191--] OF THE UNITED STATES. 349 



sidered as more extensive than the title of the Commonweahh, viz. : a title 

 inchoate and imperfect; to be consummated by an actual entry under an in- 

 quest of office, or its equivalent, a suit and judgment at law by the grantee.""'" 



It was recognized by the court that " ... a suit and judgment 

 at law by the grantee" had occurred in the State courts, and juris- 

 diction to review by writ of error existed only to enforce rights 

 preserved by the treaty. Mr. Justice Story conckided his opinion 

 with these words : 



" It becomes unnecessary to consider the argument as to the effect of 

 the death of Denny Fairfax pending the suit, because admitting it to be 

 correctly applied in general, the treaty of 1794 completely avoids it. The 

 heirs of Denny Fairfax were made capable in law to take from him by 

 descent, and the freehold was not, therefore, on his. death, cast upon the 

 Commonwealth.""" 



Here is a positive upholding of the efficacy of the treaty of 1794, 

 essential to the decision. It is most clear under the Virginia law, 

 already analyzed in this case, that upon the death of an alien his 

 land qua his heirs-at-law escheated to the Commonwealth. Laconic- 

 ally, Air. Justice Story dismissed this contention as avoided by the 

 treaty of 1794. Apart from that, it was demonstrably sound. Why 

 was the Court so brief? Because, first, it had already so decided 

 upon the main contention ; secondly, it seemed to that Court, familiar 

 with the. causes and conditions which had written the treaty clauses 

 into the Constitution, to be unnecessary to dwell upon the plain 

 words of Article VI. of the Constitution then unanimously inter- 

 preted as meaning what they said. 



But Professor Mikell has one more objection to urge to the 

 binding force of this decision. '* The c|uestion of the poiver of the 

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

 case."-^- Doubtless it was not. It was necessary that a century 

 should first pass over the nation, and wipe out the memory of the 

 humiliating years under the Confederation, the efiforts of America's 

 early statesmen to cause them to pass and to render it ever impos- 

 sible for them to recur in her future history, their success in creating 



'"' 7 Cranch, p. 626. 



-" Ibid., pp. 627-8. 



'^'American Law Register, Vol. 57, p. 542. 



PROC. AMER. PHIL. SOC. LI. 2o6 T, PRINTED SEPT. 9, I9I2. 



