New-York tribune., 1879-01-21
REPEALING TREATIES.

Can Congress repeal treaty Quite likely,
if they have passed an act which conflicts win
treaty the duty of the courts and OF good
citizens may be to enforce or obey the act,
and leave the responsibility of settling the
consequences of the violation of international
Obligation to the Government at Washing
ton. Nn Act of Congress Is not to be dIS-
obeycd because it breaks treaty. But the
aurstion viii r.rur, can Congress rightly, by
4 onc-sidcd statute. and without negotiation
or consent asked. abrOgatc treaty, except
at the risk OF giving just cause OF international
offence
In the Winsow affair." few years ago, the
Department of State at Washington con-
tended very earnestly that IN Act Of Parlla-
mcpt could not modify the obligations cast
by 4 treaty upon Great Britain. The Extra
dition Treaty Of 1912 provided, in general
terms, for sending offenders back to THIS
county without any particular provision pro-
tccting them as to thy trial here. The British
autbnritics became dissatisfied that IN OIL
fender claimed Tor one crime, which was COW
cred by the treaty, WAS liable to he tried here
for another ono, which was not. Parliament,
without consulting tire United States on modi-
l
when a prisoner wa, claimed for cXtradlti0n
an assurance should be eXac'cd, before he was
surrendered. that he should be tried only on
the charge then preferred. Diplomacy at
Washington rcDudiatcd this demand; denied
that an act of legislation tO which the United
States was 40 party could modify rShts as
sured by treaty, aud declared All action IN
favor oi British claims to cXtadltion Sis
ucudpd until that Government should conform
to fine treaty or negotiate 10 alter it. This
view had the support Of American public
opinion Mt that time. II it Was correct, how can
Couscss, without negotiating with ClIna ior
a modification of those StipulaliOns OF the
Bulmcame treaty which assure reciprocal
favor to American and Chinese subjects IN
,gcA othc:', territories, lcgi~ate in contrvcn-
;ion of the treaty! The Two views can only
be rrconciied upon some extreme opinion 0i
the supremacy OF CongIr-s rs thus: Parma
mcnt cannot modify treaty, but, such Is the
superiority of republican institutions, Con
lrc~s eau
Ii is SAID that the courts have drci"cG that
an act may superscde i treaty. Many things
said by the courts, which sound like tins, are
to be understood with reference to the Pr'n-
chile that the judiciary does not deal win
foreign relations, but with individual nE"ta'
| on international questions the courts decline
to decide, and simply follow the decision or
action Of the political power. Courts have
little occasion 10 determine questions between
the United States and foreign nations. Ihrir
function is to ascertain the rights OF persons :;
and they Will concedc that Ghat Congress
has enacted or the President has done i Oh
hgat0rv on the courts, without meaning that
it is suStaInabe by international! law. In
cases where Il man brought back from abroad
on a charge Of say larceny, has been put on
trial for false pretence~, and his counsel have
objected that this was breaking the treaty, the
Judges have said. in effect: The prisoner is
N court. We have naught to do with how he
comes here. The President has procured hm
TO be brought home, and the Di>tret-Attorney
moves for ii trial; the Court must Try the case,
and leave the international question to the
President This sort of decision that the
courts must administer the recent act OF Con
rr,.s rather than the earlier tr aty in a cause
between individuals. Is very different RON de-
Gliding that treaty expressed 20 be perma-
nent may lawfully and rightly be abrogated
bv Congress without diplomatic rotlce or
negotiation. Yet the DECISIONS rs general
rule. 20 no further than this they merely dis
claim power to consider che treaty rights OF
the foreign nation. In one cause, where Two
individuals claimed the same land, one 10y a
title founded OH an earlier treaty and the
other bv letters patent issued under later
act of Congress, the supreme Court sald;
"COngrcss is bound to regard the publc
"trcatic> = and the treaty title was sustained.
We adhere to the opinion expressed last
summer, that any change in National policy
toward the Chinese which will conflict with
the Burlingame Treaty should be preceded
by diplomatic negotiation. The consent OF the
Chinese Government may be obtalnable to
notifications which viii restrict immigration
without conflicting with their National policy
At all events. tina should be tried before re-
sorting 10 the questionable step of an er pafte
abrogation of the treaty by Congress.
FINED tOR THEIR FOLLY.
a.. L.. ~ Iars nf