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power to abrogate treaties and terminate the relations established thereby. Several instances are given in the notes to this section;t one of the earliest cases being in 1800 when the treaties with France were abrogated on account of the unfriendly treatment of our merchant vessels by that power. In 1883, after the payment of the Halifax award, already referred to in this chapter, Congress by resolution directed the abrogation of those clauses of the treaty of Washington of 1871 with Great Britain, which related to fisheries and exportation and importation of fish products. In this case there was an undoubted right to abrogate the treaties as no permanent relations or vested interests were involved or affected. The national right to abrogate treaties containing provisions intended to be permanent is discussed under a subsequent section.
$ 386. Abrogation by implication ; Ward vs. Race Horse. —The Supreme Court in Ward vs. Race Horse1 held that the
are not repealed by its abroga Articles 18-25 and Article 30 of tion.
the treaty of Washington with $ 385.
Great Britain of 1871 were abro1 The then existing treaties with gated pursuant to provisions in the France were abrogated by act of treaty by joint resolution of both Congress passed July 7, 1798, which houses of Congress, March 31, was as follows:
1883, (22 U. S. Stat. at L. 641,) the “CHAP. LXVII. An act to de-abrogation to take effect on July 1, clare the treaties heretofore con- 1885, the treaty requiring two years' cluded with France no longer obli- notice, and the resolution providing gatory upon the United States." for such notice. The notice was The act recites the improper given by the President by a proclaconduct of France, and declares mation, on January 31, 1885, (23 that: “ The United States are of U. S. Stat. at L. p. 841,) declaring right freed and exonerated from that those articles would cease to the stipulations of the treaties, have any effect after July 1, 1885. and of the consular convention, 2 See § 388, p. 135, post, see also heretofore concluded between the note 6, p. 131, ante. United States and France; and that § 386. the same shall not henceforth be re 1 Ward vs. Race Horse, U. S. Sup. garded as legally obligatory on the Ct. 1896, 163 U. S. 504, WHITE, J. government or citizens of the Uni This case involved provisions in ted States." 1U. S. Stat. at L. 578. the treaty of 1869 with the Bannock
The nature of the hostilities be- Indians as to their right to hunt in tween France and the United States the reservation. Held, as stated is discussed in Bas vs. Tingy, U. S. in the syllabus, that, “ the provision Sup. Ct. 1800, 4 Dallas, 37. in the treaty of February 24, 1869,
abrogation of a treaty by implication resulted from an act of Congress which conflicted therewith. The case has already been referred to as an authority on the point that a treaty stipulation is superior to State laws; in the Supreme Court that point was not affected, but the decision was reversed on the ground that a treaty with the Bannock Indians which gave them certain hunting privileges in the great forests of Wyoming was absolutely abrogated, as to all those clauses, by the statute which admitted Wyoming as a State and gave it certain controlling power over the same forests.
In considering this case we must bear in mind that, although it was made with an Indian tribe, the rule that the relative effect of treaties and statutes is to be determined in the same manner as treaties with foreign powers applies, and that the doctrine laid down in this case will be applicable to treaties with foreign powers under that general doctrine so far as the administration of our municipal law is concerned.
Justice White in this case declared that the right to hunt given by the treaty contemplated the eventual disappearance of the conditions specified in the treaty and also under a reservation in the treaty, left the matter subject to the will of the United States, and provided that the right to
with the Bannock Indians, whose these principles, the question reservation was within the limits of whether the provision of the treaty what is now the State of Wyoming, giving the right to hunt on unocthat they shall have the right to cupied lands of the United States hunt upon the unoccupied lands of in the hunting districts is repealed, the United States so long as game in so far as the lands in such dismay be found thereon,' etc., does not tricts are now embraced within the give them the right to exercise this limits of the State of Wyoming, it privilege within the limits of that becomes plain that the repeal reState in violation of its laws.”' sults from the conflict between the
This opinion, which reversed the treaty and the act admitting that decision of the Circuit Court re-State into the Union. The two ported in 70 Fed. Rep. 598, sub facts, the privilege conferred and nomine In re Race Horse, was based the act of admission, are irreconon the ground that the admission ciliable in the sense that the two of Wyoming as a State practically under no reasonable hypothesis can meant an abrogation of the treaty. be construed as coexisting.”
In that respect the court says The opinion cites many cases on (p. 514), after reviewing a number the subject of repeal by implicaof cases:
tion, several of them to the effect “Determining, by the light of that it is not favored.
hunt should cease when the United States parted with the title to the land ; under this clause he held that no restraint was imposed by the treaty on the power of the United States to sell, and that neither meaning would necessarily imply a violation of the faith of the government if Congress should forbid the killing of game in any of the reserved forests. The point was not raised, however, because the United States had disposed of the land, but because, as the opinion says, it had “ called into being a sovereign State, a necessary incident of whose authority was the complete power to regulate the killing of game within its borders," and therefore the case,
by implication, came under the same rule as the Cherokee 7 Tobacco and the Chinese Exclusion cases ;8 that “a treaty
may supersede a prior act of Congress, and an act of Congress supersede a prior treaty," with the effect that if the law creating the State was in conflict with the prior treaty it may supersede it. It must always be remembered, that, as has already been stated, these decisions relate to the law as it must be administered within the United States, and do not in any wise affect the international claims which may arise by reason of the enactment of statutes which violate, and thereby practically abrogate, treaties either in whole or
$ 387. Repeals and abrogations by implication not favored.—The opinion in Ward vs. Race Horse, declares that the settled rule of law undoubtedly is that repeals by implication are not favored and will not be accepted if any other reasonable construction can be placed on the statute.
“But," the opinion continues, “ in ascertaining whether both statutes can be maintained it is not to be considered that any possible theory, by which both can be enforced, must be adopted, but only that repeal by implication must be held not to have taken place if there be a reasonable construction, by which
Mr. Justice Brown wrote a dis- Sup. Ct. 1870, 11 Wall. 616, senting opinion.
SWAYNE, J., and see $ 378, p. 84, The Chinese Exclusion Cases, cited ante. under $ 379 and notes thereto, 3 The Chinese Exclusion Cases. p. 93, et seq., ante, bear more or Examine cases cited in $ 379 and less upon this point also.
notes thereto, pp. 93, et seq., ante. 2 The Cherokee Tobacco, U. S. 4 See § 384, p. 129, ante.
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
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.
2 In this respect Wheaton says, 1 Jones vs. Walker, U. S. Cir. Ct. Boyd's third edition, London, 1889 Va. 1803, 2 Paine, 688, s. C., Fed. ($ 29, 290, p. 44): “ The obligation Cas. No. 7507, JAY, Ch. J. Held of treaties, by whatever denominathat the courts have no power to tion they may be called, is founded, declare a treaty void on account of not merely upon the contract itself, alleged violations by the other gov- but upon those mutual relations ernment so long as the proper de- between the two States, which partment of this government con- may have induced them to enter siders the treaty in force and acts into certain engagements. Whether accordingly. See other cases cited the treaty be termed real or perin notes to $ 460, post.
sonal, it will continue so long as