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of the same by testament, and to inherit lands in the other, without being naturalized, has been held to dispense with limitations in a state statute on the alien inheritance.
Chirac v. Chirac, 2 Wheat., 259.
The expiration of the treaty does not divest rights acquired under it. Ibid; see infra, § 148a.
Since by the Constitution treaties made in pursuance thereof are to be the law of the land, they are to be regarded by the courts as equiv alent to a legislative act when they operate directly upon a subject; but if they merely stipulate for future legislation by Congress, they address themselves to the political and not to the judicial department, and the latter must await the action of the former.
Foster v. Neilson, 2 Pet., 253.
That a treaty is no more the supreme law of the land than is an act of Congress is shown by the fact that an act of Congress vacates pro tanto a prior inconsistent treaty. Whenever, therefore, an act of Congress would be unconstitutional, as invading the reserved rights of the States, a treaty to the same effect would be unconstitutional.
See Prevost v. Greenaux, 19 How., 7; but see Mr. Sumner's letter to Mr. Fish, April 21, 1870; MSS. Dept. of State; cited in Mr. J. C. B. Davis, Notes, &c. But while such a treaty may be inoperative municipally, it may internationally subject the United States Government to foreign claims based on its non-execution.
Supra, § 9.
A treaty executed and ratified by the proper authorities of the Government becomes the supreme law of the land, and the courts can no more go behind it, for the purpose of annulling its effect and operation, than behind an act of Congress.
Fellows v. Blacksmith, 19 How., 366, 372.
Territory acquired by treaty or conquest is subject, so far as concerns titles to property and prior rights of status, to the same law as it was subjected to before the transfer.
U. S. v. Moreno, 1 Wall., 400. Supra, §§ 3 ff.
A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.
The Cherokee Tobacco, 11 Wall., 616. See Taylor v. Morton, 2 Curtis, 454; The
A treaty giving the subjects of a foreign state (Switzerland) the privilege of holding real estate in the United States is the supreme law of the land.
Hauenstein r. Lynham, 100 U. S., 483; aff. Chirac v. Chirac, 2 Wheat., 239; Carneal v. Banks, 10 Wheat., 181; Frederickson v. Louisiana, 23 How., 445; infra, § 163.
A treaty is primarily a compact between independent nations and depends for the enforcement of its provisions on the honor and the interest of the Governments which are parties to it. If these fail, its infraction becomes the subject of international reclamation and negotiation, which may lead to war to enforce them. With this judicial tribunals have nothing to do. But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of a nature to be enforced in a court of justice, and which furnish, in cases otherwise cognizable in such courts, rules of decision. The Constitution of the United States makes the treaty, while in force, a part of the supreme law of the land in all courts where such rights are to be tried. In this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in the courts of the country, they are subject to such acts as Congress may pass for their enforcement, modification, or repeal.
Head Money Cases, 112 U. S., 580.
The stipulations in a treaty between the United States and a foreign nation are paramount to the provisions of the constitution of a particular State.
Gordon v. Kerr, 1 Wash. C. C., 322.
A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign Government may be presumed to know that, so far as the treaty stipulates to pay money the legislative sanction is required.
Turner v. American Baptist Missionary Union, 5 McLean, 347.
Subsequent legislation may municipally abrogate a treaty which may nevertheless continue to bind internationally.
Cherokee Tobacco, 11 Wall., 616; aff. 1 Dill., 264; Taylor v. Morton, 2 Curtis, 454; 2 Black, 481; Ropes v. Clinch, 8 Blatch., 304; Bartram v. Robertson, 15 Fed. Rep., 212; Ah Lung, in re., 18 Fed. Rep., 28; supra, § 9.
A stipulation in a treaty that "no higher or other duties shall be imposed on the importation into the United States of any article the produce or manufacture of the dominion of the treaty-making power than are or shall be payable on the like articles, being the produce or manufacture of any foreign country," does not preclude Congress from passing an act exempting from duty like products and manufactures imported from any particular foreign dominion it may so favor.
Whitney v. Robertson, 21 Fed. Rep., 566.
An act of Congress repeals an inconsistent provision of a prior treaty. 5 Op., 345, Crittenden. See, however, Marshall, C. J., in 1 Cranch, 109, and Mr. Cushing in 6 Op., 658. And see supra § 9.
A treaty, when proclaimed, is thenceforth the law of the land, to be respected as such, although, as in the case of many laws of a merely
municipal character, some of the provisions thereof may be contingent or executory only.
6 Op., 748, Cushing, 1854.
A treaty, constitutionally concluded and ratified, abrogates whatever law of any one of the States may be inconsistent therewith.
A treaty, assuming it to be made conformably to the Constitution in substance and form, has the legal effect of repealing, under the general conditions of the legal doctrine that "leges posteriores priores contrarias abrogant," all pre-existing Federal law in conflict with it, whether unwritten, as law of nations, of admiralty, and common law, or written, as acts of Congress. A treaty, though complete in itself, and the unquestioned law of the land, may be inexecutable without the aid of an act of Congress. But it is the constitutional duty of Congress to pass the requisite laws. But the need of further legislation, however, does not affect the question of the legal force of the treaty per se.
6 Op., 291, Cushing, 1854.
Treaty stipulations may restrict or abolish the disability of aliens as to property in the several States.
8 Op., 411, Cushing, 1857.
A treaty not in itself inconsistent with the Constitution of the United States abrogates all prior inconsistent legislation, whether Federal or State.
8 Op., 417, Cushing; 6 Op., 293, Cushing; and see Ware v. Hylton, 3 Dall., 199; Davis v. Concordia, 9 How., 280.
Under the Constitution, treaties, as well as statutes, are the law of the land, both the one and the other, when not inconsistent with the Constitution, standing upon the same level and being of equal force and validity; and, as in the case of all laws emanating from an equal authority, the earlier in date yields to the later.
13 Op., 354, Akerman, 1870.
"During the administration of John Quincy Adams several treaties were concluded, in which broader views in commercial matters began to prevail. It was agreed that whatever kind of produce, manufacture, or merchandise of any foreign country could be from time to time lawfully imported into the United States in their own vessels might also be imported in vessels of the other power. These treaties were subscribed by Henry Clay, Secretary of State of the United States, and the provisions have often since been repeated in conventions with other powers. The expanding commerce of the United States induced the revival at this time of some of the powers respecting national vessels in foreign ports, and respecting disputes between the officers and crew of such vessels, and concerning deserters, which had been conferred upon consuls by Jefferson's convention with France in 1788. These important provisions were now inserted in the treaties of commerce, and continued to be until the revival of the practice of concluding exclusively consular conventions, which had lain dormant from the time of Jefferson's mission in Paris.
"Many commercial treaties were concluded during the administrations of President Jackson and President Van Buren, through which the principles, which had become part of the policy of the United States, were extended in every quarter of the globe. By the former administration also, long-pending differences with France were set at rest by a convention signed July 4, 1831; and a treaty was concluded with the Ottoman Porte, under which, for nearly forty years, it was not doubted that the citizens of the United States within the dominions of the Porte enjoyed certain rights of extraterritoriality. The doubts which have since arisen will be considered hereafter.
"President Polk carried out with assiduity the policy of the nation by extending the number of its treaties for the regulation of commerce and navigation, for the abolition of unjust taxes, and for the regulation of international postal relations, and he added to the national domain by the treaty of peace with Mexico, and concluded a treaty with Great Britain, which was intended on the part of the United States to be a final settlement of the disputed Northwestern boundary. He also caused the United States to enter into a treaty with New Granada, whereby they agree to guarantee positively and efficaciously to New Granada the perfect neutrality of the before-mentioned Isthmus' (Panama) and the rights of sovereignty and property which New Granada has and possesses over the said territory,' the first international obligation of this nature incurred since 1778.
"During President Taylor's short administration several treaties of commerce were entered into with other powers.
"President Buchanan released the commerce of the United States from the Danish dues at the Sound and Belts, made wider and broader the friendly relations with Japan, and he added to the number of the treaties for the regulation respectively of commerce, of extradition, and of international postage.
"William H. Seward was the Secretary of State during the adminis trations of President Lincoln and of President Johnson. Under his direction of the Department of State, the treaties of commerce and the consular and extradition conventions were widely extended. The commerce of the United States was relieved from the Brinshausen dues, the navigation of the Dardanelles and of the Bosphorus was regulated, and the Scheldt dues were extinguished. A treaty was entered into for the suppression of the African slave-trade, in which, for the first time since the adoption of the Constitution, it was agreed that an alien might sit as a judge in a court holding its sessions within the territories of the United States. Several treaties were made securing the recognition of the right of expatriation and naturalization, and the protection of trade-marks was also made the subject of a treaty. The relations with China, too, were essentially modified."
Mr. J. C. B. Davis, Notes, &c. See more fully infra, § 148.
XI. JUDICIARY CANNOT CONTROL EXECUTIVE IN TREATY MAKING.
The negotiation and modification of treaties is a prerogative of the Executive, with which the courts cannot interfere.
Frelinghuysen v. Key, 110 U. S., 64; Great West. Ins. Co. v. U. S., 19 C. Cls., 206; S. C., 112 U. S., 193, to same effect; Angarica de la Rua v. Bayard, 4 Mackey, 310; cited, infra, § 246.
The granting an injunction to restrain the Executive from making payment under a treaty is not within the province of the judiciary.
3 Op., 471; Grundy, 1839.
"I have had the honor to receive your letter of the 29th ultimo in relation to the pending application in the supreme court of this District for a writ of mandamus against the Secretary of State at the instance of La Abra Silver Mining Company, in which you embody, as your own, the report of Mr. Solicitor-General Phillips to you. Allow me to express my thanks for the prompt attention you have given to the matter and the personal interest you have taken in it.
"The suggestion of Chief-Justice Cartter, as reported by Mr. Phillips, namely, that a pro forma judgment with a view to an appeal to the Supreme Court of the United States was all that was wanted by the parties cannot be entertained for a moment with my censent. I have a most decided objection to any judgment, pro forma or otherwise, being rendered against the Secretary of State.
"The pending case involves, as I view it, an important question in regard to the relative powers of the several branches of the National Government. It is for this reason, if no other, entitled to a full hearing in every court through which it may have to pass before reaching the Supreme Court of the United States.
"The powers of the President are fixed by the Constitution. He has in this matter only exercised the treaty-making power. Congress, a coordinate branch of the Government, cannot enlarge those powers, and most certainly cannot restrict or limit them."
Mr. Frelinghuysen, Sec. of State, to Mr. Brewster, Dec. 4, 1882. MSS. Dom. Let.
As will hereafter be seen, the Department of State can arbitrate or settle, at its own discretion, all claims referred to it under treaties.
Infra, § 222.
XII. SPECIAL TREATIES.
(1) ARGENTINE REPUBLIC.
A history of the diplomatic relations of the United States with Buenos Ayres and the Argentine Republic is given in instructions from Mr. Marcy, Secretary of State, to Mr. Peden, June 29, 1854.
MSS. Inst., Arg. Rep.
The treaty of the Argentine Confederation with France for the free navigation
of the rivers Parana and Uruguay will be found in Brit. For. St. Pap. for 1853-54, 1071.
For other treaties as to the same rivers, see supra, § 30.