VIOLATION OF TREATIES BY ADVERSE NATIONAL ACTION

THE shade of distinction sought to be shown by the title of this paper may require explanation. Imperfect wording involves either carelessness or ignorance; bad faith indicates dishonesty; nonexecution or disregard implies laxness in the government, if not carelessness; adverse or hostile municipal or judicial action connotes lack of coördination between the internal and external affairs of the State. It follows that such adverse action may be considered from a practical point of view as almost a normal kind of violence against international contracts. It is not to be excused on that account, but it may be considered as a frictional incident almost inseparable under some conditions from the existence of a State. Given either a government of definitely separated elements, such as the United States, or a government without much stability, or a State founded on a type of civilization different from the European order, and this sort of violation of treaty may be forecasted with certainty. Fortunately, however, the instances that cause contractual friction of this sort are of the grosser kinds of personal violence, or are commercial; they are not of a political character, cannot be said to involve policy, and only by a stretch of the imagination involve the tweedledum and tweedledee of international relations, "national honor and vital interest." They are consequently extremely susceptible to simple and orderly solution.

One may doubt if any governmental machine is quite as capable of producing friction of this kind as that of the United States. In the case of treaties which bind the government there is no trouble at all if the subject-matter lies outside the legislative power of Congress. But on common interests Congress can vitiate a treaty by passing a subsequent statute, though the executive can forthwith vitiate the statute by another and later treaty; which is a game of seesaw not

ordinarily worth playing. As to the Federal States, there is a complication. Logically, any plea in any case that a treaty was violated or affected should, under technical restrictions, serve to secure a change of venue to the Federal system of courts. As a matter of fact, only tort cases are certainly cognizable in the Federal courts. If, however, a case involves a treaty and the supreme court of a State has passed on it, the Supreme Court of the United States is now able to take jurisdiction. This probably renders it possible to secure a hearing for criminal cases in violation of treaty rights before the Supreme Court.2 Suits in law or equity are subject to the provisions of the Eleventh Amendment and are the subjects of rules in the Judicial Code.

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Under the American constitutional system, violation of treaties is upheld by the courts if it occurs within certain bounds. Article VI of the Articles of Confederation provided:

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No State, without the consent of the United States in Congress assembled, shall . . . enter into any conference, agreement, alliance or treaty with any king, prince or state. . . .

No two or more States shall enter into any treaty, confederation

1 Judicial Code, sec. 237, as amended by Public No. 224, 63d Cong., approved December 23, 1914.

2 On this subject see William H. Taft, The United States and Peace, 40-89. ' Under the Articles of Confederation, between 1776 and 1789, fourteen treaties were negotiated by the United States as follows: France, alliance, and secret article, February 6, 1778; France, amity and commerce, February 6, 1778; France, contract for the repayment of loans, July 16, 1782; France, contract for a new loan and the repayment of the old loans, February 25, 1783; France, consular, November 14, 1788; Great Britain, provisional treaty of peace, November 30, 1782; Great Britain, armistice, January 20, 1783; Great Britain, definitive treaty of peace, September 3, 1783; Morocco, peace and friendship, January, 1787; Netherlands, peace and commerce, October 8, 1782; Morocco, relative to recaptured vessels, October 8, 1782; Prussia, amity and commerce, September 10, 1785; Sweden, amity and commerce, April 3, 1783. Authenticated instances of violation under the régime of the Articles of Confederation have not been found, and it is probable that the complaint of the statesmen was directed at a theory, not a condition; but see Curtis, Constitutional History of the United States, I, 168–174. For matters of dispute relating to these treaties see for: France, Moore, Digest, V, 586-615; Great Britain, ibid., 621-699; Netherlands, J. C. B. Davis' Treaty Notes (17761887), 1360; Prussia, Moore, ibid., 617-618; Sweden, ibid., 864-865. Federal cases involving treaty provisions will be found in the later treaty volumes listed as notes to the treaty texts.

or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purpose for which the same is to be entered into, and how long it shall continue.

"The treaties of the United

This was not a successful solution. States, under the present confederation, are liable to the infraction of thirteen different legislatures and as many different courts of final jurisdiction, acting under the authority of these legislatures," said the Federalist." "We are a nation to-day and thirteen to-morrow. Who will treat with us on such terms?" asked Washington. No cases, however, seem to have actually arisen under the Confederation. The Constitution contains these stipulations:

Art. I, sec. X, 1. No State shall enter into any treaty, alliance, or confederation.

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3. No State shall, without, the consent of Congress, enter into any agreement or compact with another State, or with a foreign power.

Art. II, sec. II, 2. He [the President] shall have power, by and with the consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.

Art. VI, 2. This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The most recent writer on the subject considers these two questions: 1. "When a treaty deals with a subject upon which Congress is authorized to legislate, is such a treaty valid? or perhaps we should rather ask, What is its status?" After examining the decisions in order,

4 No. 22.

5 Charles H. Burr, The Treaty-making Power of the United States and the Methods of its Enforcement as affecting the Police Power of the States, Proceedings of American Philosophical Society, LI, No. 206. Quotations from pp. 283, 325, 327 and 356.

The cases considered are: United States v. Schooner Peggy, 1 Cranch 103 (1802); Foster & Elam v. Neilson, 2 Peters 253 (1829); United States v. Percheman, 7 Peters 51 (1833); Strother v. Lucas, 12 Peters 410 (1838); Garcia v. Lee, 12 Peters 511 (1838); Pollard v. Kibbe, 14 Peters 353 (1840); Taylor v. Morton, 2 Curtis 454 (1853); The Cherokee Tobacco, 11 Wall. 616 (1870); United States v. 43 Gallons of Whiskey, 93 U. S. 188 (1876); The Head Money Cases, 112 U. S. 584 (1884);

he concludes that if a treaty is self-executing it is then to have the force of an Act of Congress. "If a treaty be neither of wholly national import nor executory in its nature, and assume to create and declare individual rights and obligations, then those rights and obligations must, if the treaty itself is to have the force of law, have the same validity as though created by legislative action and receive recognition in the courts."

2. "When a treaty deals with the subjects upon which the States as opposed to Congress are authorized to legislate, is such treaty valid? or rather, what is its status?" Reviewing the decisions in order,7 he finds that "no case has ever in the history of the United States been decided, which holds, for any reason or under any conditions, a treaty provision to be subordinate to a State law or State right."

He concludes, after examining State police powers and methods of enforcement in relation thereto, that "a violation of rights secured by treaty provisions may be made punishable under the laws of the United States, suppressed by its armies or enjoined in its courts." 8 This is possible only, and depends on the good will of the nation to be made effective.

In Whitney v. Robertson, 124 U. S. 190, Mr. Justice Field said as to treaties not self-executing:

If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just United States v. Rauscher, 119 U. S. 407 (1886); Bartram v. Robinson, 122 U. S. 116 (1887); Whitney v. Robertson, 124 U. S. 190 (1888); Chae Chan Ping v. United States, 130 U. S. 581 (1889); Nishimura Ekiu v. United States, 142 U. S. 651 (1892); United States v. Lee Yen Tai, 185 U. S. 213 (1902); Johnson v. Browne, 205 U. S. 309 (1907); Fok Yung Yo v. United States, 185 U. S. 296 (1902); Baldwin v. Franks, 120 U. S. 678 (1887).

The cases considered are: Ware v. Hylton, 3 Dallas 199 (1796); Clerke v. Harwoode, 3 Dallas 342 (1797); Fairfax v. Hunter, 7 Cranch 603 (1812); Chirac v. Chirac, 2 Wheat. 259 (1817); Orr v. Hodgson, 4 Wheat. 453 (1819); Hughes v. Edwards, 9 Wheat. 489 (1824); Carneal v. Banks, 10 Wheat. 181 (1825); Worcester v. The State of Georgia, 6 Peters 515 (1832); Hauenstein v. Lynham, 100. U. S. 483 (1879); Maiorano v. B. & O. R. R. Cɔ., 213 U. S. 268 (1909).

cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance. In Taylor v. Morton, 2 Curtis, 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice Curtis of this court, and he held that whether a treaty with a foreign sovereign had been violated by him; whether the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by one party so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise, were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws.

The duty of the courts is to construe and give effect to the latest expression of the sovereign will. In Head Money Cases, 112 U. S. 580, it was objected to an Act of Congress that it violated provisions contained in treaties with foreign nations, but the court replied that so far as the provisions of the Act were in conflict with any treaty, they must prevail in all the courts of the country; and after a full and elaborate consideration of the subject, it held that "so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such Acts as Congress may pass for its enforcement, modification or repeal.9

"It goes without saying that mere international comity not incorporated in any convention between the United States and a foreign Power must yield to a statute with which it is in conflict," said Bradford, District Judge, in The Kestor, 110 Fed. 432, 448. That is tantamount to saying that a statute prevails over the considerable part of international law which gains its force from usage and the fixed customs of nations. A statute, for instance, abolishing diplomatic ranks would presumably prevail over the treaties of 1815 and 1856, to which the United States was not a party but which are firmly established as part of the nonconventional international law of this country and are observed by all nations. But the danger of the theory is not met in practice, for diplomacy can adjust such difficulties. Secretary Cass, in a note to Minister Forsyth at Mexico City, of June 23, 1858, indiSee also Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U. S. 581.