on being duly promulgated, became the law of the land. It was thus," he added, "that the treaty-making power had been understood by foreign nations; and that in all treaties made with them, we had declared, and they had believed, that when so ratified, they became obligatory on the nation." In this construction of the Constitution, every former House of Representatives had acquiesced, and until that time not a doubt or suspicion had appeared, to his knowledge, that it was held not to be the true construction; and he concluded by observing that "it was perfectly clear to his understanding, that the consent of the House of Representatives was not necessary to the validity of a treaty. As the treaty in question exhibited in itself all the objects requiring legislative provision, upon which the papers called for could throw no light, and that, as it was essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution, and to the duties of his office, forbade a compliance with their request."

The principles thus laid down by General Washington were so far acquiesced in by the House, that they passed a resolution, disclaiming the power to interfere in making treaties; but asserting the right of the House of Representatives, whenever stipulations are made on subjects committed by the Constitution to Congress, to deliberate on the expediency of carrying them into effect; and subsequently it was declared, by a small majority, to be expedient to pass the laws necessary for carrying the treaty into effect. From that time the question re

mained undisturbed until the conclusion of a convention with Great Britain, in 1815, when the House of Representatives, after much debate, passed a bill specifically enacting, on a particular subject, the same provisions which were contained as stipulations in the treaty. This dangerous innovation on the treaty-making power was warmly opposed by a minority in the House, and disagreed to by the Senate; but, after sev eral conferences between them, the affair terminated in a compromise, which it is difficult to reconcile with a sound construction of the Constitution. The law passed on the occasion briefly declares that so much of any act as imposes a duty on tonnage, contrary to the provisions of the convention with Great Britain, should, from the date of that instrument, and during its continuance, be of no force or effect; thus setting a precedent which may produce future difficulty in our national legislation, though the judicial tribunals would probably regard such a law as a work of supererogation, or a mere nullity, and, from its retroactive operation, at variance with the spirit of the Constitution.

Treaties of every kind, when made by competent authority, are not only to be observed with the most scrupulous good faith, but are to receive a fair and liberal interpretation. Their meaning is to be ascertained by the same rules of construction and course of reasoning as are applied to the interpretation of private contracts; and, according to the most authoritative writers on international law, if a treaty should be in fact violated by one of the parties, either by proceedings incompatible with its nature, or by an intentional breach of any of its articles, it rests with the in

jured party alone to pronounce it broken. The treaty, in such cases, is not absolutely void, but voida le at the election of the injured party. If he chooses not to come to a rupture, the treaty remains obligatory. He may waive or remit the infraction, or demand a just satisfaction. But the violation of any one article of a treaty is a violation of the whole; for all its articles are dependant on each other, and are to be deemed mutual conditions of each other; and the breach of a single article may, at the election of the injured party, overthrow the whole treaty. This consequence may, however, be prevented by an express provision in the treaty itself, that if one article be broken, the others shall, nevertheless, continue in full force; and in such a case, Congress could not annul the treaty on the ground of the breach. The nullification of a treaty by an act of the legislative power, under the cir cumstances which render such an act justifiable, or its termination by war, does not divest rights of property acquired under it. Nor do treaties become, ipso facto, extinguished by war between the parties. Those articles which stipulate for a permanent arrangement of territorial or other national rights, are, at most, suspended during the war, and revive at the restoration of peace, unless waived by the parties, or new or repugnant arrangements are made in a new treaty.

The supplementary power of sending and receiving ambassadors, and other public ministers and consuls, results as a necessary incident to the leading part in the treaty-making power assigned to the President; and it was first ex

8 Wheaton, 492.

ercised by General Washington, who broke off all intercourse with Citizen Genet, and demanded his recall by the French government, in consequence of his insolent assumption of authority to commission private vessels of war, equip them in our ports, and erect consular tribunals, with admiralty jurisdiction, within our territory. The only instance of the kind which has since occurred was that of the British minister, Mr. Francis Jackson, who had previously obtained some notoriety at Copenhagen, and, by his conduct on his extraordinary mission to this country relative to the attack on the Chesapeake frigate by a British line-of-battle ship, fully vindicated the nom de guerre which he had earned by an attack of a similar character, though on a larger scale, which he had promoted and sanctioned on the former occasion. It was very generally believed that he was selected by Mr. Canning as envoy to the United States in consequence of the celebrity he had gained in the Baltic; but a better motive was found in England, in the private friendship existing between the secretary of state and his envoy, derived from the gratitude of Mr. Canning to the father of his friend, Dr. Cyril Jackson, dean of Christ Church, Oxford,* under whose tuition he had been at that university. Be this as it may, the son behaved in this country as unlike as possible to what the conduct and manners of his father would have been in such a situation; and in consequence of his insolence, he was dismissed by Mr. Madi

son.

II. The power to define and punish piracies and

The character of this learned and able man is admirably and faithfully drawn in Mr. Ward's novel of "De Vere."

felonies committed on the high seas, and offences against the law of nations, is substantively and separately vested in Congress; although, as to the former objects, it seems unavoidably incident to the power of regulating foreign commerce; and, as to the latter, to be implied from the authority to declare war and make treaties.

The power to define as well as punish seems rather applicable to felonies and offences against the law of nations than to piracies, as piracy is well defined by the law of nations; and by the high seas is understood not only the ocean out of sight of land, but waters on the seacoast beyond the boundary of low-water mark.

Piracy, according to the most approved writers on international law, consists in robbery, or a forcible depredation on the high seas, without lawful authority. But felonies on the ocean, or on waters on the coast, beyond low-water mark, and offences against international law, are by no means completely ascertained and defined by any code recognised by the common consent of nations; so that, with respect to this species of offence, there was a peculiar fitness in granting to Congress the power to define as well as to punish. Nor, in executing the power inregard to piracy, was it necessary for Congress to insert in the statute a definition of the crime in terms; it was enough to refer for its definition to the law of nations, as it is there defined with reasonable certainty, and does not depend on the particular provisions of any municipal code, either for its definition or its punishment.* Congress has the right to pass laws to punish pirates,

* 5 Wheaton, 153.