rel. 1890, 196. Nature of treaties. 7. EFFECT OF WAR. $ 779. By Article VI. of the treaty of peace between the United States and Great Britain of September 3, 1783, it was declared that there should be "no future confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of the part which he or they may have taken in the present war," and that no person should, "on that account, suffer any future loss or damage, either in his person, liberty or property." By Article IX. of the treaty between the same powers of November 19, 1794, it was agreed " that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens." By Article XXVIII. the first ten articles of the treaty were declared to be "permanent," while the subsequent articles, with one exception, were "limited in their duration to twelve years." The question whether the stipulations of Article IX. were affected by the war of 1812 came before the Supreme Court of the United States in the case of the Society for the Propagation of the Gospel, a British association, against the Town of New Haven; and a decision was rendered to the effect that the stipulations remained in full force. The court, in the course of its opinion, said: "We think that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new or repugnant stipulations are made, they revive in their operation at the return of peace.' Society for the Propagation of the Gospel v. New Haven (1823), 8 Wheat. 464, 494. See, also, Carneal v. Banks, 10 Wheat. 181; Schr. Rapid, 1 Gall. 295, 303. In the former case it was held that titles to land in the United States acquired by French subjects under the sanction of the treaty of 1778 were not divested by the abrogation of that treaty or the expiration of the convention of 1800. Seven years later, in 1830, the same question was decided by the court of chancery in England, in the case of Sutton v. Sutton, in which a citizen of the United States claimed the right, under Article IX. of the treaty of 1794, to hold and convey, in spite of his alienage, certain real estate in London. It appeared that in 1797 an act of Parliament (37 Geo. III. c. 97) was passed to carry the treaty into effect. Of this act, sections 24 and 25 related to Article IX., and the last section, which was the 27th, declared: "This act shall continue in force so long as the said treaty between His Majesty and the United States of America shall continue in force, and no longer." It was argued, both upon the strength of this section and upon general principles, that, as the result of the war of 1812, the treaty of 1794 had ceased to be in force; that "it was impossible to suggest that the treaty was continuing in force in 1813," that is to say, during the existence of the war; that it "necessarily ceased with the commencement of the war;" that "the 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the act;" and that the word "permanent was used, "not as synonymous with perpetual or everlasting,' but in opposition to a period expressly limited.” It is to be observed that counsel impliedly conceded that if the word "perpetual" had been employed in the article, there would have been no doubt as to its survival. Sir John Leach, Master of the Rolls, decided that the article continued in full force at all times, saying: "The relations, which had subsisted between Great Britain and America, when they formed one empire, led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment of their landed property; and, the privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace. "The act of the 37 G. III. gives full effect to this article of the treaty in the strongest and clearest terms; and if it be, as I consider it, the true construction of this article, that it was to be permanent, and independent of a state of peace or war, then the act of Parliament must be held, in the twenty-fourth section, to declare this permanency; and when a subsequent section provides that the act is to continue in force, so long only as a state of peace shall subsist, it can not be construed to be directly repugnant and opposed to the twentyfourth section, but is to be understood as referring to such provisions of the act only as would in their nature depend upon a state of peace." A decision was therefore rendered in favor of the right claimed by the American citizen. Sutton . Sutton, 1 Russell & Mylne, 663. "Your letter of the 10th instant has been received. It asks whether there was in 1872 any treaty between the United States and Great Britain relative to the inheritance of lands situated in this country by British subjects. "The only provision found in any treaty between the United States and Great Britain touching this point is in the ninth article of the treaty of 1794, whereby it was agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens.' "The operation of this stipulation is limited to lands held in the United States and Great Britain respectively, in 1794, and as to the subsequent title to lands so held at that time, the effect of the treaty may be deemed permanent. "Permit me to refer you to the cases of Shanks and others against Dupont and others, 3 Pet. 242, and to New York . Clarke, 3 Wheat. 1, for legal decisions as to the construction of the 9th article of the treaty. "The treaty of 1794, however, is held by the highest authorities to have actually lapsed by reason of the subsequent state of war in 1812-15, and neither the treaty of Ghent (1814) nor any treaty between the two countries since then has re-enacted its provisions in whole or part. "There is, therefore, no treaty engagement of any character between Great Britain and the United States, which would give to the subjects or citizens of the respective countries the original right to acquire since 1794 any real property by inheritance or purchase, except in accordance with the laws of the State or Territory where the property is situated." Mr. Bayard, Sec. of State, to Messrs. L. and E. Lehman, June 23, 1885, As to trade-marks agreements, see Mr. Moore, Assist. Sec. of State, to Mr. "The general rule of national law is that war terminates all subsisting treaties between the belligerent powers. Perhaps the only exception to this rule, if such it may be styled, is that of a treaty recognizing certain sovereign rights as belonging to a nation which had previously existed independently of any treaty engagements. It will scarcely be contended that the Nootka Sound convention belongs to this class of treaties." Mr. Buchanan, Sec. of State, to Mr. Packenham, British min., July 12, 1845, 34 Br. & For. State Papers, 93, 97. Mr. Pakenham, July 29, 1845, replied: The Nootka Sound convention “embraced, in fact, a variety of objects; it partook, in some of its stipulations, of the nature of a commercial convention; in other respects it must be considered as an acknowledgment of existing rights, an admission of certain principles of international law, not to be revoked at the pleasure of either party, or to be set aside by a cessation of friendly relations between them." (Id. 102.) "A state of war abrogates treaties previously existing between the belligerents." President Polk, annual message, Dec. 7, 1847. See, however, infra, § 1053. Stipulations in treaties having sole reference to the exercise of belligerent rights can not be applied to govern cases Treaties applicable exclusively of another nature, and belonging to a to state of war. state of peace. The Marianna Flora, 11 Wheat. 1. April 23, 1898, on the outbreak of war with the United States, the Spanish government issued a decree which, among other things, declared: “The war existing between Spain and the United States terminates the treaty of peace and friendship of the 27th October, 1795, the proctocol of the 12th January, 1877, and all other agreements, compacts, and conventions that have been in force up to the present between the two countries." By Article XIII. of the treaty of October 27, 1795, it was agreed that, if a war should break out between the two nations, one year after the declaration of war should be allowed to the merchants in the cities |