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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
* Letters and other Writings, vol. i, p. 524. ?i 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.
The author of this monograph was born in Independence, New York, November 6, 1874. He entered Alfred University in 1894, and graduated in 1897 as valedictorian of his class, with the degree of bachelor of science. He taught in the public schools of New York, 1897-1900. He held a scholarship in public law in Columbia University, 1900-1901, and a fellowship in international law, 19011902. While at Columbia his major subject was international law, and his minors were constitutional and administrative law and American history. In 1902 he was appointed a clerk in the Department of State, a position which he now holds.