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ment of boundaries, it may be that citizens of the United States may be expatriated by the action of the treatymaking power, impliedly or expressly ratified by Con
In the consideration of this question a distinction must be made between territory organized into States and that still in Territorial form. Over the latter the national government exercises, subject to the express prohibitions of the Constitution, all the powers of governinent exercised over the former by the State and central governments combined. That the consent of the inhabitants of the territory to be ceded is necessary, would hardly be contended. Accordingly the power to
1 182 U. S., 317.
* Hall (4th ed.), p.48. It has nevertheless happened that as a matter of expediency, or through deference to the inhabitants of the territory to be ceded, the transfer has been made dependent upon such consent. A plebiscite of Savoy and Nice, under the treaty of Turin, of March 24, 1860, and of the Danish islands of St. Thomas and St. John, under the treaty of October 24, 1867, for their cession to the United States, was in each case taken. In the latter case, the government of the United States objected to the insertion of such a condition, but yielded in the end rather than break off the negotiations. The Danish government was at the time “intensely interested in the subject of a vote of the people of North Schleswig." By Art. V of the treaty of Prague of August 23, 1866, Austria transferred all her rights over Holstein and Schleswig to Prussia with the condition” that Northern Schleswig should be ceded to Denmark, if by a free vote the population expressed a wish to be united to Denmark. Much to the disappointment of Denmark and the North Schleswigians such a vote was not taken. See Reports of the Sen. Com. on For. Rel., vol. viii, pp. 169, 176, 198. The retrocession in the treaty of August 10, 1877, by Sweden to France, of the island of St. Bartholomew, was made dependent upon a vote of the inhabitants. The annexations of 1860, by the Kingdom of Sardinia, of the various Italian states in which the plebiscite was taken are hardly applicable, in that, not only was there no governmental organization sufficiently established in the several states with which to treat, but also it was in each case a question not of a cession of a portion of the state's territory, but of state annihilation.
cede such territory, if it exists as a power of government in the United States, must reside in the organs of the central government. Chief Justice Marshall, in upholding, in 1828, the power of the central government to acquire territory by treaty said, "The Constitution coníers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.”: The power to cede outlying territory is a no less essential attribute of the full treaty-making power of the United States, which “extends to all the proper subjects of negotiation between our government and the governments of other nations,”: than the power to acquire. As to territory within a State, over which the central government has only concurrent jurisdiction, the question is entirely different, and its decision need not be anticipated. A treaty for the determination of a disputed line operates not as a treaty of cession but of recognition. For this purpose it has not infrequently been found expedient to resort to a court of arbitration, in which the localities affected are sometimes afforded an opportunity to be heard.
(b) Involving Congressional Legislation. During the debate in the House of Representatives on the Jay treaty, Chief Justice Ellsworth, in a written opinion communicated to Jonathan Trumbull, March 13, 1796, said, “The instant the President and Senate have made a treaty, the Constitution makes it a law of the land; and of course, all persons and bodies
American Insurance Company vs. Canter, 1 Pet., 542.
in whatever station or department within the jurisdiction of the United States are bound to conform their actions and proceedings to it. Such a treaty ipso facto repeals all existing laws so far as they interfere with it.": Chief Justice Marshall, in 1801, in the case of the United States vs. Schooner Peggy, declared that treaties according to the Constitution of the United States became with their conclusion binding on the courts and as such affected parties litigating. In 1829, just forty years after the Constitution went into operation, the same great judge, after noting the contractual nature of a treaty and its usual dependence for infraterritorial operation upon subsequent acts of the respective parties, said, “In the United States, a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision."'3 That a treaty may repeal a prior act of Congress, has been frequently affirmed in individual opinions both of the justices of the Supreme Court and of the attorneysgeneral. Mr. Justice Harlan, in the recent case of the United States vs. Lee Yen Tai,+ while holding the treaty of March 17, 1894, with China, and the act of May 5, 1892, relative to judicial procedure in the deportation of Chinese laborers, to be not inconsistent, observed, "That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject, is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme
MSS. Letters to Washington, vol. cxvii, p. 287. * Foster and Elam vs. Neilson, 2 Pet., 314, 315.
'i Cranch, 109. • 185 U. S., 220.
law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject.”
But, as was observed by Chief Justice Marshall in Foster vs. Neilson, not all treaties become fully effective as laws proprio vigore. Some may require legislative execution. In Article VIII of the treaty of February 22, 1819, which was before the Court in this case, it was stipulated, according to the English text, which was alone considered in the decision, that all grants of land made by his Catholic Majesty in the ceded territory prior to January 24, 1818,“ shall be ratified and confirmed to the persons in possession of the lands.” The language, the Chief Justice observed, indicated merely a contract in which the United States engaged to do a particular act and until Congress had confirmed the grants, the courts were not at liberty to disregard the existing laws on the subject; that as such a stipulation addressed itself to the political not the judicial department, the legislature must execute the contract before it could bind the courts. He added, had the words “are hereby confirmed” been used, the article would have been self-executing and have repealed acts of Congress repugnant to it.' So also Mr. Justice Field in the case of Whitney vs. Robertson observed that “When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect * * * If the treaty contains
"Only one other justice considered this point essential to the decision. 2 Pet., 313. In the later case of U. S. vs. Percheman, 7 Pet., 51, 89 the Court, construing the English and the Spanish text together, held that the article was self-executing.
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.' In order to determine what treaty provisions require legislative execution, it is necessary to resort to legislative precedents, as the promptness with which Congress has usually met these obligations has quite removed the question from judicial determination.
On April 14, 1792, an act, which had been passed at the suggestion of President Washington, was approved, to carry into effect the consular convention with France of November 14, 1788, the first treaty to be ratified under the Constitution. It did little more than designate the judges and marshals, whose duty it should be to render assistance to French subjects and French consuls according to the tenor of the treaty. The act was principally concerned with the duties of American consular officers abroad.?
Appropriations.- Jefferson records under date of April 9, 1792, a meeting with President Washington, in which questions for consultation with the Senate on the proposed Algerian treaty were considered. It having been suggested by Jefferson that the seal should not be put to the treaty until the two houses had voted the money which was to be paid to Algiers, the President asked whether if such a treaty were ratified by him with the consent of the Senate it would not be valid under the Constitution, and obligatory on the representatives to furnish the money. Jefferson replied that “it certainly would, and that it would be the duty of the representa
124 U. S., 194. See opinion of Mr. Justice Baldwin in Lessee of Pollard's Heirs vs. Kibbe, 14 Pet., 415 (1840).
'1 Stat. at L., 254.