when a state law is deemed unconstitutional, because opposed to the Constitution, laws and treaties of the federal government, it is only void so far as it contravenes the Constitution, laws or treaties. 147 § 253. In Maryland.-In Maryland the court held that on the 19th of November, 1794, when the treaty between Great Britain and the United States was made, no British subject could hold land in that state, and that by virtue of certain acts of confiscation, the state was in possession of all British property within the limits of the state, and decided that the treaty had no application. A writ of error was sued out to the supreme court of the United States, on the ground that the case was one arising under a treaty, but the latter court did not consider it such a case and dismissed the writ.148 § 254. In Massachusetts.-In Massachusetts a suit was brought upon an information in the nature of an inquest of office, and it was alleged in the information that an alien had purchased the tenements in fee; that in consequence of his alienage the commonwealth was entitled to them, but the defendant unlawfully held them. The defense was placed on two grounds: First, that an inquest of office could not be had to entitle the commonwealth to lands purchased by an alien, after he had conveyed his estate in them; and secondly, that by the treaty of 1794 between Great Britain and the United States, the alien was protected in his purchase, so that a conveyance by him in fee to a citizen of the United States would pass the estate to such citizen. The court V. 147 Yeaker's Heirs Yeaker's Heirs, 4 Met. (Ky.) 33, 81 Am. Dec. 530. 148 Owings v. Norwood, 2 Har. & J. (Md.) 96. In the United States supreme court Mr. Chief Justice Marshall said: "The reason for inserting that clause in the constitution was that all persons who have real claims under a treaty should have their causes decided by the national tribunals. It was to avoid the apprehension as well as the danger of state prejudices. The words of the constitution are 6 cases arising under treaties.' Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of, or is protected by, a treaty, it is sanctioned against all the laws and judicial decisions of the states, and whoever may have this right, it is to be protected. But if the person's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by the treaty." Owings v. Norwood, 5 Cranch, 344, 3 L. ed. 120. did not give an opinion on the first ground, but held the second ground of defense sufficient, as the alien's title was protected by the treaty.149 This treaty applies to vested remainders as well as to estates in possession. "The word 'lands' in the treaty must be understood to mean any estate which one may hold in land, and cannot be confined to the actual possession and occupation of the soil.'' 150 § 255. In Michigan.-In Michigan the court held that the provisions of the treaty of 1794 between Great Britain and the United States applied only to the protection of valid titles. They did not apply to mere possessory rights without any title in fact, which by later legislation by Congress were, in cases of continuous occupancy and improvement, enlarged into freeholds. 151 The court said that the policy of the government had uniformly been to encourage resident aliens to become citizens, and, hence, it would violate that policy to concede, by construction, to those who continued to be aliens by choice, rights not conferred expressly by treaty or by statute.152 Where a treaty recognizes the reservation of certain lands to have been in a certain tribe of Indians, the courts are bound so to regard it. "When a treaty," said Mr. Justice Campbell, "has been made by the proper federal authority and ratified, it becomes the law of the land, and the courts have no power to question, or in any manner look into, the power or rights of the nation or tribe with whom it is made. The action of the treatymaking power is conclusive upon such inquiry.” 153 § 256. In New York.-In New York it was held in a case decided in 1802 that the American Revolution worked no forfeiture of previously vested rights in lands. The court considered the rights of certain aliens to acquire land in that state, and after deciding in their favor, stated that if any doubt existed, it would be removed by the treaty, and after quoting the ninth article of the treaty of 1794 between Great Britain and the United States, 10 Commonwealth v. Sheafe, 6 Mass. 441. 150 Fox v. Southack, 12 Mass. 143. 1 Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. 152 Crane v. Reeder, 21 Mich. 24, 4 Am. Rep. 430. 153 Maiden v. Ingersoll, 6 Mich. 372, 376. said: "This provision thus removes all objections to the title of those lessors, or to their remedy founded on the joint demise of them, and their husbands, so far as their alienism is the cause of the objection." 154 A British subject died in 1793 owning real estate in New York without issue, leaving a brother and three sisters living in Ireland. In 1804 the legislature passed an act vesting the real estate in one of the sisters, who had married an alien, in like manner as if she had been a citizen at the time of her brother's death. In an action of ejectment it was held that the decedent, having emigrated to this country after the Declaration of Independence, was to be considered as an alien, and that the land held by him was, by the provisions of the treaty of 1794, vested in him and his heirs notwithstanding their alienage. The act of the legislature giving the whole of his estate to one of his heirs in exclusion of the rest was in violation of the treaty and void." 155 A case arose in that state where the treaty of 1794 was held to have no application, because the title to the lands involved was acquired after the treaty, and did not exist at the time the treaty was concluded, the treaty protecting only existing titles. 156 But if at the date of that treaty a British subject was the owner of land, by virtue of a conveyance executed in 1774, and he died an alien in 1802, he and his heirs, it was held, were entitled to protection under that treaty, although they had no possession under their title. The son of the alien owner, who was also an alien, could take the lands by descent from his father.157 Under the treaty of 1794 a British subject holding lands in the United States was authorized to convey or devise the property to aliens as well as to citizens.158 The treaty of 1794 rendered the title of every alien British subject to lands in every part of the United States then held by him not only valid, but freely alienable, as though he had been a native-born or naturalized citizen.159 § 257. Limitation on time to sell.-The treaty of 1845 between the United States and the grand duchy of Hesse provided that 158 Watson v. Donnelly, 28 Barb. (N. Y.) 653. 154 Jackson v. Lunn, 3 Johns. Cas. 109, 119, per Radcliff, J. 155 Jackson v. Wright, 4 Johns. 75. 156 Jackson v. Decker, 11 Johns. 418. 157 Munro v. Merchant, 26 Barb. (N. Y.) 384. in cases where, on the death of any person holding real property within the territories of one party, such real property would, according to the law of the land, descend on the subject or citizen of the other were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years in which to sell the same, which term may be reasonably prolonged according to circumstances. The court, construing this provision, held that title to real property descended upon the death of the owner to such heirs of the decedent as were residents and capable of taking, subject to be devested by a sale within two years by the alien heirs. If the alien heirs, however, do not exercise the power of sale given by the treaty, within the time specified, and no prolongation of the time is obtained, the title vests unqualifiedly in the citizen heirs. The legislature of the state, where Congress has failed to act, has power to prolong the term in which the power of sale may be exercised. It has the power to determine what would be a reasonable prolongation of that term, and if it passes an act giving an indefinite unlimited time in which the alien heirs can convey the land, it does no harm or injustice to the resident heirs. Such an act is valid, and a conveyance made by the alien heirs after the expiration of the period of two years mentioned in the treaty is valid.160 Such a treaty modified the laws of descent prevailing in the state only to the extent necessary to give the provisions of the treaty scope. It left the state laws to operate as a devolution of the estate of the decedent, subject to the power of sale given to his alien heirs. The resident heirs, by such a treaty, took the title subject to the power of sale, and were authorized to hold the land until a conveyance was made by the alien heirs under the power of sale.1 The law of New York providing that the right of alien adult males to inherit land shall be dependent on the filing of a deposition of their intention to become citizens before the conclusion of proceedings by the state to defeat their title is superseded, so far as citizens of Prussia are concerned, by the treaty concluded in 1828, declaring that subjects of that country who are incapable by reason of alienage from inheriting land in the United States shall be allowed a reasonable time in which to sell the same, and to 100 Bollerman v. Blake, 94 N. Y. 624, 24 Hun (N. Y.), 187. 161 161 Bollerman v. Blake, 94 N. Y. 624, 24 Hun (N. Y.), 187. withdraw the proceeds.162 It was in the case just cited considered that a sale of the land of a decedent within two years and four months after his death was a sale within a reasonable time as contemplated by this provision of the treaty.16 163 The provision in the treaty with Württemberg that an alien shall be allowed two years in which to sell real property, which term may be reasonably prolonged, is, it is held, in effect a statute of limitation, and when there has been no prolongation the statute must apply.164 § 258. Existence of title at time of treaty. As the treaties of 1783 and 1794 between the United States and Great Britain provide only for titles then existing, no claim to lands can be established under either treaty where the claimant cannot show a title in himself or his ancestor at the time of the execution of the treaty. A native of New York, whom we shall call A, resided and owned land in that state after the Declaration of Independence, but in 1783 left for Nova Scotia with his family, excepting his eldest son. He died on the passage but his family continued on to Nova Scotia, where they settled and remained ever afterward in the British provinces. His eldest son remained in New York in the occupation of the land until 1838, in which year he died, leaving surviving him several children. It was decided that all of A's children were aliens, incapable of taking by descent, and that as against them the land should be awarded to the children of the eldest son.1 165 The escheat of lands held by British subjects in New York was barred by the sixth article of the treaty of 1783, and they were enabled to transmit them by descent, but such descent must be to a citizen. If a British subject died previous to the treaty of 1794, leaving no citizen heirs, the provisions of the treaty, it was decided, did not pass the land to alien heirs, but it escheated.166 So, under the treaty with Prussia, an alien may take and hold land under a devise from a native-born citizen.167 |