obligation as a law of the United States. Both are declared in that instrument to be the supreme law of the land, and no paramount authority is given to either over the other."7

"Under the Constitution, a treaty between the United States and a foreign nation is to be considered in two aspects-as a compact between the two nations, and as a law of our country. As a compact, it depends for its enforcement on the good faith. of the contracting parties, and to carry into effect some of its provisions may require legislation. For any infraction of its stipulations importing a contract, the courts can afford no redress except as provided by such legislation. The matter is one to be settled by negotiation between the executive departments of the two governments, each government being at liberty to take such measures for redress as it may deem advisable."8

"A treaty of cession is a deed of the ceded territory, the sovereign is the grantor, the act is his, so 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.' 79

§ 3. The continental Congress.-As it became evident that if the colonies were to be successful in their contentions against Great Britain harmonious co-operation was necessary, the various colonies, acting upon the recommendation of Massachusetts that a continental Congress be called to consider the state of public affairs, appointed delegates, who assembled at Philadelphia on September 4, 1774. They determined that each colony or province should have one vote, adopted addresses to the people of England and to the adjoining British colonies, passed resolutions declaring that the importation of certain goods ought to cease after September 10, 1775, unless before that time the grievances of America should be removed, and proposed that a general Congress be held in May of the following year.

At the second Congress all the states were represented. The raising of continental troops was authorized, and George Washington was appointed commander-in-chief. They provided for

7 Field, J., dissenting. Chew Heong v. United States, 112 U. S. 562, 5 Sup. Ct. Rep. 255, 28 L. ed. 770.

Field, J., dissenting. Baldwin v.

Franks, 120 U. S. 702, 7 Sup. Ct. Rep. 656, 30 L. ed. 766.

Baldwin, J. United States V. Arredondo, 6 Pet. 738, 8 L. ed. 547.

the issue of two millions of dollars in bills of credit, and pledged the colonies to redeem them, and on June 10th of that year a committee was constituted to prepare a declaration to the effect "that these united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connection between them and the State of Great Britain is, and ought to be dissolved.'' 10

§ 4. Committee to prepare plan of treaties.-A committee was appointed on the following day, June 11th, to prepare a plan of treaties to be proposed to foreign powers. On the 4th of July the Declaration of Independence was adopted. The powers of a government were exercised by Congress until the adoption of the Articles of Confederation. A resolution was passed by Congress on June 11, 1776, providing for the appointment of a committee to prepare and digest the form of a confederation to be entered into between the colonies. This committee on July 12, 1776, presented a draft which was under debate for several days, and on August 20, 1776, the committee of the whole reported a new draft.11

On November 15, 1777, Congress finally adopted the articles, and the final ratification by all the states occurred March 1, 1781.12

§ 5. Declaration of Independence.-The Declaration of Independence on July 4, 1776, effected a severance of the political connection between the colonies and the English crown and constituted the colonies free and independent states. "The consequences flowing from its adoption were," says Mr. Curtis, "that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or as it was expressed by the Congress, became due to the laws of the colony from which they derived protection; that the people of the country became thenceforth the rightful sovereign of the country; that they became united in a national capacity, as one people; that they could thereafter enter into treaties and contract al

"Journals of Congress of 1776, 205, 206.

"Journals of 1776, 304.

12 Secret Journals, 401, 418, 423, 426; 3 Kent's Commentaries, 196,

197.

liances with foreign nations, could levy war and conclude peace, and do all other acts pertaining to the exercise of a national sovereignty; and finally, that in their national capacity, they became known and designated as the United States of America. This Declaration was the first national state paper in which these words were used as the style and title of the nation."'13

“A nation and a state did not spring into existence, through that declaration, as dramatic publicists are wont to express it. Nations and states do not spring into existence. The significance of the proclamation was this: a people testified thereby the consciousness of the fact that they had become, in the progressive development of history, one whole, separate, and adult nation, and a national state, and that they were determined to defend this natural status against the now no longer natural supremacy of the foreign state."'14

§ 6. Treaties under Articles of Confederation. It was declared in the first article that the name of the confederacy should be "The United States of America," and in the second that each state should retain its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which was not expressly delegated by the confederation to the United States. The sole and exclusive right was conferred upon Congress of sending and receiving ambassadors, and of entering into treaties and alliances under the restriction that no treaty of commerce could be made by which the legislative power of the states was to be restrained from imposing such imposts and duties on foreigners as their own people were subjected to, or prohibiting the exportation or importation of any species of goods or commodities. No state was allowed, without the consent of the United States, to send an embassy to, or receive an embassy from, or make any treaty with any ruler or state; nor without the consent of Congress could any state enter into any treaty, confederation or alliance with each other. But the Articles of Confederation contained no means to carry its powers into execution. It might declare everything, but do nothing; or, in the words of Washington, the confederation was "little

13 1 Curtis' Constitutional History of the United States, 35.

14 1 Burgess' Political Science and Constitutional Law, 100.

more than a shadow without the substance; and Congress a nugatory body, their ordinances being little attended to."15

§ 7. Weakness of the confederation.-"The government of the United States could not go on under the confederation," said Mr. Justice Patterson, "because Congress were obliged to proceed in the line of requisition. Congress could not under the old confederation raise money by taxes, be the public exigencies ever so pressing and great. They had no coercive authority— if they had, it must have been exercised against the delinquent states, which would be ineffectual, or terminate in a separation. Requisitions were a dead letter, unless the state legislatures could be brought into action; and when they were, the sums raised were very disproportional. Unequal contributions or payments engendered discontent, and fomented state jealousy.

"16

As each state pursued its own course, treaty obligations entered into by the general government had no binding force, and in many of the states laws were passed which rendered nugatory the stipulations in treaties with other governments, and this evil became so great that in April, 1787, Congress was compelled to address to the several states a letter, beseeching them to repeal such of their laws as interfered with the treaties made with foreign nations.17

We shall notice the breaches of the treaty of peace with Great Britain at greater length in a subsequent section.

§ 8. Treaties under continental Congress.-On February 16. 1776, it was suggested that treaties with foreign powers should be

termining on peace and war, except in the cases mentioned in the sixth article-of sending and receiving ambassadors entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective States shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in

what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated of granting letters of marque and reprisal in time of peace-appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of said courts."'

16 Hylton v. United States, 3 Dall. 172, 178, 1 L. ed. 556.

17 1 Amer. Museum, 352.