of possessing personal and real property by the same title and in the same manner as citizens of the United States. They shall be free to dispose of it as they may please-by donation, testament, or otherwise -just as those citizens themselves. But as to the states by whose existing laws aliens are not permitted to hold real estate, the treaty engages that the President shall recommend to them the passage of such laws as may be necessary for the purpose of conferring that right.

In determining the question in what sense the terms "states of the Union" are used, it is to be borne in mind that the laws of the District and of some of the territories, existing at the time of the convention was concluded in 1853, allowed aliens to hold real estate. If, therefore, these terms are held to exclude those political communities, our government is placed in a very inconsistent position-stipulating that citizens of France shall enjoy the right of holding, disposing of, and inheriting, in like manner as citizens of the United States, property, real and personal, in those States whose laws permit aliens to hold real estate; that is, that in those States citizens of France, in holding, disposing of, and inheriting property, shall be free from the disability of alienage; and, in order that they may in like manner be free from such disability in those states whose existing laws do not permit aliens to hold real estate, engaging that the President shall recommend the passage of laws conferring that right; while at the same time, refusing to citizens of France holding property in the District and in some of the territories, where the power of the United States is in that respect unlimited, a like release from the disability of alienage, thus discriminating against them in favor of citizens of France holding property in states having similar legislation. No plausible motive can be assigned for such. discrimination. A right which the government of the United States apparently desires that citizens of France should enjoy in all the states, it would hardly refuse to them in the District embracing its capital, or in any of its own territorial dependencies. By the last clause of the article the government of France accords to the citizens of the United States the same rights within its territory in respect to real and personal property and to inheritance as are enjoyed there by its own citiThere is no limitation as to the territory of France in which the right of inheritance is conceded. And it declares that this right is given in like manner as the right is given by the government of the United States to citizens of France. To ensure reciprocity in the terms of the treaty, it would be necessary to hold that by "states of the Union" is meant all the political communities exercising legislative powers in the country, embracing not only those political communities which constitute the United States, but also those communities which constitute political bodies known as Territories and the District of Columbia. It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality and reciprocity between them. As they

zens.

SCOTT INT.LAW

are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that where a treaty admits of two constructions; one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred. Hauenstein v. Lynham, 100 U. S. 483, 487, 25 L. Ed. 628. The stipulation that the government of France in like manner accords to the citizens of the United States the same rights within its territory in respect to real and personal property and inheritance as are enjoyed there by its own. citizens, indicates that that government considered that similar rights were extended to its citizens within the territory of the United States, whatever the designation given to their different political communities.

We are, therefore, of opinion that this is the meaning of the article in question—that there shall be reciprocity in respect to the acquisition and inheritance of property in one country by the citizens of the other, that is, in all political communities in the United States where législation permits aliens to hold real estate, the disability of Frenchmen from alienage in disposing and inheriting property, real and personal, is removed, and the same right of disposition and inheritance of property, in France, is accorded to citizens of the United States, as are there enjoyed by its own citizens. This construction finds support in the first section of the act of March 3, 1887, c. 340, 24 Stat. 476 (Comp. St. § 3498). That section declares that it shall be unlawful for any person or persons not citizens of the United States, or who have not declared their intention to become citizens, to thereafter acquire, hold or own real estate, or any interest therein, in any of the territories of the United States or in the District of Columbia, except such as may be acquired by inheritance or in good faith in the ordinary course of justice in the collection of debts previously created. There is here a plain implication that property in the District of Columbia and in the territories may be acquired by aliens by inheritance under existing laws; and no property could be acquired by them in the District by inheritance except by virtue of the law of Maryland as it existed when adopted by the United States during the existence of the convention of 1800 or under the 7th article of the convention of 1853. Our conclusion is, that the complainants are entitled to take by inheritance an interest in the real property in the District of Columbia of which their uncle died seized. The decree of the court below will, therefore, be

Reversed and the cause remanded, with direction to overrule the demurrer of the defendants; and it is so ordered.12

12 For the interpretation of treaties in general, and in particular for the interpretation of the Jay Treaty of November 19, 1794, see Marryat v. Wilson, 1 Bos. & P. 430 (1799).

For the practical application of the principles of interpretation of a treaty, see Chilean-Peruvian Accounts, Award of the Arbitrator under Protocol

Dated March 2, 1874, between Chile and Peru (1875), 2 Moore's International Arbitrations (1898) 2085.

See also the award of Alexander Porter Morse, Arbitrator in the Case of Charles A. van Bokkelen, 1888, 2 Moore's International Arbitrations, 1807. It is, unfortunately, too long to print.

In Adams v. Akerlund, 168 Ill. 632, 638, 48 N. E. 454 (1897), Mr. Justice Magruder said: "Where treaties concern the rights of individuals, it is frequently necessary for the courts to ascertain by construction the meaning intended to be conveyed by the terms used. U. S. v. Rauscher, 119 U. S. 407 [7 Sup. Ct. 234, 30 L. Ed. 425 (1886)]; Wilson v. Wall, 6 Wall. 83 [18 L. Ed. 727 (1867)]; Head Money Cases, 112 U. S. 580 [5 Sup. Ct. 247, 28 L. Ed. 798 (1884)]. In thus giving a construction to the language of treaties, the courts will adopt the same general rules which are applicable in the construction of statutes, contracts and written instruments generally, in order to effectuate the purpose and intention of the makers. 26 Am. & Eng. Ency. of Law, p. 555. Moreover, it is another well-settled rule, laid down by the Supreme Court of the United States, that, 'where a treaty admits of two constructions, one restricted as to the rights that may be claimed under it, and the other liberal, the latter is to be preferred.' Hauenstein v. Lynham, 100 U. S. 483 [25 L. Ed. 628 (1879)]; Schultze v. Schultze, 144 Ill. 290 [33 N. E. 201, 19 L. R. A. 90, 36 Am. St. Rep. 432 (1893) ]."

In Tucker v. Alexandroff, 183 U. S. 424, 437 [22 Sup. Ct. 195, 46 L. Ed. 264 (1901)], Mr. Justice Brown uses the following language: "We think, then, that the rights of the parties must be determined by the treaty, but that this particular convention, being operative upon both powers and intended for their mutual protection, should be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose. Taylor on International Law, § 383. As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of perpetual amity, so far as it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at the foundation of our jurisprudence. It is said by Chancellor Kent in his Commentaries, Vol. 1, p. 174: "Treaties of every kind are to receive a fair and liberal interpretation according to the intention of the contracting parties, and are to be kept with the most scrupulous good faith. Their meaning is to be ascertained by the same rules of construction and course of reasoning which we apply to the interpretation of private contracts.'"

If treaties between nations standing upon the same social and intellectual plane are to be liberally construed, it stands to reason that when one contracting party is a powerful and enlightened, the other a backward, weak and therefore dependent nation, the letter must yield much to the spirit. Or as Mr. Justice Gray said, in Jones v. Mehan, 175 U. S. 1, 11, 20 Sup. Ct. 1, 44 L. Ed. 49 (1899): "The treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers but in the sense in which they would naturally be understood by the Indians. Worcester v. Georgia, 6 Pet. 515 [8 L. Ed. 483 (1832)]; The Kansas Indians, 5 Wall. 737, 760 [18 L. Ed. 667 (1866) ]; Choctaw Nation v. U. S., 119 U. S. 1, 27, 28 [7 Sup. Ct. 75, 30 L. Ed. 306 (1886)]."

But, however liberally the treaty may be interpreted, it is the agreement made by the parties, not by the court, that is to be interpreted. The spirit will, indeed, be found out, but a new clause will not be read in the treaty. For example, in The Amiable Isabella, 6 Wheat. 1, 5 L. Ed. 191 (1821), Mr. Justice Story refused to read into the treaty of 1795 with Spain the form of a passport which the contracting parties had, it would seem, inadvertently left out. In like manner the Supreme Court in a recent case refused to consider a "proviso" (to which ratification was made subject) as part of the treaty, because the proviso was omitted in the official publication of the treaty. New York Indians v. U. S., 170 U. S. 1, 18 Sup. Ct. 531, 42 L. Ed. 927 (1897). Where, however, a written declaration was annexed to the treaty at the time of its ratification, the declaration was held as obligatory as if the provision

TREATIES

SECTION 4.-RELATION OF TREATIES

I. TO STATES, PARTIES THEreto

453

ARCHIBALD HAMILTON & CO. v. EATON.

(United States Circuit Court, District of North Carolina, 1796. 1 Hughes, 249, Fed. Cas. No. 5,980.) 13

This was an action of debt upon a penal bill bearing date the 11th day of August, 1776, for the penal sum of 800£, proclamation money, to be discharged by the payment of 400£, like money, payable on the 1st day of August, 1778, with lawful interest from that date. The plaintiffs, Archibald and John Hamilton, trading under the firm of Archibald Hamilton & Co., were subjects of Great Britain, but were residents of North Carolina before and at the time of the declaration of Independence, July 4, 1776. The defendant, John Eaton, was a citizen of the United States, and of North Carolina,, and was a citizen of North Carolina before the said Declaration of Independence.

There were several pleas to this action. It is useless, as the case turned on that, to state any other than the first and principal one of those pleas, which was, that a law of the state had required that all persons, subjects of the state, living therein, who had traded to Great Britain or Ireland, should take an oath of allegiance or depart out of the state; that the plaintiffs had departed out of the state, leaving their debt due them; that another law of the State had appointed commissioners to sequestrate debts of citizens due to subjects of Great Britain to the use of the state, which commissioners had duly sequestrated this debt, which the defendant had paid to them for the use of the state; and that, therefore, by the laws of war and the law of nations, the defendant did not owe this debt.

To this plea it was replied, that by the treaty of peace, which was entered into between Great Britain and the United States (8 Stat. 80), which terminated the War of the Revolution in 1783, it had been stipulated by the two powers, that "creditors on either side shall meet with no lawful impediment to the recovery of bona fide debts heretofore contracted."

had been inserted in the body of the treaty itself, because the declaration was annexed with full knowledge and consent of both parties to the treaty. Doe v. Braden, 16 How. 635, 14 L. Ed. 1090 (1853).

On the question of the interpretation of treaties in general, see a very learned and comprehensive note by J. C. Bancroft Davis, U. S. Treaties and Conventions, 1889, pp. 1227-1229 (printed with additions, 2 Butler's Treaty-Making Power, note 6, pp. 145-148).

13 This case is also reported in Mart. 2d Ed. (1 N. C.) 83.

To this replication there was a demurrer, and there was a joinder in the demurrer. *

*

*

ELLSWORTH, C. J.14 It is admitted that the bond on which this suit is brought, was executed by the defendant to the plaintiffs; and that the plaintiffs have not been paid. But the defendant pleads, that since the execution of the bond a war has existed, in which the plaintiffs were enemies; and that during the war this debt was confiscated and the money paid into the treasury of the state. And the plaintiffs reply, that by the treaty which terminated the war, it was stipulated, that "creditors on either side should meet with no lawful impediment to the recovery of bona fide debts heretofore contracted."

Debts contracted to an alien are not extinguished by the intervention of war with his nation. His remedy is suspended while the war lasts, because it would be dangerous to admit him into the country, or to correspond with agents in it; and also because the transfer of treasure from the country to his nation, would diminish the ability of the former, and increase that of the latter, to prosecute the war. But with the termination of hostilities, these reasons and the suspension of the remedy cease.

As to the confiscation here alleged it is doubtless true, that enemy's property so far as consists in barring the creditor, and compelling payment from the debtors for the use of the public, can be confiscated; and that on principles of equity, though perhaps not of policy, they may be. For their confiscation as well as that of property of any kind, may serve as an indemnity for the expenses of war, and as a security against future aggression. That such confiscations have fallen into disuse, has resulted not from the duty which one nation, independent of treaties, owes to another, but from commercial policy, which European nations have found a common, and indeed a strong interest, in supporting. Civil war, which terminates in a severance of empire, does, perhaps, less than any other, justify the confiscation of debts; because of the special relation and confidence subsisting, at the time they were contracted, and it may have been owing to this confiscation as well as others, that the American states, in the late Revolution, so generally forbore to confiscate the debts of British subjects. In Virginia, they were only sequestered; in South Carolina, all debts to whomsoever due were excepted from confiscation; as were in Georgia, those of “British merchants and others residing in Great Britain." And in the other states, except this, I do not recollect that British debts were touched. Certain it is, that the recommendation of Congress on the subject of confiscation did not extend to them. North Carolina, however, judging for herself, in a moment of severe pressure, exercised the sovereign power of passing an act of confiscation, which extended, amongst others, to the debts of the plaintiffs, providing, however, at the same time, as to all debts which should be paid into the treasury, under that

14 The opinion of Sitgreaves, District Judge, is omitted.