Louisiana, consisting of the island of New Orleans, and the country she received from France west of the Mississippi.

*

In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it

erroneous.

We think then, however individual judges might construe the treaty of St. Ildefonso, it is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed.

The convulsed state of European Spain affected her influence over her colonies; and a degree of disorder prevailed in the Floridas, at which the United States could not look with indifference. In October, 1810, the president issued his proclamation, directing the governor of the Orleans territory to take possession of the country as far east as the Perdido, and to hold it for the United States. This measure was avowedly intended as an assertion of the title of the United States; but as an assertion, which was rendered necessary in order to avoid evils which might contravene the wishes of both parties, and which would still leave the territory "a subject of fair and friendly negotiation and adjustment."

In April, 1812, congress passed "an act to enlarge the limits of the state of Louisiana." This act describes lines which comprehend the land in controversy, and declares that the country included within them shall become and form a part of the state of Louisiana.

In May of the same year, another act was passed, annexing the residue of the country west of the Perdido to the Mississippi territory. And in February, 1813, the president was authorized "to occupy and hold all that tract of country called West Florida, which lies west of the river Perdido, not now in possession of the United States."

On the 3d of March, 1817, congress erected that part of Florida which had been annexed to the Mississippi territory, into a separate territory, called Alabama.

The powers of government were extended to, and exercised in those parts of West Florida which composed a part of Louisiana and Mississippi, respectively; and a separate government was erected in Alabama. 3 Stat. 371.

In March, 1819, congress passed "an act to enable the people of Alabama to form a constitution and state government." And in De

cember, 1819, she was admitted into the Union, and declared one of the United States of America. The treaty of amity, settlement, and limits, between the United States and Spain, was signed at Washington, on the 22d day of February, 1819, but was not ratified by Spain till the 24th day of October, 1820; nor by the United States until the 22d day of February, 1821. So that Alabama was admitted into the Union as an independent state, in virtue of the title acquired by the United States to her territory, under the treaty of April, 1803.

After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question; and in its discussion, the courts of every country must respect the pronounced will of the legislature. Had this suit been instituted immediately after the passage of the act for extending the bounds of Louisiana, could the Spanish construction . of the treaty of St. Ildefonso have been maintained? Could the plaintiff have insisted that the land did not lie in Louisiana, but in West Florida; that the occupation of the country by the United States was wrongful; and that his title under a Spanish grant must prevail, because the acts of congress on the subject were founded on a misconstruction of the treaty? If it be said, that this statement does not present the question fairly, because a plaintiff admits the authority of the Court, let the parties be changed. If the Spanish grantee had obtained possession so as to be the defendant, would a Court of the United States maintain his title under a Spanish grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the treaty of St. Ildefonso was right, and the American construction wrong? Such a decision would, we think, have subverted those principles which govern the relations between the legislative and judicial departments, and mark the limits of each.

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 so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. Const. art. 6,

cl. 2. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

*

We are of opinion then, that the court committed no error in dismissing the petition of the plaintiff, and that the judgment ought to be affirmed with costs."

2 See also U. S. v. Arredondo, 6 Pet. 691, 8 L. Ed. 547 (1832); Gracia v. Lee, 12 Pet. 511, 9 L. Ed. 1176 (1838).

"Whether or not Greer county is part of the state of Texas depends upon where the northern boundary line of our state, dividing it from Indian Territory, should be located. This is a question to be settled by the political and not the judicial department of our state government. It is judicially known to us that the political authority bas always claimed the territory composing Greer county as part of the domain of our state, and has exercised acts of control over it; such as organizing it into a county and attaching it to another of our counties for judicial purposes, etc. We cannot undertake to limit the jurisdiction thus recognized and asserted by the political department, and until that department ceases to exercise such authority we must treat this county as subject to the jurisdiction of the state of Texas. Bedel v. Loomis, 11 N. H. 15 (1840); State v. Dunwell, 3 R. I. 127 (1855); Guadalupe County v. Wilson County, 58 Tex. 228 (1882); Foster v. Neilson, 2 Pet. 254 [7 L. Ed. 415 (1829)]; United States v. Arredondo, 6 Pet. 691 [8 L. Ed. 547 (1832)]." Willie, C. J., in Harrold v. Arrington, 64 Tex. 233 (1885).

In Re Cooper, 143 U. S. 472, 12 Sup. Ct. 453, 36 L. Ed. 232 (1892), the court held, inter alia, that a treaty is the law of the land where it prescribes a rule for determining rights of citizens or subjects; that courts may not determine whether government's action is proper in pending negotiations; that the Supreme Court has no power to determine political questions and that courts are bound by the government's act asserting dominion over any part of the (Behring) Sea.

So in The James G. Swan (D. C.) 50 Fed. 111 (1892), the court held that the President and Congress are vested with all the responsibility and powers of the government for determination of questions as to the maintenance and extension of our national dominion, and inasmuch as they had assumed jurisdiction and sovereignty over the waters of Behring Sea outside of the threemile limit, the people and the courts are bound by such action.

In Wilson v. Shaw, 204 U. S. 24, 32, 27 Sup. Ct. 233, 51 L. Ed. 351 (1907), the title of the United States to the Panama Canal Zone was involved. Mr. Justice Brewer, speaking for the court, said on this subject:

"He contends that whatever title the government has was not acquired as provided in the act of June 28, 1902, by treaty with the Republic of Colombia. A short but sufficient answer is that subsequent ratification is equivalent to original authority. The title to what may be called the Isthmian or Canal Zone, which at the date of the act was in the Republic of Colombia, passed by an act of secession to the newly formed Republic of Panama. The latter was recognized as a nation by the President. A treaty with it, ceding the Canal Zone, was duly ratified. 33 Stat. 2234. Congress has passed several acts based upon the title of the United States, among them one to provide a temporary government, 33 Stat. 429; another, fixing the status of merchandise coming into the United States from the Canal Zone, 33 Stat. 843 [Comp. St. § 5323]; another, prescribing the type of canal. 34 Stat. 611. These show a full ratification by Congress of what has been done by the Executive. Their concurrent action is conclusive upon the courts. We have no supervising con trol over the political branch of the government in its action within the limits

PEOPLE ex rel. ATTORNEY GENERAL v. GERKE & CLARK. (Supreme Court of California, 1855. 5 Cal. 381.)

Appeal from the District Court of the Fourth Judicial District, San Francisco County.

On the 23d of August, 1853, one Auguste Deck, a citizen of Prussia, died intestate, in the city of San Francisco, leaving undisposed of, a large amount of real estate.

On the 14th of September following, letters of administration were granted by the probate court to the defendant, Gerke.

Clark afterwards purchased from the absent heirs a large portion of the property.

An information was filed by the Attorney General in the court below, citing the defendants to show cause why Deck's estate should not escheat to the state of California. The court below entered judgment, pro forma, in favor of the people. Defendants appealed.

HEYDENFELDT, J. By a convention between the United States and the kingdom of Prussia, made in the year 1828 (8 Stat. 378), the fourteenth article provides: "And where, on the death of any person holding real estate, within the territory of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation."

The Attorney General, in support of the information filed in this case, denies the power of the federal government to make such a provision by treaty, and the determination of this case depends upon the solution of that question. Cases have frequently arisen where aliens have claimed to inherit by virtue of treaty provisions analogous to the one under consideration, and in all of them, so far as I have examined, the stipulations were enforced in favor of the foreign claimants. See Chirac v. Chirac, 2 Wheat. 259, 4 L. Ed. 234; Orr v. Hodgson, 4 Wheat. 453, 4 L. Ed. 613; Society for The Propagation of the Gospel v. New Haven, 8 Wheat. 464, 5 L. Ed. 662; Hughes v. Edwards, 9 Wheat. 489, 6 L. Ed. 142; Carneal v. Bank, 10 Wheat. 181, 6 L. Ed. 297.

But in none of these cases was the question raised as to the power of the federal government to make the treaty. It has been the practice of the government from an early period after the ratification of the Constitution, and its power is now, I believe, for the first time disputed.

of the Constitution. Jones v. United States, 137 U. S. 202 [11 Sup. Ct. 80, 34 L. Ed. 691 (1890)], and cases cited in the opinion; In re Cooper, 143 U. S. 472, 499, 503 [12 Sup. Ct. 453, 36 L. Ed. 232 (1892)].”

SCOTT INT. LAW-28

The language which grants the power to make treaties, contains no word of limitation; it does not follow that the power is unlimited. It must be subject to the general rule, that an instrument is to be construed so as to reconcile and give meaning and effect to all its parts. If it were otherwise, the most important limitation upon the powers of the federal government would be ineffectual, and the reserved rights of the States would be subverted. This principle of construction as applied, not only in reference to the Constitution of the United States, but particularly in the relation of all the rest of it, to the treaty making grant, was recognized both by Mr. Jefferson and John Adams, two leaders of opposite schools of construction. See Jefferson's Works, vol. III, p. 135; and vol. VI, p. 560.

It may, therefore, be assumed that, aside from the limitations and prohibitions of the Constitution upon the powers of the federal government, "the power of treaty was given, without restraining it to particular objects, in as plenipotentiary a form as held by any sovereign in any other society." This principle, as broadly as I have deemed proper to lay it down, results from the form and necessities of our government, as elicited by a general view of the federal compact. Before the compact, the states had the power of treaty making as potentially as any power on earth; it extended to every subject whatever. By the compact, they expressly granted it to the federal government in general terms, and prohibited it to themselves.

The general government must, therefore, hold it as fully as the states held who granted it, with the exceptions which necessarily flow from a proper construction of the other powers granted, and those prohibited by the Constitution. The only questions, then, which can arise in the consideration of the validity of a treaty, are: First. Is it a proper subject of treaty according to international law or the usage and practice of civilized nations? Second. Is it prohibited by any of the limitations in the Constitution?

Taking for illustration the present subject of treaty, no one will deny that, to the commercial states of the Union, and indeed to the citizens. of any state who are engaged in foreign commerce, a stipulation to remove the disability of aliens to hold property is of paramount importance, or, at any rate, it may be so considered by the states, and demanded as a part of their commercial polity.

Now, as by the compact the states are absolutely prohibited from making treaties, if the general government has not the power, then we must admit a lameness and incompleteness in our whole system, which renders us inferior to any other enlightened nation, in the power and ability to advance the prosperity of the people we govern.

Mr. Calhoun, in his discourse on the Constitution and government of the United States, has given to this power a full consideration, and I cannot doubt that the view which I have taken, is sustained by hist

SCOTT INT.LAW