April 14, 1855, to the government of Denmark. Subsequently the authority of the resolution was questioned by Mr. Sumner in the Senate, avowedly on the ground that it would be equivalent to a repeal of the "supreme laws of the land" by the action of the Senate alone." The Senate Committee on Foreign Relations, to which the matter was referred, made a full report, April 7, 1856, supporting the authority of the resolution.3 The convention was considered by the Executive as terminated on April 15, 1856, pursuant to the notice, but by Article V of the treaty of April 11, 1857, it was, with the exception of the fifth article, renewed. The following treaties have subsequently been terminated pursuant to notice given by the government of the United States, in each case on the authority of a joint resolution: June 5, 1854, with Great Britain; July 17, 1858, with Belgium; and Articles XVIII-XXV inclusive, and Article XXX of the treaty of May 8, 1871, with Great Britain. It should, however, be noted that in the case of the treaty of 1854 and the articles of the treaty of 1871, treaty provisions were terminated which had been carried into effect by Congressional legislation. So far as the treaty is a mere compact between nations, or so far as it operates ipso facto as a law of the land, it would seem that the President should have the power, with the concurrence of two-thirds of the Senate, to give notice of its termination. There is no doubt that he may in the same way replace it with a new treaty.

'Richardson's Messages, vol. v, p. 334.

'Cong. Globe, 34th Cong., 1st sess., pp. 599, 601, 1147.

The committee observed, however, that no legislation had been necessary to carry the treaty under consideration into effect. Compilation of Reports of Sen. Com. on For. Rel., vol. viii, p. 108. '13 Stat. at L., 566; 18 Stat. at L., 287; 22 Stat. at L.,

641.

A notice for the termination of the agreement with Great Britain of 1817 relative to vessels of war on the Great Lakes was given, pursuant to the reservation of that right, on November 23, 1864, by the Executive. A resolution with a view to such termination had during the preceding session of Congress passed the House, but had failed of consideration in the Senate. Subsequently to the giving of the notice, a joint resolution was passed by Congress, and approved February 9, 1865, which "adopted and ratified" the notice "as if the same had been authorized by Congress." Notwithstanding this legislative sanction the notice was before the expiration of the required six months withdrawn by the Executive; and the arrangement has subsequently been recognized by both governments as subsisting.' The notice given March 23, 1899, to the Swiss government by the Department of State of the intention of this government to terminate Articles VIII-XII of the treaty of November 25, 1850, in accordance with the provisions of the treaty, does not appear to have had any other than Executive authority.2

The time specified in the treaty that must elapse between the giving of the notice and the final termination of the treaty, has in the various notices given by the United States been reckoned from the date on which the notice was presented at the foreign office of the other contracting party.3

(f) The Function of Congress

Madison in a letter to Pendleton, January 2, 1791,

1House Doc., 471, pp. 28-34, 56th Cong., 1st sess.

'For. Rel., 1899, pp. 754-7.

'See also For. Rel., 1865, pt. i, p. 259; 1874, p. 65; 1899, p. 757; 1883, P. 435.

discussing the operation of treaties in the United States as the supreme law of the land, raised the query whether, in case it should be advisable to take advantage of an adverse breach, Congress, or the President and Senate, were the competent judges.' It was Congress that acted in the case of the treaties with France. A resolution approved July 7, 1798, declared that since the treaties had been repeatedly violated on the part of the French government, the United States was freed and exonerated from them, and that thenceforth they should not be regarded as legally obligatory on the government or citizens of the United States. Such an act is to be distinguished from the termination of a treaty by mutual agreement. An abrogation by Congress approved by the President, while necessarily binding on the courts and sufficient to prevent the operation of the treaty as regards this country, will seldom be accepted by the other contracting party as conclusive. Thus in the negotiations at Paris, in 1800, the French government refused to admit that the treaties had been annulled by the single act of abrogation on the part of the United States, and could see no reason to distinguish in the settlement of claims between the period prior to July 7, 1798, and the period subsequent.3

In the controversy that arose with Great Britain over the construction of Article X of the treaty of August 9, 1842, providing for the mutual surrender of fugitives from justice, the termination of the article was contemplated. Although Article XI of the treaty made provision for its termination by notice, the immediate ques

1 Letters and other Writings, vol. i, p. 524. 21 Stat. at L., 578. 'Moore, International Arbitrations, vol. v, p. 4430. See for final disposition of the treaties, Treaties and Conventions, p. 330.

tion was whether the refusal of Great Britain to grant extradition under the article had released the United States from the obligation. Accordingly, President Grant referred the matter to Congress in a special message of June 20, 1876, observing that it was for the wisdom of Congress to determine whether the article was to be any longer regarded as "obligatory on the government of the United States, or as forming part of the supreme law of the land." He added that, should the attitude of the British government remain unchanged, he would not, without an expression of the wish of Congress, take any action either in making or granting requisitions for the surrender of fugitive criminals under the treaty. The operation of the article was, as a matter of fact, suspended for a period of six months, but upon the adjustment of the controversy the article was again regarded by both countries as in full force.'

It is well established in our jurisprudence that a law of Congress may terminate the operation of a prior treaty as a law binding on the courts. In the words of Mr. Justice Field, "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." The operation of the treaty as a municipal law is not, however, to be confused with the obligation of the international compact which cannot be thus terminated by the act of only one of the parties.

'Moore, Extradition, vol. i, p. 211. Richardson's Messages, vol. vii, pp. 373, 414.

Whitney vs. Robertson (1888), 124 U. S., 190.