both laws can coexist consistently with the intention of Congress." After citing several cases the conclusion of the court is stated as follows: "The act which admitted Wyoming into the Union, as we have said, expressly declared that that State should have all the powers of the other States of the Union, and made no reservations whatever in favor of the Indians. These provisions alone considered would be in conflict with the treaty if it was so construed as to allow the Indians to seek out every unoccupied piece of government land and thereon disregard and violate the state law, passed in the undoubted exercise of its municipal authority (the opinion then reviews a large number of decisions). Determining, by the light of these principles, the question whether the provision of the treaty giving the right to hunt on unoccupied lands of the United States in the hunting districts is repealed, in so far as the lands in such districts are now embraced within the limits of the States of Wyoming, it becomes plain that the repeal results from the conflict between the treaty and the act admitting that State into the Union. The two facts, the privilege conferred and the act of admission, are irreconcilable in the sense that the two under no reasonable hypothesis can be construed as co-existing." § 388. Right of Abrogation in general.-In the foregoing sections the abrogation of treaties has been treated exclusively from the standpoint of the municipal law of the United States, and the effect of abrogation either by direct action of the proper department of the Government of the United States or by implication owing to congressional action conflicting with the treaty. So far as Federal or State Courts of the United States are concerned, no question can be raised as to the right of abrogation of any treaty, or of any part of any treaty. The rule so often referred to in preceding sections that the later statute supersedes the prior treatyapplies, and the courts will not question the right of Congress to act in such manner as it shall see fit in regard to our treaty relations, leaving the international complications that § 387. 1 See 163 U. S.. pp. 511-514. may result from such action to be settled by diplomatic action, or by the subsequent action of Congress. The right of one nation to abrogate a treaty with another nation when that treaty contains provisions intended to be perpetual is not properly within the scope of the subjectmatter of this volume. If the United States abrogated any existing treaty in a regular manner, the courts would consider it as abrogated and adjudicate questions in cases coming before them thereafter accordingly. In fact, if the treaty contained any provisions which the other contracting party has not carried out, the courts will not consider that the treaty rights of that party have been affected by such failure unless, and until, the Executive or Legislative department of the Government shall have declared that the treaty has been violated.1 If, however, the other power objects to the abrogation and claims either that the treaty has been violated, or that it cannot be abrogated at all, the question is not one for our State or Federal Courts but one that must be settled by the rules of international law, either diplomatically, or, if that fails, by arbitration, or even by war if all peaceful methods fail. Many writers have expressed their views on this subject; it would be impossible to collate them all. Nor can any rigid rule be laid down. The right of any nation to arbitrarily and without the consent of the other nation to abrogate any treaty (which does not contain any time limit or method of abrogation) must depend upon the nature of the stipulations, the circumstances under which the treaty was made, and those under which one party seeks to abrogate it and the other to sustain it. National faith and honor may be involved; on § 388. 1 Jones vs. Walker, U. S. Cir. Ct. Va. 1803, 2 Paine, 688, s. c., Fed. Cas. No. 7507, JAY, Ch. J. Held that the courts have no power to declare a treaty void on account of alleged violations by the other government so long as the proper department of this government considers the treaty in force and acts accordingly. See other cases cited in notes to § 460, post. 2 In this respect Wheaton says, Boyd's third edition, London, 1889 (§ 29, 29a, p. 44): "The obligation of treaties, by whatever denomination they may be called, is founded, not merely upon the contract itself, but upon those mutual relations between the two States, which may have induced them to enter into certain engagements. Whether the treaty be termed real or personal, it will continue so long as the other hand national life and existence may also be at stake; the question of possibly sacrificing the former, as it may have been pledged in former times under then existing circumstances, in order to save the latter at the present time, is certainly a political question which must be settled by the proper department of the Government to which the safety of the nation is committed and one with which the courts cannot, and will not, interfere. these relations exist. The moment was declared that 'it is an essenthey cease to exist, by means of a tial principle of the law of nations change in the social organization that no power can liberate itself of one of the contracting parties, from the engagements of a treaty, of such a nature and of such im- nor modify the stipulations thereof, portance as would have prevented unless with the consent of the conthe other party from entering into tracting powers by means of an the contract had he foreseen this amicable arrangement.' The genchange, the treaty ceases to be ob-eral correctness of the principle is ligatory upon him." Then follows indisputable, and in a declaration a list of treaties which the United of the kind made it would have States considers as abrogated ow- been impossible to enounce it with ing to changed relations. those qualifications which have been seen to be necessary in practice. The force of its assertion may have been impaired by the fact that Russia, as the reward of submission to law, was given what she had affected to take. But the concessions made were dictated by political considerations with which international law has nothing to do. It is enough that from the legal point of view that the declaration purported to affirm a principle as existing, and that it was ultimately signed by all the leading powers of Europe." Citing as a reference to the treaty Hertslet's Map of Europe by Treaty, 1256-7, 1892-8, 1904. In Hall's International Law this subject is treated on pages 364 et seq. A notable instance of the withdrawal of a power from treaty obligations is cited on page 369. Russia was a party to the Treaty of Paris of 1856, by which the maintenance of a fleet on the Black Sea was forbidden. In 1870 the Russian Government during the Franco-Prussian war issued a circular declaring that it was no longer bound by that part of the Treaty of 1856 which related to the Black Sea. On page 372 Hall states in regard to this: "The protest of Lord Granville, although uttered under circumstances which made its practical importance at the moment very slight, nevertheless compelled Russia to abandon the position which it had taken up. A conference was held of such of the Powers, signatory of the Treaty of Paris, as could attend, at which it The United States was not a party to this declaration. For a list of cases in which the courts have declined to interfere with the Executive and Legislative Departments of Government in regard to construction of, and action § 389. These views applied to the Clayton-Bulwer treaty. -This question may come before the people of the United States at any time in regard to the Clayton-Bulwer treaty of 1850 with Great Britain. By this treaty this country and Great Britain are apparently pledged to a joint ownership and control of any trans-Isthmian canal connecting the Atlantic and Pacific Oceans. The treaty contains no provision for its abrogation. It was entered into under peculiar circumstances, at a time when the condition of this country was very different from what it is today, and the events which were anticipated in 1850, in view of which the treaty was made, have never transpired. It was undoubtedly a mistake on the part of the Executive to make the treaty and of the Senate to ratify it. The question of its abrogation, how under, treaties, see § 460, post, and of Central America. The treaty was ratified without much discussion, in the belief that it would insure at once the construction of the canal 1 Convention as to ship canal con- and would exclude British coloninecting Atlantic and Pacific Ocean, zation and protectorates from concluded at Washington April 19, Central America; but it was no 1850: U. S. Tr. and Con., ed. 1889, sooner published than it began to p. 440; U. S. Treaties in Force, ed. be a source of dispute as to its 1899, p. 234. For details see TREA- Scope and meaning. Secretary TIES APPENDIX, p. 446, post. See Blaine, in 1881, described it as also Hay-Pauncefote treaty abro-misunderstandingly entered into, gating Clayton-Bulwer treaty con- imperfectly comprehended, concluded November 18, 1901, and now | tradictorily interpreted, and mutu(December, 1901) pending before ally vexatious.' President Buthe Senate of the United States for chanan said in 1857, that if in the ratification; (included in full in United States the treaty had been TREATIES APPENDIX, p. 454, post). considered susceptible of the con2 In speaking of this treaty, ex-struction put upon it by Great Secretary of State, John W. Foster, says (pp. 456-8, A Century of American Diplomacy, 1901): "Mr. Clayton, then Secretary of State, entered into negotiations with the British minister, the result of which was the treaty by which the two governments stipulated for a joint guarantee of the canal to be constructed; and agreed not to occupy, fortify, colonize or assume or exercise any dominion over any part Britain, it never would have been negotiated, nor would it have received the approbation of the Senate. Mr. Cass, who was a member of the Senate at the time it was ratified, has made a similar declaration. "The American expectation as to the early construction of the Canal, with the aid of British capital, was disappointed; and for the next ten years our secretaries of ever, is one which involves consideration of all of the elements enumerated in the preceding section. To the author it seems as though it is purely a political act wholly within the domain of Congress; that if the Executive cannot obtain the abrogation or proper modification of the treaty through friendly diplomacy, that Congress must eventually determine the question; and if, in the best judgment of the Legislative department of the Government, the present and future safety of the country demands the abrogation of that treaty, Congress has not only the legal power but also the moral right to abrogate it, and the judicial department of the Government could not, and would not interfere to prevent it. It is impossible to give a complete list of publications in which the Clayton-Bulwer treaty is referred to; nearly every writer on international law and Trans-Isthmian Canal subjects has referred to it, in one way or another, and many diverse views have been expressed in regard to the moral right, as well as to the advisability, of abrogating it.3 § 390. Congressional legislation to carry out treaty stipulations; Justice Field's opinion in the Ross case. This can hardly be treated as a separate subject. The legislation necessary to carry out treaty stipulations is within the dostate were occupied in bringing the | view see Rhode's History of United British government to an obser- States since 1850, chap. III, vol. 1. vauce of its engagements respect- 3 For some of the authorities, and ing colonization and protectorates. for correspondence, on this subject, The treaty marks the most serious see Wharton's Digest, Int. Law, mistake in our diplomatic history, vol. II, § 150, p. 184, et seq. See and is the single instance, since its also, Correspondence in relation to announcement in 1823, of a tacit the Proposed Interoceanic Canal disavowal or disregard of the Mon- between the Atlantic and Pacific roe Doctrine, by the admission of Oceans, The Clayton-Bulwer Great Britain to an equal participa- Treaty and the Monroe Doctrine; tion in the protection and control being a reprint of Senate Execuof a great American enterprise. tive Documents No. 112, 46th ConThe wisdom of that doctrine is gress, 2d Session; No. 194, 47th most signally illustrated in the ef- Congress, 1st Session; and No. 26, fects of this single disavowal, the 48th Congress, 1st Session. Washheated discussion engendered, and ington, Government Printing Of the embarrassments which the fice, 1885. See also Lindley Miller treaty has brought to this Govern- Keasbey's Nicaragua Canal and the ment, and from which it still suf- Monroe Doctrine, G. P. Putnam's fers." For a somewhat different | Sons, New York and London, 1896. |