TREATIES 435 reasoning. (1) According to his opinion, the following may be classed as the limitations on the treaty making power: First. It is limited strictly to questions inter alios, "all such clearly appertain to it." Second. "By all the provisions of the Constitution which inhibit certain acts from being done by the Government or any of its departments." Third: "By such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary." Fourth. "It can enter into no stipulation calculated to change the character of the government, or to do that which can only be done by the Constitution making power; or which is inconsistent with the nature and structure of the government or the objects for which it was formed." Having stated these as the only limitations, the author adds: "Within these limits all questions which may arise between us and other powers, be the subject matter what it may, fall within the limits of the treaty making power, and may be adjusted by it." One of the arguments at the bar against the extent of this power of treaty is, that it permits the federal government to control the internal policy of the states, and, in the present case, to alter materially the statutes of distribution. If this was so to the full extent claimed, it might be a sufficient answer to say, that it is one of the results of the compact, and, if the grant be considered too improvident for the safety of the states, the evil can be remedied by the constitution making power. I think, however, that no such consequence follows as is insisted. The statutes of distribution are not altered or affected. Alienage is the subject of the treaty. Its disability results from political reasons which arose at an early period of the history of civilization, and which the enlightened advancement of modern times, and the changes in the political and social condition of nations, have rendered without force or consequence. The disability to succeed to property is alone removed, the character of the person is made politically to undergo a change, and then the statute of distribution is left to its full effect, unaltered and unimpaired in word or sense. If there is one object more than another which belongs to our political relations, and which ought to be the subject of treaty regulations, it is the extension of this comity which is so highly favored by the liberal spirit of the age, and so conducive in its tendency to the peace and amity of nations. Even if the effect of this power was to abrogate to some extent the legislation of the states, we have authority for admitting it, if it does not exceed the limitations which we have cited from the work of Mr. Calhoun, and laid down as the rule to which we yield our assent. During the War of the Revolution, the states had passed acts of confiscation, acts against the collection of debts due to the subjects. of Great Britain, and acts for the punishment of treason. By the treaty of peace, the effects of these various acts were provided against, and as late as 1792, long after the ratification of the Constitution, Mr. Jefferson, in answer to the complaint of the British Minister, Mr. Hammond, distinctly recognized the doctrine, that treaties are the supreme law of the land, and that state legislation must yield to them; and he therein cites the acts of state Legislatures and the decisions of state judges, who all conform to the same opinion. See vol. III, Jefferson's Works, 365. I can see no danger which can result from yielding to the federal government the full extent of powers which it may claim from the plain language, intent, and meaning of the grant under consideration. Upon some subjects, the policy of a state government, as shown by her legislation, is dependent upon the policy of foreign governments, and would be readily changed upon the principle of mutual concession. This can only be effected by the action of that branch of the state sovereignty known as the general government, and when effected, the state policy must give way to that adopted by the governmental agent of her foreign relations. It results from these views, that the treaty of 1828, with Prussia, is valid, and that aliens, subjects of Prussia, are protected by its provisions. The judgment is reversed, and the cause remanded. BRYAN, J. (concurring). I agree with my Associate, that the doctrine has been settled in the United States courts, in cases relating to analogous treaties to the one in question, that the courts of the country should extend to aliens the full protection which the treaty seeks to give them, in the acquisition or distribution of property. In Chirac v. Chirac, 2 Wheat. 259, 4 L. Ed. 234, the treaty with France of 1778 (8 Stat. 12) was passed upon, and it was decided by the United States court, that it secured to the citizens and subjects of either power, the privilege of holding lands in the territory of the other. This was reaffirmed in Carneal v. Banks, 10 Wheat. 189, 6 L. Ed. 297. A similar provision in the treaty with Great Britain of 1794 (8 Stat. 116), was also sanctioned by the Supreme Court of the United States, in Hughes v. Edwards, 9 Wheat. 489, 6 L. Ed. 142. So far as the authority of the federal courts is concerned, they appear to have uniformly administered the law upon the meaning given by construction to the language of the treaty, seeming never to have, in any respect, doubted the power of the general government to provide by treaty with a foreign power for the mutual protection of the property belonging to the citizens or subjects of each in the territory of the other. The treaty making power of the federal government must, from necessity, be sufficiently ample so as to cover all of the usual subjects of treaties between different powers. If we were to deny to the treaty making power of our Government the exercise of jurisdiction over the property of deceased aliens, upon the ground of interference with the course of descents, or the laws of distribution of a state where property may TREATIES 437 exist; by parity of reasoning we should not make commercial treaties with foreign nations; because, it might be said, some of their provisions would injure the business of a portion of the citizens of one of the states of the Union. If the treaty making power which resides in the federal government is not sufficient to permit it to arrange with a foreign nation the distribution of an alien's property, then. that power resides nowhere, (since it is denied to the states,) and we must confess our system of government so weak and faulty, as to be incapable of extending to its citizens in foreign lands that protection which is most common amongst a majority of modern civilized nations. I agree with my Associate in the conclusion, that the treaty making power of the federal government was sufficient to enable it to insert -the article in the treaty with Prussia, which has before been quoted; and that the alien heirs of Deck are protected by its provisions, and are entitled to withdrawal of the proceeds of the estate. I therefore concur in the reversal of the judgment. MURRAY, C. J. I neither concur nor dissent from the opinion of the court, not having heard the argument or examined the questions sufficiently to arrive at any satisfactory conclusion." 8 For the binding effect of a modus vivendi made by the government of the United States without the advice and consent of the Senate, see Watts v. United States, 1 Wash. T. 288 (1870). In Geofroy v. Riggs, 133 U. S. 258, 266-267, 10 Sup. Ct. 295, 33 L. Ed. 642 (1890), post, p. 446, Mr. Justice Field said, on behalf of the Supreme Court: "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement. The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541, 5 Sup. Ct. 995, 29 L. Ed. 264. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199, 1 L. Ed. 568; Chirac v. Chirac. 2 Wheat. 259, 4 L. Ed. 234; Hauenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 Cal. 381." SECTION 2.-TIME OF GOING INTO EFFECT THE ELIZA ANN. (High Court of Admiralty, 1813. 1 Dod. 244.) These were three cases of American ships, laden with hemp, iron. and other articles, and seized in Hanoe Bay, on the 11th of August, 1812, by his Majesty's ship Vigo, which was then lying there, with other British ships of war. A claim was given, under the direction of the Swedish minister, for the ships and cargoes, "as taken within one mile of the main land of Sweden, and within the territory of his Majesty the King of Sweden, contrary to and in violation of the law of nations, and the territory and jurisdiction of his said Majesty." Sir W. SCOTT. These vessels came into Hanoe Bay, for the purpose of taking the benefit of British convoy, and were seized in consequence of the order for the detention of American property. This order has been since followed up by a declaration of war; the ships, therefore, would be liable to condemnation, unless it can be shown that they are entitled to some special protection. * * A claim, however, has been given by the Swedish minister. Now, in order to support and give effect to this claim, two things are necessary to be established. First, it is requisite that Sweden should appear to have been in a state of perfect neutrality at the time when the seizure was made. Secondly, it must be shown that the act of violence was committed within the limits of Swedish territory. For, if the scene of hostility did not lie within the territories of the neutral state, then has there been no violation of its neutral rights, and consequently there exists no ground of complaint, and no foundation for the claim. The first question then is, how far, in August, 1812, Sweden was to be considered as a neutral country. * * This was the state of things originally; British ships were excluded from the ports of Sweden, and the island of Hanoe was occupied by British forces. After this, a declaration of war was issued by the government of Sweden. * * * This war has, however, been happily terminated by a treaty of peace, which was signed by the plenipotentiaries of the two countries, on the 18th of July, ratified by the Prince Regent of Great Britain on the 4th of August, and by the King of Sweden on the 17th of the same month. From the result of these dates it has been contended, that the war had ceased, and that friendship had been re-established before the 4 Part of the opinion is omitted. time when these vessels were seized. The question, therefore, comes to this, whether a ratification is or is not necessary to give effect and validity to a treaty signed by plenipotentiaries. Upon abstract principles we know that, either in public or private transactions, the acts of those who are vested with a plenary power are binding upon the principal. But, as this rule was in many cases found to be attended with inconvenience, the later usage of states has been to require a ratification, although the treaty may have been signed by plenipotentiaries. According to the practice now prevailing, a subsequent ratification is essentially necessary; and a strong confirmation of the truth of this position is that there is hardly a modern treaty in which it is not expressly so stipulated; and, therefore, it is now to be presumed, that the powers of plenipotentiaries are limited by the condition of a subsequent ratification. The ratification may be a form, but it is an essential form; for the instrument, in point of legal efficacy, is imperfect without it. I need not add, that a ratification by one power alone is insufficient; that, if necessary at all, it must be mutual; and that the treaty is incomplete till it has been reciprocally ratified. It is said, however, that the treaty, when ratified, refers back to the time of its signature by the plenipotentiaries, and that it does so in this case more especially on account of the terms in which it is drawn. The words in one of the articles of the treaty, "Dès ce moment tout sujet de mésintelligence, qui ait pu subsister sera regardé comme entièrement cessant et détruit," have been pointed out, and from these it has been contended, that all hostilities were to cease the moment the treaty was signed. But I take that not to be the case; the positive and enacting part of the articles is, that there shall be a firm and inviolable peace between the two countries; the other part is descriptive only of the pacific intention of the parties, and of their agreement to bury in oblivion all the causes of the war. It does not stand in the same substantive way as the former part of the article, and must be considered as mere explanatory description. The nature of a treaty of peace is well explained by Vattel (book iv, c. 2), who lays it down that “a treaty of peace can be no more than an agreement. Were the rules (he says) of an exact and precise justice to be observed in it, each punctually receiving all that belongs to him, a peace would become impossible." He goes on to say, that, "as in the most just cause we are never to lose sight of the restoration of peace but are constantly to tend towards this salutary view, no other way is left than to agree on all the claims. and grievances on both sides, and to extinguish all differences by the most equitable convention which the juncture will admit of." It is, therefore, an agreement to waive all discussion concerning the respective rights of the parties, and to bury in oblivion all the original causes of the war. It is an explanation of the nature of that peace and good understanding which is to take place between the two countries, whenever that event shall be happily accomplished. It would be a stretch be |