352 BURR— THE TREATY-MAKING POWER [April 20. 



treaty made under the Confederation and to a treaty made under the 

 Constitution.-'" 



In Hughes z's. Edwards,'--" a bill in e(|uity was filed by British 

 subjects to recover a mortgage debt, or, in default of payment, to 

 procure the sale of the mortgaged property. Among the defenses 

 set up was that of alienage. This defense was disposed of by the 

 Court as follows : 



"This objection would not we think avail the appellants, even if the 

 object of this suit was the recovery of the land itself, since the remedies, as 

 well as the rights, of these aliens, are completely protected by the treaty of 

 1794. - 



In Carneal I'S. Banks,-" a bill was filed praying the rescinding of 

 a contract under which the respondent had agreed to convey certain 

 land to complainant, on the ground that respondent had no title to 

 said lands. The decree below was in favor of complainant. The 

 various assignments of error were considered by the Supreme Court. 

 One, based on the rescinding of the contract by the lower court by 

 reason of a misdescription, was sustained, on the ground that such 

 misdescription was not averred in the bill, and therefore not put in 

 issue. The Court then continues : 



" The alleged alienage of Lacassaign (through whom respondent derived 

 title) constitutes no objection. Had the fact been proven, this Court decided, 

 in the case of Chirac vs. Chirac (2 Wheat. 259), that the treaty of 1778 

 between the United States and France, secures the citizens and subjects of 

 either power the privilege of holding lands in the territory of the other.""^ 



-^"Of this case Professor Mikell says: " Here again the treaty in question 

 was a treaty negotiated by the Continental Congress, not by the Senate and 

 the President. And again the power of Congress, or of the President and 

 Senate to make such treaty, does not appear to have been argued by counsel. 

 nor was it discussed by the Court," pp. 542-3- On the first point, he is 

 wrong: both treaties were construed. The second argument needs no 

 further comments. As a matter of fact, counsel in opposition to the force of 

 the treaties did not appear to argue the case in the Supreme Court. 



""9 Wheat., 489 (1824). 



"Mbid., p. 495. Professor Mikell says of this case: "Again the question 

 of power was not argued by counsel or examined by the Court," p. 543. The 

 report of the case gives the name of counsel but purports to add nothing 

 concerning the argument. 



=".io Wheat., 181 (1825). 



"" Ibid., p. 189. 



