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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 In Hall's International Law this been seen to be necessary in pracsubject is treated on pages 364 et tice. The force of its assertion seq. A notable instance of the may have been impaired by the withdrawal of a power from treaty fact that Russia, as the reward of obligations is cited on page 369. submission to law, was given what Russia was a party to the Treaty she had affected to take. But the of Paris of 1856, by which the concessions made were dictated by maintenance of a fleet on the Black political considerations with which Sea was forbidden. In 1870 the international law has nothing to Russian Government during the do. It is enough that from the Franco-Prussian war issued a cir- legal point of view that the declacular declaring that it was no longer ration purported to affirm a princibound by that part of the Treaty ple as existing, and that it was of 1856 which related to the Black ultimately signed by all the leadSea. On page 372 Hall states in ing powers of Europe.' Citing as regard to this: “The protest of a reference to the treaty Hertslet's Lord Granville, although uttered Map of Europe by Treaty, 1256-7, under circumstances which made 1892–8, 1904. its practical importance at the mo The United States was not a ment very slight, nevertheless com- party to this declaration. pelled Russia to abandon the posi For a list of cases in which the tion which it had taken up. A courts have declined to interfere conference was held of such of the with the Executive and Legislative Powers, signatory of the Treaty of Departments of Government in reParis, as could attend, at which itgard 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, howunder, treaties, see § 460, post, and of Central America. The treaty was
1 cases collated in INSULAR CASES ratified without much discussion, APPENDIX at end of Volume I. in the belief that it would insure at § 389.
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 con
2 In speaking of this treaty, ex-struction put upon it by Great Secretary of State, John W. Foster, Britain, it never would have been says (pp. 456–8, A Century of negotiated, nor would it have reAmerican Diplomacy, 1901): "Mr. ceived the approbation of the SenClayton, then Secretary of State, ate. Mr. Cass, who was a member entered into negotiations with the of the Senate at the time it was British minister, the result of ratified, has made a similar declawhich was the treaty by which the ration. two governments stipulated for a "The American expectation as joint guarantee of the canal to be to the early construction of the constructed; and agreed not to oc- Canal, with the aid of British capicupy, fortify, colonize or assume or tal, was disappointed; and for the exercise any dominion over any part 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.
§ 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 do
state were occupied in bringing the view see Rhode's History of United British government to an obser- States since 1850, chap. III, vol. 1. vance 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 I 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 Ofthe 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.
main of Congress to the same extent as the making of the treaty is within the domain of the Executive department and two thirds of the Senate; the Constitution expressly confers upon Congress power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That this applies to treaties properly made, is apparent from the fact that the words “ to enforce treaties” which were in the original draft were stricken out as superfluous.?
There are but few cases on this subject but they fully sustain the rule that the power to legislate in regard to treaty stipulations is co-extensive with the power to enter into and ratify the treaty; and that if the treaty is properly within the domain of the treaty-making power and legislation is required to make it effectual, ample power in Congress exists to enforce the provisions of the treaty by proper legislation.' The leading case on this question, which was decided by the Supreme Court in 1891,4 Justice Field delivering the opinion, $ 390.
the power of the Extra Territorial 1 U.S. Const., Art. 1, § 8, cl. 18. court. The syllabus is as follows: 2 See § 186, p. 318, volume I. "By the constitution of the
3 See author's opinion in regard United States a government is to fisheries in the Great Lakes and ordained and established for the power to enforce treaty stipula- United States of America,' and tions as to preservation thereof by not for countries outside of their legislation, with outstanding State limits; and that Constitution can ownership of waters and fish § 445, have no operation in another
country. 4 In re Ross, U. S. Sup. Ct. 1891, “The laws passed by congress 140 U. S. 453, FIELD, J.
to carry into effect the proviThis case involved the right of sions of the treaties granting exthe United States to establish con- territorial rights in Japan, China, sular courts in foreign countries etc., (Rev. Stat. secs. 4083-4096), under and by virtue of treaty do no violation to the provisions stipulations.
of the Constitution of the United The petitioner had been sen- States, although they do not retenced to death, which sentence quire an indictment by a grand had been subsequently commuted jury to be found before the accused to imprisonment for life by the can be called upon to answer for judgment of a consular court in the crime of murder committed in Japan. On habeas corpus proceed those countries, or secure to him ings the Federal court sustained a jury on his trial.
involved the validity of a sentence of death rendered by a consular court in Japan established pursuant to treaty, and
“The provision in Rev. Stat. (ject to the laws by which that sec. 4086, that the jurisdiction nation governs its vessels and seaconferred upon ministers and con- men. suls of the United States in Japan, "A law or treaty should be conChina, etc., by secs. 4083, 4084 strued so as to give effect to the and 4085, shall be exercised and object designed, and to that end enforced in conformity with the all its provisions must be examined laws of the United States gives in the light of surrounding circumto the accused an opportunity of stances. examining the complaint against " The fact that a vessel is Amerihim, or of having a copy of it, the can is evidence that seamen right to be confronted with the board are Americans also. witnesses against him, and to “When a person convicted of cross-examine them, and to have murder accepts a'commutation of the benefit of counsel, and secures sentence or pardon' upon condition regular and fair trials to Americans that he be imprisoned at hard committing offences there, but it labor for the term of his natural does not require a previous present- life, there can be no question as to ment or indictment by a grand the binding force of the acceptjury, and does not give the right ance." to a petit jury.
The opinion discusses at length ** The jurisdiction given to do the treaties between the United mestic tribunals of the United States and Oriental countries, and States over offences committed on establishing extra-territorial courts the high seas in the district where sustains the power of the United the offender may be found, or into States to make such treaties and to which he may be first brought, is establish the courts thereunder; not exclusive of the jurisdiction of also held that constitutional limitaa consular tribunal in Japan, tions as to jury trials do not affect China, etc., to try for a similar such courts. offence, committed in a port of The reasons for this are given the country in which the tribunal (pp. 462-468) which, in part, are as is established, when the offender follows: is not taken to the United States. “ The practice of European gov
“Article IV of the treaty of June ernments to send officers to reside 17, 1857, with Japan is still in force, in foreign countries, authorized to notwithstanding the provisions in exercise a limited jurisdiction over Article XII of the treaty of July vessels and seamen of their country, 29, 1858.
to watch the interests of their “When a foreigner enters the countrymen and to assist in adjustmercantile marine of a nation, and ing their disputes and protecting becomes one of the crew of a mer- their commerce, goes back to a chant vessel bearing its flag, he as- very early period, even preceeding sumes a temporary allegiance to what are termed the Middle Ages. the flag, and, in return for the pro- During those ages, these tection afforded him, becomes sub-1 mercial magistrates, generally des