consular convention, heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States."

This appears to be the only case of the kind. The courts have

repeatedly held that until the political departments have acted they are bound to apply voidable treaties.103

"If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which in international law would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligations as if there had been no such breach. I Kent's Comm., p. 175."

183. Conclusion of New Treaty.

Treaties may be terminated by negotiation of a new treaty by the same parties, for which the treaty power alone is competent. Thus in vetoing the Chinese exclusion act of 1879 President Hayes.

"The bill before me does not enjoin upon the President the abrogation of the entire Burlingame treaty, much less of the principal treaty of which it is the supplement. As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution."

Provisions of an earlier treaty will of course be superseded by conflicting provisions of a later treaty between the same parties,105 but in order to terminate the earlier treaty as a whole the intention so to do must be clearly expressed, as was indicated by the controversy over effect of the proposed Hay-Pauncefote canal treaty of 1900

103 Charlton v. Kelly, 229 U. S. 447; Ware v. Hylton, 3 Dall. 199, 261 (1796); In re. Thomas, 12 Blatch 370; Terlinden v. Ames, 184 U. S. 270, 288 (1902); Doe v. Braden, 16 How. 638; Jones v. Walker, 2 Paine 688; Moore, Digest, 5: 320; Willoughby, op. cit., p. 1007, supra, sec. 107, note 63. 104 Richardson, Messages, 7: 519.

105 Cushing, Att. Gen., 6 Op. 291; Wright, Am. J. Int. Law, 11: 576; Moore, Digest, 5: 363-4.

and the actual treaty of 1901 upon the Clayton-Bulwer treaty of 1850.100

184. Denunciation by Congress.

Finally a treaty may be terminated by denunciation, according to its own terms. A period of six months' to a year's notice is usually required. There has been question whether notice should be given by Congress, by the treaty-making power or by the President, and examples can be found of each practice. Congress has frequently passed resolutions of denunciation as it did of the British treaties of 1827 in 1846; of 1854 in 1866; and of 1871 in 1885 as to certain articles. The President has usually carried out such resolutions, but in 1865, even though he had signed a congressional resolution which "adopted" and "ratified" his notice for terminating the Great Lakes disarmament agreement of 1817, President Lincoln withdrew the notice and the treaty continued effective.107 President Hayes doubted the competence of Congress to direct the President to negotiate modifications of an existing treaty and pointed out that unless a treaty expressly provided for partial denunciation such a step would be impossible.108

"As the other high contracting party has entered into no treaty obligations except such as include the part denounced, the denunciation by one party of the part necessarily liberates the other party from the whole treaty."

President Wilson, however, conducted negotiations for modification of all treaty provisions in conflict with the La Follette Seaman's Act of March 1915 as directed by Section 16 of that Act. He, however, refused to act under the like direction of Article 34 of the Jones Merchant Marine Act of June 5, 1920. It would seem, therefore, that the President is the final authority to denounce a treaty,

106 Moore, Digest, 3: 212 et seq. Sir Edward Grey, British Sec. of State for Foreign Affairs, to British Ambassador Bryce, Nov. 14, 1912, Diplomatic History of the Panama Canal, 63d Cong., 2d Sess., Sen. Doc. 474, pp. 85-86.

107 Fifty-sixth Cong., 1st Sess., House Doc., No. 471, pp. 32-34; Crandall, op. cit., p. 462.

108 Richardson, Messages, 7: 519.

and while he may not be able to give notice without consent of Congress or other authority, he cannot be compelled to act by Congress. This would be in accord with the general practice of presidential independence in conducting foreign relations.109

185. Denunciation by the Treaty-Making Power.

The Senate has contended that consent of the House of Representatives to the denunciation of a treaty is not necessary and the Danish treaty of 1826 was denounced by the President with consent of the Senate alone. This method was questioned by Senator Sumner on the ground that it was the repeal of a law to which Congress must assent, but was sustained by the Foreign Relations Committee: 110

"As to this convention, and all others of like character, the committee are clear in the opinion that it is competent for the President and Senate, acting together, to terminate it in the manner prescribed by the 11th article (of the treaty) without the aid or intervention of legislation by Congress, and that when so terminated it is at an end to every extent, both as a contract between the governments and as a law of the land."

186. Denunciation by the President.

Finally there have been several examples of denunciation by the President alone. President Taft tells of his denunciation of the Russian treaty of 1832 in 1911. The issue had arisen over Russian persecution of American Jews: 111

"The resolution of the House of Representatives was drawn in language which would have given offense to Russia, as doubtless its framers intended to do. With the responsibility of maintaining as friendly relations as possible with all the world, it seemed to me that if the treaty had to be abrogated, it ought to be done as politely as possible, with the hope of negotiating a new treaty less subject to dispute, and giving more satisfactory results. With the knowledge that the resolution was sure to pass the Senate, I took the step of annulling the treaty myself and giving a year's notice to Russia of the annulment in proper and courteous expressions, on the ground that we had differed so radically as to its construction and the treaty was so old that it would be wiser to make a new treaty more

109 See infra, secs. 174, 202, 203.

110 Thirty-fourth Cong., 1st Sess., Senate Report, No. 97, reprinted in Cong. Rec., Nov. 8, 1919, 58: 8605. See also Message of Pres. Pierce, Dec. 3, 1855. Richardson, Messages, 3: 334; Crandall, op. cit., p. 459.

111 Taft, op. cit., pp. 116-117.

definite and satisfactory. I sent notice of this annulment at once to the Senate, and in this way succeeded in having the Senate substitute a resolution approving my action for the resolution which came over from the House. The House was thus induced to approve my action and the incident was closed for the time."

The Swiss treaty of 1850 appears to have been denounced by the President alone in 1899.112 Willoughby approves this method of denunciation, but thinks "in important cases the President would undoubtedly seek senatorial approval before taking action." 113 Although the power may seem sustainable by analogy to the Presi dent's power of removal without consent of the Senate, admitted since the first Congress, even when the appointment requires such consent, yet it has seldom been practised and has been often doubted.11 It would appear that the final act of sending notice is at the President's discretion and when he gives notice the treaty is terminated under international law but he ought not to act without consent either of Congress or of the Senate, except in extraordinary circumstances.

187. Legislative Abrogation.

A treaty may be abrogated as "the law of the land" by resolution of Congress or by the passage of conflicting legislation. It is somewhat difficult to locate the constitutional power for such legislation when terminating treaties on subjects not within the legislative competence of Congress, but it has been sustained in many cases.115

"It must be conceded," said the Supreme Court in the Chinese Exclusion Case, "that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. The treaties were of no greater obligation than the act of Congress. By the Constitution, laws made in pursuance thereof and treaties made under the authority of

112 Crandall, op. cit., pp. 116-117.

113 Willoughby, op. cit., p. 518.

114 See remarks of Senator Walsh, of Mont., Cong. Rec., Nov. 8, 1919, 58: 8608-8609.

115 The Chinese Exclusion Case, 130 U. S. 581; The Cherokee Tobacco Case, 11 Wall. 616; The Head Money Cases, 112 U. S. 580; Moore, Digest, 5: 356-370.

the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. . . . It can be deemed only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control. . . . The question whether our government was justified in disregarding its engagements with another nation is not one for the determination of the courts. . . . The court is not the censor of the morals of the other departments of the Government."

However, as the court noticed, such legislation does not affect the international obligation of the treaty. President Arthur in vetoing the Chinese exclusion bill of 1882 said: 116

"A nation is justified in repudiating its treaty obligations only when they are in conflict with great paramount interests. Even then all possible reasonable means for modifying or changing these obligations by mutual agreement should be exhausted before resorting to the supreme right of refusal to comply with them."

President Hayes's veto of a similar bill in 1879 though based partly on constitutional grounds referred to "the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given." 117 Το make "a scrap of paper" of a treaty by legislation will at once give basis for international demands. Thus France refused to recognize the legitimacy of American abrogation of her treaties in 1798 and compensation was made by sacrifice of the spoliation claims by the treaty of 1800.118 China has consistently protested against the disregard of her treaties by various exclusion acts.119

188. Conclusion.

We conclude that the power of making international agreements is largely vested in the President. The states' power in this respect is practically nil. Though the Senate has an absolute veto on treaties, and Congress may suggest the opening of negotiations, may authorize executive agreements and may refuse to execute treaties, yet the real initiative, the negotiation and the final decision to ratify 116 Richardson, Messages, 8: 112.

117 Ibid., 7: 520. See also Message of Pres. Harrison, Dec., 1890, in referring to violation of Hawaiian Reciprocity Treaty by the tariff act, Richardson, 9: 110; Moore, Digest, 5: 368, and supra, sec. 101.

118 Moore, Digest, 5: 357, 609–612.

119 See references to U. S. Foreign Relations, Moore, Digest, 4: 198, 202.