delay; and if, in the meantime, the ratifying party, acting in good faith upon the supposition of the due authority of the agent, should have totally or partially performed his part of the agreement, he is entitled to be indemnified or replaced in his former position. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §4; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 15, §6; Vattel, Droit des Gens, liv. 2, ch. 14, §§ 209-212; Rutherforth, Institutes, b. 2, ch. 9, § 21; Polson, Law of Nations, sec. 5; Bello, Derecho Internacional, pt. 1, cap. 9, §4; Heffter, Droit International, §84.)

§ 15. The question has sometimes been discussed, whether a treaty, duly ratified, is obligatory upon the contracting parties, independeutly of the auxiliary legislation necessary to carry it into complete effect. This will depend, in a measure, upon the limitations upon the treaty-making power expressed in the constitution, or fundamental laws of the state. A general power to make and ratify treaties, necessarily implies the power to determine the terms upon which they shall be made; but the municipal constitution of a state may have limited this power, by prohibiting it from making engagements of a certain character, without the joint action of the legislative department of the government. This limitation, where not expressed in the fundamental laws of the state, is sometimes necessarily implied in the distribution of pow ers to its constitutional authorities. Commercial treaties, for example, which have the effect to change the existing laws of trade and navigation of the contracting parties, may require the sanction of the legislative power in each state for their execution. In such cases it is usual to stipulate in the treaty, that it shall not be binding till the proper laws are passed for carrying it into effect. Thus, the commercial treaty of Utrecht, between France and Great Britain, was never carried into effect, the British parliament having rejected the bill which was brought in for the purpose of modifying the existing laws of trade and navigation, so as to adapt them to the stipulations of that treaty. So, also, where an appropriation of money is required by the terms of the treaty, and which can be made only by the legislative power, it may be stipulated in the treaty itself that it shall be held subject to the making of the necessary appropriation for that

purpose. But where the treaty is made, and ratified by competent authority, with no express or implied limitations in the treaty-making power, it is considered obligatory upon the contracting parties, and it is the duty of the legislative power of the state to pass the laws, and to make the appropriations necessary to carry it into complete effect. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 7; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 20, § 7; Vattel, Droit des Gens, lib. 1, ch. 20, § 244; Kent, Com. on Am. Law, vol. 1, p. 164; Lord Mahon, Hist. of England, vol. 1, p. 24.)

$16. By the constitution of the United States, treaties made and ratified by the President, with the advice and consent of the senate, are declared to be "the supreme law of the land," and it seems to be understood that congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry their stipulations into effect. It is true that their execution is dependent upon such auxiliary legislation, but it is, nevertheless, the duty of every department of government to assist in performing all the obligations properly incurred by the whole state. This question has been frequently discussed in the legislative halls of congress. It especially came under the consideration of the house of representatives in 1796, with respect to the treaty of 1794 with Great Britain; in 1816, on the commercial convention with the same power; in 1842-3, with respect to the treaty of Washington; and in 1853-4, with respect to the convention with Mexico. In each and every one of these cases the necessary appropriations were made for carrying into effect treaties duly entered into by the President and the senate. If, when a treaty, duly entered into by the President, and ratified by the senate, comes before the house of representatives, that body were to proceed to discuss and examine it as an act of ordinary legislation, and, at its pleasure, grant or refuse the requisite appropriation for carying it into effect, it would virtually annul the present constitutional provisions with respect to treaties, and make that body a branch of the treaty-making power. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §7; Pinkney, Life of, by Wheaton, pp. 517-549; Kent, Com. on Am. Law, vol. 1, p. 285; Story, On the Constitution, § 1502.)

§ 17. That the omission of congress to pass the necessary acts for carrying a treaty into effect, would be no answer to a foreign government for the non-fulfillment of treaty stipulations, is to be deduced from the ground taken by the United States with France, when the legislative power of the latter state refused to vote the moneys required by the convention of 1831, by which indemnities were provided for the spoliation on American commerce. With respect to this controversy, Mr. Wheaton said: "Neither government has anything to do with the auxiliary legislative measures necessary, on the part of the other state, to give effect to the treaty. The nation is responsible to the government of the other nation for its non-execution, whether the failure to fulfil it proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature, but it might have been on the part of the judicial department. The court of cassation might have refused to render some judgment necessary to give effect to the treaty. The king cannot compel the chambers, neither can he compel the courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution." (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §7, note; President's Message, Dec., 1834; Annual Register, 1834, p. 361.)

§ 18. This case is broadly distinguished from that of the convention entered into between Mr. Rush, on the part of the United States, and Mr. Canning, on the part of Great Britain, in 1824, with respect to a mutual right of search of vessels suspected of being engaged in the slave trade. The senate ratified the treaty, with an amendment exempting the coasts of the United States from the surveillance of the cruisers of a foreign power. Mr. Canning refused to ratify the treaty as amended, mainly on the ground that the senate could not introduce any change into a treaty negotiated according to the President's instructions. It will probably be admitted, on all hands, at the present day, that Mr. Canning's objection to the action of the senate was without foundation. No treaty is binding till duly ratified, and it was his duty to know that, by the constitution of the United States, that power was vested

in the senate, and the exercise of the power so vested could not be a matter of complaint by a foreign state. If, as in the case of France, in 1831, the convention of March 13th, 1824, had been duly ratified by the treaty-making power of the United States, and either the executive, legislative, or judicial branch of that government had refused or neglected to take the proper measures for carrying it into effect, Mr. Canning would have had good cause of complaint (Webster, Off. and Dip. Papers, pref., pp. 18-19; American State Papers, 1824; Holmes, Annals of America, vol. 2, pp. 506; Lawrence, On Visitation and Search, p. 28; Cong. Doc., 18 Cong., 2d Sess., Doc. No. 2; Hansard, Parl. Debates, (N. S.) vol. 11, p. 1; Annual Register, 1824, p. 119.)

§19. How far auxiliary legislation may be necessary to carry into effect the stiplations of treaties, must depend, in a measure, upon the particular constitution of each state. The doctrine of the British constitution, as stated by Blackstone, is, that "whatever contracts the king engages in, no other power in the kingdom can legally delay, resist, or annul." Nevertheless, the treaty binds nobody till its provisions are enacted by law, and a treaty cannot be pleaded in the courts against an act of parliament. In the United States, the constitution declares a treaty to be "the supreme law of the land." It is, therefore, regarded by the courts as equivalent to an act of congress, wherever it operates propria vigore, without the necessity of legislative provisions; and, as such, all concerned are bound to obey it, and, within their competence, to execute it. Any law conflicting with a treaty would be declared by our courts as unconstitutional. But when the terms of the stipulation import a contract, and either of the parties engages to perform a particular act, the treaty addresses itself to the political, rather than the judicial, department of the government, and the legislature must execute the contract, before it can become a rule for the court. Congress, though it cannot be compelled by any other branch of the government to pass the law for that purpose, is bound, by the highest moral and political obligations, so to do; and, in point of fact, it has rarely hesitated, and never omitted, to do its duty in this respect. (Wheaton, Elem. Int. Law, pt. 3, ch. 2, §7; Kent, Com. on Am. Law, vol. 1, p. 285; Foster, et al., v. Neilson, 2

Peters. Rep., p. 314; United States v. Arredonda, 6 Peters. Rep., 735; Blackstone, Commentaries, vol. 1, p. 257; Polson, Law of Nations,sec. 5.)

§ 20. General compacts between nations have been variously divided by text-writers. One of the most important of these divisions is into personal and real treaties; the first including only treaties of mere personal alliance, such as are expressly made with a view to the person of the reigning sovereign or his family, and the latter relating only to the things of which they treat, without any dependence on the person of the contracting parties. The first bind the state during the existence of the persons referred to, or their public connection with the state, but expire with the natural life or public authority of those who contract them, while the latter bind the contracting parties independently of any change in the constitution or rulers of the state. Real treaties include those made for a determinate time, as well as those which are, from their nature, perpetual. (Wheaton, Elem. Int. Law, pt. 1, ch. 2, §11; pt. 3, ch. 2, §10; Vattel, Droit des Gens, liv. 2, ch. 12, §§ 183-197; Polson, Law of Nations, sec. 5; Bello, Derecho Internacional, pt. 1, cap. 9, §2; Heffter, Droit International, § 82; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 15.)

It

§ 21. There are numerous other divisions of treaties which have been made with respect to their object or general character, as equal and unequal treaties; treaties of guaranty and surety; treaties of confederation and association; treaties of alliance and of succor and subsidy; treaties of cession, of boundaries, of friendship, of commerce, etc. The character and duration of these several kinds of treaties are very different. not unfrequently happens, however, that the same treaty relates to various things, and that some of its articles are perpetual, while others have reference only to past transactions, or are for a temporary object, and continue only for a determinate time. It is, therefore, necessary lo distinguish the character of the engagements, rather than the nature of the things to which they relate. Thus, stipulations with respect to boundaries, cession or exchange of territory, to public debts, to the tenure of property by each others subjects, are permanent in their nature, and, although their operation may, in some cases, be suspended during war, they revive on