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Hauens'ns

1877. This is not denied in the opinion of the court, but January Term. conceding this fact, it is held that they are not entitled to receive the proceeds of the real estate in the hands of the escheator Lynham, because the legislature of Lynham, Virginia has failed to fix the period within which the heirs of an alien Swiss, who has acquired real estate in this state, may be permitted to sell the same.

V.

escheator.

In my view the whole question in this case must turn upon the true construction to be given to the treaties between the Swiss confederation and the United States, interpreted with reference to the constitution of the United States.

The second section of the sixth article of the constitution of the United States is as follows:

"Article VI, section 2. This constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

This clause only declares a truth, which flows immediately and necessarily from the constitution of a national government. The laws made in pursuance of the constitution must of necessity be supreme. A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association.

So too in regard to treaties, there is equal reason why they should be held when made to be the supreme law of the land.

Treaties constitute solemn compacts of binding obligation among nations, and unless they are enforced

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January

Hauens'ns

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Lynham,

escheator.

with strict fidelity, the gravest complications with foreign nations would ensue, affecting not only the Term. commercial prosperity but the peace and honor of the nation. It is therefore indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. After these solemn compacts have been entered into, and while they subsist they ought to have a positive binding efficacy as laws upon all the states and all the citizens of the states. The peace of the nation, its good faith and moral dignity indispensably require that all state laws should be subjected to their supremacy.

It is notorious, as a matter of history, that treaty stipulations were grossly disregarded by the states. under the confederation. It was probably to obviate this very difficulty that this clause was inserted in the constitution; and its renowned authors must forever be held in honored veneration, because among other declared principles of constitutional government they have brought treaties with foreign nations within the sanctuary of justice as laws of supreme obligation. See 2 Story on the Constitution, 4th ed., §§ 1838; and cases there cited; Ware v. Hylton, 3 Dal. R. 270–277.

In Foster v. Neilson, 2 Pet. R. 253, 314, the supreme court said, "A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially as far as its object is infra-territorial; but is carried into execution by the sovereign powers to the instrument.

In the United States a different principle is established. Our constitution declares a treaty to be the supreme law of the land. It is therefore to be regarded by courts of justice as equivalent to an act of the legislature." See also 5

1877.

Marshall's Life of Wash. ch. 8, p. 652; 1 Waite's State January Term. Papers 45, 47, 71, 81.

v.

"A treaty," said Mr. Jefferson, "made by the preHauens'ns sident, with the concurrence of the senate, is the law Lynham, of the land, and a law of a supreme order, because it not only repeals former laws, but cannot itself be repealed by future ones."

escheator.

Now bearing in mind this interpretation of the constitution with reference to the obligatory force and acknowledged supremacy of the treaties made by the United States with foreign nations, let us now consider the terms of the treaties entered into between the Swiss confederation and the United States with respect to the rights secured to the subjects of the respective governments, to remove the proceeds of real estate, in cases where by the laws of the respective countries they cannot inherit such estate.

The treaty of 1847 contained the following provisions:

"Art. II. If by the death of a person owning real property in the territory of one of the high contracting parties such property (i. e., real estate) should descend, either by the laws of the country or by testamentary disposition, to a citizen of the other party, who, on account of his being an alien, could not be permitted to retain the actual possession of such property, a term of not less than three years shall be alallowed to him to dispose of such property and to collect and withdraw the proceeds thereof, without paying to the government any other charges than those which in a similar case would be paid by an inhabitant of the country in which such real property may be situated."

It is plain if this treaty was now subsisting between the Swiss confederation and the United States, there

1877.

January

Hauens'ns

V.

escheator.

could not be the shadow of a doubt that if within three years after the death of Solomon Hauenstein, Term. the plaintiffs in error, had applied for the proceeds of this real estate, the state of Virginia would have been powerless to have resisted their claim under the treaty Lynham, of 1847. And they would have had the unquestioned right to receive and remove the proceeds by the express terms of the treaty. This must be, and is, conceded. But it is said that the treaty of 1855 governs this case, and that under that treaty the plaintiffs in error are deprived of their right to recover and remove the proceeds of the said real estate. Is this so? Can it be so? Now when the two treaties are compared it is plain that the only difference, in respect to this subject, is this-while the treaty of 1847 by its terms fixed the time, at three years, within which the property or its proceeds may be removed, the treaty of 1855 fixed no time but left it to the states of the Union and the cantons respectively, to fix the period within which this privilege may be exercised. The lauguage of the treaty of 1855 (article 5) is this,"there shall be accorded to the said heir, or other successor, such term as the laws of the state or canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty, and without paying to the government any other charges than those which in a similar case would be paid by an inhabitant of the country in which the real estate may be situated."

Now it is said that because the legislature has failed to fix the period within which the rights of the parties under this treaty may be exercised, these rights have been lost-and though these rights arise and are vested under a treaty which the constitution declares to be the supreme law of the land, yet they are de

V.

escheator.

1877 stroyed by the mere non-action of the legislature. Now January Term. it must be conceded that no law of the legislature antagonistic to the rights of the plaintiffs in error under Hauens'ns this treaty, could be maintained in any court, state or Lynham, federal, because the treaty is the supreme law of the land, "anything in the constitution or laws of the state to the contrary notwithstanding." If, then, the rights of the plaintiffs in error vested in them by a solemn treaty cannot be divested by the constitution or laws of a state, if they cannot be touched by positive enactments, how can they be divested by mere non-action of the legislature in failing to fix a period within which the right may be exercised.

It is a solecism to say that treaties shall be the supreme law of the lund, if they may be defeated, or the rights of parties be divested by action or non-action of the state legislature. If the states may each, by the action or non-action of its legislature, hamper, impede and destroy rights vested under treaties, why should the general government make any treaties at all? If the states at last are to confer, in their discretion, the rights which the constitution secures by treaty, why should any treaty be made at all by the general govern

ment?

The province of the constitution would be idle and nugatory if the states may fix the rights of parties, notwithstanding solemn treaty stipulations.

To my mind it is plain that the treaty of 1855 simply gave to the state the power, if it chose to exercise it, of fixing the period within which the right of removal of the proceeds of real estate might be exercised. The mere failure of the state to fix the term, certainly cannot deprive parties of rights vested under solemn treaties, which are declared to be the supreme law of the land. I should rather say that the non

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