Commons to carry into effect the commercial treaty of Utrecht with France has already been alluded to. I beg leave to remind you of another instance. By the treaty of 1794, between America and England, the United States bound themselves to pay to British subjects the amount of the British debts which had been lost by reason of laws passed by several States in contravention of the provisions of the treaty of 1783. And it was expressly provided by that of 1794 that the amount thus payable by the United States should be definitively settled by a joint commission consisting of four members, and, in case of disagreement between these, by a fifth commissioner, chosen by the four primitive members of the board." Mr. Gallatin to Mr. Everett, January, 1835, 2 Gallatin's Writings, 497. 4. JUDICIAL ACTION. (1) PROVINCE OF THE COURTS. § 760. By Art. VI. of the Constitution of the United States it is declared that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," and that "the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." See, as to the origin of this clause, Coxe, Judicial Power and Unconstitutional Legislation, 272-291; Moore, Int. Arbitrations, I. 272–274. The execution of a treaty between nations is to be demanded from, and, in general, superintended by, the executive of each nation, and, therefore, whatever the decision of the court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court as an act of Congress; and, although restoration may be an executive act, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and consequently improper. United States v. Schooner Peggy (1801), 1 Cranch, 103, 109. Johnson, J., delivering the opinion of the court to the effect that instructions of the President could not divest a right actually acquired by the captor, before notice of such instructions, in the captured property, said: "By capture the individual acquires an inchoate statutory right, an interest which can only be defeated by the supreme legisla tive power of the Union. Condemnation does nothing more than ascertain that each individual case is within the prize act, and thus throws the individual upon his right acquired by belligerent capture. Should the prize act, in the interim, be repealed, or its operation be suspended by the provisions of a treaty, there no longer exists a law to empower the courts to adjudge the prize to the individual captor.” The Mary and Susan (1816), 1 Wheaton, 46, 58. The court can not supply a casus omissus in a treaty any more than in a law. By the treaty with Spain of 1795 free ships were to make free goods; and in the 17th article it was provided that a passport, issued in accordance with the form annexed to the treaty, should be conclusive proof of the nationality of the vessel. There being, in fact, no form annexed, it was held that the proprietary interest of the ship must be determined according to the ordinary rules of prize courts, and if shown to be Spanish property, that the cargo was protected from liability. The Amiable Isabella, 6 Wheat. 1, 76. "The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself." Jones . Meehan (1899), 175 U. S. 1, 32, citing Wilson r. Wall, 6 Wall. 83, 89; Reichart r. Felps, 6 Wall. 160; Smith . Stevens, 10 Wall. 321, 327; Holden v. Joy, 17 Wall. 211, 247, and holding that where a tract of land, which had been granted by the United States by treaty to an Indian chief, and which had by tribal custom descended to his eldest son and successor, was leased by the latter, the rights of the lessees under the lease "could not be divested by any subsequent action of the lessor, or of Congress, or of the Executive Departments." A treaty with an Indian tribe is a part of the law of the land, and, where it prescribes a rule by which private rights can be determined, the courts will apply such rule. Leighton v. United States, 29 Ct. Cl. 288. After the Senate has passed a resolution stating that a treaty with Indians has been approved by them, and the President has issued a proclamation accepting, ratifying, and confirming the treaty, the courts can not entertain a question as to whether the treaty was in fact approved by the Indians. New York Indians v. United States, 30 Ct. Cl. 413. Rights claimed under a treaty between a State and an Indian tribe can not be enforced by a member of a tribe, or by the adoption. of its members. Cayuga Nation v. State, 99 N. Y. 235. The appellate jurisdiction of the Supreme Court of the United States extends to cases where, a treaty having been drawn into question, the decision has been against the validity of the treaty or of a right or title claimed under it; and in such case the court is not restricted to the abstract question of treaty construction, but has jurisdiction to examine and render a decision upon the claim of right or title actually made. Martin v. Hunter's Lessee (1816), 1 Wheat. 304. By sections 751 and 753 of the Revised Statutes of the United States the courts of the United States have power to issue writs of habeas corpus in the case of prisoners in jail who are in "custody in violation of the Constitution or of a law or treaty of the United States." Wildenhus's Case (1887), 120 U. S. 1. Complaint having been made in behalf of a British subject that an action of trespass had been begun against him, contrary to the stipulations of the treaty of peace of 1782-3, Mr. Jay replied: "Whether the action commenced against Mr. Marsh is or is not consistent with the treaty is a question to be judicially tried, and he must defend himself in the same manner that all others do who find themselves arrested without just cause. This is a kind of inconvenience to which all persons are exposed and must submit to in free governments, where justice can only be obtained in the settled course of judicial proceedings and not from the prompt and summary decisions of a magistrate guided only by his own discretion or by the discretion and orders of his sovereign. Until the contrary happens and appears, it is to be presumed that the courts will do what is right, and that presumption must obtain in the case of Mr. Marsh as well as others until the final determination of it shall remove all doubts about the matter." Mr. Jay. Sec. of For. Aff., to Sir John Temple, Dec. 11, 1787, 3 MS. Am A claim having been put forward in behalf of a citizen of France to an inheritance of lands in North Carolina, by virtue of the 11th article of the treaty of commerce between the United States and France, reply was made that the subject was "purely a question of property which must be decided by the tribunals of the country, who alone in litigated cases are competent to expound the laws of the land, among which, and of a paramount nature, is the treaty in question." Mr. Jefferson, Sec. of State, to the French minister, March 20, 1793, 5 MS. Dom. Let. 73. The seventh article of the treaty of 1778 provided that ships of war and privateers of France might freely carry the ships and goods taken from their enemies into the ports of the United States without being obliged to pay any fees to the officers of the admiralty, or any other judges; that such prizes were not to be arrested or seized when they entered the ports of the United States; that the officers of the United States should not make any examination concerning the lawfulness of the prizes; that they might depart at any time, and carry their prizes to the places expressed in their commissions; but that, on the contrary, no shelter or refuge should be given, in the ports of the United States, to such ships as had been made prize of the subjects, people, or property of France; but if such should come in, being forced by stress of weather or the danger of the sea, all proper means should be vigorously used to induce them to go out and retire as soon as possible. Under the neutrality act of 1794 there was a series of arrests of French vessels in United States ports, the validity of which arrests was adjudicated by the admiralty courts. Of this intervention of the judiciary the French ministers in the United States complained, holding that French vessels in the United States were under such circumstances entitled to come and go as they pleased. But the reply was that in all cases of disputed rights, the judiciary must be appealed to; and that whether such a right as that claimed by France was given by the treaty was the question at issue, which, under a constitutional system like that of the United States, the courts must, for municipal purposes, pass upon. The letters of the French ministers, with the accompanying papers, and the replies by Mr. Randolph and Mr. Pickering, are given in 1 Am. State Papers, For. Rel. 559 et seq. “M. d'Argaïz seems to think that a treaty stipulation can not be subjected to the interpretation of the judicial authority, and proceeds to remark, that, if the courts of the Union possess the right of interpreting, considering, and deciding upon treaties contracted between nation and nation, and the executive power can not inquire whether their decrees are or are not conformable with justice, it would be as well to declare, that, in order to give to treaties the force of treaties, or, at least, to render them obligatory, they should be concluded with the judicial power, or, in better words, that treaties should be made, for them to be afterward interpreted as the courts might think proper.' But the undersigned supposes that nothing is more common, in countries where the judiciary is an independent branch of the government, than for questions arising under treaties to be submitted to its decision. Indeed, in all regular governments, questions of private right, arising under treaty stipulations, are in their nature judicial questions. With us a treaty is part of the supreme law of the land; as such, it influences and controls the decisions of all tribunals; and many instances might be quoted of decisions made in the Supreme Court of the United States, arising under their several treaties with Spain herself, as well as under treaties between the United States and other nations. Similar instances of judicial decisions on points arising under treaties may be found in the history of France, England, and other nations; and, indeed, the undersigned would take the liberty to remind the Chevalier d'Argaïz that this very treaty of 1795 has been made the subject of judicial decision by a Spanish tribunal. "The undersigned would call to the recollection of the Chevalier d'Argaïz the case of Mr. D. Hareng, in which the Spanish colonial courts decided according to their sense of the intention of the treaty of 1795, and the intendant confirmed their decree, which was, that nothing in that treaty exempted Mr. Hareng from the payment of certain demands. From this decision this government was inclined to dissent, but never questioned the right and duty of a Spanish court to consider the intent and effect of a treaty." Mr. Webster, Sec. of State, to the Chev. d'Argaïz, Span. min., June 21, 1842, relating to the case of the Amistad, Webster's Works, VI. 399, 400. A native of Würtemberg, who had been naturalized as a citizen of the United States, died in Louisiana, bequeathing legacies to kindred residing in Würtemberg who were subjects of the King. The legacies were subjected to a tax of ten per cent, under a statute of Louisiana which imposed such a tax on successions devolving on persons not domiciled in that State and not citizens of any other State or of any Territory of the Union. The government of Würtemberg objected to the imposition of the tax on the strength of Art. III. of the treaty of April 10, 1844, which provided that the "citizens or subjects" of each contracting party should have the right to dispose of their personal property within the jurisdiction of the other by testament or otherwise, and that their heirs or legatees, "being citizens or subjects" of the other party, might take or dispose of such property, paying only the duties to which the "inhabitants" of the country where the property lay were liable in like cases. The Supreme Court of the United States having held that, as the decedent was a citizen of the United States, the case was not within the provisions of the treaty, the Department of State declared that the government of the |