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within its constitutional power, neither the rights of a State nor those of an individual can be interposed."

Kent in his Commentaries says: "The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, under the Constitution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed." 29

"On April 14, 1838, Edward Everett, who was then governor of Massachusetts, confidentially asked the opinion of Mr. Justice Story concerning a resolution of the Massachusetts legislature, which had been presented to him for his signature, in which it was declared that no power delegated by the Constitution to the United States authorized the government to cede to a foreign nation any territory lying within the limits of a State of the Union. Mr. Everett called attention to the fact that in section 1502 of Story's Commentaries on the Constitution, in which certain restrictions on the treaty-making power were named, that of ceding a part of a State was not mentioned, but that the remark was added, 'Whether there are any other restrictions necessarily growing out of the structure of the government will remain to be considered whenever the exigency shall arise.' Mr. Everett further observed that the restriction in question, if it existed, must be one of this character, but that the pending controversy did not appear to him to create such an exigency, since it was a question not of ceding an admitted part of the territory of Maine, but of ascertaining the boundary between British and American territory. Mr. Justice Story, on the 17th of April, replied that he could not admit it to be universally true that the Constitution of the United States did not authorize the government to cede to a foreign nation territory within the limits of a State, since such a cession might, for example, be indispensable to purchase peace, or might be of a nature calculated for the safety of both nations or be an equivalent for a like cession on the other side. The

29 I, 167, note b.

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learned justice added that he had some years previously had a conversation on the subject with Chief Justice Marshall. He was,' said Mr. Justice Story, unequivocally of opinion, that the treaty-making power did extend to cases of cession of territory, though he would not undertake to say that it could extend to all cases; yet he did not doubt it must be construed to extend to

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Mr. Butler's views as to the constitutional effect of the treatymaking power have already been quoted in this chapter. They grant to the Federal Government full power to alienate without the consent of a State, any portion or all of its territory. On page 394 of his second volume, Mr. Butler, after referring to the settlement of the northeastern boundary, says: "If it be said only a part of a State was involved in that case, and that although the power might possibly be exercised as to a part of a State, an entire State could not have been ceded away, the answer can only be that if the salvation of every other State in the Union depended upon the boundary line being so fixed that an entire State should be included in British possessions, and in default thereof the Union might have been plunged into a war resulting in its destruction, undoubtedly the treaty-making power in the Central Government would have been able to accomplish that result, and it might have been just as necessary to exercise it, as at times it has been necessary to amputate a limb in order to save the life itself; in such extreme cases (and it is to be hoped they will never occur) the full extent of the power would have to be exercised regretfully indeed but nevertheless effectually."

In accordance with the principles already laid down in this chapter, the author of this treatise is of the opinion that the United States has, through its treaty-making organ, the constitutional power, in cases of necessity, to alienate a portion of, or the entire territory of a State or States. The same reasoning which supports the power of the United States, as a sovereign power in international relations, to annex territories, is sufficient to sus

30 Story, Life of Joseph Story, II, 286-289. Quoted by Moore, International Law Digest, V, 172.

tain its power to part with them, even should the area so parted with be a part of one of the States or include one or more of them.

Should territory be alienated to a foreign power, it would seem that this would have to be done by treaty. Should, however, the alienation be by the way of granting independence to a particular territory, as, for example, Porto Rico or the Philippine Islands, this could be done by joint resolution. Should the people of a territory revolt against the United States control, establish a de facto government, and realize in fact their independence, this independence might be recognized by a treaty. But in such case the treaty would recognize a fait accompli, rather than bring it about.

$220. The Violation of Treaties.

Treaties entered into by the United States may be viewed in two lights; (1) as constituting parts of the supreme law of the land, and (2) as compacts between the United States and foreign Powers. Viewed in this second light this infraction is a matter outside judicial cognizance, and within the exclusive concern of the political departments.

In Taylor v. Morton, approved by the Supreme Court,32 Justice Curtis says: "Is it a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the view and acts of a foreign sovereign, manifested through his representative, has given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty or to the act in direct contravention of such promise? I apprehend not. These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them, but to the executive and legislative departments of our government."

312 Curtis, 454.

32 2 Black, 481; 17 L. ed. 277.

33

The rule thus laid down in Taylor v. Morton has been uniformly followed in subsequent cases. In Head Money Cases,3 the court say: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do, and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens."

Again, in Whitney v. Robertson,34 the opinion declares: "A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the Constitution a treaty is placed on the same footing and made of like obligation with an act of legislation. Both are de33 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798. 34 124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386.

clared by that instrument to be the supreme law of the land, and no superior efficacy is given to either power over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance."

§ 221. Treaties Remain Internationally Binding upon the United States even when Congress has Refused the Legislation Necessary to put Them into full Force and Effect, or when it Has Abrogated Them by Subsequent Legislation, or when the Supreme Court Has Declared them Unconstitutional.

It is a principle of international law that one Nation in its dealings with another Nation is not required to know, and, therefore, is not held to be bound by, the peculiar constitutional structure of that other Nation. It is required, indeed, to know what is the governmental organ through which treaties are to be ratified. But further than this it need not examine, for each State is conclusively presumed to be able to carry into full force and effect any international engagement which it, through its treatymaking power, may enter upon.

In Dana's edition of Wheaton's International Law, it is declared: "If a treaty requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation; and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much

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