
15 U.S. 259 (1817)
2 Wheat. 259
J.C.F. CHIRAC
v.
the Lessee of A.F. CHIRAC et. al.
Supreme Court of United States.
March 3, 1817.
March 11, 1817.
*263 Mr. Harper, for the plaintiff in error.
Mr. Winder and Mr. Mercer, contra.
*269 Mr. Chief Justice MARSHALL delivered the opinion of the court.
The first point made by the plaintiff in error is, that the estate of which John Baptiste Chirac died seised was, in his lifetime, escheatable, because it was acquired before he became a citizen of the United States; the law of the state of Maryland, according to which he took the oaths of citizenship, being virtually repealed by the constitution of the United States, and the act of naturalization enacted by congress.
That the power of naturalization is exclusively in congress does not seem to be, and certainly ought not to be, controverted; but, it is contended, that the act of Maryland, passed in the year 1780, "To declare and ascertain the privileges of the subjects of France residing within that state," gives to those *270 subjects the power of holding land on the performance of certain conditions prescribed in that act.
The 2d section gives to the subjects of France who may reside within the state of Maryland, all the rights of free citizens of that state. The 3d section contains a proviso restricting the privileges granted by the act, and declaring that nothing therein contained shall be construed to grant to those who should continue subjects of his most christian majesty, and not qualify themselves as citizens of this state, any right to purchase or hold lands, or real estate, but for their respective lives or for years.
This act certainly requires that a French subject, who would entitle himself, under it, to hold lands in fee, should be a citizen according to the law which might be in force at the time of acquiring the estate. Otherwise he could only purchase or hold for life or years. John Baptiste Chirac was not a citizen according to that law when he purchased the land in controversy.
It is unnecessary to inquire into the consequences of this state of things, because we are all of opinion that the treaty between the United States and France, ratified in 1778, enabled the subjects of France to hold lands in the United States. That treaty declared that "The subjects and inhabitants of the United States, or any one of them, shall not be reputed Aubains (that is aliens) in France." "They may, by testament, donation, or otherwise, dispose of their goods, moveable and immoveable, in favour of such persons as to them shall seem good; *271 and their heirs, subjects of the said United States, whether residing in France or elsewhere, may succeed them ab intestat, without being obliged to obtain letters of naturalization. The subjects of the most christian king shall enjoy, on their part, in all the dominions of the said states, an entire and perfect reciprocity relative to the stipulations contained in the present article.[c]"
Upon every principle of fair construction, this article gave to the subjects of France a right to purchase and hold lands in the United States.
It is unnecessary to inquire into the effect of this treaty under the confederation, because, before John Baptiste Chirac emigrated to the United States, the confederation had yielded to our present constitution, and this treaty had become the supreme law of the land.
*272 The repeal of this treaty could not affect the real estate acquired by John Baptiste Chirac, because he was then a naturalized citizen, conformably to the act of congress; and no longer required the protection given by treaty.
John Baptiste Chirac having died seised in fee of the land in controversy; his heirs at law being subjects of France; and there being, at that time, no treaty in existence between the two nations: did his land pass to these heirs, or did it become escheatable?
This question depends on the law of Maryland. The 4th section of the act already mentioned enacts, among other things, that if any subject of France who shall become a citizen of Maryland, "shall die intestate, the natural kindred of such decedent, whether residing in France or elsewhere, shall inherit his or her real estate, in like manner as if such decedent, and his kindred, were the citizens of this state."
An attempt has been made to avoid the effect of this claim in the act, by contending that it was passed for the sole purpose of enforcing the treaty, and was repealed by implication when the treaty was repealed.
The court does not think so. The enactment of the law is positive, and in its terms perpetual. Its provisions are not made dependent on the treaty; and, although the peculiar state of things then existing might constitute the principal motive for the law, the act remains in force from its words, however that state of things may change.
But, to this enacting clause is attached a proviso *273 that whenever any subject of France shall, by virtue of this act, become seised in fee of any real estate, his or her estate, "after the term of ten years be expired, shall vest in the state, unless the person seised of the same shall, within that time, either come and settle in, and become a citizen of this state, or enfeoff thereof some citizen of this or some other of the United States of America."
The heirs of John Baptiste Chirac then, on his death, became seised of his real estate in fee, liable to be defeated by the non-performance of the condition in the proviso above recited. The time given by the act for the performance of this condition expired in July, 1809, four months after the institution of this suit. It is admitted, that the condition has not been performed; but it is contended, that the non-performance is excused, because the heirs have been prevented from performing it by the act of law and of the party. The defendant, in the court below, has kept the heirs out of possession, under the act of the state of Maryland, so that they have been incapable of enfeoffing any American citizen; and, having been thus prevented from performing one condition, they are excused for not performing the other.
Whatever weight might be allowed to this argument, were it founded in fact, its effect cannot be admitted in this case. The heirs were not disabled from enfeoffing an American citizen. They might have entered, and have executed a conveyance for the land. Having failed to do so, their estate has terminated, *274 unless it be supported in some other manner than by the act of Maryland.
This brings the court to a material question in the cause. While the defendants in error were seised of an estate in fee simple, determinable by their failure to perform the condition contained in the act of 1780, another treaty was entered into between the United States and France, which provides for the rights of French subjects claiming lands by inheritance in the United States. This treaty enables the people of one country, holding lands in the other, to dispose of the same by testament or otherwise, as they shall think proper. It also enables them to inherit lands in the respective countries, without being obliged to obtain letters of naturalization.
Had John Baptiste Chirac, the person from whom the land in controversy descended, lived till this treaty became the law of the land, all will admit that the provisions which have been stated would, if unrestrained by other limitations, have vested the estate of which he died seised in his heirs.
If no act had been passed on the subject, and the appellees had purchased lands lying in the United States, it is equally clear that the stipulations referred to would have operated on these lands, so as to do away that liability to forfeiture to which the real estates of aliens are exposed.
Has it the same or any effect on the estate of which the appellees were seized when it was entered into?
It has been argued that the treaty protects existing *275 estates, and gives to French subjects a capacity to dispose and to inherit; but does not enlarge estates.
This is true. But the estate of the defendants in error requires no enlargement. It is already a fee, although subject to be defeated by the non-performance of a condition. The question is, does this treaty dispense with the condition, or give a longer time for its performance? The condition is, that those who hold the estate shall become citizens of the United States, or shall enfeoff a citizen within ten years. Does the treaty control or dispense with this condition?
The direct object of this stipulation is, to give French subjects the rights of citizens, so far as respects property, and to dispense with the necessity of obtaining letters of naturalization. It does away the incapacity of alienage, and places the defendants in error in precisely the same situation, with respect to lands, as if they had become citizens. It renders the performance of the condition a useless formality, and seems to the court to release the rights of the state as entirely in this case as in the case of one who had purchased, instead of taking by descent. The act of Maryland has no particular reference to the case of Chirac, but is a general rule of state policy prescribing the terms on which French subjects may take and hold lands. This rule is changed by the treaty; and it seems to the court that the new rule applies to all cases, as well to those where the lands have descended by virtue of the act, as to those where lands have been acquired *276 without its aid. The general power to dispose "without limitation," which is given by the treaty, controls the particular power to enfeoff within ten years, which is given by the act of Maryland.
But the treaty proceeds to stipulate, "that in case the laws of either of the two states should restrain strangers from the exercise of the rights of property with respect to real estate, such real estate may be sold, or otherwise disposed of, to citizens or inhabitants of the country where it may be."
In many of the states, perhaps in all of them, the laws do "restrain strangers from the exercise of the rights of property with respect to real estate:" consequently, this provision limits, to a certain extent, the principles antecedently granted. What is the extent of this limitation?
It will probably prevent a French subject from inheriting or purchasing the estate of a French subject, who is not also a citizen of the United States; but it cannot affect the right of him who takes or holds by virtue of the treaty, so as to deprive him of the power to do that for which this clause stipulates; that is, "to sell or otherwise dispose of the property to citizens or inhabitants of this country." This general power to sell, according to the principles of our law, and, it is presumed, of that of France, endures for life. A subject of France, then, who had acquired lands by descent or devise, (perhaps also by any other mode of purchase,) from a citizen of the United States, would have a right, during life, to sell or otherwise dispose of those lands, if lying in a state where lands purchased by an alien generally would *277 be immediately escheatable on account of alienage. The court can perceive no reason for restraining this construction in the application of the treaty to the state of Maryland, where the law, instead of subjecting the estate to immediate forfeiture, protects it for ten years. The treaty substitutes the term of life for the term of ten years given by the act.
If, then, the treaty between the United States and France still continued in force, the defendant would certainly be entitled to recover the land for which this suit is instituted. But the treaty is, by an article which has been added to it, limited to eight years, which have long since expired. How does this circumstance affect the case?
The treaty was framed with a view to its being perpetual. Consequently, its language is adapted to the state of things contemplated by the parties, and no provision could be made for the event of its expiring within a certain number of years. The court must decide on the effect of this added article in the case which has occurred. It will be admitted, that a right once vested does not require, for its preservation, the continued existence of the power by which it was acquired. If a treaty, or any other law, has performed its office by giving a right, the expiration of the treaty or law cannot extinguish that right. Let us, then, inquire, whether this temporary treaty gave rights which existed only for eight years, or gave rights during eight years which survived it.
The terms of this instrument leave no doubt on this subject. Its whole effect is immediate. The instant *278 the descent is cast, the right of the party becomes as complete as it can afterwards be made. The French subject who acquired lands by descent the day before its expiration, has precisely the same rights under it as he who acquired them the day after its formation. He is seised of the same estate, and has precisely the same power during life to dispose of it. This limitation of the compact between the two nations, would act upon, and change all its stipulations, if it could affect this case. But the court is of opinion, that the treaty had its full effect the instant a right was acquired under it; that it had nothing further to perform; and that its expiration or continuance afterwards was unimportant.
Judgment affirmed.
NOTES
[c]  Before the French revolution the droit d'aubaine (jus albinatus) was abolished, or rather modified, by the treaties between France and the greater part of the other civilized powers of the world. But, it seems, according to an observation of M. Tronchet, in the discussions on the civil code, that this conventional law only excluded the royal fisc from taking by escheat the property of foreigners deceased in France, but did not exclude their French relations from inheriting, in preference to their foreign heirs in the same or a nearer degree of affinity; because the foreign heirs had not the active power of inheriting. This was given to all foreigners, without distinction, and, independent of treaties, by the national assembly in 1789. But this concession was repealed by the civil code, which again placed the matter upon its original footing of reciprocity, by enacting that foreigners should enjoy in France the same civil rights which are, or shall be, conceded to Frenchmen by the treaties with the nation to which such foreigners may belong. Liv. 1. chap. 1, De la Jouissance des Droits Civils, Art. II. Discussions du Code Civil, par M.M. Jouanneau, &c. Tom. 1. p. 45.
