the Crown. He urged that there must of necessity also reside in the Crown the power of compelling its subjects to obey the provisions of a treaty arrived at for the purpose of putting an end to a state of He further contended that if this be so, the power must equally extend to the provisions of a treaty having for its object the preservation of peace, that an agreement which was arrived at to avert a war which was imminent was akin to a treaty of peace, and subject to the same constitutional law. Whether the power contended for does exist in the case of treaties of peace, and whether if so it exists equally in the case of treaties akin to a treaty of peace, or whether in both or either of these cases interference with private rights can be authorized otherwise than by the legislature, are grave questions upon which their Lordships do not find it necessary to express an opinion. Their Lordships. agree with the court below in thinking that the allegations contained in the statement of defence do not bring the case within the limits of the proposition for which alone the appellant's counsel contended.

Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed with costs.

UNITED STATES v. THE PEGGY.

(Supreme Court of the United States, 1801. 1 Cranch, 103, 2 L. Ed. 49.) 17 Error to the Circuit Court for the District of Connecticut, on a question of prize.

The facts found and stated by Judge Law, the District Judge, were as follows:

"That the ship Trumbull, duly commissioned by the President of the United States, with instructions to take any armed French vessel or vessels sailing under authority, or pretence of authority from the French republic, which shall be found within the jurisdictional limits of the United States, or elsewhere on the high seas, &c. as set forth in said instructions; and said ship did on the 24th day of April last (April 1800) capture the schooner Peggy, after running her ashore a few miles to the westward of Port au Prince, within the dominions and territory of General Toussaint, and has brought her into port as set forth in the libel, and it further appears that all the facts, contained in the claim, are true; 18 whereupon this court are of opinion that as it appears that

17 The statement of facts is abridged.

18 The material facts stated in the claim are, that the schooner was the property of citizens of the French republic; that she was permitted by Toussaint to receive on board the cargo, which was on board at the time of capture; that she had dispatches from Toussaint to France; that she sailed by his authority, on the 23d of April, for France, navigated by ten men, including Buisson, the claimant, and Gillibert, the commander, and having on board four SCOTT INT. LAW-30

the said schooner was solely upon a trading voyage and sailed under the permission of Toussaint with dispatches for the French government, under a convoy furnished by Toussaint, with directions to touch at Leogane for supplies, and that the arms she had on board must be presumed to be only for self defence; neither does it appear she had ever made, or attempted to make, any depredations, and that she was not such an armed vessel as was meant and intended by the laws of the United States should be subject to capture and condemnation; and that the situation she was in, at the time of capture, being aground within the territory and jurisdiction of Toussaint, she was not on the high seas, so as to be intended to be within the instructions given to the commanders of American ships of war: Therefore, adjudge said schooner is not a lawful prize, and decree that said schooner with her cargo be restored to claimant."

*

The CHIEF JUSTICE [MARSHALL] delivered the opinion of the court. In this case the court is of opinion that the schooner Peggy is within the provisions of the treaty entered into with France and ought to be restored. This vessel is not considered as being definitely condemned. The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence may be interlocutory or final in the court which pronounces it, and receives its appellation from its determining the power of that particular court over the subject to which it applies, or being only an intermediate order subject to the future control of the same court. The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property and to direct a restoration of that which is still in controversy between the parties. On any other construction the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence. An interlocutory order for a sale is not a condemnation. A stipulation then for the restoration of vessels not yet condemned, would on this construction comprehend as many cases as a stipulation for the restoration of such as

small three-pound carriage guns, solely for defence against piratical assaults, and being under convoy of a tender, furnished by Toussaint: that on the 23d of April, she was run ashore, a few miles to the westward of Port au Prince, within the dominion, jurisdiction and territory of General Toussaint, so that she was fast and tight aground, at which time, and in which situation, the boats and crew of the Trumbull attacked and took possession of her, and got her off; that Toussaint then was, and still is, on terms of amity, commerce and friendship with the United States, duly entered into and ratified by treaty; that the schooner was on a lawful voyage, for the sole purpose of trade, and not commissioned, or in a condition to annoy or injure the trade or commerce of the United States.

SCOTT INT.LAW

are not yet definitively condemned. Every condemnation is final as to the court which pronounces it, and no other difference is perceived between a condemnation, and a final condemnation, than that the one terminates definitively the controversy between the parties and the other leaves that controversy still depending. In this case the sentence of condemnation was appealed from, it might have been reversed and therefore was not such a sentence as in the contemplation of the contracting parties, on a fair and honest construction of the contract was designated as a definitive condemnation.

It has been urged that the court can take no notice of the stipulation for the restoration of property not yet definitively condemned, that the judges can only enquire whether the sentence was erroneous when delivered, and that if the judgment was correct it cannot be made otherwise by any thing subsequent to its rendition.

The constitution of the United States (article 6) declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted. It is certainly true that the execution of a contract between nations is to be demanded from, and, in the general, superintended by the executive of each nation, and therefore, whatever the decision of this court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress; and although restoration may be an executive, when viewed as a substantive, act independent of, and unconnected with, other circumstances, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and, of consequence, improper.

It is in general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns where individual rights, acquired by war, are sacrificed for national. purposes, the contract making the sacrifice, ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws,

and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.19

SECTION 5.-EXTINCTION

SUTTON. v. SUTTON.

(Court of Chancery, 1830. 1 Russ. & M. 663.)

The MASTER OF THE ROLLS [Sir John LEACH].20 The relations which had subsisted between Great Britain and America, when they formed one empire, led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment of their landed property; and, the privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace.

The act of the 37 G. 3 gives full effect to this article of the treaty in the strongest and clearest terms; and if it be, as I consider it, the true construction of this article, that it was to be permanent, and independent of a state of peace or war, then the act of Parliament must be held, in the twenty-fourth section, to declare this permanency; and when a subsequent section provides that the act is to continue in force so long only as a state of peace shall subsist, it cannot be construed to be directly repugnant and opposed to the twenty-fourth section, but is to be understood as referring to such provisions of the act only as would in their nature depend upon a state of peace.

I am of opinion, therefore, in favour of the title, and consider that the heirs and assigns of every American who held lands in Great Britain at the time mentioned in the Act of the 37 G. 3, are, as far as regards those lands, to be treated, not as aliens, but as native subjects.

* * * 21

19 In La Ninfa, 75 Fed. 513, 21 C. C. A. 434 (1896), it was held, according to the headnote, that:

"An award by arbitrators under a treaty between the United States and another nation, by which the contracting nations agree that the decision of the tribunal of arbitration shall be a final settlement of all questions submitted, becomes the supreme law of the land, and is as binding on the courts as an act of Congress. La Ninfa (D. C.) 49 Fed. 575, reversed."

20 The statement of facts and part of the opinion is omitted.

The ninth article of the Jay treaty of 1794 enabled the subjects and citizens of either country to hold lands in the other and to sell and devise them as if they were natives.

21 This same ninth article was previously considered in an American case. In Fox v. Southack, 1815, 12 Mass. 143, 148, Jackson, J., says: "It is not

SOCIETY FOR PROPAGATION OF THE GOSPEL IN FOREIGN PARTS v. TOWN OF NEW HAVEN et al.

(Supreme Court of the United States, 1823. 8 Wheat. 464, 5 L. Ed. 662.) See ante, p. 93, for a report of the case.

PROTOCOLS OF CONFERENCES BETWEEN GREAT BRITAIN, AUSTRIA, FRANCE, GERMANY, ITALY, RUSSIA, AND TURKEY, RELATIVE TO THE INVIOLABILITY OF TREATIES, AND THE REVISION OF THE TREATY OF MARCH 30, 1856, SO FAR AS REGARDS THE NEUTRALIZATION OF THE BLACK SEA, THE STRAITS OF THE DARDANELLES AND BOSPHORUS, AND THE NAVIGATION OF THE DANUBE, 1871.

ANNEX TO PROTOCOL No. 1.

(61 British and Foreign State Papers, 1870-1871, 1193, 1198, 1199.) The plenipotentiaries of the North German Confederation, AustriaHungary, Great Britain, Italy, Russia, and Turkey, assembled today in conference, recognize that it is an essential principle of the law of nations that no Power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, except as the result of the consent of the contracting parties, by means of an amicable understanding.

In faith of which the said plenipotentiaries have signed the present protocol.

Done at London, this 17th day of January, 1871.22

necessary for the determination of this cause to decide whether the ninth article of that treaty was annulled by the late war; as, if it were so, that circumstance would not give any new rights to the plaintiff. There seems, however, to be no doubt that this article is one of those stipulations which are distinguished by some of the writers on the law of nations as real in their own nature, and which are accomplished by the act of ratification, so that they cannot be dissolved by any subsequent event. 'Pactum liberatorium, quo pax remisso aut transactio, facta est, qua jus extinctum reviviscere non protest.' Commentary or H. Cocceius on Grotius, B. 2, c. 16, § 16."

22 France adhered to this declaration March 13, 1871.

By the Treaty of Paris of March 30, 1856, concluded between Great Britain, France, Austria, Prussia, Sardinia, Russia, and Turkey, it was provided, among other things, that the Black Sea should be neutralized; that its waters and ports were open to the merchant marine of every nation, but forbidden to vessels of war, not only of the riparian States, but of all other Powers (article 11); that neither Russia nor Turkey should establish or maintain military arsenals upon the coasts thereof (article 13).

These provisions were imposed upon Russia by its enemies, and were exceedingly galling to Russia, which took advantage of the War of 1870 between France, Prussia and the German States, to declare itself freed from their observance. Great Britain protested vigorously.

A conference of representatives of the signatories of the Treaty of Paris,