Page images

chased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the Army or Navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined unless by the votes of a majority of the United States in Congress assembled." Vol. I, 8.

The Constitution of the United States, article 2, section 2, provides: "He (the President of the United States) shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur; he shall nominate and, by and with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which may be established by law." Vol. I, 17.


"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Vol. I, 19.


The obligation of a treaty, the supreme law of the land, must be admitted. The execution of the contract between the two nations is to be demanded from the Executive of each nation; but where a treaty affects the rights of parties litigating in court, the treaty as much binds those rights, and is as much regarded by the Supreme Court, as an act of Congress. (United States vs. The Schooner Peggy, 1 Cranch, 103.)

The termination of a treaty by war does not divest rights of property already vested under it. (Society for the Propagation of the Gospel vs. The Town of New Haven, 8 Wheat., 464.)

Nor do treaties, in general, become extinguished, ipso facto, by war between the two Governments. Those stipulating for a permanent arrangement of territorial and other national rights are, at most, suspended during the war, and revive at the peace, unless they are waived by the parties, or new and repugnant stipulations are made. (Ibid.)

Where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights, and is as much to be regarded by the court, as an act of Congress. To condemn a vessel, therefore, the restoration of which is directed by the law of the land, though restoration be an executive act, would be a direct infraction of that law, and of consequence, improper. (United States vs. The Schooner Peggy, 1 Cranch, 103.)

A treaty, under the sixth article, section 2, of the Constitution, being the supreme law of the land, the treaty of peace of 1783 operated as a repeal of all State laws previously enacted inconsistent with its provisions. (Ware vs. Hylton, 3 Dall., 199.)

The stipulation in a treaty that "free ships shall make free goods," does not imply the converse proposition that enemy's ships shall make enemy's goods. (The Nereide, Bennet, Master, 9 Cranch, 388.)

A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. (Foster et al. vs. Neilson, 2 Peters, 314; United States vs. Arredondo, 6 Peters, 735.)

In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legisla ture, whenever it operates of itself without the aid of any legislative provision. But, when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court. (Ibid.)

By the stipulations of a treaty are to be understood its language and apparent intention, manifested in the instrument, with a reference to the contracting parties, the subject-matter, and the persons on whom it is to operate. (United States vs. Arredondo et al., 6 Peters, 710.)

A treaty of cession is a deed of the ceded territory, and the sovereign is the grantee; the act is his, as far as it relates to the cession; the treaty is his act and deed, and all courts must so consider it; and deeds are construed in equity by the rules of law. (Ibid., 738.)

Where a treaty is executed in two languages, each the language of the respective contracting parties, both parts of the treaty are originals, and both are intended to convey the same meaning. (Ibid.) :

Where a treaty has been ratified according to the provisions of the Constitution it becomes the law of the land; and it is perfectly immaterial whether or not the persons who signed it did or did not transcend their instructions. (Hamilton vs. Eaton, North Carolina Cases, 77.)

A treaty does not necessarily annul prior statutes, if there is no interference with them. (Ibid.)

The stipulations in a treaty between the United States and a foreign power are paramount to the provisions of the constitution of a particular State, or the confederacy. (Lessee of Gordon vs. Kerr, 1 Wash., C. C. R., 322.)

A treaty between the United States and one belligerent does not affect a question of prize, as between two belligerents, where the prize (captured from the belligerent making the treaty) is brought by the other belligerent into the ports of the United States; nor is it important that the capturing vessel was commanded by an American citizen. The treaty can bind only the parties to it; and whatever operation it may have on the American citizen, individually, it cannot affect the general question of the validity of prizes made between belligerents. (The Santissima Trinidad, 1 Brockenb., C. C. R., 478.)

A judgment of a State court, where jurisdiction was acquired, not by the common law, but by a statute of a State which, before the rendition of the judgment, had been virtually repealed by the adoption of a treaty, was voidable, and not void. (Livingston vs. Van Ingen, Paine's C. C. R., 55.)

In 1780 the ancestor of the lessors of the plaintiff was indicted, he being a British subject, in the supreme court of New York, under the act entitled "An act for the forfeiture and sale of the property of persons who have adhered to the enemies of this State," &c.; and in October, 1783, a judgment of forfeiture against his estates was rendered. The


treaty of 1783 against any subsequent confiscation, was signed in September, 1783. Held, that the proceedings were void. (Ibid.)

The stipulations of a treaty are paramount to the provisions of the constitution of a particular State of the United States. (Gordon's Lessee vs. Kerr, 1 Wash., C. C. R., 322.)

Whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right is protected. But if the person's title is not affected by the treaty, if he claims nothing under the treaty, his title cannot be protected by the treaty. (Owing vs. Norwood's Lessee, 5 Cranch, 344.)

The adoption of a treaty, with the stipulations of which the provisions of a State law are inconsistent, is equivalent to the repeal of such law. (Lessee of Fisher vs. Harnden, 1 Paine, C. C. R., 55.)

A treaty goes into operation from the date of the signature, if no other period is agreed upon between the parties. (Lessee of Hylton vs. Brown, 1 Wash., C. C. R., 343; Davis vs. Police Jury of Concordia, 9 Howard, 289.)

Although it is true, as a principle of international law, that as respects the rights of either Government under it a treaty is considered as concluded and binding from the date of its signature, and that in this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date, a different rule prevails where the treaty operates on individual rights. There the principle of relation does not apply to rights of this character which were vested before the treaty was ratified, and in as far as it affects them it is not considered as concluded until there is an exchange of ratifications. (Haver vs. Yaker, 9 Wallace, 32.)

As respects performance of the conditions of a grant by a private grantee, the date of a treaty is its final ratification. (The United States vs. Arredondo, 6 Peters, 691.)

The Constitution of the United States confers absolutely on the Government of the United States the power of making war and of making treaties. Consequently that Government possesses the power of acquir ing territory either by conquest or by treaty. (The American Insurance Company es. Three hundred and fifty-six Bales of Cotton, 1 Peters, 542.) The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by treaty the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose, On such transfer of territory it has never been held that the relations of the inhabitants with each other are changed. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it, and the law which may be denominated political is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state. (Ibid., and see Strother vs. Lucas, 12 Peters, 410.)


ALGIERS, 1795.*



A treaty of peace and amity, concluded this present day I-ima artasi, the twenty-first of the Luna Safer, year of the Hegira 1210, corresponding with Saturday, the fifth of September, seventeen hundred and ninety-five, between Hassan Bashaw, Dey of Algiers, his Divan and subjects, and George Washington, President of the United States of North America, and the citizens of the said United States.


Peace established.

From the date of the present treaty there shall subsist a firm and sincere peace and amity between the President and citizens of the United States of North America and Hassan Bashaw, Dey of Algiers, his Divan and subjects; the vessels and subjects of both nations reciprocally treating each other with civility, honor, and respect.



All vessels belonging to the citizens of the United States of North America shall be permitted to enter the different ports of the Commercial interRegency, to trade with our subjects, or any other persons residing within our jurisdiction, on paying the usual duties at our custom-house that is paid by all nations at peace with this Regency; observing that all goods disembarked and not sold here shall be permitted to be reëmbarked without paying any duty whatever, either for disembarking or embarking. All naval and military stores, such as gunpowder, lead, iron, plank, sulphur, timber for building, tar, pitch, rosin, turpentine, and any other goods denominated naval and military stores, shall be permitted to be sold in this Regency without paying any duties whatever at the custom-house of this Regency.


Vessels not to be

The vessels of both nations shall pass each other without any impediment or molestation; and all goods, moneys, or passengers, of whatsoever nation, that may be on board of the vessels molested. belonging to either party shall be considered as inviolable, and shall be allowed to pass unmolested.


All ships of war belonging to this Regency on meeting with merchant vessels belonging to citizens of the United States, shall be allowed to

* Statutes at Large, Vol. VIII, p. 133 et seq.

+ See Mahony vs. United States, (10 Wallace, 62.)

Passports of vessels

visit them with two persons only beside the rowers; these two only permitted to go on board said vessel without obtaining express leave from the commander of said vessel, who shall compare the passand ships of war. port, and immediately permit said vessel to proceed on her voyage unmolested. All ships of war belonging to the United States of North America, on meeting with an Algerine cruiser, and shall have seen her passport and certificate from the Consul of the United States of North America, resident in this Regency, shall be permitted to proceed on her cruise unmolested; no passport to be issued to any ships but such as are absolutely the property of citizens of the United States, and eighteen months shall be the term allowed for furnishing the ships of the United States with passports.

No Algerine cruiser

out of a vessel of the


No commander of any cruiser belonging to this Regency shall be allowed to take any person, of whatever nation or denomimay take any person nation, out of any vessel belonging to the United States of United States. North America, in order to examine them, or under pretense of making them confess anything desired; neither shall they inflict any corporal punishment, or any way else molest them.

Stranded vessels of United States.


If any vessel belonging to the United States of North America shall be stranded on the coast of this Regency, they shall receive every possible assistance from the subjects of this Regency. All goods saved from the wreck shall be permitted to be reëmbarked on board of any other vessel without paying any duties at the customhouse.


The Algerines are not, on any pretense whatever, to give or sell any vessel of war to any nation at war with the United States of North America, or any vessel capable of cruising to the detriment of the commerce of the United States.

Sals of re-sels of war.


Passports for ves


Any citizen of the United States of North America, having bought any prize condemned by the Algerines, shall not be again capured by the cruisers of the Regency then at sea, although they have not a passport, a certificate from the Consul Resident being deemed sufficient until such time they can procure such passport.

Sale of prizes.


If any of the Barbary States at war with the United States of North America shall capture any American vessel and bring her into any of the ports of this Regency, they shall not be permitted to sell her, but shall depart the port on procuring the requisite supplies of provision.


Any vessel belonging to the United States of North America, when at war with any other nation, shall be permitted to send their prizes into the ports of the Regency, have leave to dispose

United States prizes.

« PreviousContinue »