Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1816-04-13

came up upon case stated between the
parties and under the practice OF that
State, having the effect of special ver>
dict.
The case stated, brings into view the
treaty OF Peace with Great Britain, and
then proceeds to present the various laws
OF Virginia, and the facts upon which the
parties found their respective titles. 1t
then presents no p .rticular question, but
refers generally to the law arising out of
the Use. The original deis on was OBJ
tanned prior 20 the Treaty of 1894, but.be-
fore the case was adudicated in this
Court, che Trea'y OF 1894 had been COM
cluded.
The objection arises under the construc-
ton OF the 25th section above alluded to
which, as far AS it relates 70 this case, is in
these words :--'' A final judgment or de-
cree in any t, in the CHEST Court OF
law or equity of a S ate, in which deci-
sion in the suit could be had" where is
drawn i'll question the construction of any
clause of the constitution or of treaty.
q and the decision is Against the title set
up or claimed by either party und + such
clause. may be re examined, and reversed.
and affirm ed" &c
- But no other error shall be assigned
or regarded as a ground of reversal in any
such case as afore said, than such as ap-
pears On the face of the record. and i'm
mediately respects tine before mentioned
questions of validity or construction of the
said treaties,'' &c.
The tirst point TO be decided under il,s
state of thu case was, tht the iudensnt
beng part of the record, if that ju3g-
ment was not such, as UP n that case it
ought to have been, it was an error appa-
rent on the face of the record. But It was
contended, that the case there stated, pre-.
sented number of points. upon which the
decision below may have been founded.
and that 1T did not, therefore, uecess rily
appear TO have been an error in med ateIy
respecting d question on the construction
of a treaty. But the Court held, that as
the reference was general to the law aris-
ing out OF the case, if one question crosse
which called for the construction of trea-
ty, and the decision negatived tae right set
up under it, this Court will reverse that
decision, AID that ii is the du,y ofthe mar
ty who would avoid the Inconvenience oe
his principle, so to mould the case, to
obviate the ambiguity. And under his
point arises the question, whether this
Court can enquire into the title .fthe par
ty, or whether they are so restricted in
thelrJuridIcal powers rs to BE- Confined To
decide on the operation of treasy us5css~T5-
title previously ascertsiaed 10 exist.
1t there is any one point in the case, On
winch an opinion may be given with conf
dence, it is this. Whether we consider the
etter OF the statute, or The spirit, intest or
meaning Of the constitution and of the le-
gislature, AZ expressed in the 25th section.
L is equally clear that the title is the pri-
mary obje,t 20 which the attention of thu
Court SCALED in every such case. The
words are, and the decision be against
the title" so set up, not against the con-
strucfion 2fthe treaty cont nd d for by the
prty setting up the title. And how could
it be otherwise ? The title may exist. not.
withstan,iing the decision Of the STATE
Courts to the contrary; and in flat case,
the party is entitled TO the ben fits intend
ed to be secured to him by the Treaty.
The decision to bis prejudice, may have
been the result OF those very errors parti-
aItles or defects in tie State jurispru-
dence, against which the cons,itu ion in
tended to protect the individual. And If
the contrary doctrine be assumed, what is
the consequence This Court NAV then
be called upon TO decide on mere hypo~
thetlcal case-to give a construction to a
Treaty, without first deciding whether
there was any interest on which that
l reaty, whatever be It's proper construc-
ton, would OPP 4te. This difficulty was
felt and we ghed in the case of Smith and
the State of Maryland, and that decision
was founded upon the idea that this Court
was not thus restricted.
But another d Fl ulty presented itself.
The Treaty of "a had become the 5 pr f1s
law OF the land since the in lg,ucnt render
ed in the { lurt below. The defendant.
who was at that time an alien, hal nov be-
come confirmed in his rights under THAI
Treaty. This would have been no objec--
ton to the correctness IF tie original
judgment, were we then at lib .rty to TO-
tee that Treaty in rendering the Judgment
OF this Court. Having dlssentcd from the
opinion of the Court brlow, on the question
OF title, this difficulty did not present Itself
in any way in the view then took If tn.
c Sc. But the majority of this Court de-
termined that, as public law, the treaty
was part of the law of every case de-
pending in this Court that as such, it
was not necessary that it should be spread
upon the record, and that II was Oh. 2 tory
upon this Court. in rendering in rment
upon this writ Of error, Notwithstanding the
or gnai judgment may have been other
wise an mpeachablc. And to this opinion
l yield my hearty assent.
For it cannot be maintained that th;s
Court is bound-to give judgment unlaw-
ful az the upe of rendering t., in consde~
ration that the same judgment would have
been lawful at any prior time. What
Judgment can now be lawfully rendered