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The Legal Nature of Treaties

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
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Extract

The celebrated scrap of paper incident is perhaps thought so effective a commentary on the “legal nature” of treaties that it needs no addition. “Treaties won’t stand before policy and there’s an end on’t.” The student of history is likely to take a more cautious view. He knows that treaties have been one-sidedly abrogated before. He knows that the ambiguous phrase rebus sic stantibus has generally been an implied accompaniment of treaties, and yet he knows that treaties have continued to be concluded and in general observed.

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Research Article
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American Journal of International Law , Volume 10 , Issue 4 , October 1916 , pp. 706 - 736
Copyright
Copyright © American Society of International Law 1916

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References

1 Oppenheim has suggested this division of the schools of international law in his Introduction to Westlake’s Collected Papers on Public International Law. It should be noted that this classification is not parallel to the traditional division of international law writers into Grotians, Naturalists, and Positivists. Adherents of both the legal and diplomatic schools may be positivists in the sense in which the term is used in international law. In general jurisprudence, however, the positive school has a different significance, referring to the followers of Austin whose attitude toward international law has been characterized by the term applied to them by Oppenheim, “deniers of international law.” Members of this school of jurisprudence may, however, belong to the legal school of international law, in a sense. They assert that international law is not yet law, but will become so when codified and enforced by an organized international authority. The attitudes of the legal and diplomatic schools of international law are thus parallel respectively to those of the positive and historical schools of general jurisprudence.

2 Constitution of the United States, Art. VI, sec. 2.

3 Constitution of Mexico, Art. 97, cl. 6.

4 Ware v. Hylton, 3 Dall. 199 (1796); Wharton, A Digest of the International Law of the United States, 2d ed., Washington, 1887, 2; sec. 138.

5 Kaufmann, W., Die Rechtskraft des Iniemationalen Rechtes und das Verhältnisse des Staatswgans zu demselben, Stuttgart, 1899, p. 86 Google Scholar, et seq.

6 Walker v. Baird, L. R. (1892), A. C. 491; Holland, T. E., Studies in International Law, Oxford, 1898, p. 190 Google Scholar, Picciotto, C. M., The Relation of International Law to the Law of England and of the United States of America, New York, 1915, p. 59 Google Scholar, et seq. On the application of treaties in prize courts, see The Chile, L. R. (1914), p. 212; Picciotto, op. cit., p. 42.

7 Oppenheim, L., International Law, 2 vols., London, 1912, 1:561 Google Scholar, speaks of ratification alone as giving treaties a binding effect. The final consent of both parties, as evidenced by the exchange of ratifications seems to be necessary. Kaufmann, op. cit., pp. 39–40.

8 Thus the extradition treaty of 1852 with France provided that “Her Majesty engages to recommend to Parliament to pass an act to enable her to carry into execution the articles of the present convention. * * * And when such act shall have been passed, the convention shall come into operation from and after a day to be fixed.” Holland, op. cit., p. 190.

9 Thus the ratification of the Declaration of London was withheld, pending passage of the proposed Naval Prize Bill of 1911, which being thrown out by the House of Lords, the convention was not ratified. In Halsbury, Laws of England, 6:440, note (e), it is stated that “ In England there is no codified list of subjects upon which the Crown has power to bind the subject by treaty without Parliamentary sanction. But where any reasonable doubt arises it is usual either to obtain statutory authority beforehand, or to stipulate in the treaty that the consent of the legislature shall be obtained.”

10 Kaufmann, op. cit., p. 31, et seq.

11 Justice Iredell in Ware v. Hylton, 1 Dall. 199 (1796). See also Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833, Wharton, 2:67; Cushing, Att. Gen., 6 Op. 296 (1859); Dana, notes to Wheaton, p. 715.

12 In the case of a treaty with Mexico of 1883, providing that necessary legislation should “take place within twelve months from the date of exchange of ratifications” (Art. 8, Malloy, p. 1151), Congress failed to act. Moore, 5:222.

12a A Constitutional amendment changing the rule requiring assent of two–thirds of the Senate to one requiring approval by a simple majority of both houses has been advocated on the ground that the latter would be easier to obtain. Young, J. T., The New American Government and its Work, New York, 1915, p. 25 Google Scholar.

13 “A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the constitution. Every foreign government may be presumed to know that, so far as the treaty stipulates to pay money, the legislative sanction is required.” Turner v. Am. Baptist Missionary Union, 5 McLean, 347; Wharton, 2:73. In a strictly legal sense it is doubtful whether such a presumption is warranted.

14 British extradition treaty with France, 1852; treaty ceding Heligoland to Germany, 1890, see Holland, op. cit., p. 190. See also treaty of Washington with the United States, May 18, 1871, Art. 33.

15 United States Constitution, Art. 2, sec. 2.

16 Wharton, 2:19, 21. Practice indicates the necessity of Congressional consent to commercial treaties, but “judicial decisions sanction the contrary view, namely, that the treaty power can effect customs agreements with foreign Powers without Congress being consulted,” Corwin, E. S., National Supremacy, New York, 1913, p. 11 Google Scholar, citing Bartram v. Robertson, 122 U. S. 116 (1887), Whitney v. Robertson, 124 U. S. 190 (1888).

17 German Constitution, Art. 11; Kaufmann, op. cit., p. 35.

18 French Constitutional Law, July 16, 1875, Art. 8; Esmein, , Le Droit Constitutional Francois et Comparée, Paris, 1914, 6th ed., p. 762 Google Scholar.

19 Austria, Constitutional Law, Dec. 21, 1867, sec. 11 (a); Austria-Hungary, Constitution, Dec. 21, 1867, sec. 1 (a); Belgium, Constitution, Feb. 7, 1831, Art. 68; Netherlands, Constitution as amended Nov. 6, 1889, Art. 59; Portugal, Constitutional Charter, April 29, 1826, Art. 75, sec. 8, and amendment, July 5, 1852, Art. 10; Spain, Constitution, June 30, 1876, Art. 55, sec. 4; Switzerland, Constitution, May 29, 1874, Art. 85, sec. 5. See also, Oppenheim, op. cit., 2:546; Kaufmann, op. cit., pp. 33–37.

20 Baldwin, S. E., The Part taken by Courts of Justice in the Development of International Law, Am. Law Rev., 35:224 Google Scholar. La construction, Ltd., Cour de Cassation, Dec. 22, 1896. Barclay, , Companies in France, 2d ed., London, 1899, pp. 20, 95 Google Scholar.

21 Oppenheim, op. cit., 2:546; Blackstone, Commentaries 1:257; Picciotto, op. cit., p. 61.

22 Holland, op. cit., p. 190; supra, notes, 8, 9.

23 United States Constitution, Art. 6, sec. 2, cl. 2.

24 Competence of administrative officers; U. S. v. Robbins, Bee, Admr. 266; Terlinden v. Ames, 184 U. S. 270 (1901), Scott, 436; Tucker v. Alexandroff, 183 U. S. 424 (1901); Ex parte Toscano, 208 Fed. Rep. 938; Competence of Federal courts; Ware v. Hylton, 3 Dall. 199; Hauenstein v. Lynham, 100 U. S. 483; Wildenhus’s Case, 120 U. S. 1, Scott, 225. Competence of court limited by treaty: Tellefsen v. Fee, 168 Mass. 188; Succession of Rabasse, 47 La. Ann. 1452.

25 U. S. v. The Peggy, 1 Cranch, 109; Geoffroy v. Riggs, 133 U. S. 250, 266 (1889), Scott, 413; U. S. v. Rauscher, 119 U. S. 407 (1886), Scott, 274; Wharton, 2:71.

26 Urtheil des Deutsches Reichsgerichts, Sept. 22, 1885; Ent. Str. 12:384.

27 Arrêts du Conseil d’Elat, 5:638.

28 Ibid., 3:310, 389, 403, 457, 579; 4:122, 653.

29 Dalloz, Juris. Gen., Rept. t. 42 (1861), s. v. Traité Int., No. 152; Ibid., Supt. t. 17 (1896), s. v. Traité Int., No. 15.

30 Pradier-Fodèré, , Traité de Droit International Public, 8 vols., Paris, 1885–1906, 2 Google Scholar; sec. 1172.

31 Ord. Conseil d’Etat, March 27, 1839; Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int., No. 131.

32 Cour de Cassation, June 24, 1839, Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int., No. 154.

33 Swiss Constitution, May 29, 1874, Art. 113, cl. 3; Bundesgesetze uber Organization der Bundesrechtspftege, Art. 59.

34 Urtheil des Schweiz Bundesgericht, Jan. 30, 1892, Ent., 18:203.

35 The Chile, L. R. (1914), p. 212; Picciotto, op. cit., p. 42.

36 After failure of the Naval Prize Bill of 1911, the Declaration of London was not ratified, but probably would have been binding in prize courts if it had been, even in the absence of the Parliamentary sanction. (Picciotto, op. cit., p. 63), and possibly in other courts. See Bentwieh, The Declaration of London, p. 126.

37 Blackstone, Commentaries, 1:257.

38 Walker v. Baird, L. R. (1892), A. C. 491. See also Sir Robt. Phillimore’s opinion in the Parlement Beige, L. It. 4 P. D. 129 (1879), and Picciotto, op. cit., pp. 67, et seq.

39 U. S. v. Rauscher, 117 U. S. 407.

40 Supra, note 13.

41 Kaufmann, op. cit., p. 93.

42 Kaufmann, op. cit., p. 31. In reference to the latter kind of treaty he says: “The objective legal norms contained in the treaty have force as an international legal norm for and within the entire international society concerned, and, therefore, also within each one of the state societies belonging to it, which in so far are only constituent parts of the internationalen Völkergemeindschaft.” Jellinek draws the same distinction, saying of treaties of the latter class, “Such unions are not in the character of contracts, for they shape no jus intra partes but a jus supra partes.” System des subjectiven Öffentliche Rechtes, pp. 195–196.

43 Some British writers have drawn the distinction between treaties made in consequence of war and those made in time of peace, asserting that the former alone are valid without an act of Parliament. (Maitland, Constitutional History of England, Cambridge, 1909, p. 424.) Actual practice, however, seems to show that the distinction lies between treaties which affect private rights and those which do not. Thus Phillimore in the Parlement Beige, L. R. (1879), 4 P. D. 129, says: “The strongest instance of the latter, perhaps, which could be cited is the Declaration of Paris of 1856, by which the Crown in the exercise of its prerogative deprived the country of belligerent rights which very high authorities in the state and in the law considered to be of vital importance to it. But this declaration did not affect the private rights of the subject, and the question before me is whether this treaty does affect private rights and therefore required the sanction of the legislature.” See also Sir W. Anson, Law and Custom of the Constitution, 3rd ed., Oxford, 1908, 3:103; Westlake, Collected Papers, p. 518; Picciotto, op. cit., p. 61, et seq.

44 Justice Iredell laid down this distinction in a dissent in the case of Ware v. Hylton, 3 Dall. 199 (1796), in which he assumed the British view that executory treaties require sanction of the legislature.

45 Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833, Wharton, 2:67. See also U. S. v. The Peggy, 1 Cranch, 109.

46 Kaufmann, op. cit., p. 33.

47 Foster v. Neilson, 2 Pet., 253.

48 The Bella Corrunes, 6 Wheat. 152. Letter of Secretary of State Marcy referring to a proposed treaty with Venezuela of this character, Moore, 2:978.

49 Frelinghuysen ». Key, 110 U. S. 64; L’Abra Silver Mining Co. v. TJ. S., 175 U. S. 423.

50 To do so would be in conflict with the constitutional provision that “no money shall be drawn from the treasury but in consequence of appropriations made by law,” Art. 1, sec. 9, cl. 7. There has been some question of the internal validity of commercial treaties affecting the tariff without the assent of Congress, and the practice has been to get such assent. The courts, however, seem to sanction the contrary view that the treaty-making power can alter customs rates. Bartram v. Robertson, 122 U. S. 116 (1887); Whitney v. Robertson, 124 U. S. 190 (1888); Corwin, op. cit., p. 11.

51 The Chile, L. R. (1914) P. 212. In the Parlement Beige, L. R. (1879), 4 P. D. 129, Sir Robert Phillimore conceded that the Declaration of Paris was applicable by prize courts, although not sanctioned by Parliament and thought by many to have deprived England of vitally important belligerent rights. Picciotto, op. cit., pp. 42,68.

52 Maitland, , Constitutional History of England, p. 424 Google Scholar; Halsbury, , Laws of England, 6:440 Google Scholar.

53 Convention with Germany of 1890. Parliamentary assent was given by 53–54 Vict., c. 32. The same course was followed in the case of some cessions to France in 1904. Picciotto, op. cit., p. 63.

54 Walker v. Baird, L. R. (1892), A. C. 491; the Parlement Beige, L. R. (1879), 4 P. D. 129; Westlake, Collected Papers, p. 518; Holland, op. cit., p. 190; Halsbury, The Laws of England, 6:440, note (2); W. Harrison Moore, Act of State in English Law, New York, 1906, pp. 83–92, 132–135. Picciotto, op. cit., p. 71, goes to the extent of saying that “so difficult to draw is the line between those treaties which affect private rights and those which do not, and so difficult is it to imagine a treaty which does not, that in most cases the passing an act by the legislature would seem the correct and advisable course.”

55 Dalloz, Juris. Gen., Supt., t. 17, s. v. Traité Int., No. 17.

56 In the United States, proclamation by the President renders the treaty executable by the courts, Foster v. Neilson, 2 Pet. 314; U. S. v. Arredondo, 6 Pet. 725; Cushing, Att. Gen., 6 op. 750, (1854); Moore, 5:202. In Germany, publication in the Reichsgesetzblatt is conclusive, Picciotto, op. cii., p. 59. In France the Conseil d’Etat has held that it will not pass on the existence or validity of a convention, Arrêt du Conseil d’Etat, 6:104.

57 U. S. v. Arredondo, 6 Pet. 691; Haver v. Yaker, 9 Wall. 32; Davis v. Concordia, 9 How. 280; Hylton v. Brown, 1 Wash. C. C. 343. Where legislative action is necessary, private rights are not affected until that has taken place, Foster v. Neilson, 2 Pet. 253; U. S. v. Percheman, 7 Pet. 54; Bartram v. Robertson, 15 Fed. Rep. 212; Wharton, 2:27.

58 U. S. v. Reynes, 9 How. 127; Davis v. Concordia, 9 How. 280; Haver v. Yaker, 9 Wall. 32.

59 Jones v. Walker, 2 Paine, 688; Wharton, 2:34.

60 The United States has concluded twenty such treaties with fourteen countries, of which those with Bolivia (1858, Art. 24, Malloy, p. 121) and Colombia (1846, Art. 24, Malloy, p. 309), are in force. One of the Hague Conventions of 1907 provided for the establishment of an international prize court to which prize cases must be submitted on appeal, but this has not been ratified.

61 Convention of Berne, Oct. 14, 1890, Martens, N. It. G. ii, 19:289.

62 Rules of Congress of Vienna, with reference to the Rhine, June 9, 1815, Arts. 108–117, Martens, N. R., 2:379; Mainz Convention, March 31, 1831, ibid., N. R., 9:252; Mannheimer Orders, Oct: 17, 1868, ibid., N. R. G. ii, 4:599; Danube Regulations, Nov. 2, 1865, de Clercq, 9:384; June 2, 1882, Martens, N. R. G. ii, 9:394.

63 Copyright treaty of Berne, Sept. 9, 1886, Art. 2, Martens, N. R. G. ii, 12:193; Treaty of Paris for protection of Industrial Property, March 20, 1883, ibid., N. R. G. ii, 30:449; Montevideo treaties, copyright, Jan. 11, 1889, Arts. 2, 4, 11; Trade Mark, Jan. 16, 1889, Arts. 1, 4; Patents, Jan. 10, 1889, Arts. 1, 6, ibid., N. R. G. ii, 18; 418, 453, 421.

64 French-Swiss treaty, June 15, 1869, de Clercq, 10:289.

65 United States Constitution, Art. 6, sec. 2, cl. 2.

66 The judiciary act of Sept. 24, 1789, 1 Stat. 76, 85, gave Federal district courts original jurisdiction of suits brought by aliens for torts only in violation of the law of nations or of treaties of the United States, and the Supreme Court appellate jurisdiction where a right claimed under.a treaty was denied by the State court having final jurisdiction of the case. An act of Aug. 13, 1888, 25 Stat. 433, gave district courts original jurisdiction of civil suits arising under treaties where the amount involved was $2,000, and also provided for the removal of such suits to Federal courts if begun in State courts, on motion of the defendant. Federal Judicial Code of 1911, 36 Stat. 1087, sec. 24, cl. 1, 17, sees. 28, 237.

67 On habeas corpus a Federal district court refused to release an alleged murderer held for extradition by authority of President Adams, according to the Jay Treaty of 1794 with Great Britain, U. S. v. Jonathan Robbins, Bee, Admr. 266. The right of the executive to make arrests for extradition was also upheld in the case of the British Prisoners, 1 Wood & Min. 66, but Justice Woodbury said, “If a treaty stipulated for some act to be done entirely judicial, * * * it could hardly be done without the aid of preliminary direction of some act of Congress prescribing the court to do it and the form.” In the Metzger ease, 5 How. 176 (1847), the court released a prisoner held for extradition, on the ground that the treaty had not been put in force by act of Congress. Corwin, op. cit., pp. 278–279. For opinion that United States officers cannot aid foreign countries in returning deserting seamen without an enabling act of Congress, see Moore, 2:298.

68 Acts providing for extradition: Aug. 12, 1848, 9 Stat. 302; June 22, 1860, 12 Stat. 83, Rev. Stat., sec. 5270–5280. Acts providing for return of deserting seamen: Rev. Stat., sec. 5280–5281, and issuance of judicial process on request of foreign consul vested with extraterritorial jurisdiction by treaty, act June 11, 1864, 13 Stat. 12; Judicial Code of 1911, 36 Stat. 1187, sec. 271.

69 The Bello Corrunes, 6 Wheat. 152 (dicta); letter of Mr. Marcy, Sec. of State, Moore, 2:978; supra, note 48.

70 Swiss Constitution, May 28, 1874, Art. 113, cl. 3; Bundesgeselze uber organization der Bundesrechtspflege, Art. 59.

71 Urtheil des Schweiz Bundesgerichts, Jan. 30, 1892; Ent., 18:203.

72 Bundesgeselze uber organization der Bundesrechtspflege, Art. 59; Urtheil des Schweiz Bundesgerichts, Dec. 3, 1881, Ent., 7:782.

73 Urtheil des Deutsches Reichsgerichts, Nov. 22, 1885; Ent., Str. 12:384.

74 Urtheil des Deutsches Reichsgerichts, July 1, 1881; Ent., Civ. 5:34; Kaufmann, op. cit., p. 98.

75 Kaufmann, op. cit., p. 53.

76 Cour de Cassation, July 13, 1811, Dalloz, Juris. Gen., Rept., 1853, t. 30, s. v. Lois, No. 91. In the case of the Tempest, Sirey, n. s., 1859, 189, Scott, 229, the Cour de Cassation assumed jurisdiction of an assault upon a United States merchant vessel in port at Havre, on the ground that the assault disturbed the peace of the port, which made it subject to French jurisdiction by the treaty with the United States of 1853.

77 Arrêt du Conseil d’Etat, 5:638; Dalloz, Juris. Gen., Supt., t. 17, s. v. Traité Int., No. 16. Pradier-Fodèré, Droit International, 2; sees. 1172–1173.

78 On the status of actes du gouvernement see Garner, J. W., Judicial Control of Administrative and Legislative Acts in France, A. P. S. Rev., 9:637, 653–655 Google Scholar, whostates that “the conclusion and execution of treaties” are within that class; and Borchard, E. M., Diplomatic Protection of Citizens Abroad, N. Y., 1915, pp. 131–132 Google Scholar.

79 Supra, note 54.

80 In re Mertens Patents, 112 L. T. 313 (1915); Picciotto, op. cit., p. 73.

81 Hague Conventions, 1907, IV, Annex, Art. 23, h. This provision has been variously interpreted and vigorously criticized, especially by Professor Holland, who describes it as “apocryphal.” (Laws of War on Land, Oxford, 1908, p. 44) and submits that it is “incapable of rational interpretation and should be so treated by the Powers,” but if valid at all, he thinks the British interpretation should prevail. Letters to the Times on War and Neutrality, London, 1914; Letter, Nov. 6, 1911; Article 23(h), Law. Quar. Rev., 28:94.

82 In Tellefsen v. Fee, 160 Mass. 188, the court refused jurisdiction on the ground that the matter, seaman’s wages, was by treaty put within the exclusive jurisdiction of a foreign consul, and in the case of Rabasse, 47 La. Ann. 1452, the court refused to appoint an attorney for absent heirs, as provided by the Louisiana Code, on the ground that in this case the code provision was superseded by a treaty giving the consul exclusive jurisdiction of the administration of such estates. New York courts made similar decisions in the Matter of Lobrasciano, 38 Misc. Rep. 415, and the Matter of Fattosini, 33 Misc. Rep. 18. See Corwin, op. cit., pp. 193–194. In Wildenhus’scase, 120 U. S. 1, Scott, 227, the treaty immunity of foreign merchant vesselsin some respects is discussed, but in this case jurisdiction of a crime committed on a Belgian vessel was assumed on the ground that it was of such gravity as to disturb the peace of the port. France has also recognized the treaty immunity of foreign merchant vessels. Thus, on the basis of the treaty with the United States of 1788jurisdiction of assaults on American vessels in French ports was refused in the cases of the Sally and the Newton, Conseil d’Etat, 1806, Dana’s Wheaton, sec. 103, p. 164, Scott, 227; but in the Tempest, Sirey, n. s. 1859, 189, Scott, 229, by the provision in the treaty with the United States of 1853 admitting the local jurisdiction of acts disturbing the peace of the port, jurisdiction was assumed by the Cow de Cassation.

83 Carré, G. L. J. and Adolphe, C., Lois de la Procedure Civile et Commerciale, 11 Vols., Paris, 1886, 11:78 Google Scholar.

84 The Parlement Beige, L. R. (1879), 4 P. D. 129; Baldwin, op. cit., Am. Law Rev., 35:224; Picciotto, op. cit., p. 67.

85 The Parlement Beige, L. R. (1880), 5 P. D. 197.

86 Hague Conventions, 1907, V, xiii.

87 For Rhine and Danube Conventions, see Kaufmann, op. cit., pp. 17, 117–119; supra, note 62.

88 On these and similar conventions, see P. S. Reinsch, Public International Unions, Boston, 1911.

89 Practically all countries have concluded bi–lateral extradition treaties with other states. Commercial and consular treaties generally provide for the return of deserting seamen on application of the consul.

90 Ex parte Toscano, 208 Fed. Rep. 938.

91 Nichols v. U. S., 7 Wall. 122; Schillinger v. U. S., 155 U. S. 163; Campbell v. U. S., 88 U. S. 407.

92 U. S. v. Robbins, Bee, Adm. 266; Case of the British Prisoners, 1 Wood & Min. 66. For recent cases supporting the authority of executive officers to make arrests in pursuance of treaty, see, for extradition, Terlinden v. Ames, 184 U. S. 270 (1901),Scott, 436, and for return of deserting seamen, Tucker v. Alexandroff, 183 U. S. 424,437.

93 Supra, note 68.

94 Kaufmann, op, cit., p. 86, et seq.

95 Walker v. Baird, L. R. (1892), A. C. 491.

96 Hauenstein v. Lynham, 100 U. S. 483.

97 Chirac v. Chirac, 2 Wheat. 259.

98 Ware v. Hylton, 3 Dall. 199.

99 This right of resident aliens has been upheld under the constitutional guarantee of “equal protection of the laws,” Yick Wo v. Hopkins, 118 U. S. 356, 369, though treaty guarantees have sometimes been mentioned incidentally, Truax v. Raich, U. S.Sup. Ct. (1915), A. J. I. L., 10:158.

100 U. S. v. Rauscher, 119 U. S. 407 (1886), Scott, 274.

101 Whitney v. Robertson, 21 Fed. Rep. 566.

102 U. S. v. Moreno, 1 Wall. 400, Scott, 666; Strother v. Lucas, 12 Pet. 436; U. S. v. Arredondo, 6 Pet. 691.

103 The Nereide, 9 Cranch, 388; Moodie v. The Phoebe Anne, 3 Dall. 319.

104 Urtheil des Schweiz Bundesgerichts, April 21, 1882, Ent., 8:275.

105 Ibid., June 17, 1892, Ent., 18:193; March 17, 1893, 19:129, 136; Oct. 21, 1896,22:450; Dec. 15, 1896, 22:1030; Feb. 15, 1894, 20:57; March 15, 1894, 20:61; July 17, 1894, 20:343; Sept. 18, 1895, 21:739; March 2, 1895, 21:79. For discussion of these cases see Kaufmann, op. cit., p. 83.

106 Urtheil des Deutsches Reichsgerichts, Nov. 23, 1891, Ent. Str., 22:261.

107 Cour de Cassation, June 24, 1839, Dalloz, Juris. Gen., Rept., t. 42, s. v. Traité Int. No. 154. See also supra, note 29 el seq. In trying persons extradited from abroad, the Cour de Cassation has applied treaty provisions in upholding the view of the United States Supreme Court in United States v. Rauscher, 119 U. S. 407, Scott, 274(188G), that punishment can only be for the offense for which extradition has been given. Dalloz, 1874, 1:502. For cases in which the Cour de Cassation has refused to apply treaties see decision July 4, 1867, Dalloz, 1867, 1:281, in which it was held that extradition treaties were acts of government which were not within the competence of courts to explain and interpret. In a much criticized decision of Dec. 22, 1896 (La Construction, Ltd.) the Cour de Cassation virtually ignored a provision in the treaty with England of Apr. 30, 1862, requiring that “all companies * * * constituted and authorized in conformity with the laws in force in either of the two countries“ should exercise all legal rights in the other. The court held that the nationality of a company was to be determined by the place of its principal establishment, and hence the company in question, with its principal office in Paris, although established by English law, was not entitled to the treaty privilege. Barclay, Companies in France, pp. 20, 95.

108 Arrêt du Conseil d’Etat, 3:310, 389, 403, 457, 579; 4:122, 653.

109 Supra, note 54.

110 In re Merten’s Patents, 112 L. T. 313 (1915); Picciotto, op. cit., p. 72.

111 Hague Conventions, 1907, IV, Annex, Art. 23 (h).

112 La Ninfa, 75 Fed. Rep. 513. The claim of one Gibbs against New Granada was arbitrated under a treaty of Nov. 10, 1857, and recognized as good. The United States before paying brought it under the new treaty with Colombia of Nov. 10,1864, whereupon Gibbs protested, asserting that his claim was res adjudicata and must be paid by the United States Government. This assertion was upheld by Attorney General Harmon, 13 Op. 19. In the L’Abra claims where Congress had authorized a resubmission of the claims, the claimants’ right was held debarred. See infra, note 113.

113 Frelinghuysen v. Key, 110 U. S. 363; L’Abra Silver Mining Co. v. U. S., 175 U. S. 423; J. W. Foster, The Practice of Diplomacy, New York, 1906, p. 370.

114 Article 7 of treaties of Chile with France, Nov. 2, 1882, with Italy, Dec. 7, 1882, with Great Britain, Jan. 4, 1883, with the United States, Aug. 7, 1892, Martens, N.R. G. ii, 9:704, 10:638, 9:445, 22:339.

115 Mixed Court of Egypt, Reglement d’Org. Jud., tit. 1, Art. 18, Kaufmann, op. cit., p. 123.

116 Kaufmann, op. cit., p. 123.

117 Rhine Navigation Act. Oct. 17, 1868, Art. 40, Martens, N. R. G. ii, 4:599.

118 Montevideo Convention Over International Right of Recourse, June 11, 1889, tit. 3, Art. 5, Martens, N. R. G. ii, 18:415.

119 Berne Convention, Oct. 14, 1890, Art. 56, Martens, N. R. G. ii, 19:289.

120 For an excellent discussion of the relation of treaties to customary international law, see Travers Twiss, Law of Nations considered as Independent Political Communities, Oxford, 1884, 1:167, et seq., and Phillimore, op. cit., 1:48.

121 Hague Conventions, 1907, III, Art. 3; IV, Art. 2; VI, Art. 6; VII, Art. 7; VIII, Art. 7; IX, Art. 8; X, Art. 18; XI, Art. 9; XII, Art. 51.

122 Ex parte Toscano, 208 Fed. Rep. 938.