that it "knows little or nothing of these sys

tems."

Prof. Tyler says, in his edition of Stephens on Pleading, that the "love of innovation carried its abolition in New York, and that other States have followed in this barbaric empiricism."

Judge Cooley says that the "works on commonlaw pleading are not superseded by the new codes which have been introduced in so many States. After a trial of the code system for many years, its friends must confess that there is something more than form in the old system of pleading, and that the lawyer who has learned to state his cause in a logical manner after the rules laid down by Stephens and Gould is better prepared to draw a pleading under the Code which will stand the test of demurrer, than the man who without that training undertakes to tell his story to the court as he might tell it to a neighbor, and who never having accustomed himself to a strict and logical presentation of precise facts which constitute the legal cause of action or the legal defense, is in danger of stating so much or so little as to leave his rights in doubt on his own showing."

Mr. George F. Moore, of Alabama, in an able address on Code Pleading and Practice in Alabama, while he disagrees with Prof. Tyler, agrees with Judge Cooley, but in criticizing a compromise system, such as is recommended by Chief Justice Ryan, says: "We have now neither the commonlaw system of pleading nor a Code of Procedure such as prevails in New York. Our system is genuine hybrid - the offspring of demagoguery and timidity. Too timid to take the reformed codes, our codifiers only adopted so much of them as sufficed to appease the innovators."

We would suggest to the violent opponents of the New York Code that they are exaggerating the virtues of the old and the vices of the new system. If any thing tended to make a pettifogger of a lawyer, it was the verbal subtleties and tricks of the old system of special pleading. New York lawyers are not a set of pettifoggers." English lawyers do not think themselves in danger of becoming "a set of pettifoggers." This sort of talk sounds strange to lawyers who have lost their case because they had declared in trespass instead of trespass on the case; who had erroneously concluded to the country; or who, like Bryant, had not made proper inuendoes in a declaration for slander. This was the true pettifoggery. Our old Code was clearly expounded in less than a "generation," and the new one seems to need and to receive but little exposition. This work should inure to the benefit of all States adopting our Code or a similar Code, and would, were it not for obstinate judges. Our practice is almost perfectly settled and entirely satisfactory.

The same conservatism which characterizes Chief Justice Ryan would object to new modes of teaching in our schools, and to a revision of the Bible. If he thinks the common law so holy, and modifications of it "unhallowed," will he, we wonder, consent to read the new Bible, which seeks to omit the forgeries, change the awkward expressions, and cor

rect the mis-translations of the old? There is a homely adage, which we should apply to all these objectors, in no disrespectful sense, that it is hard to teach an old dog new tricks. This exactly expresses the case of the learned chief justice and the eminent South Carolina gentleman. All such laudatores temporis acti may as well recognize the fact, however, that the reform of law is not to stand still to save them the trouble of learning new lessons in their old age. This horrible Juggernaut-car of codification and simplification is going right along, let them wring their hands and throw themselves under the wheels as they will. In view of the experience and approval of thirty years and the constantlygrowing approval and adoption of the new system, the wails of these learned gentlemen are, not to put too fine a point upon it, simply ludicrous.

The trouble with all these objectors is that they obstinately and persistently shut their eyes to the requirements of the Code, and misconstrue and misrepresent it. We agree with Judge Cooley that a lawyer, experienced under the old system, is a better pleader under the new than one who "undertakes to tell his story as he might tell it to a neighbor," or as Mr. O'Conor says, as an old woman tells it to her lawyer. But this kind of story-telling is not what the Code requires, and New York lawyers have learned the fact, and have successfully conformed themselves to the situation. The following is Chief Justice Ryan's "paradise of doubt and ambiguity": "The complaint must contain a plain and concise statement of the facts, constituting a cause of action, without unnecessary repetition.' The answer, in addition to denials, may set up counter-claims ' in ordinary and concise language, without repetition.' The plaintiff may compel a sworn answer, by verifying the complaint. In considering pleadings for the purpose of determining their effect, they shall be liberally construed, with a view of substantial justice between the parties.' If pleadings are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require them to be made definite or certain by amendment.' No variance between pleadings and proof is material, unless it actually have misled the adverse party to his prejudice;' and even then 'the court may order the pleading to be amended, upon such terms as shall be just.' The party may amend his own pleading under certain circumstances and in certain particulars, as a matter of course, and the court may always, on motion, amend the pleading 'in furtherance of justice' and on proper terms. And finally, the court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party.""

The New York Times well says of our Code: "It discarded at once the perplexing sinuosities of law practice and the long-drawn delays of equity. In prescribing the fusion of these two systems; in allowing an assignee or any real party in interest to sue in his own name; in abrogating forms of action, special pleading and fictions, and burying John Doe

and family in a common grave; in authorizing a disregard for technical and formal errors, and giving liberal permission to make amendments; in rescinding the rule which forbade the testimony of a party or interested person to be heard, and inviting all who have personal knowledge of facts to tell what they know-it opposed nearly all the traditions and precedents. But it won favor abroad as well as at home. Fully half the States and nearly all the Territories have adopted the general spirit and important characteristics of the new method, while many have even re-enacted its details. It has been the guide in molding the practice now pursued in most of the British Colonies, and its principles are well known to have been very influential in framing the procedure recently established in England."

The honest truth is that word-spinning, the verbal subtleties, deceptions, evasions, and lies, called "pleading at common law," and the tricks of lawyers in trying to entrap judges into erroneous instructions, have done much to render law tedious and expensive, and lawyers hateful to the community. Mr. Moore gives a vivid picture of the way in which lawyers too frequently deal with judges. He says: "When the counsel are requested to read their charges, Brother Teazle reads his in this way: he has prepared ten charges; five of them are amazingly bad, three are vicious, but two are perfectly good ones. He reads say, three of the very bad ones. they are refused — then one of those not quite so bad, and the judge also refuses that; then one of those that ought to be given-and in the hurry of the trial the judge refuses that also; and before time is given for reflection, he reads another of the very bad charges and repeats the process. This is what is called 'catching out' the judge, as it is practiced under our system of hypothetical charges. This system is indeed only a weak substitute for special pleading. One is made in the form of positive averments before the trial is had; the other in the form of hypotheses after the evidence is heard. No argument is heard on these charges, and the reports of the Supreme Court show that the giving and refusal of charges on the ground of their tendency to mislead the jury is one of the most common sources of error in the trial of causes, and hence of great delay and injustice. Great numbers of charges are requested, and a general charge is given by the court. The jury get in a maze, and the result is, as every lawyer may know, who will take the trouble to inquire, that very frequently the jury does not even read the charges." This part of a trial is erally a struggle of wits between bench and bar. Perhaps the liberty of amendment is carried to an unusual extreme in Alabama, but unless so, we should be surprised at these words of Mr. Moore: "This liberty of amendment is a Pandora's-box for any system of pleading. No language is strong enough to characterize its evil effects. It is a cancer in the body of our system of pleading, and incurable except by the use of the knife. The court permits the amendment, defendant is surprised and another continuance and trial is the result." The

gen

doctrine of variance was one of the most oppressive and detestable features of the old system, as the doctrine of amendment is one of the most humane and beneficial of the new.

To all devotees of intricate form and opponents of simplicity we commend the three following extracts: "Procedure is only the machinery of the law the channel whereby it is administered and the means whereby justice is reached; and it departs from its proper office when it is allowed to obstruct and even extinguish legal rights, instead of facilitating them, and thus governs where it ought to subserve." Lord Penzance in dissenting opinion in Kendall v. Hamilton, 28 W. R. 101.

"The commercial world must, we should imagine, be occasionally startled by the amazing perplexity of the English law upon points which are entirely governed by judicial decision, and in relation to matters which are of the utmost simplicity." Law Times.

"We may not sacrifice the principle to the very form by which we are endeavoring to enforce it. Principles can never be realized without forms, and they are often inevitably embarrassed by unfitting ones; but still the fact that the form is for the sake of the principles, and not the principle for the form, requires that the form shall serve, not rule, the principle, and must be adapted to its office." Forsythe v. Wells, 41 Penn. St. 291.

Et per contra: "In matters of technical law the rule is of more importance than the reason of it." Chief Justice Parker, in Bloss v. Tobey, 2 Pick. 320.

THE CONFLICT OF TREATIES AND LAWS.

TREA

BY SAMUEL T. SPEAR, D. D.

REATIES made "under the authority of the United States," and laws of Congress enacted in pursuance of the Constitution, are in the sixth article of the Constitution declared to be parts of "the supreme law of the land," without any discrimination between them as to their relative rank. What then would be the legal consequence if these two parts of "the supreme law" should be in such conflict with each other that both could not operate as supreme laws at the same time and among the same people? This question supposes that the subject-matter involved is essentially the same, and also that the treaty power and the legislative power of Congress are equally applicable to it. The question has more than a speculative interest, since in several instances it has been practically necessary to answer it.

Mr. Madison, in 1791, gave his opinion as follows: "Treaties, as I understand the Constitution, are made supreme over the constitutions and laws of the particular States, and, like a subsequent law of the United States, over pre-existing laws of the United States, provided, however, that the treaty be within the prerogative of making treaties, which, no doubt, has certain limits." Writings of Madison, vol. 1, p. 524.

Alexander Hamilton says: "It is a question among some theoretical writers, whether a treaty can repeal pre-existing laws. This question must always be answered by the particular form of government of each nation. In our Constitution, which gives ipso facto the force of law to treaties, making them equally with the acts of Congress the supreme law of the land, a treaty must necessarily repeal antecedent law contrary

to it, according to the legal maxim that leges posteriores priores contrarias abrogant." Works of Hamilton, vol. 7, p. 512.

แ

Mr. Rawle, in his treatise on the Constitution, p. 56, refers to treaties as "being, next to the Constitution, the supreme law of the land," and as prevailing over all State laws, State constitutions, and acts of Congress." P. 59. "The immediate operation of the treaty," he says, "must therefore be to overrule all existing legislative acts inconsistent with its provisions." He, however, admits that Congress "may pass subsequent laws, qualifying, altering, or even wholly annulling a treaty."

Attorney-General Crittenden, 5 Op. Att.-Gen. 345, says: "An act of Congress, then, is as much a supreme law of the land as a treaty. They are placed on the same footing, and no preference or superiority is given to one over the other. The last expression, then, of the law-giving power must prevail; and just for the same reason, and on the same principle, that a subsequent act must prevail and have effect, though inconsistent with a prior act, so must an act of Congress have effect, though inconsistent with a prior treaty." Attorney-General Cushing, 6 Op. Att.-Gen. 293, says: "A treaty, assuming it to be made conformably to the Constitution, in substance and form, has the effect of repealing, under the general conditions of the legal doctrine that leges posteriores priores contrarius abrogant, all pre-existing Federal laws in conflict with it, whether unwritten, as the law of nations, of admiralty, and common law, or written, as acts of Congress." Attorney-General Ackerman, 13 Op. Att.-Gen. 357, says: "By the sixth article of the Constitution, treaties as well as statutes are laws of the land. There is nothing in the Constitution which assigns different rauks to treaties and to statutes. The Constitution itself is of higher rank than either by the very structure of the Government. A statute not inconsistent with it, and a treaty not inconsistent with it, relating to subjects within the scope of the treaty-making power, seem to stand upon the same level, and to be of equal validity; and as in the case of all laws emanating from equal authority, the earlier in date yields to the later."

The doctrine sustained by these opinions is that a treaty made subsequently to the enactment of a law by Congress repeals the law to the extent of any inconsistency between the two, and that a law enacted by Congress subsequently to the making of a treaty has the same effect upon the treaty. The principle works either way and with equal efficacy.

The first case in which the courts of this country passed upon this question is that of The United States v. The Schooner Peggy, 1 Cranch, 103. The Peggy was a French armed vessel captured on the 24th of April, 1800, by an American ship authorized by the President of the United States to make the capture. Under the act of Congress of July 7, 1798, she was libelled and condemned as a lawful prize in the District Court of the United States for Connecticut, and the decree was subsequently confirmed by the Circuit Court. 1 U. S. Stat. at Large, 578.

The case was carried by appeal to the Supreme Court of the United States, and while it was there pending the United States made a treaty with France, the fourth article of which provided that "property captured and not yet definitely condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored on the following proofs of ownership," etc. 8 U. S. Stat. at Large, 178.

The condemnation of the Peggy was by the Supreme Court regarded as lawful at the time of the decree, yet a treaty having intervened before the final disposal of the case, and that treaty having changed the rule of law in application to it, Chief Justice Marshall holding

that the question as to this property was still in controversy, and therefore not "definitely" settled in the sense of the treaty, said that in "this case the court must decide according to the existing laws, and if it be necessary, to set aside a judgment lawful when rendered, but which cannot be affirmed but in violation of law," namely, the treaty with France. The treaty was in effect held to frepeal the law under which the condemnation was pronounced, nullifying all the proceedings in the courts below, though valid at the time. The treaty being subsequent to the law and a part of "the supreme law of the land," had established another and different rule for the guidance of the court. Proceeding under this rule, the court ordered the Peggy to be restored.

In Foster v. Neilson, 2 Pet. 253, Chief Justice Marshall said that a treaty is "to be regarded as equivalent to an act of the Legislature whenever it operates of itself without the aid of any legislative provision." And, in applying this principle, he further said that if the treaty of 1818 with Spain had directly operated on the subject-matter before the court, it "would have repealed those acts of Congress which were repugnant to it," and consequently furnished the rule for deciding the case. The power of a treaty that acts proprio vigore upon the question involved without legislative aid, to repeal an existing law of Congress preceding it but inconsistent with it, is here distinctly affirmed.

In The Clinton Bridge, 1 Wool. 150, the question arose, whether the act of Congress of February 27, 1867, declaring this bridge erected across the Mississippi river to be "a lawful structure," and that it should "be recognized and known as a post route," was not a violation of "the obligations of certain treaties between the United States and foreign nations which in effect declare that the navigation of the Mississippi river shall remain free and unmolested forever." 14 U. S. Stat. at Large, 412.

These treaties were urged as an objection to the validity of the act of Congress. In reference to this point Mr. Justice Miller said: "

"We need not inquire whether the treaties referred to were designed to affect such cases as the one before the court or not; for we are of opinion that, whatever obligation they may have imposed upon the Government, the courts possess no power to declare a statute passed by Congress, and approved by the President, void because it may violate such obligations. Questions of this class are international questions, and are to be settled between the foreign nations interested in the treaties and the political departments of the Government. When those departments declare a treaty abrogated, annulled, or modified, it is not for the judicial branch of the Government to set it up, or assert its continued existence."

In Ropes et al. v. Clinch, 8 Blatchf. 304, it was claimed that the sixth article of the treaty of 1832 between the United States and Russia, providing that no higher duties shall be imposed on the importation into the United States of any article, being the produce or manufacture of Russia, than are or shall be payable on the like article, being the produce or manufacture of any other foreign country, was violated by the act of Congress of August 5, 1861, imposing a duty of forty dollars per ton on unmanufactured Russian hemp, while the duty on Manilla and other hemps of India was only twenty-five dollars per ton. 8 U. S. Stat. at Large, 444, and 12 U. S. Stat. at Large, 291. The duty on the former kind of hemp being exacted by the collector at the port of New York, as prescribed by the law, and paid under protest, as being contrary to the treaty with Russia, a suit was brought by the plaintiffs against the collector, to recover the excess of duties beyond twenty-five dollars per ton. This raised the question whether the law or the treaty furnished the rule for the guidance of the court.

In regard to this point Judge Woodruff said:

*

*

"Such legislation, of course, either is or is not inconsistent with the treaty which the Government has made with Russia. If it is not inconsistent with it, then, of course, no question would arise here. * But if it be inconsistent (and that must be the ground upon which the plaintiffs proceed here), then we are led to this inquiry: Is the force and effect of an act of legislation, distinct and unqualified in its terms, and plain in its meaning, valid if it be found that it violates or is inconsistent with a prior treaty of the United States with a foreign nation?"

In answer to this question the Judge further said:

"I understand it to be conceded, and if it be not, I should be constrained to hold that the legislative department of this Government may pass any law it pleases (if it be otherwise constitutional), notwithstanding it conflicts, and notwithstanding to whatever degree, greater or less, it conflicts with an existing treaty with a foreign nation. * * * I speak now of the question of power. ** *If then Congress, by legislation inconsistent with a treaty, creates a rule of conduct for its citizens, a rule for the guidance of its courts, the only question is: Has it enacted a law which operates to annul or operates in disregard of the provisions of a treaty? As I before observed, if this act does neither then there is no question here. If it does either or both, then it seems to me within the constitutional power of Congress. * * *They [Congress] may render it [a treaty] inoperative by legislation in contradiction of its terms, without formal allusion at all to the treaty, and generally they may legislate as if no such treaty existed in modification or alteration of what by force of the treaty has been the law heretofore, thus modifying the law of the land without denying the existence of the treaty or the obligations thereof between the two governments as a contract, and answer therefor to such foreign government, or meet its reclamation or retaliation, as may be necessary.'

The case of Taylor et al. v. Morton, 2 Curtis, 454, was that of an action brought against the collector of the port of Boston, to recover a portion of the duties exacted under the Tariff Act of 1842, on the ground that the act was in conflict with the commercial treaty of 1832 between the United States and Russia. Mr. Justice Curtis said: "If an act of Congress should levy a duty upon imports which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States, in a case to which one rule or the other must be applied?" After quoting the clause of the Constitution which defines "the supreme law of the land," he proceeded to say:

"There is nothing in the language of this clause which enables me to say that in the case supposed the treaty, and not the act of Congress, is to afford the rule. Ordinarily, treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts by which they are to regulate their own conduct. This provision has made treaties a part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor decided whether laws so enacted shall or shall not

be paramount to laws otherwise enacted. ** * To refuse to execute a treaty for reasons which approve themselves to the conscientious judgment of the nation is a matter of the utmost gravity and delicacy; but the power to do so is prerogative, of which no nation can be deprived without deeply affecting its independence. That the people of the United States have deprived their Government of this power in any case I do not believe. That it must reside somewhere, and be applicable to all cases, I am convinced. I feel no doubt that it belongs to Congress. * * *Legislative power is applicable to such laws [treaties] whenever they relate to subjects which the Constitution has placed under that legislative power."

Mr. Justice Curtis, in this case, sustained the law of Congress, notwithstanding its conflict with the treaty, and to the extent of the conflict held the latter as a law to be repealed by the former.

In 1866 the United States concluded a treaty with

the Cherokee nation of Indians, in the tenth article of which it was provided that "every Cherokee and every freed person resident in the Cherokee nation shall have the right to sell any products of his farm, including his or her live-stock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside the Indian Teritory." 14 U. S. Stat. at Large, 799.

Section 107 of the Internal Revenue Act of July 20, 1868, provides "that the internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, suuff and cigars, shall be held and construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not." 15 U. S. Stat. at Large, 167.

In The Cherokee Tobacco Case, 11 Wall. 616, the question before the Supreme Court of the United States was whether the above section of the law of 1868 repealed the tenth article of the treaty of 1866, between the United States and the Cherokee Indians, or whether this section of the law was rendered null and void by the treaty. Mr. Justice Swayne, in stating the opinion of the court, assumed that Congress has power to extend the operation of United States law into the Indian Territory, and that such was its purpose in respect to the items specified in the act of July 20, 1868. To the objection that the act is in conflict with the prior treaty of 1866, he replied:

"Undoubtedly, one or the other must yield. The repugnancy is clear, and they cannot stand together. * ** It need hardly be said that a treaty cannot change the Constitution, or be valid if it be in viola tion of that instrument. This results from the nature and fundamental principles of our Government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.

The court sustained the law, and referred approvingly to the cases of Foster v. Neilson, The Clinton Bridge, and Taylor et al. v. Morton, supra, as cases in which these principles had been applied.

The obligations of the Government to the foreign nation whose interests or rights may be affected by legislation inconsistent with a prior treaty form an international question entirely distinct from the character and operation of the treaty as a municipal law within the United States; and with this question courts have nothing to do. The treaty contract being thus violated or set aside, it devolves upon the political department of the Government to meet whatever issue may arise therefrom. The law of nations does not require that treaties shall possess the character of municipal laws. This is a peculiarity of our own Constitution for special and local reasons; and hence, if the Constitution were so amended as to dispossess treaties of this character, the change would furnish foreign nations with no just ground of complaint. It is enough for them that the Government preserves its treaty faith with them, and whether this is done by making treaties a part of "the supreme law of the land or not, is a question that belongs exclusively to the people of the United States. Foreign nations have nothing to do with this question.

The fact that treaties are a part of our supreme municipal law, and that the legislation of Congress is another part of the same law, and that the two do not come into existence by the same agency, implies in the political system of the United States two distinct lawmaking and law-repealing powers. The President, with the advice and consent of the Senate, can, by making a treaty, indirectly enact a supreme law bind

ing upon courts; and so also Congress, by legislation within the scope of its powers, can directly enact a supreme law equally binding upon courts. Such a law may be enacted in either way, and according to the authorities above cited, it may be modified or repealed in either way. The authority is that of the people of the United States, and equally so whether exercised in one form or the other.

The President and the Senate cannot set aside or modify a law, established through the medium of a treaty, except by making another treaty abrogating or changing the former one. To this process the foreign nation would be a contracting party, and without its consent the result could not be gained through a treaty, however urgent might be the necessity. If then Congress could not legislatively modify or repeal a treaty as the law of the land, and hence as the rule for courts, there would be no escape from its provisions under any circumstances, except with the consent of the foreign government with which the treaty was made. Surely, the people of the United States cannot accept such a consequence. No independent nation can accept it

Attorney-General Crittenden, 5 Op. Att.-Gen. 345, very justly observes: "The supreme political and legislative power of this country is placed in the hands of the Government of the United States, under the Constitution, and its acts are uncontrollable, except only by that Constitution, and that Constitution does not say that Congress shall pass no law inconsistent with a treaty, and it would have been a strange anomaly if it had imposed any such prohibition. There may be cases of treaties so injurious, or which may become so by change of circumstances, that it may be the right and duty of the Government to renounce and disregard them. Every government must judge and determine for itself the proper occasion for the exercise of such power; and such a power, I suppose, is impliedly reserved by every party to a treaty, and I hope and believe belongs inalienably to the Government of the United States. It is true that such a power may be abused; so may the treaty-making power and all other powers."

The fact that a treaty is declared to be a part of "the supreme law of the land," furnishes no objection to this conclusion as to the modifying or repealing power of Congress. The truth is that with the exception of the Constitution itself, there is no supreme law of the land which excludes the power of the President and the Senate to change it by a treaty, if exercising this power within its proper limits, or which excludes the power of Congress to change it, if legislating within the scope of its constitutional powers. The attribute of supremacy attached to the result of the action does not preclude future action changing that result. Congress, within the sphere of its powers, may legislate as if no treaty existed; and so the President and the Senate, subject to the limits fixed by the Constitution, may make treaties as if no legislation existed. The treaty power and the legislative power are within their constitutional scope independent of each other, and neither is derived from or superior to the other. By either the law of the land may be changed. The supremacy of this law, while existing, is not at all inconsistent with its modification or repeal by the authority provided for in the Constitution.

Chancellor Kent overstates the matter when he says: "All treaties made by that power [the treaty power] become of absolute efficacy, because they are the supreme law of the land." Com. (3d ed.) vol. 1, p. 166. The laws of Congress are also the supreme law of the land, as much so as treaties, and yet they are not of "absolute efficacy," as against the power of treaties or that of Congress to change them. The rank of supremacy in both cases is just equal; but in neither does it exclude or impair the exercise of the treaty

power vested in the President and the Senate, or the exercise of the legislative powers vested in Congress. The question considered in this article is not when or for what reasons Congress should exercise the power of modifying or repealing treaties, either directly or indirectly, or when or for what reasons the President and Senate should make treaties inconsistent with an existing law of Congress, but rather what is the legal effect when legislation is inconsistent with a prior treaty, or a treaty is inconsistent with prior legislation. The authorities above cited answer this question in both of its aspects. "A treaty," says Mr. Justice Swayne in The Cherokee Tobacco Case, supra, may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty." Neither can supersede the Contitution, and either, if acting within its constitutional limits, may supersede the other. In the case of conflict between the two the last expression of sovereign authority is the one that prevails.

Under a statute authorizing administration upon the estates of deceased persons, held, that the probate court is without authority to issue letters of administration upon the estate of a living person, and its acts in doing so will be wholly void.

BILL by Sylva D'Arusmont to have satisfaction of

four notes executed to her. Sufficient facts ap pear in the opinion.

MCFARLAND, J. The question in this case is the validity of an administration upon the estate of a living person.

The complainant files this bill to have satisfaction of four notes of $1,000 each, executed to her by Wm. C. Harrison on the 15th January, 1861, and secured by a deed of trust on a tract of land in Shelby county, which she on that day had sold and conveyed to said Harrison.

She states that soon after the date of said transaction she left the State of Tennessee and resided for several years in the States of the North, and afterward in Europe, returning to this State shortly before tho filing of this bill, 25th April, 1874. Upon her return she discovered that during her absence, to wit, on the 10th of August, 1869, the defendant, David Whitly, had procured letters of administration upon the estate from the county court of Shelby county, upon the pretext that she was dead, and as such administrator had filed a bill in the Chancery Court of said county against the personal representatives and devisees of said Harrison, who had died, and the heir of the trustee in the deed of trust (who had also died) to have satisfaction of said notes, alleging that they had been lost or mislaid.

The cause was compromised, and a decree rendered in favor of said Whitly for $3,500, upon condition that he execute a bond with sureties to indemnify the estate of said Harrison, or the devisees of said land, to the extent of said sum of $3,500, against all claim that might be set up by complainant, if alive, or by any assignee of said note. The bond was executed and the money paid. The prayer of the bill is to have satisfaction of the notes out of the trust property, but that Whitly and his sureties be held liable upon his aforesaid bond to the extent of the penalty thereof, in exoneration of the land. It is conceded that the material allegations of the bill have been established, but it is maintained that Whitly acted in good faith, and with due caution, upon the belief that complain,