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Foster & Elam v. Neilson

Foster & Elam v. Neilson

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Published by: crlstinaaa on Jul 07, 2008
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05/09/2014

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Treaties and the ConstitutionWhen is it proper to invoke a treaty? Landmark case: although it doesn’t give theterm "self-executing" it describes it.Case: Foster & Elam v. Neilson (1829; US)Facts: The suit is about possession of land in Louisiana. P claimed that the landwas granted by the Spanish Governor. D asserts that there is no title on which Pcan recover b/c the territory on which the land is on had been ceded to France,then from France to the U.S. before the land was granted by the Spanish Governor,and so there was no authority by the Spanish governor to grant the land.U.S. insisted that by Treaty of St. Ildefonso, on 10/01/1800, Spain ceded
 the disputed territory to France, and then France, by the Treaty of Paris, on04/30/1803, ceded it to the U.S.Spain insists that the cession to France did not include that specific
 territory.Issue: How does US court decide who the land belonged to at the time?Holding: It's ok to look at treaties; like legislation.Reasoning: Justice Marshall here establishes that the constitution declares atreaty to be the law of the land, so therefore, it would be equivalent tolegislation; without the aid of a legislative provision.Article VI(2) of US Constitution: talks about the Supremacy Clause, "[…]
 and all treaties made […] shall be the supreme law of the land."The treaty between France and Spain they looked at was unclear.
RULE: [now called self-executing treaties] - a treaty operates of itself withoutthe aid of any legislation, state or national; and it will be applied and givenauthoritative effect by the courts.Notes• What does P want us to believe about this treaty?In the treaty btwn US and Spain, there was a provision that Spain will
 give land to US, and territory ceded by Spain shall be ratified and confirmed topersons in possession of the land. So P can claim the land then.Question is; Whether or not when we sign the treaty, that the grant of
 land is assigned to P, or if more has to be done?Part I: this is not a self-executing treaty, so P cant rely on the treaty
 until its ratified and implemented by Congress§ Dualist system of lawOn one hand, the international realm of law - where US has made
 an agreement with Spain® Here, may be brought in international court if treatyprovisions say this, and state consentedOn the other hand, in the domestic realm - domestically, the
 treaty doesn’t become law until it is ratified and implemented domestically.Why is this treaty not self-executing?
§ Go to the text of the treaty - specifically mentions of theratification process• How do we differentiate btwn self-executing and non-self-executing treaties?

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