1. In the absence of proof that an alien has become a citizen of
the United States, his original status is presumed to continue.
2. A., a citizen of Switzerland, died in 1861 in Virginia,
intestate and without issue. For want of an heir capable under the
statutes of the state to inherit the lands there situate whereof he
died seised in fee, they were sold by the escheator of the proper
district. A.'s next of kin, B., a citizen of Switzerland, filed a
petition to recover the proceeds of that sale. Upon consideration
of the treaty between the United States and the Swiss Confederation
of Nov. 25, 1850, 10 Stat. 587,
Held:
1. That the treaty is the supreme law of the land, and by its
terms the incapacity of B. as an alien was so far removed as to
entitle him to recover and sell the lands and "withdraw and export
the proceeds thereof."
2. That his rights thus secured are not barred by the lapse of
time, inasmuch as no statute of Virginia prescribes the term within
which they must be asserted.
3. That where a treaty admits of two constructions, one
restrictive as to the rights that may be claimed under it, and the
other liberal, the latter is to be preferred.
4. That the treatymaking clause of the Constitution is
retroactive as well as prospective.
5. That, in view of B.'s rights in the premises, the escheator
is entitled only to the amount allowed by law for making sales of
real estate in ordinary cases.
6. That counsel cannot be paid out of the fund in dispute.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion the Court.
Solomon Hauenstein died in the City of Richmond in the year 1861
or 1862, intestate, unmarried, and without children. The precise
date of his death is not material. At that time, he owned and held
considerable real estate in the City of Richmond. An inquisition of
escheat was prosecuted by the escheator for that district. A
verdict and judgment were rendered in his favor. When he was about
to sell the property, the plaintiffs in error, pursuant to a law of
the state, filed their petition setting forth that they were the
heirs-at-law of the deceased and praying that the proceeds of the
sale of the property should be paid over to them. Testimony was
Page 100 U. S. 484
taken to prove their heirship as alleged, but the court was of
opinion that, conceding that fact to be established, they could
have no valid claim, and dismissed the petition. They removed the
case to the Court of Appeals. That court, entertaining the same
views as the court below, affirmed the judgment. They thereupon
sued out this writ of error.
The plaintiffs in error are all citizens of Switzerland. The
deceased was also a citizen of that country, and removed thence to
Virginia, where he lived and acquired the property to which this
controversy relates, and where he died. The validity of his title
is not questioned. There is no proof that he denationalized himself
or ceased to be a citizen and subject of Switzerland. His original
citizenship is, therefore, to be presumed to have continued. Best
on Presumptions 186. According to the record, his domicile, not his
citizenship, was changed. The testimony as to the heirship of the
plaintiffs in error is entirely satisfactory. There was no
controversy on this subject in the argument here. The parties were
at one as to all the facts. Their controversy was rested entirely
upon legal grounds.
The common law as to aliens, except so far as it has been
modified by her legislature, is the local law of Virginia. 2
Tucker's Blackst., App., Note C. By that law, "aliens are incapable
of taking by descent or inheritance, for they are not allowed to
have any inheritable blood in them." 2 Bla.Com., 249. But they may
take by grant or devise, though not by descent. In other words,
they may take by the act of a party, but not by operation of law,
and they may convey or devise to another, but such a title is
always liable to be devested at the pleasure of the sovereign by
office found. In such cases, the sovereign, until entitled by
office found or its equivalent, cannot pass the title to a grantee.
In these respects, there is no difference between an alien friend
and an alien enemy.
Fairfax's Devisee v. Hunter's
Lessee, 7 Cranch 603.
The law of nations recognizes the liberty of every government to
give to foreigners only such rights touching immovable property
within its territory as it may see fit to concede. Vattel, book 2,
c. 8, sec. 114. In our country, this authority is primarily in the
states where the property is situated.
Page 100 U. S. 485
The Revised Code of Virginia of 1860, c. 115, sec. 1, provides
that an alien upon declaring on oath before a court of record that
he intends to reside in the state, and having the declaration
entered of record, may inherit or purchase and hold real estate
there as if he were a citizen.
Sec. 2 of the same chapter provides that such alien may convey
or devise his real estate, and if he shall die intestate, that it
shall descend to his heirs, and if the alienee, devisee, or heir
shall be an alien, that he may take and hold, by being in the state
and making under oath and having recorded, within five years, a
like declaration with that prescribed by the preceding section.
The sixth section declares that when by a treaty between the
United States and any foreign country a citizen of such country is
allowed to sell real estate in Virginia, he may sell and convey
within the time prescribed by the treaty, and when by such treaty
citizens of the United States are allowed to inherit, hold, sell,
and convey real estate situate in such country, the citizens and
subjects of that country may in like manner inherit, hold, sell,
and convey real estate lying in Virginia, provided that these
several provisions shall apply only to real estate acquired
thereafter by the citizens or subjects of such foreign country.
Sec. 2 has no application to the present case, because the
declaration which it permits has not been made by the plaintiffs in
error, and sec. 6 has none, because all the real estate of the
deceased was acquired before the date of the act.
The Revised Code of 1873 has obliterated nearly all the
distinctions between aliens and citizens with respect to their
rights as to both real and personal property.
See c. 4,
sec. 18, p. 130, and c. 119, secs. 4 and 10, pp. 917, 918. As it is
not claimed that any of these provisions affect the present case,
we shall pass them by without further remark.
This brings us to the consideration of the treaty between the
United States and the Swiss Confederation of the 25th of November,
1850. 11 Stat. 587. The fifth article has been earnestly pressed
upon our attention, and is the hinge of the controversy between the
parties.
The first part of the article is devoted to personal
property,
Page 100 U. S. 486
and gives to the citizens of each country the fullest power
touching such property belonging to them in the other, including
the power to dispose of it as the owner may think proper. It then
proceeds as follows:
"The foregoing provisions shall be applicable to real estate
situate within the states of the American Union or within the
cantons of the Swiss Confederation in which foreigners shall be
entitled to hold or inherit real estate."
"But in case real estate situated within the territories of one
of the contracting parties should fall to a citizen of the other
party, who, on account of his being an alien, could not be
permitted to hold such property in the state or in the canton in
which it may be situated, 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."
The plaintiffs in error are exactly within the latter category.
This is too clear to require discussion. A corresponding provision
for like cases is found in article 2, in the previous treaty of the
18th of May, 1847, between the same parties. 9 Stat. 902. By that
article, it is declared
"That if, by the death of a person owning real property in the
territory of one of the high contracting parties, such property
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 allowed him to dispose of such property and 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 was clearly the intention of the clause in question in the
treaty of 1850 to secure to the beneficiaries absolutely the right
"to sell said property," and "to withdraw and export the proceeds
thereof without difficulty." Otherwise the language used
Page 100 U. S. 487
is a sham and a mockery. The only qualification is as to the
time within which the right must be exercised. It has been
earnestly contended in behalf of the defendant in error that the
state having fixed no time within which this must be done, it
cannot be done at all, and that the entire provision thus becomes a
nullity and is as if it were not.
The terms of the limitation imply clearly that some time, and
not that none, was to be allowed. If it had been proposed to those
who negotiated the treaty to express in it the effect of this
construction in plain language, can it be doubted that it would
have been promptly rejected by both sides as a solecism and
contrary to the intent of the parties?
Where a treaty admits of two constructions, one restrictive as
to the rights that may be claimed under it and the other liberal,
the latter is to be preferred.
Shanks v.
Dupont, 3 Pet. 242. Such is the settled rule in
this Court.
It was well remarked in the able opinion of the dissenting judge
in the Court of Appeals that if this case were to be decided under
the treaty of 1847, there could not be a doubt as to the result. In
this we concur, and we think the case is equally clear under the
treaty of 1850, which governs the rights of the parties.
The provision as to time in the earlier treaty is, in effect, a
statute of limitation. It applied with Procrustean sameness in all
the states and in all the cantons. In the latter treaty, this
limitation was dropped, and the time was to be such "as the laws of
the state or canton will permit." In other words, it was left to
the laws of the several states and cantons respectively to fix the
limitation in this as in other cases. This was consonant to the
policy of our judiciary act of 1789, which gave to the state
statutes of limitation the same effect in the local courts of the
United States which they had in the courts of the states
respectively that enacted them. The Procrustean uniformity
prescribed by the former treaty was thus abandoned, and it is fair
to presume that the harmonious results in this respect which must
necessarily follow everywhere within the territory covered by the
treaty, both at home and abroad, were the considerations by which
those who made the change were animated. If a state or canton had a
law which imposed a
Page 100 U. S. 488
limitation in this class of cases, nothing more was necessary.
If it had not such a law, it was competent to enact one, and until
one exists, there can be no bar arising from the lapse of time. A
party entitled can sue whenever he chooses to do so, and he is
clothed with all the rights of any other litigant asserting a claim
where there is no statute of limitation applicable to the case.
This we understand to be the position of Virginia and such are the
legal consequences necessarily flowing from it.
This construction of the treaty derives support from the fact
that the treaty provides (sixth article) that any controversy which
may arise among the claimants to the succession, "shall be decided
according to the laws and by the judges of the country where the
property is situated."
It remains to consider the effect of the treaty thus construed
upon the rights of the parties.
That the laws of the state, irrespective of the treaty, would
put the fund into her coffers is no objection to the right or the
remedy claimed by the plaintiffs in error.
The efficacy of the treaty is declared and guaranteed by the
Constitution of the United States. That instrument took effect on
the fourth day of March, 1789. In 1796, but a few years later, this
Court said:
"If doubts could exist before the adoption of the present
national government, they must be entirely removed by the sixth
article of the Constitution, which provides 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 the
judges in every state shall be bound thereby, anything in the
constitution or laws of any state to the contrary
notwithstanding."
"There can be no limitation on the power of the people of the
United States. By their authority the state constitutions were
made, and by their authority the Constitution of the United States
was established, and they had the power to change or abolish the
state constitutions or to make them yield to the general government
and to treaties made by their authority. A treaty cannot be the
supreme law of the land -- that is, of all the United States -- if
any act of a state legislature can stand in its way. If the
constitution of a state (which is the fundamental law of the state
and paramount to its legislature) must give way to a treaty and
fall
Page 100 U. S. 489
before it, can it be questioned whether the less power, an act
of the state legislature, must not be prostrate? It is the declared
will of the people of the United States that every treaty made by
the authority of the United States shall be superior to the
constitution and laws of any individual state, and their will alone
is to decide. If a law of a state contrary to a treaty is not void,
but voidable only, by a repeal or nullification by a state
legislature, this certain consequence follows -- that the will of a
small part of the United States may control or defeat the will of
the whole."
Ware v. Hylton,
3 Dall. 199.
It will be observed that the treatymaking clause is retroactive
as well as prospective. The treaty in question in
Ware v.
Hylton was the British treaty of 1783 which terminated the war
of the American Revolution. It was made while the Articles of
Confederation subsisted. The Constitution, when adopted, applied
alike to treaties "made and to be made."
We have quoted from the opinion of Mr. Justice Chase in that
case not because we concur in everything said in the extract, but
because it shows the views of a powerful legal mind at that early
period, when the debates in the convention which framed the
Constitution must have been fresh in the memory of the leading
jurists of the country.
In
Chirac v.
Chirac, 2 Wheat. 259, it was held by this Court
that a treaty with France gave to her citizens the right to
purchase and hold land in the United States, removed the incapacity
of alienage, and placed them in precisely the same situation as if
they had been citizens of this country. The state law was hardly
adverted to, and seems not to have been considered a factor of any
importance in this view of the case. The same doctrine was
reaffirmed touching this treaty in
Carneal v.
Banks, 10 Wheat. 181, and with respect to the
British treaty of 1794, in
Hughes v.
Edwards, 9 Wheat. 489. A treaty stipulation may be
effectual to protect the land of an alien from forfeiture by
escheat under the laws of a state.
Orr v.
Hodgeson, 4 Wheat. 453. By the British treaty of
1794,
"all impediment of alienage was absolutely leveled with the
ground despite the laws of the states. It is the direct
constitutional question in its fullest conditions. Yet the Supreme
Court held that the stipulation was within the constitutional
powers of the Union.
Page 100 U. S. 490
Fairfax's Devisees v. Hunter's
Lessee, 7 Cranch 627;
See
Ware v. Hylton, 3
Dall. 242."
8 Op.Att'ys-Gen. 417. Mr. Calhoun, after laying down certain
exceptions and qualifications which do not affect this case,
says:
"Within these limits, all questions which may arise between us
and other powers, be the subject matter what it may, fall within
the treatymaking power and may be adjusted by it."
Treat. on the Const. and Gov. of the U.S. 204.
If the national government has not the power to do what is done
by such treaties, it cannot be done at all, for the states are
expressly forbidden to "enter into any treaty, alliance, or
confederation." Const., Art. 1, sec. 10.
It must always be borne in mind that the Constitution, laws, and
treaties of the United States are as much a part of the law of
every state as its own local laws and Constitution. This is a
fundamental principle in our system of complex national polity.
See also Shanks v.
Dupont, 3 Pet. 242;
Foster
& Elam v. Neilson, 2 Pet. 253;
The
Cherokee Tobacco, 11 Wall. 616; Mr. Pinkney's
Speech, 3 Elliot's Constitutional Debates, 231;
The People v.
Gerke & Clark, 5 Cal. 381.
We have no doubt that this treaty is within the treatymaking
power conferred by the Constitution. And it is our duty to give it
full effect. We forbear to pursue the topic further. In the able
argument before us, it was insisted upon one side, and not denied
on the other, that if the treaty applies, its efficacy must
necessarily be complete. The only point of contention was one of
construction. There are doubtless limitations of this power as
there are of all others arising under such instruments, but this is
not the proper occasion to consider the subject. It is not the
habit of this court, in dealing with constitutional questions, to
go beyond the limits of what is required by the exigencies of the
case in hand. What we have said is sufficient for the purposes of
this opinion.
During the argument here, our attention was called to the amount
that might be taken from the fund for compensation to the escheator
and to his counsel in the event of our judgment being in favor of
the plaintiffs in error.
Under the circumstances, the escheator can have no claim as
such, but he may properly receive the percentage allowed by
Page 100 U. S. 491
law for making sales of real property in ordinary cases. It is a
settled rule in this Court never to allow counsel on either side to
be paid out of the fund in dispute.
The judgment of the Court of Appeals of Virginia, so far as it
concerns the claim of the plaintiffs in error, will be reversed,
and the cause remanded for further proceedings in conformity with
this opinion, and it is
So ordered.