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made, could only be changed by concurrence of President and of Senatorial majority of two-thirds."
Ueber den Abschluss von Staatsverträgen, von Dr. Ernest Meier, Professor der
Although the action of Congress in its legislative capacity may be necessary to carry into effect a treaty duly approved by the President and Senate, such action may be regarded as a political duty under ordinary circumstances, and in no case has such legislative aid been heretofore refused.
6 Op., 296, Cushing, 1854.
A treaty which does not require legislation to make it operative will be executed by the courts from the time of its proclamation.
6 Op., 750, Cushing, 1854; Foster v. Neilson, 2 Pet., 314; U, S. v. Arredondo, 6 Pet., 725.
III. WHEN TREATY GOES INTO EFFECT.
As respects performance of the conditions of a grant by a private grantee, the date of a treaty is the date of its final ratification.
U. S. v. Arredondo, 6 Pet., 691.
So far as concerns individual rights of parties interested, a treaty does not operate until there has been an interchange of ratifications. So far as concerns the relations of the sovereigns concerned, it operates, when ratified, from the date of its signature.
Haver v. Yaker, 9 Wall., 32; Davis v. Concordia, 9 How., 280; Hylton v. Brown, 1 Wash. C. C., 343. See Montault v. U. S., 12 How., 47.
The treaty by which France ceded Louisiana to the United States took effect from its date, April 30, 1803. Its subsequent ratification and the formal transfer of possession have relation to that date.
U. S. r. Reynes, 9 How., 127.
The same rule applies to the treaty of St. Ildefonso, October 1, 1800, by which France acquired Louisiana from Spain.
U. S. v. Reynes, 9 How., 127; Davis v. Concordia, ibid, 2-0.
Unless otherwise provided, treaties, in their public relations, take effect from signature, to which period the ratification relates back.
Davis v. Concordia, 9 How., 280.
While a treaty is the supreme law of the land, and operates as such in all matters not requiring legislative action, yet, when made dependent on legislative action, it does not take effect until such action is had.
Foster v. Neilson, 2 Pet., 253; U. S. v. Percheman, 7 Pet., 54; Garcia v. Lee, 12 Pet., 511; Haver v. Yaker, 9 Wall., 32; Turner v. Baptist Union, 5 McLean, 344; Bartram v. Robertson, 15 Fed. Rep., 212.
"The general rule of public law is that a treaty 'is binding on the contracting parties from the date of its signature, unless it contain an express stipulation to the contrary.' (Wheaton's Int. Law, 306.)"
Mr. Buchanan, Sec. of State, to Mr. Clay, Sept. 18, 1847. MSS. Inst., Peru.
"A treaty is binding on the contracting parties unless otherwise provided, from the day of its date." (Davis v. Concordia, 9 How., 280; Hylton v. Brown, 1 Wash. C. C., 343.) "The exchange of ratifications has, in such case, a retroactive effect, confirming the treaty from its date. But a different rule prevails when 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; it is not considered as concluded until there is an exchange of ratifications. Haver v. Yaker, 9 Wall., 32; U. S. v. Arredondo, 6 Pet., 691."
Mr. J. C. B. Davis, Notes, &c.
"In the case of the indemnity agreed to be paid by Venezuela to American citizens expelled from the Aves Island, it was held: 'It is not necessary to submit to the Senate, for its formal approval, conventions providing for the adjustment of private claims, unless such a course is indicated in the convention itself. But the want of such ratification, on the part of this Government, does not prevent recourse to that formality at any future period, should it be deemed expedient, nor does it in any respect weaken or invalidate the binding effect of the convention upon Venezuela. Indeed, the good faith of that Republic having been pledged to the provisions of the convention by the ratification of the proper authorities, there would be no more hesitation on the part of this Government to enforce its stipulations, should it become necessary, than if the instrument had been ratified by the United States as well as Venezuela.' Senate Ex. Doc. 10, 36th Cong., 2d sess., 472. Mr. Cass to Mr. Sandford, Oct. 22, 1859."
Lawrence's Wheaton (ed. 1863), p. 456.
IV. CONSTRUCTION AND INTERPRETATION.
"When a party from necessity or danger withholds compliance with part of a treaty, it is bound to make compensation where the nature of the case admits and does not dispense with it."
Opinion of Mr. Jefferson, Sec. of State, Mar. 18, 1792. 7 Jeff. Works, 572.
"When performance (of a treaty) becomes impossible, nonperformance is not immoral; so if performance becomes self-destructive to the party, the law of self-preservation overrules the laws of obligation to others."
Opinion of Mr. Jefferson, Sec. of State, Apr. 28, 1793. 7 Jeff. Works, 613.
But "it is not the possibility of danger which absolves, * that possibility always exists, and in every case."
Ibid. See Infra, 137a.
"There is no rule of construction better settled, either in relation to covenants between individuals or treaties between nations, than that the whole instrument containing the stipulations is to be taken together, and that all articles in pari materia should be considered as parts of the same stipulation."
Mr. Livingston, Sec. of State, to Mr. Lederer, Nov. 5, 1832. MSS. Notes, For.
"Where, by the express terms of a treaty, the mode of receiving payment of money to be paid is submitted without limitation to the party entitled to receive, he alone can make the designation; and it is equally true that those modes which Governments may and often do accept by express stipulation cannot only be not deemed contrary to the rules and customs generally observed, but may be properly resorted to under a treaty, which, by excluding no particular mode, fairly embraces every one which is appropriate to such transactions between nations, and convenient to the party entitled to receive."
Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833. Notes, For. Leg.
"Nothing is more common in countries where the judiciary is an independent branch of the Government than for questions arising under treaties to be submitted to its decision. Indeed, in all regular Governments, questions of private right arising under treaty stipulations are in their nature judicial questions. With us a treaty is part of the supreme law of the land; as such, it influences and controls the decis ions of all tribunals; and many instances might be quoted of decisions made in the Supreme Court of the United States arising under their several treaties with Spain herself, as well as under treaties between the United States and other nations. Similar instances of judicial decisions on points arising under treaties may be found in the history of France, England, and other nations; and, indeed, the undersigned would take the liberty to remind the Chevalier de Argaïz that this very treaty of 1795 has been made the subject of judicial decision by a Spanish tribunal. The undersigned would call to the recollection of the Chevalier de Argaïz the case of M. D. Hareng, in which the Spanish colonial courts decided, according to their sense, of the intention of the treaty of 1795, and the intendant confirmed their decree, which was that nothing in that treaty exempted Mr. Hareng from the payment of certain demands. From this decision this Government was inclined to dissent; but never questioned the right and duty of a Spanish court to consider the intent and effect of a treaty.
"Nations are bound to maintain respectable tribunals to which the subjects of states at peace may have recourse for the redress of injuries and the maintenance of their rights. If the character of these tribunals be respectable, impartial, and independent, their decisions are to be regarded as conclusive. The United States have carried the principle
of acquiescence in such cases as far as any nation upon earth; and in respect to the decisions of Spanish tribunals, quite as frequently perhaps as in respect to the tribunals of any other nation. In almost innumerable cases, reclamations sought by citizens of the United States against Spain for alleged captures, seizures, and other wrongs committed by Spanish subjects, the answer has been, that the question has been fairly tried before an impartial Spanish tribunal, having competent jurisdiction, and decided against the claimant; and in the sufficiency of this answer the Government of the United States has acquiesced. If the tribunal be competent; if it be free from unjust influence; if it be impartial and independent, and if it has heard the case fully and fairly, its judgment is to stand as decisive of the matter before it.
"This principle governs in regard to the decisions of courts of common law, courts of equity, and especially courts of admiralty, where proceedings so often affect the rights and interests of the citizens of foreign states and Governments."
Mr. Webster, Sec. of State, to Mr. de Argaïz, June 21, 1842. MSS. Notes, Spain.
The informal agreement between the United States and Great Britain limiting their respective forces on the lakes is conditioned, so far as concerns the United States, upon Great Britain maintaining scrupulous neutrality in respect to war, civil or otherwise, in which the United States is concerned, and of which the lakes may be the theater.
Mr. Seward, Sec. of State, to Mr. Adams, Oct. 24, 1864. MSS. Inst., Gr. Brit.
The covenants or guarantees in a treaty, when dependent on certain concessions, cannot be enforced until the concessions are actually made.
Mr. Fish, Sec. of State, to Mr. Baxter, Mar. 20, 1871. MSS. Inst., Cent. Am.;
By the treaty of March 20, 1833, between the United States and Siam, the citizens of the former are forbidden to import or sell in Siam (except to the King) "munitions of war." As to the meaning of this term "I feel clear that a nomen generalissimum, such as munitions of war' is far more comprehensive in its operation than would be any group of specifications, no matter how exhaustive. The rule, as you well know, is that the introduction of specifications operates to limit even general terms which may precede them, and in this view I cannot but think that the terms 'fire-arms, shot, or gunpowder,' which are quoted as used in the treaty between Siam and Great Britain cover a much more restricted area than does the term munitions of war.' If, for instance, poisoned arrows were called for in Siam as weapons likely to be peculiarly efficacious in Siamese warfare, they would be excluded under the term munitions of war,' but not under those of 'fire-arms, shot, or gunpowder.' The same might be said of preparations of dynamite. I hold, therefore, that the term ' munitions of war' gives all the protection
to Siam, as to the question at issue, that could be secured by an enumeration of particulars, no matter how exhaustive."
Mr. Bayard, Sec. of State, to Mr. Phelps, Jan. 7, 1886. MSS. Inst., Gr. Brit.
When there is a treaty giving certain privileges as to repairing armed vessels of a belligerent, such treaty will be enforced by the neutral states, though the favors it confers on the belligerent may be in excess of what would be conferred by the law of nations.
Moodie r. The Phoebe Anne, 3 Dall., 319. See Bee's Adm. R., 40, 74.
A stipulation in a treaty that neutral bottoms make neutral goods, does not imply a stipulation that enemies' bottoms make enemies' goods, the two propositions being distinct.
The Nereida, 9 Cranch, 388.
The doctrine of cy pres performance has no application in the construction of treaties.
The Amiable Isabella, 6 Wheat., 1.
The court cannot 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.
Ibid., 1, 76.
The doctrine of a performance cy pres, so just and appropriate in the civil concerns of private persons, belongs not to the solemn compacts of nations, so far as judicial tribunals are called upon to interpret or enforce them.
Ibid., 1, 73.
Stipulations in treaties having sole reference to the exercise of bellig erent rights cannot be applied to govern cases exclusively of another nature, and belonging to a state of peace.
The Marianna Flora, 11 Wheat., 1.
The laws applicatory to treaties of cession do not apply to treaties for the recognition of independence, such as that of 1783, with Great Britain.
Harcourt v. Gaillard, 12 Wheat., 523.
Foreign territory, under the Constitution of the United States, may be acquired under either the treaty-making or the law-making power. American Ins. Co. v. Bales of Cotton, 1 Pet., 542.