authorized agent binds his principal according to the general rules of civil jurisprudence. The question, how far, under the positive law of nations, ratification by the state, in whose name the treaty is made by its duly authorized plenipotentiaries, is essential to its validity, has been the subject of much doubt and discussion among institutional writers. It seems, however, to be the settled usage of nations to require a previous ratification; and this pre-requisite is usually reserved by the express terms of the treaty itself. Some writers hold that such ratification is not essential to the validity of the treaty, unless it be expressly reserved in the full power or in the treaty itself; from which they infer that it may be arbitrarily refused when it is thus reserved. Others maintain that it cannot with propriety be withheld, unless for strong and substantial reasons; such, for example, as the minister having deviated from his instructions.4 stitution. The municipal constitution of every particular state deter§ 5. The treaty mines in whom resides the authority to ratify treaties nego- making tiated and concluded with foreign powers, so as to render power dependent on them obligatory upon the nation. In absolute monarchies, the muniit is the prerogative of the sovereign himself to confirm the cipal conact of his plenipotentiary by his final sanction. In certain limited or constitutional monarchies, the consent of the legislative power of the nation is, in some cases, required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the senate is essential to enable the chief executive magistrate to pledge the national faith in this form. In all these cases it is, consequently, an implied condition in negotiating with foreign powers that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the state. 4 Wicquefort, de l'Ambassadeur, liv. ii. § 15. Vattel, Droit des Gens, liv. ii. ch. 12, § 156, liv. iv. ch. 6, § 77. Martens, Précis du Droit des Gens, &c. liv. ii. ch. 2, § 49. Kluber, Droit des Gens Moderne, pt. ii. sect. 1, ch. 2, § 142. § 6. Auxiliary measures, how far necessary to the va lidity of a treaty. The treaty, when thus ratified, is obligatory upon the conlegislative tracting states, independently of the auxiliary legislative measures which may be necessary on the part of either, in order to carry it into complete effect. Where, indeed, such auxiliary legislation becomes necessary, in consequence of some limitation upon the treaty-making power expressed in the fundamental laws of the state, or necessarily implied from the distribution of its constitutional powers-such, for example, as a prohibition of alienating the national domainthen the treaty may be considered as imperfect in its obligation, until the national assent has been given in the forms required by the municipal constitution. A general power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made; and among these may properly be included the cession of the public territory and other property, as well as of private property included in the eminent domain annexed to the national sovereignty. If there be no limitation expressed in the fundamental laws of the state, or necessarily implied from the distribution of its constitutional authorities, on the treatymaking power in this respect, it necessarily extends to the alienation of public and private property, when deemed necessary or expedient." Commercial treaties, which have the effect of altering 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. Thus the commercial treaty of Utrecht, between France and Great Britain, by which the trade between the two countries was to be placed on the footing of reciprocity, 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 the treaty. In treaties requiring the appropriation of moneys for their 5 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 7. Vattel, Droit des Gens, liv. i. ch. 20, § 244; ch. 2, §§ 262–265. Kent's Comment. on Amer. Law, vol. i. p. 165. 2d Ed. execution, it is the usual practice of the British government to stipulate that the king will recommend to parliament to make the grant necessary for that purpose. Under the constitution of the United States, by which 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,” it seems to be understood that the congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry the treaty into effect." General compacts between nations may be divided into _ $7. what are called transitory conventions, and treaties properly so convenTransitory termed. The first are perpetual in their nature, so that be- tions perpetual in ing once carried into effect, they subsist independent of any their nachange in the sovereignty and form of government of the ture. contracting parties; and although their operation may, in some cases, be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one nation within the territory of another. Thus the treaty of peace of 1783, between Great Britain and the United States, by which the independence of the latter was acknowledged, prohibited future confiscations of property; and the treaty of 1794, between the same parties, confirmed the titles of British subjects holding lands in the United States, and of American citizens holding lands in Great Britain, which might otherwise be forfeited for alienage. Under these stipulations, the supreme court of the United States determined that the title both of British subjects and of corporations to lands in America was protected by the treaty of peace, and confirmed by the treaty of 1794, so that it could not be forfeited by any intermediate legislative act, or other proceeding, for alienage. Even supposing 6 Kent's Comment. vol. p. 286. 2d Ed. 7 Vattel Droit des Gens, liv. ii. ch. 12, § 192. Martens, Précis, &c. liv. ii, ch. 2, § 58. the treaties were abrogated by the war which broke out between the two countries in 1812, it would not follow that the rights of property already vested under those treaties could be devested by supervening hostilities. The extinction of the treaties would no more extinguish the title to real property acquired or secured under their stipulations than the repeal of a municipal law affects rights of property vested under its provisions. But independent of this incontestable principle, on which the security of all property rests, the court was not inclined to admit the doctrine, that treaties become, by war between the two contracting parties, ipso facto extinguished, if not revived by an express or implied renewal on the return of peace. Whatever might be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to the subject, it was satisfied that the doctrine contended for was not universally true. There might be treaties of such a nature, as to their object and import, as that war would necessarily put an end to them; but where treaties contemplated a permanent arrangement of territory, and other national rights, or in their terms were meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by war. If such were the law, even the treaty of 1783, so far as it fixed the limits of the United States, and acknowledged their independence, would be gone, and they would have had again to struggle for both, upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning. The court, therefore, concluded that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, revive upon the return of peace. 8 8 Wheaton's Rep. vol. viii. p. 464. The Society for the Propagation of the Gospel in Foreign Parts, v. the Town of New Haven. Treaties, properly so called, or fœdera, are those of friend ship and alliance, commerce and navigation, which even if perpetual in terms, expire of course: $ 8. Treaties, the opera tion of which 1. In case either of the contracting parties loses its exist- cease in ence as an independent state. 2. Where the internal constitution of government of either state is so changed as to render the treaty inapplicable under circumstances different from those with a view to which it was concluded. Here the distinction laid down by institutional writers between real and personal treaties becomes important. The first bind the contracting parties, independently of any change of sovereignty or in the rulers of the state. The latter include only treaties of mere personal alliance, such as are expressly made with a view to the person of the actual ruler or reigning sovereign, and though they bind the state during his existence, expire with his natural life or his public connexion with the state." 3. In case of war between the contracting parties; unless such stipulations as are made expressly with a view to a rupture, such as the period of time allowed to the respective subjects to retire with their effects, or other limitations of the general rights of war. Such is the stipulation contained in the 10th article of the treaty of 1794, between Great Britain and the United States,-providing that private debts and shares, or moneys in the public funds, or in public or private banks belonging to private individuals, should never, in the event of war, be sequestered or confiscated. There can be no doubt that the obligation of this article would not be impaired by a supervening war, being the very contingency meant to be provided for, and that it must remain in full force until mutually agreed to be rescinded.10 certain cases. Most international compacts, and especially treaties of § 9. peace, are of a mixed character, and contain articles of both 9 Vide ante, pt. î. ch. 2, § 20. 10 Vattel, liv. iii. ch. 10, § 175. Kent's Comment. on American Law, vol. i. p. 176. 2d Ed. Treaties revived |