the other hand national life and existence may also be at stake; the question of possibly sacrificing the former, as it may have been pledged in former times under then existing circumstances, in order to save the latter at the present time, is certainly a political question which must be settled by the proper department of the Government to which the safety of the nation is committed and one with which the courts cannot, and will not, interfere. these relations exist. The moment was declared that 'it is an essenthey cease to exist, by means of a change in the social organization of one of the contracting parties, of such a nature and of such importance as would have prevented the other party from entering into the contract had he foreseen this change, the treaty ceases to be obligatory upon him." Then follows a list of treaties which the United States considers as abrogated owing to changed relations. In Hall's International Law this subject is treated on pages 364 et seq. A notable instance of the withdrawal of a power from treaty obligations is cited on page 369. Russia was a party to the Treaty of Paris of 1856, by which the maintenance of a fleet on the Black Sea was forbidden. In 1870 the Russian Government during the Franco-Prussian war issued a circular declaring that it was no longer bound by that part of the Treaty of 1856 which related to the Black Sea. On page 372 Hall states in regard to this: "The protest of Lord Granville, although uttered under circumstances which made its practical importance at the moment very slight, nevertheless compelled Russia to abandon the position which it had taken up. A conference was held of such of the Powers, signatory of the Treaty of Paris, as could attend, at which it tial principle of the law of nations that no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement.' The general correctness of the principle is indisputable, and in a declaration of the kind made it would have been impossible to enounce it with those qualifications which have been seen to be necessary in practice. The force of its assertion may have been impaired by the fact that Russia, as the reward of submission to law, was given what she had affected to take. But the concessions made were dictated by political considerations with which international law has nothing to do. It is enough that from the legal point of view that the declaration purported to affirm a principle as existing, and that it was ultimately signed by all the leading powers of Europe." Citing as a reference to the treaty Hertslet's Map of Europe by Treaty, 1256-7, 1892-8, 1904. The United States was party to this declaration. not a For a list of cases in which the courts have declined to interfere with the Executive and Legislative Departments of Government in regard to construction of, and action § 389. These views applied to the Clayton-Bulwer treaty. -This question may come before the people of the United States at any time in regard to the Clayton-Bulwer treaty of 1850 with Great Britain. By this treaty this country and Great Britain are apparently pledged to a joint ownership and control of any trans-Isthmian canal connecting the Atlantic and Pacific Oceans. The treaty contains no provision for its abrogation. It was entered into under peculiar circumstances, at a time when the condition of this country was very different from what it is today, and the events which were anticipated in 1850, in view of which the treaty was made, have never transpired. It was undoubtedly a mistake on the part of the Executive to make the treaty and of the Senate to ratify it. The question of its abrogation, how under, treaties, see § 460, post, and See of Central America. The treaty was ratified without much discussion, in the belief that it would insure at once the construction of the canal and would exclude British colonization and protectorates from Central America; but it was no sooner published than it began to be a source of dispute as to its scope and meaning. Secretary Blaine, in 1881, described it as misunderstandingly entered into, imperfectly comprehended, contradictorily interpreted, and mutually vexatious.' President Buchanan said in 1857, that if in the United States the treaty had been considered susceptible of the con 1 Convention as to ship canal connecting Atlantic and Pacific Ocean, concluded at Washington April 19, 1850: U. S. Tr. and Con., ed. 1889, p. 440; U. S. Treaties in Force, ed. 1899, p. 234. For details see TREATIES APPENDIX, p. 446, post. also Hay-Pauncefote treaty abrogating Clayton-Bulwer treaty concluded November 18, 1901, and now (December, 1901) pending before the Senate of the United States for ratification; (included in full in TREATIES APPENDIX, p. 454, post). 2 In speaking of this treaty, ex-struction put upon it by Great Secretary of State, John W. Foster, Britain, it never would have been says (pp. 456-8, A Century of negotiated, nor would it have reAmerican Diplomacy, 1901): "Mr. ceived the approbation of the SenClayton, then Secretary of State, ate. Mr. Cass, who was a member entered into negotiations with the of the Senate at the time it was British minister, the result of ratified, has made a similar declawhich was the treaty by which the ration. two governments stipulated for a joint guarantee of the canal to be constructed; and agreed not to occupy, fortify, colonize or assume or exercise any dominion over any part "The American expectation as to the early construction of the Canal, with the aid of British capital, was disappointed; and for the next ten years our secretaries of ever, is one which involves consideration of all of the elements enumerated in the preceding section. To the author it seems as though it is purely a political act wholly within the domain of Congress; that if the Executive cannot obtain the abrogation or proper modification of the treaty through friendly diplomacy, that Congress must eventually determine the question; and if, in the best judgment of the Legislative department of the Government, the present and future safety of the country demands the abrogation of that treaty, Congress has not only the legal power but also the moral right to abrogate it, and the judicial department of the Government could not, and would not interfere to prevent it. It is impossible to give a complete list of publications in which the Clayton-Bulwer treaty is referred to; nearly every writer on international law and Trans-Isthmian Canal subjects has referred to it, in one way or another, and many diverse views have been expressed in regard to the moral right, as well as to the advisability, of abrogating it.3 § 390. Congressional legislation to carry out treaty stipulations; Justice Field's opinion in the Ross case. This can hardly be treated as a separate subject. The legislation necessary to carry out treaty stipulations is within the dostate were occupied in bringing the | view see Rhode's History of United British government to an obser- States since 1850, chap. III, vol. 1. vance of its engagements respect- 3 For some of the authorities, and ing colonization and protectorates. for correspondence, on this subject, The treaty marks the most serious see Wharton's Digest, Int. Law, mistake in our diplomatic history, vol. II, § 150, p. 184, et seq. See and is the single instance, since its also, Correspondence in relation to announcement in 1823, of a tacit the Proposed Interoceanic Canal /disavowal or disregard of the Mon-between the Atlantic and Pacific roe Doctrine, by the admission of Oceans, The Clayton-Bulwer Great Britain to an equal participa- Treaty and the Monroe Doctrine; tion in the protection and control being a reprint of Senate Execuof a great American enterprise. tive Documents No. 112, 46th ConThe wisdom of that doctrine is gress, 2d Session; No. 194, 47th most signally illustrated in the ef- Congress, 1st Session; and No. 26, fects of this single disavowal, the 48th Congress, 1st Session. Washheated discussion engendered, and ington, Government Printing Ofthe embarrassments which the fice, 1885. See also Lindley Miller treaty has brought to this Govern- Keasbey's Nicaragua Canal and the ment, and from which it still suf- Monroe Doctrine, G. P. Putnam's fers." For a somewhat different | Sons, New York and London, 1896. main of Congress to the same extent as the making of the treaty is within the domain of the Executive department and two thirds of the Senate; the Constitution expressly confers upon Congress power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That this applies to treaties properly made, is apparent from the fact that the words. "to enforce treaties" which were in the original draft were stricken out as superfluous. 1 There are but few cases on this subject but they fully sustain the rule that the power to legislate in regard to treaty stipulations is co-extensive with the power to enter into and ratify the treaty; and that if the treaty is properly within the domain of the treaty-making power and legislation is required to make it effectual, ample power in Congress exists to enforce the provisions of the treaty by proper legislation.3 The leading case on this question, which was decided by the Supreme Court in 1891, Justice Field delivering the opinion, § 390. 1 U. S. Const., Art. 1, § 8, cl. 18. 2 See § 186, p. 318, volume I. 3 See author's opinion in regard to fisheries in the Great Lakes and power to enforce treaty stipulations as to preservation thereof by legislation, with outstanding State ownership of waters and fish § 445, post. 4 In re Ross, U. S. Sup. Ct. 1891, 140 U. S. 453, FIELD, J. the power of the Extra Territorial court. The syllabus is as follows: "By the constitution of the United States a government is ordained and established for the United States of America,' and not for countries outside of their limits; and that Constitution can have no operation in another country. "The laws passed by congress to carry into effect the provisions of the treaties granting exterritorial rights in Japan, China, etc., (Rev. Stat. secs. 4083-4096), do no violation to the provisions of the Constitution of the United This case involved the right of the United States to establish consular courts in foreign countries under and by virtue of treaty stipulations. The petitioner had been sen-States, although they do not retenced to death, which sentence had been subsequently commuted to imprisonment for life by the judgment of a consular court in Japan. On habeas corpus proceedings the Federal court sustained a jury on his trial. quire an indictment by a grand jury to be found before the accused can be called upon to answer for the crime of murder committed in those countries, or secure to him involved the validity of a sentence of death rendered by a consular court in Japan established pursuant to treaty, and men. "A law or treaty should be construed so as to give effect to the object designed, and to that end all its provisions must be examined in the light of surrounding circumstances. "The fact that a vessel is American is evidence that seamen on board are Americans also. "The provision in Rev. Stat. | ject to the laws by which that sec. 4086, that the jurisdiction nation governs its vessels and seaconferred upon ministers and consuls of the United States in Japan, China, etc., by secs. 4083, 4084 and 4085, shall be exercised and enforced in conformity with the laws of the United States gives to the accused an opportunity of examining the complaint against him, or of having a copy of it, the right to be confronted with the witnesses against him, and to "When a person convicted of cross-examine them, and to have murder accepts a 'commutation of the benefit of counsel, and secures sentence or pardon' upon condition regular and fair trials to Americans that he be imprisoned at hard committing offences there, but it labor for the term of his natural does not require a previous present-life, there can be no question as to ment or indictment by a grand the binding force of the acceptjury, and does not give the right ance." to a petit jury. "The jurisdiction given to domestic tribunals of the United States over offences committed on the high seas in the district where the offender may be found, or into which he may be first brought, is not exclusive of the jurisdiction of a consular tribunal in Japan, China, etc., to try for a similar offence, committed in a port of the country in which the tribunal is established, when the offender is not taken to the United States. "Article IV of the treaty of June 17, 1857, with Japan is still in force, notwithstanding the provisions in Article XII of the treaty of July 29, 1858. The opinion discusses at length the treaties between the United States and Oriental countries, and establishing extra-territorial courts sustains the power of the United States to make such treaties and to establish the courts thereunder; also held that constitutional limitations as to jury trials do not affect such courts. The reasons for this are given (pp. 462-468) which, in part, are as follows: "The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceeding what are termed the Middle Ages. During those ages, these com "When a foreigner enters the mercantile marine of a nation, and becomes one of the crew of a merchant vessel bearing its flag, he assumes a temporary allegiance to the flag, and, in return for the protection afforded him, becomes sub-mercial magistrates, generally des |