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foreign nations, and in all the treaties made with them we have declared and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory." He stated further that it was clear to his understanding that the assent of the House was not necessary to the validity of a treaty, and "as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request."' 67

Mr. Cushing, attorney general, said that although it may be necessary for Congress in its legislative capacity to carry into effect a treaty that had received the approval of the President and Senate, such action should, under ordinary circumstances, be deemed to be a political duty, and that such legislative assistance had at no time been refused.68

§ 82. Moral obligation.-A treaty requiring to carry it into effect the payment of money which can be appropriated only by an act of the legislature, places upon Congress a moral obligation to pass the necessary laws for that purpose. A refusal so to do would be to break the public faith, and would give a good and sufficient cause of war. The executive department on which is conferred the right of treating and contracting with other sovereignties must be deemed to be invested with all the power necessary to make a valid contract and as competent to bind at its discretion the national faith.69

§ 83. Alaska purchase. The treaty of 1868 with Russia for the cession of Alaska provided that Russia should receive an indemnity of $7,200,000. At the session following the proclama

* 1 Richardson's Messages, 195. 6 Op. Atty. Gen. 296.

68

69 Duer's Outlines of Constitutional Jurisprudence of the United States, 138. "The power to make treaties must be coextensive with the national

exigencies, and necessarily involves in it every portion of the national sovereignty of which the co-operation may be necessary to give effect to negotiations and contracts with foreign nations."

Id.

tion of the treaty, when the question of making the appropriation arose, there appeared a division of opinion, the majority of the Committee of Foreign Affairs of the House of Representatives reporting a bill making the necessary appropriation, while a report was made by a minority of the committee recommending the rejection of the purchase. The report of the majority admitted that there were cases in which the House would be justified in withholding its assent, but held that such right would exist only in cases plainly incompatible "with the fundamental principles, purposes or interests of the Constitution"; but that where it is limited to objects consistent with the interests of the government, "its first and highest duty is to enact such measures as are necessary to carry the treaty into effect." After considerable debate, an amendment was passed by the House, in which it was recited that the subjects "embraced in the stipulations of said treaty are among the subjects which, by the Constitution of the United States, are submitted to the power of Congress, and over which Congress has jurisdiction; and it being for such reason necessary that the consent of Congress should be given to said stipulation before the same can have full force and effect, having taken into consideration the said treaty, and approving of the stipulations therein, to the end that the same may be carried into effect," it was enacted: "That the assent of Congress is hereby given to the stipulations of said treaty." The Senate, by restoring the bill to its original form, rejected the position of the House that it was essential to have the consent of Congress as a legislative body to the payment of money and the incorporation of territory when provided for by a treaty, and finally the bill was sent to a committee of conference, which agreed on a bill which recited the making of the treaty "by the terms of which it was stipulated that in consideration of the cession by the Emperor of Russia to the United States of certain territory therein described, the United States should pay to the Emperor of Russia, the sum of $7,200,000 in coin; and whereas it was further stipulated in said treaty that the United States shall accept such cession, and that certain inhabitants of said territory shall be admitted to the enjoyment of all the rights and immunities of citizens of the United States; and whereas said stipulations cannot be carried into full force and effect except by legislation to which the consent of both Houses of Con

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gress is necessary.' It was therefore resolved: "That there be, and hereby is, appropriated from any money in the Treasury not otherwise appropriated $7,200,000 in coin, to fulfill stipulations contained in the sixth article of the treaty," etc.70 Mr. Crandall, in his work on Treaties, says: "That Congress is under no obligation to make the stipulated appropriation has not been seriously advanced by the House since 1868, although individual advocates of this view have not been wanting." "1

§ 84. Porto Rico as foreign territory.-In a case involving the question whether Porto Rico after its cession to the United States by the treaty with Spain was foreign country within the meaning of the tariff act, the supreme court of the United States said: "It may undoubtedly become necessary for the adequate administration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no authority, except under the war power, to administer it, himself; but no act is necessary to make it domestic territory, if once it has been ceded to the United States. We express no opinion as to whether Congress is bound to pay for it. This has been much discussed by writers upon constitutional law, but it is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty." 72

§ 85. Treaty dependent upon legislative action.-A treaty will operate immediately on all matters not requiring legislative action, but if its operation is made dependent on legislative action, it does not become operative until such action is taken.73 It is to be presumed that every foreign government knows that where a stipulation is contained in a treaty providing for the payment of money it is necessary to have legislative sanction.74

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man, 7 Pet. 51, 8 L. ed. 604; Garcia v. Lee, 12 Pet. 511, 9 L. ed. 1176; Haver v. Yaker, 9 Wall. 32, 19 L. ed. 571; Turner v. Baptist Union, 5 McLean, 344, 25 Fed. Cas. No. 14,250; Bartram v. Robertson, 15 Fed. 212, 21 Blatchf. 211.

74 Turner v. Baptist Union, 5 McLean, 347, Fed. Cas. No. 14,250.

CHAPTER V.

TAKING EFFECT AND TERMINATION OF TREATIES.

§ 86. Time when treaty takes effect.

§87. Sovereignty transferred at date of treaty.

§ 88. Postponing operation until approval of Congress.

§ 89. Question before the court.

§ 90. Reasoning of the court.

§ 91. Effect on individual rights.

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§ 94. Construction of treaty province of courts.

§ 95. Termination of treaties.

§ 96. Question a political one.

§ 97. Violation of treaty by one nation.

§ 98. Termination of treaties by notice.

§ 99. Subject matter covered by later treaty.

§ 86. Time when treaty takes effect.-Unless some provision is made to the contrary, a treaty becomes binding on the respective governments from the date of its signature. The exchange of ratifications has a retroactive operation.1 "All treaties, as well those for cessions of territories as for other purposes, are binding upon the contracting parties, unless when otherwise provided in them from the day they are signed. The ratification of them relates back to the time of signing."2 The treaty between Spain and the United States was signed December 10, 1898, but ratifications were not exchanged until April 11, 1899. Still the act of March 3, 1899, which prohibited unauthorized obstructions to navigation in the waters of the United States, was considered to apply to the navigable waters of Porto Rico.3

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571; United States v. Reynes, 9 How. 127, 13 L. ed. 74; Davis v. Concordia, 9 How. 280, 13 L. ed. 1041; Downes v. Bidwell, 182 U. S. 1, 200, 21 Sup. Ct. Rep. 743, 45 L. ed. 1041; Downes v. Bidwell, 182 U. S. 244, 247, 21 Sup. Ct. Rep. 770, 45 L. ed. 1088; Dooley v. United States, 182 U. S. 222, 230, 21 Sup. Ct. Rep. 762, 45 L. ed. 1074; Halleck Int. Law, 815.

§ 87. Sovereignty transferred at date of treaty.-As a treaty transfers sovereignty on the day of its date, the grant of a perpetual franchise by the Spanish governor of Louisiana after the treaty by which Spain ceded Louisiana to France, is void. Unless a different time is fixed by the governments making the treaty or must be adopted to fulfill their manifest intention, a treaty will take effect from its date irrespective of its ratification.5 If a treaty is made dependent on legislative action, it does not become operative until such action. A provision contained in a treaty with an Indian tribe, that it should be obligatory as soon as it should be ratified by the President and Senate, will postpone its taking effect until signed by the President, though it had been previously ratified by the Senate and accepted by the Indians.7

§ 88. Postponing operation until approval of Congress.Where an amendment is added to a treaty, by the Senate, declaring that it shall not take effect until approved by Congress, the date when the treaty will become effective will be fixed, not by a provision contained in it that it shall become operative within a certain time after exchange of ratifications, but will depend upon the passage of an act by Congress.8

The treaty with Cuba contained a clause that: "The present convention shall be ratified by the appropriate authorities of the respective countries, and the ratifications shall be exchanged at Washington, District of Columbia, United States of America, as soon as may be before the thirty-first day of January, 1903, and the convention shall go into effect on the tenth day after the exchange of ratifications, and shall continue in force for the term of five (5) years from the date of going into effect, and from year to year thereafter, until the expiration of one year from the day when either of the contracting parties shall give notice

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