People ex rel. Attorney General v. Gerke

Bryan, J.

I agree with my associate, that the doctrine has been settled in the United States Courts, in cases relating to analogous treaties to the one in question, that the Courts of the country should *386extend to aliens, the full protection which the treaty seeks to give them, in the acquisition or distribution of property.

In Chirac v. Chirac, (2 Wheaton, 259,) the treaty with France of 1778, was passed upon, and it was decided by the United States Court, that it secured to the citizens and subjects of either Power, the privilege of holding lauds in the territory of the other. This was reaffirmed in Cavneac v. Banks, (10 Wheaton, 189.) A similar provision in the treaty with Great Britain of 1794 was also sanctioned by the Supreme Court of the United States, in Hughes v. Edwards, (9 Wheaton, 489.) So far as the authority of the Federal Courts is concerned, they appear to have uniformly administed the law upon the meaning given by construction to the language of the treaty, seeming never to have, in any respect, doubted the power of the General Government to provide by treaty with a foreign Power for the mutual protection of the property belonging to the citizens or subjects of each in the territory of the other. The treaty making power of the Federal Government must, from necessity, be sufficiently ample so as to cover all of the usual subjects of treaties between different powers. If we were to deny to the treaty-making power of our Government the exercise of jurisdiction over the property of deceased aliens, upon the ground of interference with the course of descents, or the laws of distribution of a State where property may exist; by parity of reasoning we should not make commercial treaties with foreign nations; because, it might be said, some of their provisions would injure the business of a portion of the citizens of one of the States of the Union.

If the treaty-making power which resides in the Federal Government is not sufficient to permit it to arrange with a foreign nation the distribution of an alien’s property, then that power resides nowhere, (since it is denied to the States,) and we must confess our system of government so weak and faulty, as to be incapable of extending to its citizens in foreign lands that protection which is most common amongst a majority of modern civilized nations.

I agree with my associate in the conclusion, that the treaty-making power of the Federal Government was sufficient to enable it to insert the article in the treaty with Prussia, which has before been quoted; *387and that the alien heirs of Deck are protected by its provisions, and are entitled to the withdrawal of the proceeds of the estate.

I therefore concur in the reversal of the judgment.