prescribes a rule by which private rights can be determined, courts will give effect to such rule.26

§ 94. Construction of treaty province of courts.-But it is the peculiar province of the courts to construe a treaty, and except in purely political cases, Congress possesses no constitutional power to settle rights arising from a treaty or to affect titles already granted by the treaty itself.27

After the passage of a resolution by the Senate that it has approved a treaty with Indians and the issuance by the President of a proclamation accepting, ratifying and confirming the treaty, the courts cannot go into the question as to whether the treaty was in fact approved by the Indians.28

If the United States, as a sovereign power, chooses to disregard the provisions of a treaty, the supreme court of the United States has no power to set itself up as an instrumentality for enforcing its provisions.29 Where it was contended that an act of Congress was in conflict with the treaty with Mexico, Mr. Justice Miller said that this was "a matter in which the court is bound to follow the statutory enactments of its own government. If the treaty was violated by this general statute enacted for the purpose of ascertaining the validity of claims derived from the Mexican government, it was a matter of international concern, which the two states must determine by treaty, or by such other means as enables one state to enforce upon another the obligations of a treaty. This court, in a class of cases like the present, has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation. which the government of the United States, as a sovereign power, chooses to disregard."

20 Leighton v. United States, 29 Ct. of Cl. 288.

Jones v. Meehan, 175 U. S. 1, 32, 20 Sup. Ct. Rep. 1, 44 L. ed. 49; Wilson v. Wall, 6 Wall. 83, 18 L. ed. 727; Reichart v. Felps, 6 Wall. 160, 18 L. ed. 849; Smith v. Stevens, 10 Wall. 321, 19 L. ed. 933; Holden v. Joy, 17 Wall. 211, 21 L. ed. 523.

28 New York Indians V. United States, 30 Ct. of Cl. 413.

20 Botiller v. Dominguez, 130 U. S.

238, 9 Sup. Ct. Rep. 525, 32 L. ed. 928.

30 Botiller v. Dominguez, 130 U. S. 238, 9 Sup. Ct. Rep. 525, 32 L. ed. 928. See, also, The Cherokee Tobacco, 78 U. S. (11 Wall.) 616, 20 L. ed. 227; Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799; Head Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247, 28 L. ed. 798; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. Rep. 456, 31 L. ed. 386.

§ 95. Termination of treaties.-A treaty may be modified or abrogated by mutual consent; when terms upon which its continuance is based cease to exist; by refusal of either party to perform a material stipulation; by election to withdraw by a party having the option to elect; by the physical or moral impossibility of performance; by the discontinuance of a state of things forming the basis of the treaty or one of its implied conditions.31

§ 96. Question a political one.-After Prussia became incorporated into the German Empire the treaty entered into between the United States and Prussia had been repeatedly recognized by both governments as still in force. Upon habeas corpus proceedings to prevent the extradition of a fugitive from justice who is held under extradition proceedings under that treaty, the existence of the treaty cannot be questioned. The question is a political one, and not within the power of the judicial department to determine, and whatever determination may be made by the political department must be accepted by the courts.32 Nor is it necessary to consider whether extinguished treaties can be renewed by tacit consent, because in determining whether a treaty has ever been terminated the action taken by the government in respect to it must be regarded of controlling importance.33 In a case in which the continuance of the extradition treaty with Bavaria was questioned, Mr. Justice Blatchford said: "It is difficult to see how such a treaty as that between Bavaria and the United States can be abrogated by the action of Bavaria alone without the consent of the United States. Where a treaty is violated by one of the contracting parties, it rests alone with the injured party to pronounce it broken, the treaty being in such case not absolutely void, but voidable, at the election of the

"Wharton Int. L. D. 11, 58; Wharton Com. Am. Law, sec. 161.

Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. Rep. 484, 46 L. ed.

534.

Terlinden v. Ames, 184 U. S. 270, 22 Sup. Ct. Rep. 484, 46 L. ed. 534. Mr. Chief Justice Fuller said: "It is out of the question that a citizen of one of the German states

charged with being a fugitive from its justice should be permitted to call on the courts of this country to adjudicate the correctness of the conclusions of the empire as to its powers and the powers of its members, and especially as the executive department of our government has accepted these conclusions and proceeded accordingly."

injured party, who may waive or remit the infraction committed, or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to a rupture.'

34

§ 97. Violation of treaty by one nation.-If one of the contracting powers continues to violate a provision of a treaty, the other is justified in regarding the provision as suspended temporarily.35 Mr. Madison said that, as he understood the Constitution, treaties are supreme over the laws and constitutions of the particular states, and like a subsequent law of the United States over pre-existing laws of the United States, if the treaty be made within the prerogative of making treaties, which he said he had no doubt had certain limits, but, he added, "that the contracting powers can annul the treaty, cannot, I presume, be questioned, the same authority, precisely, being exercised in annulling as in making a treaty. That a breach on one side (even of a single article, each being considered as a condition of every other article) discharges the other, is as little questionable; but with this reservation, that the other side is at liberty to take advantage or not of the breach, as dissolving the treaty. Hence I infer that the treaty with Great Britain, which has not been annulled by mutual consent, must be regarded as in full force and effect by all on whom its execution in the United States depends, until it shall be declared, by the party to whom a right has accrued by the breach of the other party to declare, that advantage is taken of the breach, and the treaty is annulled accordingly. In case it should be advisable to take advantage of the adverse breach, a question may perhaps be started, whether the power vested by the Constitution with respect to treaties in the President and Senate makes them the competent judges, or whether, as the treaty is a law the whole. legislature are to judge of its annulment, or whether, in case the President and Senate be competent in ordinary treaties, the legislative authority be requisite to annul a treaty of peace, as being equivalent to a declaration of war, to which that authority alone, by our Constitution, is competent.

34 In re Thomas, 12 Blatchf. 370, Fed. Cas. No. 13,887. See, also, Doe v. Braden, 16 How. (U. S.) 635, 14 L. ed. 1090; Foster v. Neilson, 2 Pet. 253, 7 L. ed. 415.

36

35 Mr. Bayard, Secretary of State, to Mr. Fairchild, Secretary of the Treasury, February 6, 1888, For. Rel. 1888, I, 124.

20 1 Madison's Works, 523, 524.

98. Termination of treaties by notice.-A provision is sometimes inserted in a treaty that it may be terminated by notice given by one of the parties to the other. In 1798 a statute was passed by Congress reciting that the treaty between the United States and France had been repeatedly violated on the part of the French government, and declaring the United States were exonerated in consequence from the stipulation of the treaty.37 After the passage of this act a French vessel captured as lawful prize, on board of an American ship, a cargo of goods. owned by a subject of Great Britain, but insured by citizens of the United States. The United States received an indemnity from France for claims of spoliation, and an assignee of the captured cargo attempted to recover the value of the goods from the United States out of this indemnity. It was held that after the treaties between France and the United States had become abrogated, the goods belonging to an enemy of France found on an American vessel were not entitled to protection, and that as no right existed in the United States to demand indemnity from France by reason of such seizure, the claimant could not obtain satisfaction out of the general indemnity funds which France paid to the United States.3

38

§ 99. Subject matter covered by later treaty. Where a later treaty covers the whole subject matter of a former treaty, it will repeal by implication the former treaty.39 Where a revocation of a treaty is made upon the assumption and declaration that all its provisions were incorporated into the later treaty, the revocation must be confined to those provisions which were so incorporated, and the treaty will continue to be in force as to the provisions not incorporated.40

#1 Stats. 578.

"The William, 23 Ct. of Cl. 201.

La Republique Francaise V. Schultz, 57 Fed. 37. See, also, In re Strobel's Estate, 39 N. Y. Supp. 169, Treaties-7

5 App. Div. 621, as to later treaty abrogating treaty with Würtemberg.

40 Ross v. McIntyre, 140 U. S. 453, 11 Sup. Ct. Rep. 897, 35 L. ed. 581.

§ 111.

Diverse citizenship sole ground of jurisdiction at commencement of suit.

§ 112.

Treaty introduced as part of history of case.

§ 113.

Definite issue as to claim of right.

§ 114. Manner in which cause of action arises to be stated.

§ 100. Federal question.-Under the Constitution, the judicial power of the United States extends to all cases in law or equity arising under treaties made, or which shall be made, under their authority. The supreme court of the United States has appellate jurisdiction over a judgment or decree in any suit in the highest court of a state in which the validity of a treaty is drawn in question, and if the decision is against its validity, or the title specially asserted by either party to the suit, under the treaty, the court is not confined to the abstract construction of the treaty, but has jurisdiction to determine that title and decide as to its legal validity.2 No federal question, however, is presented where the highest court of a state adjudicated that certain proceedings

1 Const., art. III, sec. 2, cl. 2. 2 Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L. ed. 97. "How, indeed, can it be possible," said Mr. Justice Story in the case just cited, "to decree whether a title be within the protection of a treaty until it is ascertained what the title is and whether it have a legal validity? From the very necessity of the case, there must be a preliminary inquiry into the existence and structure of

the title, before the court can construe the treaty in reference to that title. If the court below should decide that the title was bad, and, therefore, not protected by the treaty, must not this court have the power to decide the title to be good, and, therefore, protected by the treaty? Is not the treaty, in both instances, equally construed, and the title of the party, in reference to the treaty, equally ascertained and decided?''