§ 259. Same rights as resident heir.-The treaty between the United States and Württemberg providing that an alien heir shall be allowed two years in which to sell property devolving on him is intended to confer on the alien heir for that period precisely the rights that he would enjoy if he were a resident heir. Pending that time, he may possess the property, improve it and exercise all dominion over it for the purpose of rendering it more productive and valuable, and may enjoy its rents and profits. The treaty, as the supreme law of the land, is paramount to all state laws.168

§ 260. In North Carolina.-In North Carolina, article 6 of the treaty made in 1782 between the United States and the States General of the United Netherlands was before the court for construction, and one of the questions to be determined was as to the meaning to be given to the word "effects"-whether it included things immovable as well as movable. The court declared that unless the word embraced things immovable as well as movable, no right was granted by the treaty, because under the law relative to alienage there was no objection to the acquisition of title to movable or personal property, either by purchase or succession by law,169

16s Kull v. Kull, 37 Hun (N. Y.), 476. This treaty of 1844 between the United States and the kingdom of Württemberg relative to the right of aliens to succeed by descent was abrogated by the treaty of December 11, 1871, between the United States and the Emperor of Germany, as the latter, under the constitution of the Empire of Germany, in which the kingdom of Württemberg had become incorporated, represents the empire among nations and makes alliances with them. In re Strobel's Estate, 39 N. Y. Supp. 69, 5 App. Div. 621.

1 University v. Miller, 14 N. C. 188. The language of the court was as follows: "The next question is the effect of that treaty on the case. the sixth article it is provided that the subjects of either party may dis

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pose of their effects by testament, donation, or otherwise; and their heirs, subjects of one of the parties, shall receive such successions ab intestato, even though they have not received letters of naturalization. And, if the heirs to whom such succession falls shall be minors, their guardian or curator may govern, direct, and alienate the effects fallen to such minors by inheritance. If this case rested on the meaning to be given to the word 'effects' even without a context, I should think, being found where it is, in a treaty between powers having no common technical terms-in fact not a common language-that it included things immovable as well as movable. In the first place, the instrument is to receive an extended and liberal construction; not like the contract of individuals, where nothing

Although many revolutions and changes in the government had occurred, the court held in that case that the courts cannot notice judicially what treaties with foreign governments are in force, as that question must be determined by the Executive.170

§ 261. Confiscation acts annulled. The treaty of peace with Great Britain of 1783 annulled the confiscation acts of North Carolina, and debts due to British subjects paid into the public treasury in conformity with such confiscation acts may be re

covered by the creditor from the debtor.171 And where a person named in such confiscation act has given a bond to convey his land, he is entitled under that treaty, as a British subject, to recover the balance due on the bond.172 But if the confiscation had been perfected by inquest and lapse of time, the treaty has no operation.173

§ 262. In Pennsylvania.-In Pennsylvania an act of proclamation was issued during the war of the Revolution, and an individual who did not appear within the time prescribed was attainted of treason for adhering to the King of Great Britain; and as a consequence his estate was confiscated to the use of the commonwealth. It had, however, not been taken into possession, and after peace had been declared he returned to Pennsylvania and applied to the executive council for a restoration of his estate, representing that he was a minor at the time of his attainder, and was forcibly prevented by his guardian from enlisting in the American army. It was finally suggested that the attorney general should file a suggestion in the supreme court of the attainder of the defendant, and this was done. But the chief justice delivered the opinion of the court to the effect that any proceedings against the defendant would contravene the treaty of peace and amity between the United States and Great Britain, for

111 Hamilton v. Eaton, 2 Mart. (1 N. C.) 1, 1 Hughes, 249, Fed Cas. No. 5980. Said Chief Justice Ellsworth: "Here it is contended by the defendant's counsel that the confiscation act has not been repealed by the state; that the treaty could not repeal or annul it; and therefore that it remains in force, and secures the defendant. And further, that a repeal of it would not take from him a right vested to stand discharged. As to the opinion, that a treaty does not annul a statute, so far as there is an interference, it is unsound. A statute is a declaration of the public will, and of high authority; but it is controllable by the public will subsequently declared. Hence the maxim, that when two statutes are opposed to each other, the latter abrogates the

former. Nor is it material, as to the effect of the public will, what organ it is declared by, provided it be an organ constitutionally authorized to make the declaration. A treaty when it is in fact made, is, with regard to each nation that is a party to it, a national act, an expression of the national will, as much so as a statute can be. And it does, therefore, of necessity, annul any prior statute, so far as there is an interference. The supposition that the public can have two wills at the same time, repugnant to each other, one expressed by a statute and another by a treaty, is absurd."

172 Ray v. McCulloch, 1 N. C. (N. C. Conf.) 492.

173 Commonwealth Call (Va.), 60.

V. Bristow, 6

which reason it refused to sustain the suggestion filed by the attorney general.174 Referring again to the attainder laws of that state it was held in the federal courts that the stipulations in the treaty are paramount to the provisions of a particular state.175

176

§ 263. In South Carolina.-In South Carolina the effect of treaties upon alienage has been considered, and the court decided that the treaty of 1794 enabled an alien mother of an American daughter to inherit her lands in that state." But it was held that this treaty did not enable aliens to take by descent the land of British subjects situated in this country.17 By the provisions of the treaty with Prussia, citizens and subjects of the two countries are authorized to sell real estate which descends to them in the country of the other power, and these provisions are applied to Poles, who are subjects of Prussia, and consequently they are allowed to take by virtue of the residuary clauses in a will,178

§ 264. In Tennessee.-In Tennessee the court stated that an alien had no inheritable blood. Provisions as to the rights of alien heirs were made by the code of that state, but the cause before the court, it was stated, must be determined at last upon the international agreement on the subject existing with France, and in the language of Mr. Justice Sneed: "If the law contravenes the treaty, the latter must prevail. The treaty is the supreme law on this subject. Whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the state; and whoever may have this right, it is to be protected."' 179

Construing the treaty of 1783, the court held that natives of Scotland who became residents and had their domicile in the United States before the close of the revolutionary war were prima facie not aliens, and that the burden of proving their ad

174 Respublica v. Gordon, 1 Dall. (Pa.) 233, 1 L. ed. 115.

175 Gordon v. Kerr, 1 Wash. C. C. 322, 10 Fed. Cas. No. 5611.

176 Megrath v. Robertson, 1 Desaus. Eq. 449.

17 Ex parte Dupont, Harp. Eq. 5.

See for other cases in South Caro lina, Duncan v. Beard, 2 Nott & McC. 400; Love v. Hadden, 3 Brev. 1.

85.

178 Hart v. Hart, 2 Desaus. Eq. 57. 170 Baker v. Shy, 9 Heisk. (Tenn.)

herence to the British crown rested upon those who imputed alienage, 180

Where, in an action of ejectment, the plaintiff claimed under a grant from North Carolina made in 1800, founded on an entry made in 1783, and the defendant based his claim on a reservation in favor of a native Indian by a treaty made with the Cherokee Indians in 1879, it was decided that the defendant had the better title.181 It was likewise held that the reservations of land to the head of every Indian family made by the treaties with the Cherokees of 1817 and 1819 are valid and binding on the state of Tennessee and on all persons claiming through the state.182

§ 265. In Texas.-In Texas it was claimed that the statute providing for an investigation by commissioners of land titles was in violation of the treaty of Guadalupe Hidalgo. The statute provided that "No sale by any claimant of land under the provisions of this act shall take place until after a title to the same shall have been confirmed to the original claimant or claimants, but all such sales of lands or claims to lands shall be void; and no claims to lands in the hands of a third person shall be recognized by the board of commissioners unless the sale or transfer of the same was made prior to the passage of the act." It was claimed that this act was in violation of the treaty, and while the court said it would be a sufficient answer to the objection to say that it did not appear that the claimant was a citizen of Mexico at the date of the treaty, yet even if he were, the act was not violative of the treaty because it secured Mexicans in their rights of property and gave them, in that respect, the same protection extended to citizens of the United States. 183

§ 266. In Virginia.-In Virginia, under the treaty of 1794 between the United States and Great Britain, it was held that an alien had the power to convey by deed or will any real estate held by him at the date of the treaty to any person capable

180 Moore (Tenn.) 406.

181 Cornet (Tenn.) 144.

V. Wilson, 10 Yerg.

V. Winston, 2 Yerg.

Treaties-20

182 Blair v. Pathkiller, 2 Yerg. (Tenn.) 407.

183 Baldwin v. Goldfrink, 88 Tex. 249, 31 S. W. 1064.