The sun. [volume] (New York [N.Y.]) 1916-1920, 1919-03-27

Judge Of what in good faith It should
do. In the case of the United States.
the guaranty will not be made good
except by the action Of Congress, and
II will be for Congress to decide whether
We are bound and what we should un-
dertake. The course Of recent debates
has sufficiently indicated what the at
titude Of Congress 10 likely to be II
the resort to war pursuant to Article
x is opposed to the opinion of the coun-
try. Congress not improbably will con-
slider that It has not been put under
any proper obligation to assume the I'M
welcome task In such a case, the
guaranty would merely serve the pur-
pose OF permitting the charge that we
mad defaulted in our obligation. On the
other hand, II in our conception of duty
Clarified by our experience in the great
war, we should conclude that we should
go to war to preserve the territorial
integrity OF another State, or in de-
Tense Of liberty and civilization. we
should respond with heartiness to that
call Of duty in the absence of Article
x.
Two Aspects OF Treaties.
Il am not unmindful of. the importance
OF making response to the importunate
demand Of stricken and suffering peoples
that an organized endeavor should be
made to prevent the recurrence of strife.
deeply sympathize with the purpose to
provide international arrangements for
conference, for the judicial settlement of
disputes. for Cancellation, and for CO E
operation to the fullest extent practicable
and consistent with a proper regard for
our national safety. But time passes
rapidly. and It is not the part of wis.,
dom to create expectations on the part
OF the peoples of the world which the
covenant cannot satisfy. think that II
Is fallacy to suppose that helpful CO.
operation in The future will be assured
by the attempted compulsion Of an in
flexible rule. Rather will such coopera-
ton depend upon the fostering OF firm
friendships springing from an apprecia-
ton OF community of ideals. interests
and purposes. and such friendships are
more likely to be promoted by freedom
OF conference than by the effort to create
hard and fast engagements.
Constitutional Questions. To avoid
confusion of thought II Is absolutely
necessary to bear in mind an established
distinction. Treaties may be considered
In two aspects. % with respect to the
municipal law OF the United States. that
Is as part of the supreme law of the
land. and (2) as contracts with foreign
nations. When a treaty Is self-execut-
Ing. that lie when 1t may be put into
effect without the aid OF legislation by
Congress. 1t becomes a part of the law
OF the land and as such is subject to con-
struction and enforcement by the courts.
In this aspect. the Supreme Court re-
sorts to the treaty for a rule Of decision
fol the case before II, as 1t would to a
! statute, and like a statute, the treaty is
| subject 10 repeal or modification by a
subsequent act OF Congress. Head
money cases, 112 U. s., 5s0,599.)
TN its aspect as a contract with a
foreign nation. the question is one for
the political department of the Govern
ment Where the treaty by its terms
requires legislation to carry II out. there
is no judicial question presented until
the necessary legislation has been passed.
The principle was thus declared by Chief
Justice Marshall In delivering the opin-
| ion OF the Supreme Court in Foster v.
Nelson e Pet. o53.31):
"'Our Constitution declares
treaty to be the law OF the land. II
Ia. consequently, to be regarded in
courts of justice as equivalent to an
act OF the Legislature, whenever IL
| operates OF itself without the aid OF
| any legislative provision. But when
| the terms OF the stipulation import a
cohEact--when either of the parties
| engages to perform a particular act
| the treaty addresses itself to the
political, not the judicial department
and the Legislature must execute the
contract before It can become a rule
for the court
In the present case, the provisions OF
[ the covenant contemplate legislation
|