VI. INTERPRETATION-Continued. (2) Geographical discriminations. § 766. (3) Retaliatory or compulsive discriminations. § 767. 3. Change in conditions. $ 772. 4. Changes in sovereignty and government. § 773. 5. Legislative abrogation. § 774. 6. Implied revocation or repeal. (1) Earlier by later treaty. § 775. (2) Treaty, by later statute. $ 776. (4) State constitutions and statutes by treaties. § 778. 7. Effect of war. § 779. 8. Survival of vested rights. § 780. I. POWER TO MAKE. 1. PRIOR TO THE CONSTITUTION. § 734. enter "On the 29th of November, 1775, Congress appointed a committee of secret correspondence,' whose duty it would be to correspond with the friends of the colonies in other parts of the world. On the 3d of March, 1776, this committee instructed Silas Deane to proceed to France to enter into communication with M. de Vergennes, and to ascertain, if possible, whether, if the colonies should be forced to form themselves into an independent state, France would. into any treaty or alliance with them for commerce or defense, or both. These instructions were signed by Dr. Franklin, Benjamin Harrison, John Dickinson, Robert Morris, and John Jay; and the practical wisdom of the signers is displayed in the first instruction they contain: When you come to Paris you will be introduced to a set of acquaintance, all friends to the Americans; by conversing with them you will have a good opportunity of acquiring Parisian French.' 6 6 "On the 17th day of the following September, nearly two years prior to the adoption of the Articles of Confederation, Congress took into consideration the plan of treaties to be proposed to foreign nations, with the amendments agreed to by the committee of the whole,' and thereupon adopted a plan of treaty to be proposed to His Most Christian Majesty the French King, which will be found in the secret journal. "This remarkable state paper contains the germ (often expressed in the identical language) of many of the provisions of subsequent treaties of the United States. "In one respect it was many years in advance of provisions actually incorporated into any treaty. Its first and second articles stipulated that the citizens of each country in the ports of the other should pay no other duties or imports than the natives were required to pay, and should enjoy the same privileges, immunities, and exemptions in trade, navigation, and commerce which natives enjoyed; and the twelfth article contemplated a similar reciprocal agreement in respect of some exports. It was not until after the peace of 1814 that this principle of reciprocity was incorporated into a treaty of the United States. "The commissioners who were originally selected by the Continental Congress to conclude treaties with the European powers were Dr. Franklin, Silas Deane, and Thomas Jefferson. Jefferson having declined, Arthur Lee was elected in his place. "On the 6th of February, 1778, these commissioners concluded a treaty of alliance and a treaty of amity and commerce with the King of France. These important acts were followed by the conclusion of treaties of amity and commerce with the Netherlands, in 1782; and with Sweden in 1783; of the treaty of peace with Great Britain, in 1783 (to which the names of Adams, Franklin, and Jay were attached under a special power); of a treaty of amity and commerce with Prussia in 1785; of a treaty of peace and friendship with Morocco in 1787; and of a consular convention with France, in 1788. "In regulating the commercial and political relations between the United States and other powers, these several treaties secured the recognition of the independence of the United States, and also the assent of other powers to many important principles, some of which were not then universally recognized as constituting part of the public law which should govern the intercourse of nations with each other. It is not difficult to recognize, in these provisions, the impress of the statesmanlike intelligence and humane and elevated characters of the members of the Continental Congress, and of the American plenipotentiaries who negotiated the several treaties. "The evils of war were lessened by agreements that, in case it should break out, time should be given to the citizens of each in the territories of the other to close their business and remove their properties; or that, should differences arise, resort should not be had to force until a friendly application should be made for an arrangement. "A restraint was imposed upon private war by provisions forbidding the citizens of either power to accept commissions or letters of marque from enemies of the other power when at war; and the acceptance of such commissions or letters was declared to be an act of piracy, which placed the offender beyond the claim of national protection. "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. "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. 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 |