rying on therein any trade or occupation, or of storing or keeping therein articles, goods or merchandise denominated hazardous or extra hazardous or specially hazardous, in the second class of hazards annexed to the policy, except as therein specially provided for, or thereinafter agreed to by the defendant, in writing upon the policy, then so long as the same shall be so used the policy was to be of no effect. The policy of insurance was accepted by the plaintiff with the condition last referred to, and the privilege to keep 'fire-crackers on sale' was specially written in the policy, and added ten cents more of premium to the $100. 'Fire-works' are claimed as 'specially hazardous,' and added fifty cents or more per $100 to the rate of insurance, and it is claimed, that to be covered by the insurance, must have been specially written in the policy, which in this case was not done. The rule which prevails in the interpretation of contracts of insurance is or should be the same as in all other written contracts of whatever nature. The intent is to be ascertained and observed, and if it clearly appears by the writing, the contract must have effect according to its terms. In this case, without evidence aliunde, it would be difficult, if not impossible, to say what articles in fact were intended to be insured. The court cannot judicially take notice of the precise commodities which make up a stock of fancy goods, toys, and other articles in that line of business, nor can it be declared, as a legal proposition, what precise things pertain to the occupancy of a building in the city of Baltimore as a German jobber and importer.' In the prosecution of his business the plaintiff did keep 'fire-works,' and the loss was occasioned by their accidental ignition, and it appears to have been absolutely necessary, in order to settle the dispute between the parties, to ascertain whether the keeping of 'fire-works' for sale was in the line of the plaintiff's business.' If not, it is very clear they were not insured against, because they were not specially written in the policy,' and the fact that the privilege to keep 'fire-crackers on sale' was specially written in the policy, affords a very strong argument in favor of the defendant that 'fire-works' were not insured against, for there was no special writing in regard to them, unless included in the written words 'in the line of the business' of the plaintiff. I do not understand it was claimed by the counsel for the defendant, on the trial, that the plaintiff was not at liberty to show that keeping fire-works' for sale was in the line of the plaintiff's business. It was in fact shown, without objection, that he had always kept them as a part of his stock in trade, and had some on hand when the insurance was effected. Evidence was also given, on the part of the plaintiff, tending to show that similar dealers usually kept fire-works as a part of their stock in trade. Evidence on the part of the defendant was given tending to show the contrary, but it was not very conclusive. If, therefore, as a matter of fact, the keeping of fire-works was in the line of the plaintiff's business, the cases are quite too numerous and familiar to need citation, that 'fire-works' were embraced in

the written description of the property covered by the policy."

Johnson, C., said: "Under the condition in the policy, suspending its operation so long as the premises should be used for the purpose of carrying on therein any trade or occupation, or for storing or keeping therein, any articles, goods or merchandise, denominated hazardous or extra hazardous or specially hazardous, in the second class of the classes of hazards annexed to the policy, except as therein specially provided for or thereafter agreed to by the corporation in writing upon the policy, it is the settled law of this State, that any such article is specially provided for, if it, as matter of fact, enters into and forms a part of the kind or line of business specified in the written part of the policy in the description of the risk assumed. The insurers being bound to know the nature and kind of articles belonging to the business and occupations against the risks of which they undertake to insure, the specification of the business is a sufficient special provision for all the articles belonging to it under the condition in the policy, even though some of those articles belong to the second class of hazards mentioned in the condition. Harper v. Albany M. Ins. Co., 17 N. Y. 194; Harper v. N. Y. City Ins. Co., 22 id. 441."

"In conclusion it is proper to advert to the decision in Steinbach v. Insurance Co., 13 Wall. 183, in which a different construction was placed upon similar terms in another policy in favor of the plaintiff here. The New York cases do not seem to have been adverted to, nor the case itself much considered. We should not be justified under these circumstances, in abandoning a settled line of decision in our own State in order to conform to it." The doctrine of this case is reiterated in Hall v. Insurance Co. of North America, 58 N. Y. 292.

The facts in Steinbach v. Insurance Co., above cited, were the same as in the New York case, and the decision was exactly the reverse. The court simply said: "It is not pretended that fire-works are included under the name of fire-crackers. But the plaintiff contends that they are included in the description of other articles in his line of business.' The answer to this is that the policy itself requires that fire-works shall be specially written in it. They are among the goods described as specially hazardous, and add 50 cents on the $100 to the ordinary rate of insurance. It is impossible to think that they are described by the general terms used in the policy. The insurance was at the ordinary rates. There can be no doubt that the evidence was properly rejected." No authorities were cited. Mr. Wood says this is in conflict with all the better class of cases. Fire Ins., 370, note.

statement of some of these principles will constitute the object of this article.

1. Courts take judicial notice of treaties as public laws, equal in rank to the laws of Congress. They are a part or the whole of the law in every case to which they are applicable; and courts are presumed to know what the law is, as thus established, and where it is to be found. Treaties are preserved in the archives of the government, and are, moreover, published by its authority as rules for courts of justice, and that, too whether they are reminded of them or not in the pleadings. It is their business to understand this branch of the law. Mr. Justice Story, in Martin v. Hunter's Lessee, 1 Wheat. 304, referring to a treaty of the United States, said that it "was not necessary to have been stated, for it was the supreme law of the land, of which all courts must take notice."

And, as to their rank, treaties stand on the same footing as the acts of Congress, and are to be so regarded by courts. Chief Justice Marshall, in The United States v. The Schooner Peggy, 1 Cranch, 103, said that "the Constitution of the United States 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. * * * Where a treaty 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."

So, also, in Foster v. Neilson, 2 Pet. 253, the same eminent jurist said that a treaty of the United States is "to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision." Whether therefore a law be established by the action of Congress, or by an exercise of the treaty power, is an immaterial circumstance in the judicial notice to be taken of it, and in the rank to be assigned to it.

2. This judicial notice extends to treaties which preceded the adoption of the Constitution, as well as to those made since its adoption, and also to treaties with the Indian tribes, as well as to those with foreign nations. The Constitution expressly specifies "all treaties made, or which shall be made, under the authority of the United States," as a part of "the supreme law of the land." The attribute of supremacy hence attaches to them, whether made by the United States under the Articles of Confederation, or by the President, with the approval of the Senate, under the authority of the Constitution. Mr. Justice Chase, in Ware v. Hylton, 3 Dall. 199, referring to a particular article in the treaty of peace with Great Britain, made in 1783, said that it is "retrospective and is to be considered in the same light as if the Constitution had beeu established before the making of the treaty of 1783." Force was given to this treaty in its relation to a law enacted by the Legislature of Virginia in 1777. The priority of the treaty to the Constitution was held not to impair its efficacy as a supreme law.

So, also, treaties with the Indian tribes, whether made before or after the adoption of the Constitution, have the same legal character as those made with foreign nations, and are to be so regarded by courts of justice. Chief Justice Marshall, in Worcester v. The State of Georgia, 6 Pet. 515, declared certain laws of Georgia to be unconstitutional, and, among other reasons, assigned the fact that "they were in direct hostility with treaties repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia, guaranty to them all the land within their boundary, solemnly pledge the faith of the United States to restrain their citizens from trespassing on it, and recognize the pre-existing power of the nation to govern itself." He also said: "The Constitution, by declaring treaties already made, as well as to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the

Indian nations, and consequently admits their rank among those powers who are capable of making treaties." As to the words "treaty" and "nation," he added: "We have applied them to Indians as we have applied them to other nations of the earth. They are applied to all in the same sense."

In Turner v. The American Baptist Missionary Union, 5 McLean, 344, Mr. Justice McLean said: "It is contended that a treaty with Indian tribes has not the same dignity and effect as a treaty with a foreign and independent nation. This distinction is not authorized by the Constitution. Since the commencement of the Government treaties have been made with the Indians, and the treaty-making power has been exercised in making them. They are treaties within the meaning of the Constitution, and as such are the supreme law of the land."

It is sadly true that the political department of the Government has in numerous instances most shamefully disregarded its treaties with the Indian tribes. The National judiciary, however, has uniformly asserted and maintained the sacredness of their obligation and their authority as a part of "the supreme law of the land."

3. The "cases in law and equity" arising under treaties of the United States are such, and such only, as involve rights that directly grow out of or are directly protected by these treaties. On this point Chief Justice Marshall, in Owings v. Norwood's Lessee, 5 Cranch, 344, remarked: "The words of the Constitution are 'cases arising under treaties.' Each treaty stipulates something respecting the citizens of the two nations, and gives them rights. Whenever a right grows out of or is protected by a treaty, it is sanctioned against all the laws and judicial decisions of the States; and whoever may have this right, it is to be protected. But if the person's title is not affected by the treaty, if he claims nothing under a treaty, his title cannot be protected by that treaty."

It was accordingly held that the twenty-fifth section of the Judiciary Act of 1789, providing for a writ of error from the Supreme Court of the United States to the highest State courts, in cases in which the validity of a treaty is drawn in question, etc., must be so restrained as to make it conformable to the Constitution, and limit the judicial power to cases actually arising under treaties. The Constitution itself fixes this limit. If the right does not so arise, then it cannot make a case under a treaty. Henderson v. Tennessee, 10 How. 311; Gill v. Oliver's Executors, 11 id. 529; and Verden v. Coleman, 1 Black, 472.

4. The construction of treaties, considered as laws affecting rights as between individuals, is exclusively a judicial function. Mr. Justice Grier, in Wilson v. Wall, 6 Wall. 83, observed: "Congress has no constitutional power to settle the rights under treaties, except in cases purely political. The construction of them is the peculiar province of the judiciary when a case shall arise between individuals." Congress may legislate for the execution of treaties by establishing courts and defining their jurisdiction; but the work of expounding them and applying them as laws, and by them determining the rights and obligations of individuals interested in or affected by them as laws, belongs to the courts of the land. In this respect there is no distinction between a treaty and a law enacted by Congress. The province of the judiciary is the same in both cases.

This function of construction is simply one of interpretation, rigidly applied to all parts of the treaty. Mr. Justice Story, in The Amiable Isabella, 6 Wheat. 1, thus stated this doctrine: "We are to find out the intention of the parties by just rules of interpretation applied to the subject-matter, and having found that our duty is to follow it as far as it goes, and to stop where that stops, whatever may be the imperfections

or difficulties which it leaves behind. * * * We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation upon any motion of equity or general convenience or essential justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties. * ** We can as little dispense with forms as with substance." What is sometimes called "judge-made" law has no application to treaties between sovereign nations.

The general rule for the construction of treaties is that furnished by the established sense of their words, unless the treaties themselves expressly define some of the words in a different sense. Mr. Justice Daniel, in United States v. D'Auterive, 10 How. 609, said: Compacts between governments or nations, like those between individuals, should be interpreted according to the natural, fair and received acceptation of the terms in which they are expressed." This rule of common sense is alike applicable to all contracts, whether under municipal or international law. The rule rests upon the assumption that the contracting parties understood at the time of the contract the received sense of the words they employed, and that they meant to make their stipulation with each other according to this sense. This is the sense which it is the duty of courts to enforce, unless a different sense is expressly stated in respect to some word or words that may be used.

Courts, in applying treaties to specific cases, are to assume that nations, in making contracts with each other, intend to act in good faith, and hence that they never intend to authorize or protect fraudulent transactions under the color of these treaties. Mr. Justice Story, in The United States v. The Amistad, 15 Pet. 518, observed: "In the solemn treaties between nations it is never to be assumed that either State intends to provide the means of perpetrating or protecting frauds; but all provisions are to be construed as intended to be applied to bona fide transactions." When a fraud is attempted under the color and protection of a treaty, it is, as remarked by the learned justice, "the duty of our courts to strip off the disguise and look at the case according to its naked realities." This is precisely what was done by the court in the case of The Amistad.

5. Rights of property acquired and vested under treaties are not divested by their termination, even by war. Mr. Justice Washington, in The Society, etc., v. New Haven, 8 Wheat. 464, stated this doctrine as follows: "The termination of a treaty cannot divest rights of property already vested under it. If real estate be purchased or secured under a treaty it would be most mischievous to admit that the extinguishment of the treaty extinguished the right of such estate. In truth, it no more affects such rights than the repeal of a municipal law affects rights acquired under it. * * * We think, therefore, that treaties stipulating for permanent rights and general engagements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are at most only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation on the return of peace."

It was held by the United States Court of Claims, in Meade v. The United States, 2 Ct. of Cl. 224, that the United States may take private property for public use by the terms of a treaty, or may release the choses in action of American citizens to a foreign government, making, of course, "just compensation" for the same. This, however, would not be a case in which rights of property vested under a treaty are divested by its ter

mination, but simply a case in which they are thus divested by the treaty itself, subject to the constitutional requirement that a "just compensation" must be made.

6. Treaties, regarded simply as contracts between the governments making them, take effect at and from the date of their signature, unless they otherwise stipulate; but considered as laws affecting the rights of citizens of the United States, they do not take effect until ratified and proclaimed. The first of these propositions was affirmed by the Supreme Court of the United States in Davis v. The Police Jury of Concordia, 9 How. 280, and both were affirmed in The United States v. Arredondo, 6 Pet. 691. Both were again affirmed in Haver v. Yaker, 9 Wall. 32, in which Mr. Justice Swayne said: "It is undoubtedly true, as a principle of international law, that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date. But a different rule prevails when the treaty operates on individual rights. * * * As the individual citizen on whose rights it operates has no means of knowing any thing of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust and cannot be sanctioned." This relates to a treaty considered simply as a law, and, as such, affecting private rights. It fixes the date at which a treaty becomes operative as a law. The reason for the rule lies in its obvious justice. Until ratified and proclaimed, a treaty has no form of publicity of which the private citizen can take notice; and to bind him by it as a law, without any publicity, would be manifestly wrong and might work serious injustice to his rights.

7. The competency of the contracting parties to make a treaty is not a question into which courts can inquire as a condition precedent to regarding it as a law. The President, with the consent of the Senate, is constitutionally competent to make a treaty; and as to the treaty-making competency of the party with whom the treaty is made, they are the sole judges. It is the duty of courts to accept their decision as final, and apply the treaty as they find it. The question is not judicial, but political, and belongs to the treatymaking power.

Chief Justice Taney, in Doe v. Braden, 16 How. 635, remarked that a treaty made by the President, with the approval of the Senate, is "a law made by the proper authority," and that "courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States." He added: "It would be impossible for the executive department of the Government to conduct our foreign relations with any advantage to the country, and to fulfill the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty in behalf of the foreign nation had power, by its constitution and laws, to make the engagements into which he entered."

In Fellows v. Blacksmith, 19 How. 366, an objection was made to a treaty with a certain tribe of Indians, on the ground that the chiefs and head-men were not represented in the negotiations: and to it Mr. Justice Nelson replied as follows: "But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land; and the courts can no more go behind it for the purpose of annulling its effect aud operation, than they can behind an act of Congress."

The President, with the advice and consent of the Senate, having exercised the power vested in him by the Constitution in making a treaty, the treaty itself, if constitutional, and if it does not require legislation for its execution, is ipso facto a law for the government of courts. Their business is to apply it without any attempt to review the action of the President in making it.

8. Treaties that require no legislation on the part of Congress to carry them into effect have the character of supreme laws when ratified and proclaimed; but if they require such legislation for their execution, then they are not a rule for courts until the necessary legislation has been supplied. Chief Justice Marshall, in Foster v. Neilson, 2 Pet. 253, having adverted to the fact that "the Constitution declares a treaty to be the law of the land," proceeded to say: "It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of a stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the Legislature must execute the contract before it can become a rule for the court." The same doctrine was stated by Mr. Justice McLean, in Turner v. The American Baptist Missionary Union, 5 McLean, 344.

Whether then a treaty is of itself a law of the land or not depends, according to these authorities, upon its character and this is to be determined by examining the terms in which it is expressed. If by its terms it is an executed contract, acting proprio vigore upon the subject-matter involved, then it is a part of the law of the land, and as such, is to be applied by courts in the absence of any legislation to give it effect. If, however, the treaty is simply an executory contract, pledging the faith of the Government to do certain things in futuro, the doing of which requires legislative action, then it is not a law of the land for the purposes of judicial administration until the requisite legislation shall have been furnished. If, for example, the stipulation be for the payment of money by the United States, then it is not operative as a law until Congress legislatively appropriates the money.

In Foster v. Neilson, supra, it was held that the eighth article of the treaty of 1818, between Spain and the United States was simply an executory contract, not acting directly upon the subject-matter referred to, but pledging action on the part of Congress, and, hence, that until this action should be had, the court was "not at liberty to disregard the existing laws on the subject." The article, until such action, was not a rule for courts; that is to say, it was not a law, because it was addressed to the legislative branch of the Government, and needed legislation to make it operative as a law.

be a part of "the supreme law of the land," and hence, that this treaty enabled "British creditors to recover debts previously contracted to them by our citizens, notwithstanding the payment of the debts into a State treasury had been made during the war under a State law of sequestration."

The principle involved and asserted in this case is that the treaties of the United States are, as laws of the land, paramount to all the forms of State authority, and hence, that the latter are null and void, so far as they are in conflict with the former. "A treaty," said Mr. Justice Chase, "cannot be the supreme law of the land- that is, of all the United States if any act of a State Legislature can stand in its way." "The treaty," said Mr. Justice Wilson, "is sufficient to remove every impediment founded on the law of Virginia." "The treaty then as to the point in question," said Mr. Justice Cushing, "is of equal force with the Constitution itself."

This early decision as to the paramount authority of treaties, when compared with State constitutions and laws has become the settled doctrine of American courts Owings v. Norwood's Lessee, 5 Cranch, 344; Fairfax's Devisee v. Hunter's Lessee, 7 id. 603; Gordon's Lessee v. Halliday, 1 Wash. 291; and Fisher v. Harden, 1 Paine, 55. The Constitution admits of no doubt on this subject. It is the duty of all State judges to regard the treaties of the United States as supreme laws, and the same duty is devolved on the National judiciary. If the former fail to do so there is a remedy for the failure, in the powers of the latter.

10. The constitutional validity of treaties, considered as municipal laws, is a question which courts, with proper cases before them, are authorized to consider and determine. It is supposable that the President might, with the advice and consent of the Senate, make an unconstitutional treaty, and should this be the fact, the treaty would furnish no rule for the guidance of a court. The judiciary is as much bound by the Constitution when called upon to give effect to treaties as laws, as it is when giving effect to the laws of Congress. The Constitution itself is in all cases the paramount authority, and no law in conflict with the Constitution can bind any court, whether State or National. This doctrine was fully considered in the case of Marbury v. Madison, 1 Cranch, 137, and has been repeatedly affirmed by the Supreme Court of the United States in subsequent cases.

In Doe v. Braden, 16 How. 635, Chief Justice Taney, after referring to treaties as supreme laws, proceeded to say: "The treaty is, therefore, a law made by the proper authority, and courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States." This implies that a treaty may be exposed to this objection, and indirectly asserts that such a treaty should not by courts be regarded as a law. So, also, in The Chero

said: "It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government."

Section 709 of the Revised Statutes of the United States provides that "a final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty," of the United States, "and the decision is against" its "validity,” “ may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error." This supposes that a State court may decide against the validity of a treaty, as a rule of guidance in the case pending before it, and should it do so, then the Supreme Court of the United States is authorized to reverse or affirm the decision. The Constitution, in both courts, would be the supreme