sary to make a valid contract; and that it is competent to alienate the public domain and property by treaty; because that department is the organ of the nation in making contracts; and such alienations are valid because they are made by the deputed assent of the nation." Duer's Outlines of Constitutional Jurisprudence of the United States, 138. "Neither government [France or the United States, the question arising at the time of the refusal of the French Chamber of Deputies to make appropriations to carry out the treaty for payment to the United States of French spoliations] has anything to do with the auxiliary legislative measures necessary, on the part of the other state, to give effect to the treaty. The nation is responsible to the government of the other nation for its non-execution, whether the failure to fulfil its proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature; but it might have been on the part of the judicial department—the court of cassation might have refused to render some judgment necessary to give effect to the treaty. The King can not compel the Chambers, neither can he compel the courts; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution." Mr. Wheaton, minister at Copenhagen, to Mr. Butler, Attorney-General, For a full review of the case to which the opinion of Mr. Wheaton relates, Wharton, in a note to Wheaton's opinion, says: "It must be remembered, however, that the case of the action of the French Chamber of Deputies in refusing the appropriation under the treaty of 1831 was not that of a mere refusal to approve a treaty relating exclusively to the future, as was the case with Jay's treaty. The debt which the French Chamber refused to pay was one which had been for many years claimed earnestly, almost to the point of a formal declaration of war, by the United States, and had been over and over again admitted to be due by France. When President Jackson, therefore, advised Congress to resort to reprisals to compel payment of this debt, this was not because the French Chamber of Deputies refused to approve a treaty which had been negotiated between the two governments, but because the French government had repudiated a debt which the United States had declared to be incontestable, and which the French executive had admitted. Reprisals for repudiation of a debt solemnly acknowledged are recognized by the law of nations, and this was a case of repudiation of a debt solemnly acknowledged. There was no discussion, on the part of President Jackson, of the question as to how far the consent of the French Chamber of Deputies was necessary, under the then French constitution, to the validity of a treaty. All that President Jackson did or said may be regarded as limited to the following position: You owe this money; we have. already pushed our claim to the verge of war, and you have admitted it to be due. You must pay; your admission you can not dispute, since it was made by your executive, who is the only authority with whom, under the law of nations, we can negotiate.'" (Wharton, Int. Digest, § 131 a, II. 20.) "In every constitutional government the power of raising and granting money is vested in the legislature; that of making treaties, in the executive. In every such government the question may arise, whether the treaty-making power is, in every instance, paramount, and imposes on the legislature the duty of granting without examination the money necessary to pay the subsidies or indemnities promised by the treaty; or, whether the power of granting money, vested by the Constitution in that body, does not necessarily imply the right of examining and deciding each case according to its original merits. "The present administration of the United States is of opinion that here the treaty-making power is paramount. It may thence have been too hastily inferred that that power was in France also acknowledged to be supreme and to pledge absolutely the legislature and the nation. There may be in the Constitution of the United States some clauses not to be found in that of France, which sustain the construction adopted by our Executive Magistrate. But even in the United States the question has been considered, at least, as doubtful. "Mr. Madison's resolution of the year 1796, which asserts the abstract right of the House of Representatives, was adopted by a majority of the House, and remains, unrepealed, of record on its journal. And it can not be denied that, during the sixteen years of the administration of Presidents Jefferson and Madison, that was the avowed construction of the Constitution by the government of the United States. It is not necessary here to inquire whether that construction is correct. I may not be an impartial judge of that question, and only mean to show that, even here, it is one on which opinions have been divided." Mr. Gallatin to Mr. Everett, January, 1835, 2 Gallatin's Writings, 479. "The non-compliance with the conditions of a treaty, whether proceeding from the executive or legislative branch of government, does not alone, and when neither arising from a hostile spirit nor accompanied with insult, afford such extreme ground of complaint as to impose on the aggrieved nation the necessity of considering that act as an indignity, and of resorting to war as the only alternative for sustaining her character. The refusal of the British House of Commons to carry into effect the commercial treaty of Utrecht with France has already been alluded to. I beg leave to remind you of another instance. "By the treaty of 1794, between America and England, the United States bound themselves to pay to British subjects the amount of the British debts which had been lost by reason of laws passed by several States in contravention of the provisions of the treaty of 1783. And it was expressly provided by that of 1794 that the amount thus payable by the United States should be definitively settled by a joint commission consisting of four members, and, in case of disagreement between these, by a fifth commissioner, chosen by the four primitive members of the board." Mr. Gallatin to Mr. Everett, January, 1835, 2 Gallatin's Writings, 497. 4. JUDICIAL ACTION. (1) PROVINCE OF THE COURTS. § 760. By Art. VI. of the Constitution of the United States it is declared that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," and that "the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." See, as to the origin of this clause, Coxe, Judicial Power and Unconstitutional Legislation, 272-291; Moore, Int. Arbitrations, I. 272–274. The execution of a treaty between nations is to be demanded from, and, in general, superintended by, the executive of each nation, and, therefore, whatever the decision of the court may be relative to the rights of parties litigating before it, the claim upon the nation, if unsatisfied, may still be asserted. But yet where a treaty is the law of the land, and as such 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; and, although restoration may be an executive act, yet to condemn a vessel, the restoration of which is directed by a law of the land, would be a direct infraction of that law, and consequently improper. United States v. Schooner Peggy (1801), 1 Cranch, 103, 109. Johnson, J., delivering the opinion of the court to the effect that instructions of the President could not divest a right actually acquired by the captor, before notice of such instructions, in the captured property, said: "By capture the individual acquires an inchoate statutory right, an interest which can only be defeated by the supreme legisla tive power of the Union. Condemnation does nothing more than ascertain that each individual case is within the prize act, and thus throws the individual upon his right acquired by belligerent capture. Should the prize act, in the interim, be repealed, or its operation be suspended by the provisions of a treaty, there no longer exists a law to empower the courts to adjudge the prize to the individual captor." The Mary and Susan (1816), 1 Wheaton, 46, 58. The court can not supply a casus omissus in a treaty any more than in a law. By the treaty with Spain of 1795 free ships were to make free goods; and in the 17th article it was provided that a passport, issued in accordance with the form annexed to the treaty, should be conclusive proof of the nationality of the vessel. There being, in fact, no form annexed, it was held that the proprietary interest of the ship must be determined according to the ordinary rules of prize courts, and if shown to be Spanish property, that the cargo was protected from liability. The Amiable Isabella, 6 Wheat. 1, 76. "The construction of treaties is the peculiar province of the judiciary; and, except in cases purely political, Congress has no constitutional power to settle the rights under a treaty, or to affect titles already granted by the treaty itself." Jones v. Meehan (1899), 175 U. S. 1, 32, citing Wilson v. Wall, 6 Wall. 83, 89; Reichart v. Felps, 6 Wall. 160; Smith v. Stevens, 10 Wall. 321, 327; Holden v. Joy, 17 Wall. 211, 247, and holding that where a tract of land, which had been granted by the United States by treaty to an Indian chief, and which had by tribal custom descended to his eldest son and successor, was leased by the latter, the rights of the lessees under the lease "could not be divested by any subsequent action of the lessor, or of Congress, or of the Executive Departments." A treaty with an Indian tribe is a part of the law of the land, and, where it prescribes a rule by which private rights can be determined, the courts will apply such rule. Leighton v. United States, 29 Ct. Cl. 288. After the Senate has passed a resolution stating that a treaty with Indians has been approved by them, and the President has issued a proclamation accepting, ratifying, and confirming the treaty, the courts can not entertain a question as to whether the treaty was in fact approved by the Indians. New York Indians v. United States, 30 Ct. Cl. 413. Rights claimed under a treaty between a State and an Indian tribe can not be enforced by a member of a tribe, or by the adoption of its members. Cayuga Nation v. State, 99 N. Y. 235. The appellate jurisdiction of the Supreme Court of the United States extends to cases where, a treaty having been drawn into question, the decision has been against the validity of the treaty or of a right or title claimed under it; and in such case the court is not restricted to the abstract question of treaty construction, but has jurisdiction to examine and render a decision upon the claim of right or title actually made. Martin v. Hunter's Lessee (1816), 1 Wheat. 304. By sections 751 and 753 of the Revised Statutes of the United States the courts of the United States have power to issue writs of habeas corpus in the case of prisoners in jail who are in "custody in violation of the Constitution or of a law or treaty of the United States." Wildenhus's Case (1887), 120 U. S. 1. Complaint having been made in behalf of a British subject that an action of trespass had been begun against him, contrary to the stipulations of the treaty of peace of 1782-3, Mr. Jay replied: "Whether the action commenced against Mr. Marsh is or is not consistent with the treaty is a question to be judicially tried, and he must defend himself in the same manner that all others do who find themselves arrested without just cause. This is a kind of inconvenience to which all persons are exposed and must submit to in free governments, where justice can only be obtained in the settled course of judicial proceedings and not from the prompt and summary decisions of a magistrate guided only by his own discretion or by the discretion and orders of his sovereign. Until the contrary happens and appears, it is to be presumed that the courts will do what is right, and that presumption must obtain in the case of Mr. Marsh as well as others until the final determination of it shall remove all doubts about the matter." Mr. Jay. Sec. of For. Aff., to Sir John Temple, Dec. 11, 1787, 3 MS. Am A claim having been put forward in behalf of a citizen of France to an inheritance of lands in North Carolina, by virtue of the 11th article of the treaty of commerce between the United States and France, reply was made that the subject was "purely a question of property which must be decided by the tribunals of the country, who |