348 BURR— THE TREATY-MAKING POWER [April 20, 



inquest of office or its equivalent, to have vested the estate completely in itself 

 or its grantee. But it has not so done and its own inchoate title (and of 

 course the derivative title, if any, of its grantee) has by the operation of the 

 treaty, become ineffectual and void."""* 



The comments of Professor Mikell upon the case are interesting. 

 "In Fairfax z's. Hunter, decided in 1812," he writes, 



"Justice Story did indeed say that the treaty of 1794 w^ould have the 

 effect of rendering void the title to land claimed under an act of the legis- 

 lature of Virginia. All that he said on this point, however, — and it is com- 

 prised in a few lines of a long opinion, — is dictum, for he had already 

 shown, in ten pages of his opinion, that the acts of the legislature did not, in 

 fact, vest any title to the land of the claimant. The question of the power of 

 the President and Senate to make such a treaty was not argued in this 

 case. 



One might readily say that where a case is put upon two grounds, 

 each of which is adequate to sustain the judgment, the reasons 

 adduced in support of one ground — though it be the last in point 

 of expression — cannot logically or properly be characterized as 

 dicta. But in this instance it happens that the efficacy of the treaty 

 of 1794 was essential to the judgment reached. Professor Alikell's 

 zeal has led him into error. To begin with, if rights under the treaty 

 and the Constitution were not directly in issue and denied by the 

 State court, in what possible way does Professor Alikell think the 

 Supreme Court had jurisdiction by writ of error? Does he really 

 think that the Supreme Court intended to say to the State Supreme 

 Court : You have erred in interpreting your own statutes ; they show 

 the claimant against Fairfax had no title, on that ground alone we 

 reverse? The Supreme Court, as is clear the moment one begins 

 to think about it, would have no jurisdiction on the very face of its 

 opinion to render such a judgment. The point of Mr. Justice Story's 

 detailed examination of the Virginia acts is to show that the title of 

 Denny Fairfax rose to such dignity as to be saved by the treaty 

 of 1794. Air. Justice Johnson's dissent on this point throws light 

 on the real significance of the Court's decision but Air. Justice 

 Story's words in themselves show his thought: 



" The title of Hunter under the grant of 1789," he says, " cannot be con- 



^"^7 Cranch, pp. 626-7. 



-°^ America)! Lazv Register, Vol. 57, p. 542. 



