They belong exclusively to the political department of the government. * * * The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States. It is their duty to interpret it and administer it according to its terms. And it would be impossible for the executive department of the government to conduct our foreign relations with any advantage to the country, and fulfill the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered. In this case the King of Spain has by treaty stipulated that the grant to the Duke of Alagon, previously made by him, had been and remained annulled, and that neither the Duke of Alagon nor any person claiming under him could avail himself of this grant. It was for the President and Senate to determine whether the King by the constitution and laws of Spain, was authorized to make this stipulation and to ratify a treaty containing it. They have recognized his power by accepting this stipulation as a part of the compact, and ratifying the treaty which contains it. *** Nor can the plaintiff's claim be supported unless he can maintain that a court of justice may enquire whether the President and Senate were not mistaken as to the authority of the Spanish monarch in this respect; or knowingly sanctioned an act of injustice committed by him upon an individual in violation of the laws of Spain. But it is evident that such a proposition can find no support in the Constitution of the United States; nor in the jurisprudence of any country where the judicial and political powers are separated and placed in different hands. Certainly no judicial tribunal in the United States ever claimed it, or supposed it possessed it." So also, whether power remains in a foreign state to carry out its treaty obligations is a political question, the determination of which by the executive department of the government binds the courts. For instance, the fact, that the convention for the extradition of criminals, concluded between the United States and Prussia and other States of the Germanic Confederation, June 16, 1852, had been repeatedly recognized both by the government of Germany and by

19 16 How. 635, 657, 658.

the executive branch of the government of the United States as surviving the formation of the German Empire, of which Prussia and the other Germanic States form a part, has been considered conclusive on the courts as to its continuing obligation.20 The courts have likewise declared that they will not go back of a treaty, duly executed, ratified, and proclaimed on the part of the United States, to determine whether it was executed by the proper officers on the part of the other contracting party; or whether it was procured by duress or fraud;22 or whether it is voidable as the result of infractions.23 It was said by Chancellor Wythe in an early case: "That the treaty [of peace with Great Britain] admitted to have been once valid, hath been rendered invalid, by the failure of the British King to perform the articles thereof this court hath no more power to declare than it hath to declare the British King and the United States of America to be in a state of war."24 These questions relate primarily to the operation of the treaty as in international compact. The courts know the treaty only as a municipal law, and have no jurisdiction over the parties to it.

20 Terlinden v. Ames, 184 U. S. 270, 285, 288. See also Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 581, as to the treaty of commerce with Prussia of 1828. "I need not state the various revolutions and changes, which that government [that of the United Netherlands] has undergone, and its present form; nor attempt to support by reasoning, why treaties are, or ought to be binding upon the people of the same countries, although both or one of the governments have undergone revolutions or changes. This does not belong to this department of the government. We can know our exterior relations only through that branch or organ of the government, appointed by the form of it, to represent and act for us with foreign powers. The case states, that that organ or department of the government still considers the treaty as binding on us; and of course on the people of the other contracting party." Henderson, C. J., University v. Miller (1831), 14 N. C. 188, 193.

21 Fellows v. Blacksmith, 19 How. 366, 372; Leighton v. United States, 29 C. Cls. 288, 321; Maiden v. Ingersoll, 6 Mich. 373, 376. The same principle was applied by the High Court of the East Africa Protectorate in the case brought by the Masai tribe against the Attorney General and others. (1913), Cd. 6939. Am. Journal of Int. Law, VIII, 380, 388.

22 United States v. Old Settlers, 148 U. S. 427; The Fama, 5 C. Rob. 106, 113.

23 Jones v. Walker, 2 Paine 688; Ware v. Hylton, 3 Dall. 199, 259; Taylor v. Morton, 2 Curtis 454, 461; Ex parte Charlton, 185 Fed. 880; Charlton v. Kelly (1913), 229 U. S. 447.

24 Page v. Pendleton (1793), 1 Wythe's Repts. (Va. ed. 1852), 211, 217.

The consideration in the first instance of questions of a judicial nature, which may later come before the courts, naturally devolves at times upon the department of government entrusted with the conduct of negotiations with foreign nations; and in such case "a construction of a treaty by the political department of the government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight."25 Under the Articles of Confederation, the Secretary for Foreign Affairs found it advisable to submit questions arising in the construction of treaties to the Congress.26 Under the Constitution, the Senate, a co-ordinate branch of the treaty-making power, has been consulted by the President upon such questions only in exceptional instances. On representations by the French government that certain acts of Congress, which imposed extra tonnage dues on foreign vessels and made no exception in favor of French vessels, contravened the fifth article of the treaty of 1778, President Washington submitted the question to the Senate for its consideration. The Senate advised as to the meaning of the article in a resolution adopted February 26, 1791.27 The Executive likewise submitted for the consideration of the Senate the question that arose in 1868 between this government and the Ottoman Porte as to the correct version of Article IV of the treaty of May 7, 1830, concerning the territorial exemption to be enjoyed by American citizens in Turkey.28 Instances are also to be found of the submission by the President to the Senate of awards of international commissions for its advice as to whether the commissioners have acted within their powers, i, e, interpreted correctly the convention under which they were appointed. The award of the commissioners, under the claims convention with Paraguay of February 4, 1859, was, for instance, communicated to the Senate for this purpose by President Bu

25 Lurton, J., Charlton v. Kelly (1913), 229 U. S. 447, 468. At the request of President Washington, Jefferson, Secretary of State, addressed on July 18, 1793, a communication to the justices of the Supreme Court, making enquiries as to the propriety of asking their advice, among other things, on the construction of treaties. MSS. Jefferson Papers, series 1, Vol. VI, P. 186.

26 Dip. Cor. 1783-9, I, 245.

27 Ex. Journal, I, 77.

28 Notes to Treaties and Conventions (1889 ed.), 1371.

chanan, February 12, 1861.20 In the case of the recommendatory award of the King of the Netherlands, as arbitrator under the convention with Great Britain of September 29, 1827, for the determination of the northeastern boundary, the Senate, to which the question was submitted by President Jackson, advised that the award was not obligatory; and it was not so considered.30

29 Richardson, Messages, V, 664. See also message of President Lincoln of March 5, 1862. Id., VI, 67.

20

As to the nature of the award, see Moore, Int. Arb., I, 138.

CHAPTER XXIII.

AIDS IN THE INTERPRETATION OF TREATIES.

$164. Intention of the Parties.-"The intention, sufficiently known, furnishes the true matter of the convention." The sole purpose of a resort to construction is to determine and give effect to the intention of the parties otherwise obscure.2 Since the agency through which a state enters into treaties often consists of distinct bodies, which act independently of each other, as for instance in the United States the President and the Senate, it is peculiarly essential that the clear language of the written instrument should be considered as accurately expressing the intention of the parties. "Treaties are the subject of careful consideration before they are entered into, and are drawn by persons competent to express their meaning and to choose apt words in which to embody the purposes of the high contracting parties."

$165. General Purpose of the Treaty.-The intention of the parties as there expressed is, however, to be determined by a consideration of the whole instrument, not by viewing the stipulations separately. From this it follows that a literal and narrow meaning of a clause may not be made to defeat the manifest purpose of the parties as gathered from the entire instrument. "We are not at liberty to ascribe a meaning to the terms of a treaty which would frustrate the known and proved purpose of the instrument, unless the words used in the instrument are such as to permit of no other construction. Whoever asserts a construction which would produce such result must show not merely that it is a possible construction, but that it is a necessary construction, and that any other is impossible."

I Vattel, Bk. II, c. XVII, §274.

2 "It is not allowable to interpret what has no need of interpretation." Id., Bk. Il, c. XVII, §263.

3 Day, J., Rocca v. Thompson, 223 U. S. 317, 332. See also the Nereide, 9 Cranch 388, 419; and the Neck, 138 Fed. 144.

4 Opinion of Elihu Root, Henry Cabot Lodge and George Turner, U. S. members of the Alaskan Boundary Tribunal of 1903. S. Doc. No. 162, 58th Cong., 2d Sess., I, 53. "The whole document will be taken together, and will be considered in connection with the attendant circumstances, the situation of the parties, and the object in view, and thus the literal mean