referred merely to personal property, from expressing an opinion as to the competency of the Government of the United States to regulate, by treaty, testamentary dispositions or laws of inheritance within the States.

In affirming in a previous case, arising under the convention of 1853 with France, a judgment from Louisiana, with reference to a tax on the property of decedents not domiciled in the State or citizens of the United States, Taney, Chief Justice, adds: "It is proper to say that the obligation of the treaty and its operation in the State and after it is made depends on the laws of Louisiana. The treaty does not claim for the United States the right of controlling the succession of real or personal property in a State, and its operation is expressly limited to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force; and as there is no act of the Legislature of Louisiana repealing this law and accepting the conditions of the treaty, so as to secure to her citizens similar rights in France, this court might feel some difficulty in saying that it was repealed by this treaty, if the State Court had not so expounded its own law, and held that Louisiana was one of the States in which the proposed arrangements of the treaty

making power can only be coeval with the express grant of power to the federal government, and can never be extended by implication to the reserved powers on matters which belong to State Sovereignty or to the right, which appertains to each State, to govern her own domestic concerns and establish her own police regulations. But, he said, that it was not necessary to decide this point, as the treaty might be fulfilled, without an action of ejectment, sales of parties out of possession being allowed by the laws of California."

were to be carried into effect." (Prevost v. Greneaux Howard's Reports, vol. XIX, p. 7.)

Nor has the treaty-making power always been consistent with itself. To the treaty of 1794 with England I have alluded. The treaty of 1778 with France was made before the adoption of the Federal Constitution. That of 1800, which accorded the reciprocal right of disposing of goods movable and immovable, contained a clause providing for the case of the laws of either State, restraining foreigners from the exercise of the rights of property with respect to real estate. To the Consular Convention I have already sufficiently referred. The only treaties, since that of 1794 with England, in which the right of inheriting real estate without the obligation of disposing of it is contained, are those of December 12, 1846, with New Granada, and of 2d January, 1850, with San Salvador. (United States Statutes at Large, vol. IX, p. 886; vol. X, p. 893.)

Several of the treaties made by the United States for the abolition of the droit d'aubaine, are confined to personal property; but there is a large class of them, beginning with the treaty with Prussia, which, though renewed in 1828, is the same as the original treaty of 1783, which provide that when land within the territory of one of the parties would descend to a citizen or subject of the other, were he not disqualified by alienage, he shall either have a reasonable time or a definite number of years in which to dispose of it. (Lawrence's Wheaton, ed. 1863, p. 238.) This provision inserted,

instead of a concession of the absolute right of inheritance, it has been supposed, met any defect in the treatymaking power of the federal government, either as it stood, at the time of the Confederation, when it was first inserted, or under the existing Constitution. It is, however, quite evident that if the President and Senate have not power to regulate permanently by treaty the transmission of real estate where aliens are interested they cannot temporarily arrest the legal course of descent. This is not a case in which, according to the common law, the fee can be kept in abeyance, but it must pass at the death of the person in whom it was vested to the heir or devisee competent to take it. If there be no such heir or devisee, it will, without any inquest of office, vest in the State. Moreover, if it were possible for an estate to pass by a treaty temporarily to the alien heir, to be divested, either by a sale or a failure to make one, what authority is to determine when the time prescribed by the treaty for making such sale has expired, or what authority is there to enforce a sale? Is it the Federal or State government that is to interpose? In the case of a failure to comply with the terms of the existing treaties, does the estate go to more remote relatives, who are citizens, and in whom the title would have vested at the death of the party last seised, if there had been no treaty, or does it escheat to the State? In case of the estates rendered defeasable under State laws, the same authority which

creates them has the means for ensuring their termination by appropriate action.

Whatever may be the treaty-making power of the general government, it is only by State legislation that the legal difficulties, occasioned as well by the conflict of jurisdiction in the case of the treaties abolishing the droit d'aubaine, as by the changes in national status effected by the naturalization treaties, can be adjusted. Even in the case of matters wholly within federal cognizance, unless the treaty executes itself, however binding it may be on the national faith, the action of Congress is necessary to carry it into effect. The most earnest advocate of the treaty-making power of the federal government has never contended that Congress could legislate about the succession or descent of property in the States. Applying the same rule to matters belonging to the internal legislation of the States, if the President and Senate can make a treaty with foreign powers about them, it is difficult to perceive how State laws, providing the details for their operation, can be dispensed with. Assuredly no friend of State rights, no opponent of centralization would desire, that the absence of appropriate State legislation should invite further usurpation on the part of the federal government, and it is respectfully submitted that all excuse for interference can only be effectually avoided by the removal of alien disabilities by the States. For the manner of doing this, the recent English statute, the result of the investigation of the ablest jurists of that country, from which

we derive our system of laws, affords a safe precedent. Such a course would not only abolish the particular anomaly to which I have solicited your attentionthe disabilities of American women married abroadbut would assimilate the laws of New York to the eral legislation of the civilized world.

your

gen.

It is not necessary for me to remind Excellency of the very different state of things, which now exists everywhere, compared with the condition of the world when the common law rule of descents came into existence, and the intercourse between nations was confined to purposes of trade. I will not consider how far the restriction on the natural course of descents, and the superior importance attached to real property, were connected with the feudal system-a system utterly at variance with institutions which have wholly abrogated the rule of primogeniture and the distinction between males and females in respect to inheritance; but I may refer to the fact that steam and electricity, by annihilating space, have brought the whole civilized world into intimate social relations, resulting, to a greater or less extent, in the intermarriage of persons of different nationalities.

It is a principle of private international law, to which in England and the United States no other conditions apply, that a marriage, if valid in the country where it is celebrated, is valid everywhere, and unless valid there, it is valid nowhere. The laws of the dif ferent countries of Europe differ materially, in their