examination of all of the cases cited in the notes, or which may hereafter be decided, as the decisions vary according to the peculiar circumstances involved in the cases under consideration. § 382. Termination of war by treaty of peace.—There are, as we have seen,' many ways in which the action of both houses of Congress can nullify the treaty-making power of the Executive and two thirds of the Senate. There is one remarkable instance, however, in which the treaty-making power can override congressional action, although fortunately, the power seldom has to be exercised in this manner. War can only be declared by Congress, a majority vote of both houses being necessary for a formal declaration of war; true, hostilities commenced either by one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.' "Under this power the Court said that it was competent for Congress to direct that any Chinese laborer found in the United States without a certificate of residence might be removed out of the country by executive officers without judicial trial or examination, as it might have authorized such officers to have prevented his entrance into the country. "This statement was not required by the issues raised on the statute, and upon the important question whether under that statute the removal contemplated was by due process of law, the Court said: 'When, in the form prescribed by law the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power, for here are all the elements of a civil case,—a complainant, a defendant and a judge,-actor, reus et judex.' "Thus, the power of Congress to provide for the exclusion of aliens from the territory of the United States, and to provide for the deportation of such as may be within the jurisdiction of the United States, is an unlimited power. "A treaty is the supreme law of the land, which the Courts are bound to take notice of and to enforce, in any appropriate proceeding, the rights of parties growing out of the treaty. (United States v. Rauscher, 119 U.S., 407.)" Chapter XXXIV, sections 409-412, pp. 292-296, Boutwell's Constitution of the United States. § 382. 1 See §§ 364, et seq., pp. 66, et seq., ante, and §§ 384-387, pp. 129, et seq. post. 2 "Congress shall have power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; "To raise and support Armies, but no Appropriation of Money to a foreign government or by insurgents may cause a state of war to exist which, without any legislative action will permit the Executive to call out the armed forces of the United States to protect national territory and interests. If, however, war is declared, Congress must declare it. If armies are to be raised and paid Congress must appropriate the money for that purpose. After war has been declared peace negotiations can be instituted, and a treaty of peace concluded, by the Executive, and, when the same shall have been ratified by two thirds of the Senate, the condition of war terminates upon the exchange of the ratifications without further action by Congress. Legislation may be necessary to carry out stipulations in the treaty as to payments of money and other contractual relations assumed, but no legislation is necessary to transform the condition of war, established by the declaration of Congress, into the condition of peace established by the treaty.5 Apart from Indian treaties of peace, there have been three occasions on which wars declared by Congress have been terminated by treaties made by the Executive and ratified by two thirds of the Senate,-with England in 1814,6 with that Use shall be for a longer Term | Treaties, provided two thirds of the than two Years; Senators Present concur." Idem, Art. II, § 2, cl. 2. "To provide and maintain Navy; a "To make Rules for the Government and Regulation of the land and naval forces; "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; " Const. U. S., Art. I, § 8, cls. 11-15. "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Const. U. S., Art. II, § 2, cl. 1. "He (the President) shall have Power, by and with the Advice and Consent of the Senate, to make 3 Talbot vs. Janson, U. S. Sup. Ct. 1795, 3 Dallas, 133, RUTLEDGE, Ch. J. See also the Prize Cases, U. S. Sup. Ct. 1862, 2 Black, 635, GRIER, J. 4 See constitutional provisions under note 2 of this section. 5 Downes VS. Bidwell (Insular Case), U. S. Sup. Ct. 1901, 182 U. S. 244, BROWN, J.; see INSULAR CASES APPENDIX at end of volume I. 6 The actual hostilities of the war of 1812 with Great Britain were commenced prior to the declaration that a condition of war existed which was passed by Congress June 18, 1812 (2 U. S. Stat. at L. 755); the war was terminated by the Treaty of Ghent, concluded December 24, 1814, ratified by the Mexico in 1848,7 with Spain in 1898.8 The war of the Revolution was terminated prior to the adoption of the Constitution. There were no formal declarations of war with France in 1800, and neither the strained relations with that country at that time 10 or the war of the Rebellion of 1861 Senate February 16, 1815; ratifica- | States the militia of the several tions exchanged February 17, 1815; States, to such extent as may be proclaimed February 18, 1815. necessary to carry this Act into efU. S. Treaties and Conventions fect." Approved April 25, 1898. (edition 1889), p. 399; U. S. Treaties in Force, 1899, p. 206. The fact that war with Mexico existed was evidenced by two statutes declaring the same, passed | May 13, 1846, 9 U. S. Stat. at L. 9, and June 13, 1846, Idem, p. 17. The war was terminated by the Treaty of Guadaloupe-Hildago concluded February 2, 1848, ratified by Senate, with amendments which were accepted by Mexico, March 10, 1848; ratifications exchanged May 30, 1848; proclaimed July 4, 1848. U. S.. Treaties and Conventions (edition 1889), p. 681; U. S. Treaties in Force, 1899, p. 391. War with Spain was declared by an Act of Congress passed April 25, 1898, as follows: CHAP. 189.-An Act Declaring that War exists between the United States of America and the Kingdom of Spain. The war was terminated by a treaty of peace concluded at Paris, Dec. 10, 1898, ratified by the Senate Feb. 6, 1899; ratifications exchanged and treaty proclaimed April 11, 1899. U. S. Treaties in Force 1899, p. 595, 30 U. S. Stat. at L. p. 1754. This treaty was concluded by a peace commission appointed by the President pursuant to a protocal signed at Washington August 12, 1898, by the then Secretary of State William R. Day, and Jules Cambon the French Ambassador to the United States on behalf of Spain. See TREATIES APPENDIX at end of this volume for treaty and protocol. 9 The Provisional Articles (1782) and Definitive Treaty of Peace (1783) with Great Britain terminating the War of the Revolution were prior to the Constitution. 10 There was no declaration of Be it enacted, &c.; "First. That war against France in 1800, alwar be, and the same is hereby, de- | though a condition of war existed clared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain. "Second. That the President of the United States be, and he hereby is directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United as was subsequently held by the Supreme Court in Bas vs. Tingy, U. S. Sup. Ct. 1800, 4 Dallas, 37, MOORE, WASHINGTON, PATERSON, JJ., the treaties were abrogated by Act of Congress February 20, 1800 (2 U. S. Stat. at L. p. 7). For numerous instances in which hostilities have preceded declarations of war, see Hostilities without Declaration of War; an historical abstract of the cases in which hostilities have occurred between 11 1865 were terminated by treaties; in one case friendly relations were resumed and in the other the insurrection was quelled. It is impossible to refer to all the authorities on this subject, the works of writers on international law should be consulted as well as the leading cases which are collated in the various digests.12 civilized powers prior to declara- | into that organization must be attion or warning, from 1700 to 1870. tributed to the sanction given to Compiled in the Intelligence them by that State. Branch of the Quartermaster-General's Department by Brevet-Lieutenant Colonel J. F. Maurice, Royal Artillery, London, 1883. 1 The Civil War was terminated without any treaty, as the so-called Confederate States never had any standing which justified negotiations therewith; while the rebellion assumed enormous proportions and in many respects necessitated the employment of methods of regular warfare between independent nations, as to the political relations between the States in rebellion and the central government it was merely an insurrection, and as such was terminated by cessation of hostilities and proclamations of amnesty and not by treaty. See the Prize Cases, U. S. Sup. Ct. 1862, 2 Black, 635, GRIER, J. “7. De facto governments defined: 1. As to successful revolutions expelling a regularly constituted government. 2. As to attempt on the part of a country to establish a separate government. The status of the so-called Con- "9. The legislative acts of the federate States of America was de- several States stand on different termined by the Supreme Court in grounds; and, so far as they did not Williams vs. Bruffy, U. S. Sup. Ct. impair or tend to impair the suprem1877, 96 U. S. 176, FIELD, J. acy of the national authority, or The following is stated in the the just rights of citizens under the syllabus: Constitution, they are, in general, to be treated as valid and binding." 12 See Abbott's National Digest under WAR for a very complete list of authorities on the various cases decided by the Federal Courts and which involved legal questions as to congressional and executive action in civil and foreign wars. "1. The Confederate States was an illegal organization, within the provision of the Constitution of the United States prohibiting any treaty, alliance or confederation of one State with another; whatever efficacy, therefore, its enactments possessed in any State entering § 383. When treaties take effect, as to governments and as to individuals. It is proper at this point to make some reference in regard to the time when treaties take effect both as to the contracting governments and as to individuals who are affected thereby. The rule in this respect can be broadly stated to the effect that a treaty takes effect when the ratifications are exchanged, but that as to the contracting governments the treaty relations are supposed to date back to the date when the plenipotentiaries concluded it. The basis for this rule seems to be that as a treaty is a contract, it is not complete until it has actually been exchanged, or delivered by both parties, and that the delivery itself is not complete until the highest powers have ratified the act of the Commissioners and the formalities of delivery have been complied with. It has, therefore, been held that private rights are not af fected by a treaty until the delivery has actually taken place, as individuals are not entitled to rely on the provisions of a treaty until every formality has been complied with, and the treaty actually proclaimed by the Executive as a law. As to the contracting governments, however, the rule appears to be different, and the relations are to be considered as established on the basis of the treaty from the time that the treaty is concluded; this is, of course, subject to the possibility of non-ratification, but the ratification when completed is to be considered as having a retroactive effect and dating back to the day of the conclusion of the treaty by the plenipotentiaries. One of the leading cases on this subject involved the question of inheritance under a treaty with Switzerland in which a period of nearly five years intervened between the conclusion of the treaty and the exchange of the ratifications.1 § 383. 1 Haver vs. Yaker, U. S. Sup. Ct. 1869, 9 Wallace, 32, DAVIS, J., also reported as Jecker vs. Magee. The treaty with Switzerland was concluded and signed in 1850, but it was not ratified until 1855. Under the laws of Kentucky in force in 1853, aliens could not inherit but this disability was re- |