which always marks those of the British Empire that the rejection of a treaty by the Senate of the United States implies no act of discourtesy to the government with which the treaty may have been negotiated. The United States can enter into no treaty without the advice and consent of the Senate, and that advice and consent, to be intelligent, must be discriminating; and their refusal can be no subject of complaint, and can give no occasion for dissatisfaction or criticism."1 Conditional ratification, as has been said, makes a new treaty and is not ratification in the proper sense and creates a new treaty especially if some of the stipulations of the treaty not previously reserved are omitted or if new clauses or an amending clause is added to the treaty. "It is," as Oppenheim remarks, "quite legitimate for a party who has signed a treaty with certain reservations as regards certain articles to ratify the approved articles only, and it would be incorrect to speak in this case of a partial ratification." "Again," he says, "it is quite legitimate—and one ought not in that case to speak of conditional ratification-for a contracting party who wants to secure the interpretation of certain terms and clauses of a treaty to grant ratification with the understanding only that such terms and clauses should be interpreted in such and such a way. Thus when, in 1911, opposition arose in Great Britain to the ratification of the declaration of London on account of the fact that the meaning of certain terms was ambiguous and that the wording of certain clauses did not agree with the interpretation given to them by the report of the draughting committee, the British Government declared that they would only ratify with the understanding that the interpretation contained in the report should be considered as binding and that the ambiguous terms concerned should have a determinate meaning. In such cases ratification does not introduce an amendment or an alteration but only fixes 1 Moore's "Digest," vol. V, p. 198. the meaning of otherwise doubtful terms and clauses of the treaty."1 In various cases the President of the United States has entered into agreements which have not been submitted to the Senate for ratification, either on account of their minor importance or temporary nature. These include the adjustment of private claims against foreigners or foreign governments, the arrangement of reciprocal crossing of frontiers between the United States and Mexico in the pursuit of marauding Indians, also the peace protocol in 1898 between the United States and Spain preliminary to the treaty of peace, the protocol signed at Peking at the close of the Boxer troubles, and in a number of cases with Great Britain in the establishment of modi vivendi as to questions of fisheries and boundaries. In addition to the class of agreements made by the executive alone without reference to the Senate of the United States, there are other agreements involving customs duties, copyright arrangements, and postal conventions that are entered into under provisions enacted by Congress. Treaties formulated with the various tribes of American Indians are now arranged for by the legislative department by act of Congress. 118. Enforcement of Treaties.-Article VI of the Constitution of the United States reads as follows: "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 design of this article, so far as it relates to treaties, was primarily to insure their execution by the public authorities, State as well as national, in spite of any adverse State action. That this was accomplished was fully established by the decision of the Supreme Court, in 1796, in the case of Ware 1 Oppenheim, "Int. Law," 2d ed., vol. I, p. 560. v. Hylton. In all the opinions of the judges, including the sole dissenting opinion by Mr. Justice Iredell, it is unanimously held that a treaty under the Constitution repeals ipso facto State laws inconsistent with it."1 "The supremacy of treaties over State legislation has since been drawn in question only when they relate to subjects not embraced in the powers delegated to the central government. ... The tendency of the Supreme Court on the question is disclosed in its decisions on treaty stipulations defining the privileges of aliens in succeeding to and disposing of property located within the States, a matter, in the absence of a treaty, not within the province of the central government yet naturally subject to treaty regulation." This matter was tersely put by Mr. Justice Swayne, "who observed that if the National Government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to enter into any treaty, alliance, or confederation."2 Some treaties are, however, dependent upon legislative aid or action. In the case of Foster v. Neilson in the Supreme Court of the United States (2 Peters, 2531) the court ruled that "while a treaty is the supreme law of the land and operates as such in all matters not requiring legislative action, yet when made dependent on legislative action it does not take effect until such action is had." Mr. Richard Henry Dana says further upon this subject: "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 1 Crandall, "Treaties and Their Making," etc., p. 106. 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." This is true if the action of the treaty is constitutional. "The approval by Congress of a preliminary appropriation has never been considered necessary to give validity to the proceedings under a convention by which disputed claims have been submitted to a tribunal of arbitration. President Jefferson, before opening the negotiations of 1803 for the purchase of Louisiana and of 1806 for the purchase of Florida, and President Polk, before opening the Mexican negotiations, obtained provisional appropriations. The act of Congress of June 28, 1902, made a provisional appropriation for the acquisition by treaty of the right to construct an interoceanic canal. In the treaty with Denmark of April 11, 1857, for the abolition of the Sound dues, it was provided that the treaty should take effect as soon as the stipulated sum had been tendered by the United States or received by Denmark. These are exceptions. The practice has been to proceed to the ratification on the authority of the Senate alone, and the treaty thus ratified has been recognized both by this and foreign governments as valid and definitively concluded and Congress has never failed to vote the required appropriation.' "2 From a historical review made by Crandall in his valuable work on "Treaties," it appears that treaties made which affect the revenue laws of the United States require the execution of Congress. This action has not been confined to the House of Representatives alone, though on January 26, 1880, the house voted that the negotiation by the executive department of the government of commercial treaties fixing rates of duty to be imposed on foreign goods entering the United States was a violation of Section 7 of Article I of the Constitution of 1 Dana's "Wheaton," par. 543, note 250. 2 Crandall, "Treaties," etc., p. 135. the United States and an invasion of one of the highest prerogatives of the House of Representatives.1 119. The Operation of Treaties. As a rule, with a very few exceptional cases in history, a treaty is not valid or in operation until an exchange of ratifications takes place. In those cases the operation and consequent acts may be considered as tentative previous to ratification. The treaty, however, dates, unless otherwise provided, from its signing. "In the case of the cession of territory the exercise of sovereignty by a ceding state ceases, except for strictly municipal purposes, with the signing. The national character of the acquiring state is not, however, imposed for commercial purposes until the exchange of ratifications."2 An instance of such a cession is the case of Porto Rico, which was ceded to the United States by a treaty signed December 10, 1898, the authority of Spain being superseded by the previous military occupation by the United States. Still Porto Rico and the United States were, as to commercial purposes, foreign countries until the exchange of ratifications." 3 In a treaty of peace hostilities cease from the date of its signature without waiting for ratifications. Captures and recaptures, made thereafter even in ignorance of the signing of the treaty, are to be restored, and damages where possible to be compensated. In modern international wars the practice has been to precede the treaty of peace by armistice or preliminary agreement.* Various conditions, however, have been made as to the closing of hostilities which may be mentioned here. "In the treaty between Spain and the Low Countries, signed at Münster, January 30, 1648, a period of a year was allowed for the receipt of the news of peace in the possessions of the East India Company, and a period of six months in those of the 1 House Journal, 46th Congress, 2d Session, p. 323. 2 Crandall, "Making of Treaties," etc., p. 214. Dooley v. U. S., 182 U. S. 223. 'Crandall, "Treaties," etc., p. 215. |