clared by that instrument to be the supreme law of the land, and no superior efficacy is given to either power over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is 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 cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance."

§ 221. Treaties Remain Internationally Binding upon the United States even when Congress has Refused the Legislation Necessary to put Them into full Force and Effect, or when it Has Abrogated Them by Subsequent Legislation, or when the Supreme Court Has Declared them Unconstitutional.

It is a principle of international law that one Nation in its dealings with another Nation is not required to know, and, therefore, is not held to be bound by, the peculiar constitutional structure of that other Nation. It is required, indeed, to know what is the governmental organ through which treaties are to be ratified. But further than this it need not examine, for each State is conclusively presumed to be able to carry into full force and effect any international engagement which it, through its treatymaking power, may enter upon.

In Dana's edition of Wheaton's International Law, it is declared: "If a treaty requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation; and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much

as if the breach had been an affirmative act by any other department of the Government. Each nation is responsible for the right working of the internal system, by which it distributes its sovereign functions; and, as foreign nations dealing with it cannot be permitted to interfere with or control these, so they are not to be affected or concluded by them to their own injury."

"35

This principle the United States has not hesitated upon occasion to assert. Mr. Blaine, when Secretary of State, wrote to our minister to Hawaii, in 1881, with reference to a treaty which that country had concluded with the United States, as follows: "I am not aware whether or not a treaty, according to the Hawaiian constitution is, as with us, a supreme law of the land, upon the construction of which the proper case occurring every citizen would have the right to the judgment of the courts. But, even if it be so, and if the judicial department is entirely independent of the executive authority of the Hawaiian government, then the decision of the court would be the authorized interpretation of the Hawaiian government, and however binding upon that gorernment would be none the less a violation of the treaty. In the event, therefore, that a judicial construction of the treaty should annul the privileges stipulated, and be carried into practical execution, this government would have no alternative and would be compelled to consider such action as the violation by the Hawaiian government of the express terms and conditions of the treaty, and, with whatever regret, would be forced to consider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling."

And in 1835 with reference to the refusal of the French Chamber of Deputies to make an appropriation called for by a treaty concluded between France and this country, Mr. Wheaton wrote: "Neither government [France nor the United States] has anything to do with the auxiliary legislative measures necessary, on the part of the other State, to give effect to the treaty. The nation is responsible to the government of the other nation for

35 Dana's Wheaton, § 543, note 250, citing 1 Kent, 165-6; Heffter, § 84; Vattel, lib. IV, c. 2, § 14; Halleck, 854.

its non-execution, whether the failure to fulfil it proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature; but it might have been on the part of the judicial department- the court of cassation might have refused to render some judgment necessary to give effect to the treaty. The King cannot compel the Chambers, neither can he compel the courts; but the nation is none the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution."36

§ 222. The Date at Which Treaties Go into Effect.

In Haver v. Yaker Justice Davis speaking with reference to the date at which a treaty goes into effect, says: "It is undoubtedly true as a principle of international law, that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date. (Wheat. Int. Law, by Dana, 336.) But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character, which were vested before the treaty was ratified. In so far as it affects them, it is not considered as concluded until there is an exchange of ratifications, and this we understand to have been decided by this court, in Arredondo's case, reported in 6 Peters. The reason of the rule is apparent. In this country, a treaty is something more than a contract, for the federal Constitution declares it to be the law of the land. If so, before it can become a law, the Senate, in whom rests the authority to ratify it, must agree to it. But the Senate are not required to adopt or reject it as a whole, but may modify or amend it, as was done with the Treaty under consideration. As the individual

36 Mr. Wheaton, Minister at Copenhagen, to Mr. Butler, Attorney-General, January 20, 1835, adopted in Lawrence's Wheaton (1863), 459; and quoted also with approval in Meier, Abschluss von Staatsverträgen, Leipzig, 1, 1874, p. 168. See Moore's Digest of Int. Law, V, 231.

37 9 Wall. 32; 19 L. ed. 571.

citizen, on whose rights of property it operates, has no means of knowing anything of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust, and cannot be sanctioned."

§ 223. The Denunciation of Treaties.

Though the Senate participates in the ratification of treaties, the President has the authority, without asking for senatorial advice and consent, to denounce an existing treaty and to declare it no longer binding upon the United States. In important cases, however, he would undoubtedly seek senatorial approval before taking action. But whether or not this approval be sought, the courts hold themselves bound by the denunciation, the existence or non-existence of a treaty being a political question the decision upon which by the political departments of the government is binding upon the judicial departments.38

§ 224. The Construction of Treaties.

As

As to public rights the courts hold themselves bound by the construction given to treaties by the political departments. to private rights, however, arising under treaties in force, and even as to public rights when these are inseparable from private rights, the courts exercise independent judgment as to the meaning to be given to treaty provisions.39

38 See Chapter LI, and especially the case of Terlinden v. Ames, 184 U. S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534.

39 See Chapter LI.

CHAPTER XXXVI.

THE AMENDMENT OF THE FEDERAL CONSTITUTION.

§ 225. The Amending Clause.

The amendment of the federal Constitution, while politically a subject of great importance, has given rise to few legal adjudications.

Article V of the Constitution provides: "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as parts of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate."

It will be seen that two methods for proposing, as well as two methods for ratifying proposed amendments are provided. In practice, however, the fifteen amendments which have been added to the Constitution as originally adopted have all been proposed by Congress and that body has in each instance provided for ratification by the state legislatures.

1 Art. I, Sec. 9, Cl. 1: "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation not exceeding ten dollars for each person."

Art. I, Sec. 9, Cl. 4: "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken."