tricts in possession of His Majesty's arms who had not borne arms against the United States. It was also agreed that other legislation consistent with justice and equity and the spirit of conciliation, which should universally prevail on the return of the blessings of peace, should be recommended earnestly to the several States. This clause was inserted because at that time some of the States which had confiscated property were in actual possession and ownership of the same; as a matter of fact, however, the laws regarding confiscation of property referred to in Article V are no more within the exclusive province of State legislation than were the laws affecting the rights of creditors for the recovery of money, which were provided for by the absolute stipulations in Article IV. It would have been equally within the scope of the treaty-making power to have made the stipulations as absolute in those respects as in the others had the commissioners plenipotentiary seen fit to do so.2

§ 160. Other treaties made by Congress under confederation again referred to.-In 1782 John Adams, on behalf of the United States, concluded a treaty of amity and commerce with the States-General of the United Netherlands, which was ratified by the Continental Congress, January 23, 1783, and which contained a clause regulating testamentary provisions, which are always under State control, so far as they affect property within the State. He also negotiated another treaty relating to captured vessels.2

2 Note 266 et seq. post, and especially Professor Pomeroy's views as stated in § 270 post. § 160.

shall be restored to them, they re-recommendation see Mr. Justice funding to any persons who may Washington's charge in Gordon vs. be now in possession the bona fide Kerr, 1 Wash. C. C. 322, and reprice (where any has been given) ferred to in § 354, Vol. II, p. 46. which such persons may have paid on purchasing any of the said lands, rights or properties since the confiscation. And it is agreed, that all persons who have any in- 1 Treaty of Amity and Commerce terests in confiscated lands, either between the United States and the by debts, marriage settlements or States-General of the United Nethotherwise, shall meet with no law-erlands, concluded at The Hague, ful impediment in the prosecution October 8, 1782; ratified by the of their just rights." For the Continental Congress, and probroad construction placed on this claimed January 23, 1783. United 2 For note 2, see p. 279.

In April, 1783, Benjamin Franklin concluded a treaty of amity and commerce with the King of Sweden, containing provisions in regard to the disposition of property similar to those in the treaty with France.

In 1785 Benjamin Franklin, John Adams and Thomas Jefferson concluded a treaty of amity and commerce with the King of Prussia, which contained provisions for the disposition of personal property; this treaty is remarkable as containing the first enunciation of the policy of the United States that private and unoffending property on the sea should be free from capture during war.5

States Treaties (ed. 1889), p. 749; 8 U. S. Stat. at L. p. 32 (English and Dutch text).

2 This convention was concluded, ratified and proclaimed at the same time. United States Treaties (ed. 1889), p. 759; 8 U. S. Stat. at L. p. 50 (English and Dutch text).

3 Treaty of Amity and Commerce, concluded at Paris, April 3, 1783, between the King of Sweden and the thirteen United States of America; ratified by the Continental Congress July 29, 1783, proclaimed September 25, 1783, United States Treaties (ed. 1889), p. 1042; 8 U. S. Stat. at L. p. 60 (English and French text).

chants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance. And all women and children, scholars of every faculty, cultivators of the earth, artizans, manufacturers, and fishermen, unarmed and inhabiting unfortified towns, villages, or places, and in general all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted by the armed force of the enemy, into whose power by the events of war they may happen to fall; but if anything is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. And all merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy "If war should arise between the to be obtained, and more gentwo contracting parties, the mer-eral, shall be allowed to pass free

Treaty of Amity and Commerce between His Majesty the King of Prussia and the United States of America; (the plenipotentiaries signed separately at different places and at different dates during July, August, September, 1785) ratified by the Continental Congress, May 17, 1786; exchanged at The Hague, October, 1786, U. S. Treaties and Conventions (ed. 1889), p. 899; 8 U. S. Stat. at L. p. 84 (English and French text).

6" ARTICLE XXIII.

In 1787 John Adams and Thomas Jefferson concluded a treaty of peace and friendship with the Emperor of Morocco. The commercial relations of the United States in 1783 are summarized by Mr. Curtis in the quotation in the notes to this section. It does not appear that any other treaties than

and unmolested; and neither of merce. When a treaty of amity the contracting Powers shall grant and commerce came to be conor issue any commission to any cluded with France, in 1778, the private armed vessels, empowering footing on which the subjects of the them to take or destroy such trad- two countries were placed, in the ing vessels or interrupt such com- dominions of each other, was that merce." of the most favored nations, inFor the author's views on this stead of that of natives. The Arsubject and history of the Ameri-ticles of Confederation, proposed can position in regard thereto, see in 1777, and finally ratified in document on Freedom of Private March, 1781, reserved to the states Property on the Sea from Capture the right of levying duties and imDuring War, prepared for the State posts, excepting only such as would Department by Charles Henry But-interfere with any treaties that ler, and transmitted to the Peace Conference at The Hague, during its sessions in June, 1899.

6 Treaty of Peace and Friendship between the United States and the Emperor of Morocco, concluded January, 1787; ratified by the Continental Congress July 18, 1787. United States Treaties (ed. 1889), p. 724; 8 U. S. Stat. at L. 100.

might be made pursuant to the treaties proposed to France and Spain.' The United States could, therefore, constitutionally complete these two treaties, and such as were dependent upon them, but no others which should have the effect of restraining the legislatures of the states from prohibiting the exportation or importation of any species of goods or merchandise, or laying whatever duties or imposts they thought proper.

"The actual commercial relations of the United States with other countries, when the peace took place, were confined to trea- "In 1782, negotiations were enties of amity and commerce with tered into for a similar treaty with France, Sweden, and the Nether- the States-General of the Netherlands; the two latter transcending, lands. When the instructions to in some degree, the powers of the Mr. Adams to negotiate this treaty Confederation. In 1776 the Rev- were under consideration in Conolutionary Congress had adopted a gress, it was recollected that the plan of treaties to be proposed to French treaty contained a stipula France and Spain, which contem- tion the effect of which would plated that the subjects of each enable the heirs of the subjects of country should pay no duties in the either party, dying in the terriother except such as were paid by tories of the other, to inherit real natives, and should have the same property, without obtaining letters rights and privileges as natives in of naturalization. The doubt sugrespect to navigation and com-gested itself as it well might

those above enumerated were concluded prior to the adoption of the Constitution, with the possible exception of a consular convention with France and some agreements with Indian tribes. In regard to this class of treaties, it is proper to note, at this point, although it will be the subject of more extended reference in a subsequent chapter, that treaties made by the Central Government with Indians frequently affected property situated wholly within a single State, and in the decisions hereafter quoted it will be found that the courts, both State and Federal, have sustained the treaty-making power (apart from the constitutional power to regulate commerce with Indians) as paramount in that respect.

fore varied, so as to give the privilege of inheritance only as to the effects' of persons dying in the country-an expression which would probably exclude real property, but which might possibly be construed to include it.

§ 161. Other sovereign and national powers exercised by earlier Congresses.-While discussion in this volume is confined to the treaty-making power, it is proper to note that from 1774 to 1788 Continental Congresses exercised other powers which are analogous to the treaty-making power, in that they are inherent attributes of sovereignty and can be only exercised by sovereign and national powers. These are especially referred to in Mr. Davis' Notes as prize whether such an indefinite license power. The language was thereto aliens to possess real property within the United States was not an encroachment upon the rights of the states. It seems to have been expected, when the French treaty was entered into, that the states would acquiesce in this provision, on account of the peculiar relations of this country to France, and because of the saving clause in the Articles of Confederation in favor of the treaties to be made with that power and with Spain. But, such a stipulation as this was clearly not within the meaning of that clause; and it was received with great repugnance by many of the states. In the treaty with the Netherlands it was proposed to insert a similar provision; but it was found to be extremely improbable that the states would comply with a similar engagement with another

"With regard to duties and imposts, the Dutch treaty contained the same stipulation as the French, putting the subjects of either power on the footing of the most favored nations, and thereby holding out to the subjects of the United Provinces the promise of an equality, under the laws of the United States, with the subjects of France. The same stipulation was inserted in a treaty subsequently made at Paris with the King of Sweden.

"If these stipulations were supposed or intended to be binding upon the states, so as to restrain

jurisdiction and the acquisition of territory 2-his remarks on these points are worthy of careful consideration.

1

The history of the Confederation, as it has been told by Mr. Justice Story in his Commentaries and by George Ticknor Curtis and Professor Von Holst in their histories of the Constitution, also demonstrates the existence and exercise of all of the attributes of nationality and sovereignty which have already been referred to.3

§ 162. Views of Justice Story. In this respect, Justice Story bases his views largely upon the utterances of Chief Justice Jay and of Justices Paterson and Chase in Chisholm vs. Georgia, all of whom were revolutionary heroes, and whose knowledge of the legal status of the Confederation was based upon their actual experience and association with public affairs during its existence; the author of this volume feels that he cannot better conclude this chapter upon the nature of the treaty-making power under the Confederation than by quoting at length the concluding sentences of Judge Story's chapter upon the general status and powers of that government.

"In respect to the powers of the Continental Congress exercised before the adoption of the Articles of Confederation, few questions were judicially discussed during the Revolutionary contest; for men had not leisure in the heat of war nicely to scrutinize or weigh such subjects; inter arma silent leges. The people, relying on the wisdom and patriotism of Congress, silently acquiesced in whatever authority they assumed. But soon after the organization of the present government, the question was most elaborately discussed

§ 161.

Curtis' Constitu

1 Miller's Lectures on the Constitution; J. C. Bancroft Davis' Notes to Lecture I, p. 37 et seq.

them from adopting, within their | Netherlands." respective jurisdictions, any other tional History of the United States, rule than that fixed by the French vol. 1, pp. 188-190. treaty, for the subjects of the United Provinces and the King of Sweden, it is quite clear that the Articles of Confederation gave no authority to Congress to make them. They could have no effect, therefore, in producing a uniformity of regulation throughout the United States with regard to the trade with Sweden and the

2 Idem, p. 57 et seq.

3 See notes to § 142, p. 245, § 149, pp. 258, et seq., ante. § 162.

1 See note to § 143, p. 246, ante,