"The rights of neutrals to maintain and carry on their commerce and trade on the high seas during time of war were fully recognized. For this purpose articles which were to be held to be contraband of war were expressly defined and limited; and in the treaty of 1785 with Prussia, which bears the signatures of John Adams, Dr. Franklin, and Jefferson, it was even agreed that no articles should be deemed contraband, so as to induce confiscation, or condemnation. and a loss of property to individuals. It was further agreed that free ships should make free goods; and that neutral goods found in an enemy's ship should not be confiscated if they had been put on board before the declaration of war, or within such short period thereafter that an ignorance of the state of war might fairly be implied. "Precise rules were laid down to be observed in the visit of neutral vessels on the high seas, the humane regulations were made. respecting vessels on which articles contraband of war should be discovered. 666 "To prevent the destruction of prisoners of war by sending them into distant and inclement countries or by crowding them into close and noxious places,' regulations were made for their treatment; and it was agreed that women and children, scholars, and cultivators, all others whose occupations are for the common subsistence and benefit. of mankind,' should be allowed to continue their respective employments in time of war; that merchant and trading vessels employed in rendering the necessaries of human life more easy to be obtained, should be allowed to pass unmolested in such time; and that no commissions should be granted to private armed vessels. "The power of the new nation whose existence had been recognized by these treaties, to regulate and control its commercial relations with foreign powers was uniformly asserted in this series of treaties. They placed each of the other powers, in respect of commerce and navigation within each and every state, on the footing of the most-favored nation; and it was agreed with Prussia that the ports of each power should be open to the other; and that the duties, charges, and fees, to be imposed by each upon articles the growth, produce, or manufacture of the other, should be only such as should be paid by the mostfavored nation. "In the articles affecting the relations between the United States and the several States, these early treaties asserted the nationality of the United States in a no less marked manner. "They prohibited the exaction in any State of the droit d'aubaine or other similar duty. They allowed aliens to hold personal property and to dispose of it by testament, donation, or otherwise, and to succeed to it, and they prohibited the exaction in such case by any State of dues, except such as the inhabitants of the country were subject to. They allowed aliens, without obtaining letters of naturalization, to inherit real estate and things immovable in every State, but in such case the Prussian alien was required to sell the real estate and withdraw the proceeds, which he was to be permitted to do without molestation; and in case of withdrawal no droit de détraction was to be exacted. "The right to aliens to frequent the coasts and countries of each and all the several States, and to reside there and to trade in all sorts of produce, manufactures, and merchandise was granted by the National Government; and the States were prohibited from imposing upon such aliens any duties or charges to which the citizens of the most-favored nation were not made subject. Resident aliens were also assured against State legislation to prevent the exercise of an entire and perfect liberty of conscience, and the performance of religiuos worship; and, when dying, they were guaranteed the right of decent burial, and undisturbed rest for their bodies. "The consular convention concluded with France by Jefferson maintained a yet wider supremacy for the national authority. It authorized French consuls to administer, in certain cases, upon the estates of their deceased countrymen in the several States; to exercise police over all the vessels of their nation in whatever American port they might discharge their functions; to arrest the officers or crews of such vessels, to require the courts to aid them in the arrest of deserters; and it even elevated them into judges, and authorized them to determine all differences and disputes arising between their countrymen in the United States. "The same statesmen contemplated at one time a postal convention between France and the United States. A scheme was submitted by the French minister; after considering which Jay submitted a counter proposal, but nothing further appears to have been done. Had the scheme been carried out it would have anticipated by half a century the modern international postal conventions of the United States. "The several treaties and conventions, thus negotiated, have served as the basis or model of many of the commercial and general conventions entered into by the United States since the adoption of the Constitution." Mr. J. C. B. Davis, Notes, Treaty Volume (1776–1887), 1219. 'Between 1776, when independence was proclaimed, and 1789, when the government under the Constitution was inaugurated, the United States entered into fourteen treaties-six with France, three with Great Britain, two with the Netherlands, and one each with Sweden, Prussia, and Morocco; but a majority of all were negotiated and signed in France, at Paris or at Versailles. Eight were subscribed, on the part of the United States, by two or more plenipotentiaries; and among their names we find, either alone or in association, that of Franklin, ten times; the name of Adams, seven times; that of Jefferson, three times; and that of Jay, twice." (Moore's American As to the making of treaties by the United States prior to and under the "The committee [of the Continental Congress] to prepare a form of union had reported July 12 [1776], but the plan was not adopted until November 15, 1777, and did not become binding until March 1, 1781, with the ratification of the Maryland delegates. The draft of the Articles of Confederation in John Dickinson's handwriting reported July 12, and the Articles as finally adopted, agree essentially in the provisions relating directly to treaty making. In both not only is the sole and exclusive right and power to make treaties vested in Congress, but the States without the consent of Congress are specifically prohibited from entering into any treaty with a foreign prince or state, or any treaty, confederation or alliance whatever with another State of the Confederation. No treaty shall be made by Congress unless nine States assent to the same.' Congress is expressly prohibited from entering into any treaty whereby the States shall be restrained from imposing such duties and imposts on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods whatsoever. On the other hand, the States are expressly prohibited from laying imposts or duties which may interfere with any stipulations in treaties entered into with any foreign power in pursuance of any treaties already proposed by Congress to the courts of France and Spain." Crandall, Treaties, Their Making and Enforcement, 27. 2. UNDER THE CONSTITUTION. § 735. "He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." Constitution of the United States, Art. II., sec. 2, clause 2. See Crandall, Treaties, Their Making and Enforcement, 54 et seq. See, generally, the Treaty-Making Power of the United States, by Charles As to different kinds of treaties, see Martens' Law of Nations, Cobbett's "That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one county owning property in another, and the manner in which that property may be transferred, devised or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement." Geofroy v. Riggs (1890), 133 U. S. 258, 266–267. Treaty provisions giving to consular officers the right to administer on the estates of their deceased countrymen will prevail over any inconsistent State legislation. In re Fattosini's Estate (1900), 67 N. Y. Supp. 1119, 33 Misc. 18; In re The government of the United States "can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." In re Ross (1891), 140 U. S. 453, 463. The clause in the tariff act of October 1, 1890, which authorized the President to enter into reciprocity arrangements, was attacked on the ground that it delegated to the President both legislative and treatymaking powers. The Supreme Court, in holding this objection to be unfounded, said: "That Congress can not delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation. What the President was required to do was simply in execution of the act of Congress." Field v. Clarke, 143 U. S. 649, 692, cited in Yale Law Journal (Dec. 1901), See, also, Mr. E. B. Whitney, in Columbia Law Review, Jan. 1901. The regulation of fisheries in navigable waters within the territorial limits of the several States is, in the absence of a treaty, a subject of State rather than of Federal jurisdiction; but the government of the United States has power to enter into treaty stipulations H. Doc. 551-vol 5—11 on the subject, e. g., with Great Britain, for the regulation of the fisheries in the waters of the United States and Canada along the international boundary; and the fact that a treaty provision would annul and supersede a particular State law on the subject would be no objection to the validity of the treaty. Griggs, At. Gen., Sept. 20, 1898, 22 Op. 214. "By the Constitution of the United States, this department of legislation is confined to two branches only, of the ordinary legislature; the President originating, and the Senate having a negative. To what subject this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and can not be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States; for surely the President and Senate can not do by treaty what the whole government is interdicted from doing in any way. (4) And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, say others. "The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exemption is denied as unfounded. For, examine, e. g., the treaty of commerce with France, and it will be found that out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions." Jefferson's Man. of Parl. Prac. (N. Y. 1876), 110. "During the administration of John Quincy Adams several treaties were concluded, in which broader views in commercial matters began to prevail. It was agreed that whatever kind of produce, manufacture, or merchandise of any foreign country could be from time to time lawfully imported into the United States in their own vessels might also be imported in vessels of the other power. These treaties were subscribed by Henry Clay, Secretary of State of the United States, and the provisions have often since been repeated in conventions with other powers. The expanding commerce of the United |