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has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the view and acts of a foreign sovereign, manifested through his representative, has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 execu-tive 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, 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 de

33 112 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

as if the breach had been an affirmative act by any other department of the Government. Each nation is responsible for the right working of the internal system, by which it distributes its sovereign functions; and, as foreign nations dealing with it cannot be permitted to interfere with or control, these, so they are not to be affected or concluded by them to their own injury."

This principle the United States has not hesitated upon occasion to assert. Mr. Blaine, when Secretary of State, wrote to our minister to Hawaii, in 1881, with reference to a treaty which that country had concluded with the United States, as follows: “I am not aware whether or not a treaty, according to the Hawaiian constitution is, as with us, a supreme law of the land, upon the construction of which the proper case occurring every citi

zen would have the right to the judgment of the courts. But, even if it be so, and if the judicial department is entirely independent of the executive authority of the Hawaiian government, then the decision of the court would be the authorized interpretation of the Hawaiian government, and however binding upon that gov ernment would be none the less a violation of the treaty. In the event, therefore, that a judicial construction of the treaty should annul the privileges stipulated, and be carried into practical execution, this government would have no alternative and would be compelled to consider such action as the violation by the Hawaiian government of the express terms and conditions of the treaty, and, with whatever regret, would be forced to consider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling."

And in 1835 with reference to the refusal of the French Chamber of Deputies to make an appropriation called for by a treaty concluded between France and this country, Mr. Wheaton wrote: "Neither government [France nor the United States] 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

35 Dana's Wheaton, § 543, note 250, citing I Kent, 165-6; Heffter, § 84; Vattel, lib. IV, c. 2, § 14; Halleck, 854.

its non-execution, whether the failure to fulfil it 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 cannot compel the Chambers, neither can he compel the courts; but the nation is none the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution."36

$222. The Date at Which Treaties Go into Effect.

In Haver v. Yaker Justice Davis speaking with reference to the date at which a treaty goes into effect, says: "It is undoubtedly true as a principle of international law, that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date. (Wheat. Int. Law, by Dana, 336.) But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character, which were vested before the treaty was ratified. In so far as it affects them, it is not considered as concluded until there is an exchange of ratifications, and this we understand to have been decided by this court, in Arredondo's case, reported in 6 Peters. The reason of the rule is apparent. In this country, a treaty is something more than a contract, for the federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it, as was done with the Treaty under consideration. As the individual

36 Mr. Wheaton, Minister at Copenhagen, to Mr. Butler, Attorney-General, January 20, 1835, adopted in Lawrence's Wheaton (1863), 459; and quoted also with approval in Meier, Abschluss von Staatsverträgen, Leipzig, 1, 1874, p. 168. See Moore's Digest of Int. Law, V, 231.

37 9 Wall. 32; 19 L. ed. 571.