an attempted adjudication. The construction of treaties, however, when they operate upon individuals within the territory of either power is a matter over which the local courts have jurisdiction and within such territory they can construe treaty stipulations and their effects. In fact the judiciary is the only department of the government which can construe a treaty or a statute.1 No separate chapter has been set apart for this branch of treaty law as the construction of treaties has already been referred to in connection with State2 and Federal statutes, and upon individuals when they operate without legislation,* It will also be considered in a subsequent chapter in other respects. An excellent synopsis of rules to the construction of treaties was prepared by Mr. J. C. Bancroft Davis for § 391. 1 See cases cited in notes to § 320, pp. 3, et seq., ante, and to § 460, post. 2 Chapter XI, ante, is devoted to the construction of treaties and State statutes, and to the effect of treaties, made by the Central Government, upon individual rights of citizens of foreign countries, as the same are affected by State legislation. 3 Chapter XII, ante, is devoted to the relative effect of treaty stipulations and Federal statutes. 4 The Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, MILLER, J., and see § 376, p. 82, ante. United States vs. Rauscher, U. S. Sup. Ct., 1886, 119 U. S. 407, MILLER, J., and see note 3 to § 437, p. 268, post. 5 Chapter XIII is devoted to treaties of cession and their effects on the rights of persons and property in the ceded territory; chapter XIV to Indian treaties and the effect of treaties and statutes affecting Indian rights and titles; chapter XV to special instances in which the treatymaking power has been exercised to its widest extent in regard to extradition, cessions, claims of United States citizens against foreign governments, trade-marks, consular courts of foreign countries in the United States, and consular courts of the United States in foreign countries. Many of the cases cited under the numerous subdivisions of these subjects determine the construction of treaties, in regard to the peculiar circumstances involved in each case. 6 J. C. BANCROFT DAVIS' RULES FOR CONSTRUCTION OF TREATIES. In the NOTES appended to the Compilation of Treaties between the United States and other Powers prepared mainly by J. C. Bancroft Davis, twelve rules are laid down as the determined law in the construction of treaties. Introductory Notes, pages 1227–1229, U. S. Tr. the use of the State Department in 1873, and will be found in full in the notes to this section, together with citations of de and Con. 1889. The rules were originally published in the edition of U. S. Treaties and Conventions of 1873, pp. 941, et seq. Those rules are as follows: The citations from Davis are given first, a reference to where the cases collated by the editor of this volume can be found follows the words see also under each rule. I. A Treaty, constitutionally concluded and ratified, abrogates all State laws inconsistent therewith. It is the supreme law of the land, subject only to the provisions of the constitution. (Citing 6 Op. Att'y Gen'l 293, Cushing, and cases cited by him; U. S. vs. Sch. Peggy, 1 Cranch, 103; Ware vs. Hylton, 3 Dallas, 199; Gordon's Lessee vs. Kerr, 1 Wash. C. C. R. 322; Lessee of Fisher vs. Harnden, 1 Paine C. C. R., 55; 8 Op. Att'y Gen'l, 417 Cushing; 13 Op. Att'y Gen'l 354, Akerman.) See also chap. XI, ante. While, however, treaties are a part of the supreme law of the land, they are nevertheless to be viewed in two lights,-that is to say, in the light of politics and in the light of juridical law. The decision of political questions is pre-eminently the function of the political branch of the government, of the Executive or of Congress, as the case may be; and when a political question is so determined, the courts follow that determination. Such was the decision of the Supreme Court in cases involving boundary and other questions, under the treaty of 1803 with France, of 1819 with Spain, and of 1848 with Mexico. (Citing Doe et al. vs. Braden, 16 Howard, 635; Foster vs. Neilson, 2 Peters, 314; The Amiable Isabella, 6 Wheaton, 1; Grisar vs. McDowell, 6 Wallace, 363; U. S. vs. Yorba, 1 Wallace, 412; U. S. vs. Pico, 23 Howard, 326; U. S. vs. Lynde, 11 Wallace, 632; Meade vs. U. S., 9 Wallace, 691; U. S. vs. Reynes, 9 Howard, 127; Davis vs. Parish of Concordia, 9 Howard, 280; 5 Op. Att'y Gen'l 67, Toucey.) See also § 460, post. II. A treaty is binding on the contracting parties, unless otherwise provided, from the day of its date. 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. (Citing Davis vs. Parish of Concordia, 9 Howard, 280; Lessee of Hylton vs. Brown, 1 Wash. C. C. R. 343; Haver vs. Yaker, 9 Wallace, 32; U. S. vs. Arredondo, 6 Peters, 691.) See also § 383, pp. 127, et seq., ante. III. When a Treaty requires a series of legislative enactments to take place after exchange of ratifications before it can become operative, it will take effect as a national compact, on its being proclaimed, but it cannot become operative as to the particular engagements until all the requisite legislation has taken place. (Citing 6 Op. Att'y Gen'l, 750, Cushing.) See also § 364, pp. 66, et seq., ante, and chapter X, vol. I. cisions bearing upon the application of the rules respectively, which were collated by him. IV. Where a treaty cannot be executed without the aid of an act of Congress, it is the duty of Congress to enact such laws. Congress has never failed to perform that duty. (Citing 6 Op. Att'y Gen'l 296, and cases cited, CUSHING.) See also chap. X, vol. I. V. But when it can be executed without legislation, the courts will enforce its provisions. (Citing Foster vs. Neilson, 2 Peters, 314; U. S. vs. Arredondo, 6 Peters, 735.) See also § 364, p. 66, et seq., ante. VI. Where a treaty is executed in two languages, each the language of the respective contracting parties, each part of the treaty is an original, and it must be assumed that each is intended to convey the same meaning as the other. (Citing U. S. vs. Arredondo, 6 Peters, 710.) VII. Treaties do not generally ipso facto become extinguished by war. Vested rights of property will not become divested in such cases. (Citing Society for Propogation of Gospel vs. Town of New Haven, 8 Wheaton, 464; Carneal vs. Banks, 10 Wheaton 182.) See also § 384, p. 129, ante. VIII. The constitution of the United States confers absolutely on the government of the United States the power of making war and of making treaties, from which it follows that that government possesses the power of acquiring territory either by conquest or by treaty. (Citing Am. Ins. Co. vs. 366 Bales of Cotton (Canter), 1 Peters, 542.) See also chap. II, vol. I. IX. Such acquisition does not impair the rights of private property in the territory acquired. (Citing U. S. vs. Morano, 1 Wallace, 400.) See also chap. XIII, post. X. A treaty of cession is a deed of the ceded territory by the Sovereign grantor, and the deed is to receive an equitable construction. The obligation of the new power to protect the inhabitants in the enjoyment of their property is but the assertion of a principle of natural justice. (Citing U. S. vs. Arredondo, 6 Peters, 710; Soulard vs. U. S., 4 Peters, 511; Delassus vs. U. S., 9 Peters, 117; Mitchell vs. U. S., Ib. 711; Smith vs. U. S., 10 Peters, 326 [U. S. vs. Perchemn, 7 Peters, 86; Id. vs. Kingsley, 12 Id. 476; Id. vs. Auguisola, 1 Wallace, 352. Under the term "property" in this connection may be placed every species of title, legal or equitable, and rights which lie in contract, executory as well as executed. Bryan vs. Kennett, 113 U. S. 179. It has been held that upon a conquest of territory, those of the inhabitants who adhere to their old allegiance and continue in the service of the vanquished sovereign, forfeit the right to be protected in their property, except so far as it may be secured by treaty. U. S. vs. Repentigny, 5 Wallace, 211.]) See also chap. XII, post. XI. In an opinion on the legislation to carry into effect the Treaty of 1819 with Spain, Attorney-General Crittenden held that "An act of Congress is as much a supreme law of the land as a Treaty. They are placed on the same footing, and no superiority is to be given to the one over the other. The last expression of the law-giving power must prevail; and a subsequent act must prevail and have effect, though incon sistent with a prior act; so must an act of Congress have effect, though inconsistent with a prior treaty." (5 Op. Att'y Gen'l, 345, Crittenden; but see Opinions of Justice CHASE, 3 Dallas, 236, and of MARSHAL, Ch. J., 1 Cranch, 109, each pronouncing the opinions of the Supreme Court.) See also § 378, pp. 84, et seq., ante. XII. Interest, according to the usage of nations, is a necessary part of a just national indemnification. (1 Op. Att'y Gen'l, 28 Wirt; 5 Op. Att'y Gen'l 350, Crittenden; Geneva Award, 4 Papers relating to Tr. of Wash. 53.) See also § 444, post. CONSTRUCTION OF FAVORED NATION CLAUSES: RECIPROCITY TREATIES. The construction of the treaty stipulations known as "favored nation" and "equal duty" clauses has to some extent been discussed in the sections of this chapter devoted to treaty and tariff cases (see §§ 366, et seq., pp. 67, et seq., ante). The effect of these clauses are more often the subject of diplomatic correspondence than of judicial inquiry, as the courts cannot extend by judicial decision the operation of a treaty against the construction placed thereon by the political departments (see cases collated under § 460, pp. 353, et seq., post). Mr. JOSEPH ROGERS HEROD, M. A., formerly Secretary of Legation and Chargé d'Affaires of the United States to Japan has published during the current year (Banks Law Publishing Co., New York, November, 1901) a valuable and interesting treatise on: Favored Nation Treatment, an analysis of the Most Favored Nation Clause, with Commentaries on its uses in Treaties of Commerce and Navigation. Mr. Herod analyzes and treats the subject as follows: 1. The favor granted to, 2, Citizens, subjects or inhabitants, in matters of, 3, commerce, and 4, navigation. He cites many authorities on international and constitutional law bearing upon the subject, as well as a great deal of diplomatic correspondence. The subject of reciprocity in tariff exactions is exciting considerable discussion at the present time. There are a number of treaties providing for reductions in duties which have been negotiated with France, Great Britain and other countries, but which have not yet been ratified by the Senate. The effect of favored nation clauses was recently discussed, in an able and comprehensive manner, by Hon. John A. Kasson, formerly Special Minister Plenipotentiary of the United States, in an address before the Illinois Manufacturers' Association in Chicago, October 14, 1901, which has been printed at the Government Printing Office in pamphlet form entitled: Reciprocity. The benefits which will accrue to this Country by the Confirmation of the Treaties now Pending in the United States Senate. 148 CHAPTER XIII. TREATIES OF CESSION INVOLVING CHANGE OF SOVEREIGNTY OVER THE CEDED TERRITORY AND THE EFFECT THEREOF ON LAWS, PERSONS AND PROPERTY. SECTION 392-Treatment of subject neces sarily brief and superficial; 393-Methods of acquisition of war. 394-Extent of power and property which passes to the new sovereign by treaties of cession. 395-The effect on inhabitants of ceded territory; subdivisions of subject in this chapter. 395a-The effect on local laws of the ceded territory. 3956-The effect on the allegiance of the inhabitants and SECTION 395c-The effect on property rights and on title to land. 396-Necessity for legislation to make treaties of cession 397-Necessity for compliance 399-International law an ele- 400-Change of sovereignty discussed in this chapter only when to, and not from, the United States. 392. Treatment of subject necessarily brief and superficial; wide scope of "change of sovereignty." The power of the United States to acquire and govern territory was discussed, and the authorities bearing thereon were collated, in a former chapter,' and it is not necessary to repeat the conclusions then reached, or the historical data there referred to. The only branch of the subject, however, which was then considered was the power of the Central Government to acquire territory, and the extent to which Congress was limited by the Constitution in governing, or making § 392. Cases, pp. 117, et seq.; see also list 1 Chap. III, vol. I, and see espec- of acquisitions, note to § 44, on ially sections devoted to Insular | pp. 79, et seq., vol. I. |