It never was ratified. Nor did the fact that it was concluded become public till long after the proposed transaction had failed.

Moore, Int. Arbitrations, I. 138, citing S. Ex. Doc. 431, 25 Cong. 2 sess.

On April 14, 1838, Edward Everett, who was then governor of Massachusetts, confidentially asked the opinion of Mr. Justice Story concerning a resolution of the Massachusetts legislature, which had been presented to him for his signature, in which it was declared that no power delegated by the Constitution to the United States authorized the government to cede to a foreign nation any territory lying within the limits of a State of the Union. Mr. Everett called attention to the fact that in § 1502 of Story's Commentaries on the Constitution, in which certain restrictions on the treaty-making power were named, that of ceding a part of a State was not mentioned, but that the remark was added, "Whether there are any other restrictions necessarily growing out of the structure of the government will remain to be considered whenever the exigency shall arise." Mr. Everett further observed that the restriction in question, if it existed, must be one of this character, but that the pending controversy did not appear to him to create such an exigency, since it was a question not of ceding an admitted part of the territory of Maine, but of ascertaining the boundary between British and American territory. Mr. Justice Story, on the 17th of April, replied that he could not admit it to be universally true that the Constitution of the United States did not authorize the government to cede to a foreign nation territory within the limits of a State, since such a cession might, for example, be indispensable to purchase peace, or might be of a nature calculated for the safety of both nations or be an equivalent for a like cession on the other side. The learned justice added that he had some years previously had a conversation on the subject with Chief Justice Marshall. He was," said Mr. Justice Story, "unequivocally of opinion, that the treaty-making power did extend to cases of cession of territory, though he would not undertake to say that it could extend to all cases; yet he did not doubt it must be construed to extend to some."

Story, Life of Joseph Story, II. 286–289.

Writers generally state that the extent of the treaty-making power in confederated governments depends upon the nature of the federal constitution. The government of the United States has always exercised the right of settling international boundaries by treaty, but has in only one case professedly ceded territory belonging to a State. This was the case of the northeastern boundary, in 1842, when the assent of Maine and Massachusetts was obtained to the settlement. Those States were not parties to the treaty, but were mentioned in the 5th article. Great Britain, however, disclaimed all responsibility

for any matters between the United States and the several States. The action of the United States in this instance may have been influenced in some measure by the desire to reduce the British demands. Kent, in his Commentaries, says that the better opinion would seem to be that the power of cession belongs exclusively to the United States, though a sound discretion might forbid its exercise without the assent of the local governments immediately affected, except in cases of great necessity, when their consent might be presumed. This view is adopted by Duer in his work on constitutional law. Woolsey cites Kent's opinion, but suggests that the existence of a whole State could be blotted out only in extreme necessity. The Supreme Court of the United States, in the case of Lattimer v. Poteet, said that the treaty-making power might settle all questions of disputed boundary without any obstruction by States or individuals. In Geofroy v. Riggs, however, there is a dictum to the effect that the consent of a State is necessary to a cession of its territory. Mr. Justice White, in his opinion in the insular cases, gives expression to the view that territory forming part of the United States can not be alienated by the simple action of the treaty-making power, but remarks that it may be done" from the exigency of a calamitous war or the necessity of a settlement of boundaries," if the alienation be expressly or impliedly ratified by Congress. Butler, in his work on the treaty-making power, strongly maintains that the national government may, by treaty, cede even an entire State, if it be necessary to preserve the interests of the whole Union.

year.

1 Kent Comm. pp. **167, 284; Duer, Constitutional Jurisprudence of the United States, 138; Woolsey, Int. Law, § 103; Lattimer v. Poteet, 14 Pet. 14; Geofroy v. Riggs, 133 U. S. 267; supra, § —; Insular Cases, 182 U. S. 315; 1 Butler, Treaty-Making Power, 411-413; 2 id. 238 et seq., and, particularly, 387–394.

See, also, Halleck, Int. Law, 3rd ed., by Baker, London, 1893, cap. IX., §§ 2, 3, 5, 6, pp. 307-311; Wheaton, Elements, by Lawrence (1863), 873-876; Dana's Wheaton, § 543, note 250.

"The negotiations for a convention to settle the boundary question can hardly be said to have made any positive progress, since last The interest of both parties undoubtedly requires a compromise, and I have no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English government can not treat with us about a compromise, unless we say we have authority to consummate what we agree to; and although I entertain not the slightest doubt of the just authority of this government to settle this question by compromise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise without the consent of Maine."

Mr. Webster, Sec. of State, to Mr. Kent, gov. of Maine, Dec. 21, 1841, Van
Tyne's Letters of Daniel Webster, 248.

This letter, which was marked "Private," was written by Mr. Webster
while he was engaged as Secretary of State in the negotiations for
the settlement of the northeastern boundary. It was written in
the settlement of the northeastern boundary. It was written in reply
to a private letter from Governor Kent of December 15, 1841.

5. DESCENT AND TENURE OF PROPERTY.

§ 738.

Jay's treaty provided that British subjects then holding lands in the territories of the United States might continue to hold them according to their respective titles. It has been held by the Supreme Court of the United States that this provision is part of the supreme law of the land, being a constitutional exercise of the treaty-making power.

Fairfax v. Hunter, 7 Cranch, 603.

By the treaty of amity and commerce between the United States and France of 1778 it was provided that the subjects and inhabitants of the one country should not be reputed aliens in the other; that they should have the right to dispose of their goods by testament, donation or otherwise, and that their heirs might succeed ab intestato without being obliged to obtain letters of naturalization. In 1793 J. B. C., a native of France, settled in Maryland. In 1795 he took an oath of citizenship under a Maryland law, and next day received a conveyance of lands in that State. July 6, 1798, he was naturalized under the laws of the United States, and in the next year he died, leaving no legitimate relations except certain natives and residents of France. By a Maryland law of 1780 French subjects were accorded the rights of free citizens, but it was expressly provided that they should not have the right to hold lands, except for life, unless they qualified themselves as citizens of the State. It was argued that the estate of which J. B. C. died seized was in his lifetime escheatable, because, when he was naturalized under the Maryland law, that law had virtually been repealed by the constitution of the United States and the naturalization act passed by Congress, and when he purchased the land he had not been naturalized under the Federal law. Marshall, C. J., said it was unnecessary to inquire into the consequences of this state of things, since the treaty of 1778 enabled French subjects to hold lands in the United States; nor was it necessary to inquire into the effect of this treaty under the Articles of Confederation, since, when J. B. C. emigrated to the United States "the confederation had yielded to our present

Constitution, and this treaty had become the supreme law of the land."

Chirac v. Chirac (1817, 2 Wheat. 259.

By an act of Maryland of 1780 French subjects, though empowered to hold real estate, were required, within ten years after inheriting, to settle in and become citizens of the State, or else to enfeoff a citizen of some one of the United States. By Article VII. of the treaty of September 20, 1800, it was provided that, where the laws of either country restrained the exercise by aliens of rights as to real estate, such estate might be sold, or otherwise disposed of,” to a citizen of the country where it lay. Held, that this clause conferred a general power to sell which endured for life, and, even where an estate had vested under the act prior to the conclusion of the treaty, substituted the term of life in that regard for the term of ten years under the act.

Chirac v. Chirac (1817), 2 Wheat. 259, 276.

A treaty giving to the citizens of a foreign state [Switzerland] the privilege of holding real estate in the United States is a constitutional exercise of the treaty-making power and is the supreme law of

the land.

Hauenstein . Lynham, 100 U. S. 483, citing Chirac v. Chirac, 2 Wheat. 259; Carneal r. Banks, 10 Wheat. 181; Frederickson v. Louisiana, 23 How. 445.

See, as to the treaty with France of 1853, Geofroy r. Riggs, 133 U. S. 258; Bahuaud v. Bize (1901), 105 Fed. Rep. 485.

The treaty of 1828 with Prussia makes provision for the disposition and succession of both personal and real estate in each country by the citizens or subjects of the other. Of this provision Mr. Cushing, when Attorney-General, held that it was "a stipulation of treaty constitutional in substance and form; which, as such, is the supreme law of the land; and which abrogates any incompatible law of either of the States."

Cushing. At. Gen., 1857, 8 Op. 417.

A different view was expressed by Wirt, At. Gen., 1819, 1 Op. 275, but it has not been sustained by the courts.

See, also, Doehrel r. Hillmer (Iowa, 1897), 71 N. W. 204; Wilcke v. Wilcke (Iowa, 1897), id. 201, 102 Iowa, 173; Opel v. Shoup (Iowa, 1896), 69 N. W. 560.

The treaty between the United States and France, providing that citizens of that country shall not be subjected to taxes on transfers or inheritances to which citizens of this country are not liable, in

States where existing laws permit Frenchmen to hold property, is applicable to Louisiana.

Succession of Rabasse, 49 La. Ann. 1405, 22 So. 767.

A State statute removing the disabilities of alienage as to the holding and disposition of property, if not in conflict with the actual provisions of a treaty, is not an invasion of the treaty-making power of the United States.

Blythe . Hinckley (1900), 127 Cal. 431, 59 Pac. 787.

"By the Federal Constitution the several States retained all the attributes of sovereignty which were not granted to the general government. The right of regulating successions in relation to the subject in question is not among those conceded rights; consequently it was reserved to, and is still vested in, the several States. But by the same Constitution it is provided that treaties made under the authority of the general government shall be the supreme law of the land, anything in the constitution or laws of a State to the contrary notwithstanding.

"This very brief exposition shows at once the cause of the want of comity in the laws of the United States to which you advert, and indicates the remedy which a treaty between the two nations would effectually apply."

Mr. Livingston, Sec. of State, to Mr. de Sacken, Russian chargé, June 13, 1831, MS. Notes to For. Legs. IV. 396.

Replying to a proposal of the British government for the negotiation of a convention respecting the succession to estates of citizens or subjects of the one party within the dominions of the other, Mr. Cass stated that the authority of the government of the United States to conclude such a convention as would supersede the laws of the respective States on the subject might be considered "questionable; " that suits growing out of a tax on succession in Louisiana were pending before the Supreme Court, and that the President would prefer to delay negotiations at least until those suits should have been definitively determined.

Mr. Cass, Sec. of State, to Lord Napier, British min., Feb. 7, 1859, MS.
Notes to Great Britain, VIII. 199.

In Frederickson v. Louisiana (23 How. 445), the question whether the government of the United States may regulate by treaty or otherwise the inheritance or testamentary disposition of real estate is reserved, as well as the similar question as to other property. In respect of real estate, the Federal government has generally gone no H. Doc. 551-vol 5-12