CONTRACT. Under a statute authorizing school district boards to provide "necessary appendages" for school-houses, there is no authority to purchase a stereoscope and stereoscopic views. School District v. Perkins, 21 Kans. 536; page 447.

A note given on the completion and settlement of an illegal business, by one of the partners therein to another, for profits thereof, is valid and enforceable. De Leon v. Trevino, 49 Tex. 88; page 101. COVENANT. A sealed agreement, for a valuable consideration, not to make a will to the prejudice of the rights of the covenantor's heirs in his estate, is valid. Taylor v. Mitchell, 87 Penn. St. 518; page 383.

CRIMINAL LAW. - The criminal offense of adultery is not excused by the absence of a guilty intent, unless a guilty knowledge is part of the statutory definition, nor by the subsequent inter-marriage of the parties. Fox v. State, 3 Tex. Ct. App. 329; page 144.

One who secretes himself in a dwelling-house at night, with intent to commit a felony therein, and being discovered, escapes by unlocking or opening a door, is not guilty of burglary. Adkinson v. State, 5 Baxt. 569; page 69.

A banker, suspecting defendant of an intention of robbing his bank, employed detectives to act as decoys and induce him to enter the bank, with intent to rob it. Held, that the defendant could not be convicted of burglary. Speiden v. State, 3 Tex. Ct. App. 156; page 126.

In an indictment for larceny of a coffin containing the remains of a human being, the coffin is properly charged to be the property of the person who furnished it and buried the deceased. State v. Dapke, 68 Mo. 208; page 785.

An indictment for printing and publishing obscene pictures of naked girls is not sustained by proof of printing and publishing obscene pictures of girls naked only above the waist. Commonwealth v. Dejardin, 126 Mass. 46; page 652.

A statute made it felony for any person, under promise of marriage, to have illicit carnal intercourse with a female infant of good repute for chastity. Held, that the promise need not be a valid one in fact, if the infant understood it to be valid. Callahan v. State, 63 Ind. 198; page 211.

A person indicted for selling intoxicating liquors may show that he bought and sold the liquor with the understanding and believing that it was not intoxicating liquor. Farrell v. State, 32 Ohio St. 456; page 614.

In a criminal case it is error to instruct the jury that evidence of good character is of but slight weight and entitled to but little consideration, when the proof is clear and direct. State v. Northrup, 48 Iowa, 583; page 408.

On an accusation of murder, it being claimed that certain foot-prints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection, the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted, held, that he was entitled to a new trial. Stokes v. State, 5 Baxt. 619; page 72.

On the trial of an indictment for seduction, a child, three months old, alleged to have been born of the alleged intercourse, cannot be exhibited to the jury as corroborative evidence for the prosecution on account of its resemblance to the defendant. State v. Danforth, 48 Iowa, 43; page 387. In his argument to the jury, on the trial of a felony, the defendant's counsel said in regard to a question of foot-prints, that the jury might try for themselves whether such worn-out boots as the witnesses for the prosecution described would make such tracks as they described. Some of the jury, without leave, made the experiment out of court. Held, such error as invalidated a conviction. State v. Sanders, 68 Mo. 202; page 782. DAMAGES. - In an action of assault and battery exemplary damages are not proper. Boyer v. Barr, 8 Neb. 68; page 814.

EVIDENCE. — The presumption of a marriage between A. and B., founded simply upon habit and repute, is overcome by proof of a subsequent actual marriage between A. and C. during the life-time of B. Jones v. Jones, 48 Md. 391; page 466.

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FRAUDULENT CONVEYANCE. Property exempt from execution is not susceptible of fraudulent alienation. Derby v. Weyrich, 8 Neb. 174; page 827; Carhart v. Harshaw, 45 Wis. 340; page 752. INTEREST. A contract to pay a sum certain at a future day, with interest at a conventional rate, nothing being said as to the rate of interest after the principal sum becomes due, bears interest at the conventional rate until it becomes due, and from that time, upon the aggregate of principal and interest at the legal rate. Briggs v. Winsmith, 10 S. C. 133; page 46.

LANDLORD AND TENANT. — Upon leased premises, a water-pipe and gutter, not defective in their original construction, became stopped up, so that the water flowed upon the door steps of the leased house, forming ice, upon which a third person fell and was injured. As between lessor and lessee, in the absence of contract to the contrary, it is the duty of the latter to repair the pipe, or remove the ice, and for failure in this he is liable, and not the landlord. Shindelbeck v. Moon, 32 Ohio St. 264; page 584.

LOST PROPERTY. - The plaintiff, while engaged as an employee in the defendant's paper mill, in assorting a bale of old papers which the defendant had bought for manufacture, found a number of

The power "to make treaties" is the power to do or authorize to be done the several things naturally connected with the process, including negotiation, preparation, agreement upon terms, signature, exchange of ratifications, proclamation; indeed, all the formalities and steps usual in such transactions between nations. It is not a power directly to unmake, cancel, or modify treaties, but simply a power to make them; and, hence, the only way in which the President can change or abrogate existing treaties is by making other treaties that will have this effect. He has not been trusted with the power of directly annulling or repealing a treaty. A treaty, being part of the supreme law of the land, binds his action as really as it does that of courts, so long as it is in force. If repealed, except by making another treaty, the repealing process must be an exercise of legislative power.

The term "treaties," as occurring in this grant of power, is used in the generic sense, and means formal contracts between two or more nations, with no enumeration of the subjects upon which the power may operate, and, as to these subjects, with no express limitation upon the exercise of this power. Chief Justice Taney, in Holmes v. Jennison, 14 Pet. 540, said: "The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced; and, consequently, it was designed to include all those subjects which, in the ordinary intercourse of nations, had been made subjects of negotiation and treaty, and which are consistent with the nature of our institutions and the distribution of powers between the general and the State governments."

Mr. Justice Story says: "The power to make treaties is by the Constitution general; and of course it embraces all sorts of treaties, for peace or war, for commerce or territory, for alliance or succor, for indemnity for injuries or payment of debts, for the recognition and enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other." Story's Const., § 1508.

The framers of the Constitution, in omitting to enumerate the things intended to be embraced in the treaty power, evidently meant to leave the exercise of this power to be settled by established usage in the intercourse of nations, taken in connection with whatever circumstances or necessities might at any time arise in the history of the United States, and also in connection with the manner in which the powers of government are distributed in this country. Hence the grant of the power was made in general terms. could not well have been more definite without impairing the usefulness and efficiency of the power.

It

The President, in exercising the power, is, however, subject to "the advice and consent of the Senate." No treaty made by him has any validity, unless ratified by two-thirds of the Senators present at the time when the Senate acts upon the subject. The concurrence of the Senate, though subordinate and auxiliary, and never primary, in the process of making a treaty, is, nevertheless, indispensable to its completion and

validity. The President cannot take the place of the Senate, and the Senate cannot take his place. Neither can exchange functions with the other. The powers of both operate independently of each other, and are distinct in the time and mode of their action. The design of thus restraining the President in the exercise of the treaty power confided to him is to protect the nation against any misuse or misapplication of the power.

The Constitution, of course, makes no grant of power for its own destruction, or the violation of its own provisions; and, hence, treaties, in order to be valid as laws of the land, must be consistent with the several provisions of this instrument. On this point Mr. Justice Story observes: "But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be construed to authorize the destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it, and cannot supersede or interfere with any other of its fundamental provisions." Story's Const., § 1508. The remark of Mr. Justice Miller, in The Loan Association v. Topeka, 20 Wall. 655, that "the theory of our government, State and National, is opposed to the deposit of unlimited power anywhere," is just as applicable to treaties as it is to the legislation of Congress. In People v. Gerke, 5 Cal. 381, it was said that the treaty power is subject to "the exceptions that necessarily flow from a proper construction of the other powers granted and those prohibited by the Constitution." In Pierce v. State, 15 N. H. 336, it was said by the court that "the political rights of the people of the several States as such are not subjects of treaty stipulations."

It is conceivable that a treaty, made by the President and ratified by the Senate, might in some or all of its stipulations be repugnant to the Constitution itself; and, manifestly, such stipulations would not be entered into "under the authority of the United States." They would be usurpations of power not warranted by this authority; and it would not be the duty of Congress legislatively to provide for their execution, or of courts to treat them as laws.

The only treaty power, either known to or bestowed by the Constitution, is granted to the President, subject in its exercise to the advice and consent of the Senate. Congress, as such, is not, and the President is, the grantee; and no other part of the Constitution contains the slightest intimation that the making of treaties comes within the scope of the powers of Congress. The conclusion is that the power is exclusively lodged with the President, in connection with the Senate, and that any attempt to substitute the action of Congress for that of the President in the making of treaties, or to do, by legislation or by joint resolutions of the two houses of Congress, what can only be done by the treaty power, would, if successful, be subversive of the Constitution itself. Congress can declare war and provide by law for its prosecution; but it cannot make a treaty of peace. There is no doubt that the President may, by a treaty, acquire new territory, and thus incorporate both the territory and its inhabitants into the Union. But the Constitution nowhere bestows this power upon Congress. The power of Congress to admit "new States" into the Union. relates to States formed by a division or junction of States already in the Union, or to States organized out of territory belonging to the United States, and not to foreign States. The annexation of Texas by a joint resolution of the two houses of Congress was in effect an exercise of the treaty power by Congress, without any warrant therefor in the Constitution. The resolution was passed in the Senate by a majority of only two, which is much less than [the majority necessary to ratify a treaty.

Some treaty stipulations are self-operating in the sense that they need no legislation to carry them into effect. They act directly, proprio vigore, upon the subject-matter involved, and hence become ipso facto a part of "the supreme law of the land" without any legislation by Congress. Chief Justice Marshall, in Foster v. Neilson, 2 Pet. 253, said: "Our Constitution declares a treaty to be the law of the land. 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." Mr. Justice Iredell, in Ware v. Hylton, 3 Dall. 199, refers to such stipulations as executed contracts, "because from the very nature of them they require no further act to be done," in order to give them legal effect. The fourth article of the treaty of peace of 1783 with Great Britain was held to be of this character; and hence the Supreme Court of the United States declared certain laws of Virginia to be void on the ground of their inconsistency with this article, without any legislation by Congress to make the article operative. It was operative of itself, and, being by the Constitution a part of "the supreme law of the land," it furnished a rule for the guidance of the court.

Other stipulations of treaties are, however, not thus self-operative. They require legislative action in order to carry them into effect. They are hence contracts in futuro, stipulating for the doing of what the treaty power cannot do, and what can be done only by the legislative department of the government. A stipulation for the payment of money to a foreign nation presents a case of this kind. The Constitution, in article 1, section 9, expressly declares that "no money shall be drawn from the Treasury, but in consequence of appropriations made by law." Law here means law enacted by Congress. The term has been uniformly so construed. If the President makes a treaty which contemplates the payment of money to a foreign nation, not a dollar of the money can be drawn from the Treasury unless Congress shall see fit to make an appropriation for this purpose. Such a treaty would not be self-executing, but would be dependent in this respect on the legislative will of Congress. Neither the President nor any United States court can appropriate the public money for any purpose, except when acting under authority bestowed by Congress. The Constitution makes Congress the exclusive guardian of the public treasure.

Here then is a question which, on two memorable occasions, was the subject of protracted debate in the House of Representatives. That question is whether the stipulations of a treaty are so binding upon Congress as to supersede all its discretion in the premises, and require it to register in the form of law the decree of the treaty power, by supplying the legislation necessary to give effect to the treaty. If, for example, the treaty contains a promise to pay money which the President, without the action of Congress, cannot fulfill, must Congress legislatively provide for its fulfillment by appropriating the money, asking no questions, and exercising no discretion in the matter? This is a very interesting and has been a much debated question. Two directly opposite theories have been held in regard to it.

The treaty power, according to one of these theories, is so plenary and complete that a treaty, as soon as made by the President and ratified by the Senate, is, like the Constitution itself, in all cases a part of "the supreme law of the land," and that, in respect to such provisions as require legislative action to make them effective, Congress has no discretion as to whether the necessary legislation shall be supplied or not, and no right to judge of the expediency thereof, but must obey the sovereign behests of the treaty power by doing what that power has stipulated shall be done. The treaty power has, in effect, made a contract with

a foreign nation in respect to the legislative action of Congress, so far as such legislation is necessary to the fulfillment of the treaty, and by this contract Congress is absolutely bound.

The other theory, while, conceding that the making of treaties belongs to the President and the Senate, and not to Congress, nevertheless, maintains that when the treaty power is so exercised as to involve stipulations whose subject-matter comes within the scope of the constitutional powers of Congress, and which cannot be fulfilled without its action in the passage of laws, the treaty is not to be considered perfect and complete until such action shall be had, and that in respect to this action Congress has the right to judge and determine upon its own responsibility, and should always exercise this right. Congress, according to this theory, is not bound blindly and passively to follow the will of the treaty power. It may and should deliberate and decide, within the sphere of its own powers, upon the expediency or inexpediency of doing the things necessary to make the treaty one of perfect obligation, and may adopt or withhold the measures indispensable to the result. Whether money shall be appropriated to fulfill the stipulations of a treaty is a question for Congress to determine in the exercise of its own discretion, and until such appropriation shall be made, the treaty is simply one of imperfect obligation, and is not a law of the land.

Such are the two theories which have been held in regard to the relation of Congress to the exercise of the treaty power. Both theories were the subject of a prolonged and earnest debate in the House of Representatives in 1796, when the treaty with Great Britain known as Jay's treaty was under consideration. The treaty contained stipulations repugnant to the then existing revenue laws of the United States, and also required the appropriation of money. These features brought up the question whether it was not fully within the legislative competency of the House of Representatives, as one branch of Congress, to judge as to the expediency of adjusting the laws to the treaty, and making the necessary appropriation of money. On this question there were two parties strongly arrayed against each other, each affirming one of the above theories. The debate was continued daily from the 7th of March to the 7th of April; and as the result, the House, by fifty-seven yeas to thirty-five nays, passed the following resolution:

"Resolved, That, it being declared by the second section of the second article of the Constitution, that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided twothirds of the Senators present concur, the House of Representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good." Benton's Abridgment, vol. 1, p. 696.

Subsequently the House passed another resolution, by fifty-one yeas to forty-eight nays, declaring it to be expedient to carry the treaty into effect. In the debate on the former resolution, Mr. Gallatin said:

"A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal government, but which have been exclusively and specially granted to a particular branch of government, say to the legislative department, such a treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that Branch." Id., p. 644.