WRIGHT— POSITION OF FOREIGN RELATIONS 119 



United States, which provides that an accused party shall have compulsory 

 process for obtaining witnesses in his favor, should be considered as quali- 

 fying the general and absolute terms of the consular convention with France, 

 ' was not acquiesced in by the French government, which required their flag, 

 when raised fq the mastheads of certain of their men-of-war at San Fran- 

 cisco, to be saluted as a reparation for the alleged indignity to their consul.' " 

 Mr. Fish, Secretary of State, to Mr. Bassett, Oct. i8, 1872, Moore, Digest, 

 5: 81. See also Borchard, op. cit., p. 201, 226, 839, 845. Infra, sec. 31. 



11 Borchard, op. cit., pp. 181, 838 et seq., Moore, Digest, 6: 309-324- There 

 have been numerous cases in which the legislative abrogation of a treaty or 

 the passage of laws in conflict with international law or treaty, though valid 

 in municipal law, have proved no defense to international protests. See 

 Moore, Digest, 5 : 357, 365. For principles of municipal law governing 

 the application of constitutions, statutes and ordinances in violation of in- 

 ternational law, see Wright, Am. Jl. Int. Law, 11: i, 566. China refused to 

 accept' the exclusion acts as an excuse for violations of her treaties (For 

 references to her protests, see Moore, Digest, 4: 198, 202, 213, 235) and the 

 U. S. Supreme Court recognized that these laws though valid in municipal 

 law were no defense in international law. " It must be conceded that the 

 act of 1888 is in contravention of express stipulations of the treaty of 1868 

 and of the supplementary treaty of 1880, but it is not on that account in- 

 valid or to be restricted in its enforcement (in municipal law). . . . The 

 question whether our government was justified in disregarding its engage- 

 ments with another nation is not one for the determination of this court. 

 . . . This court is not a censor of the morals of the other department's of the 

 government." (Chinese Exclusion Cases, 130 U. S. 589, 600.) President 

 Hayes by vetoing an earlier act (1879) had recognized the impossibility of 

 avoiding international responsibility by legislation. " Were such delay fraught 

 with more inconveniences than have ever been suggested by the interests 

 most earnest in promoting this legislation, I cannot but regard the sum- 

 mary disturbance of our existing treaties with China as greatly more in- 

 convenient to much wider and more permanent interests of the country. I 

 have no occasion to insist upon the more general considerations of interest 

 and duty which sacredly guard the faith of the nation, in whatever form 

 of obligation it may have been given." (Message, March i, 1879, Richard- 

 son, Messages and Papers of the President's, 7: 519.) The matter was suc- 

 cinctly explained by Secretary of State Fish in 1876. " Of course, in speak- 

 ing of the effect of subsequent legislation upon the provisions of a prior 

 treaty, I refer only to the effect in the country where the legislation is 

 enacted, and upon the officers and people of that country. The foreign nation, 

 whose rights are invaded thereby, has no less cause of complaint and no 

 less right to decline to recognize any internal legislation which presumes to 

 limit or curtail rights accorded by treaty." IVIoore, Digest, 5 : 365. Wharton, 

 Digest, i: 35. 



12 Borchard, op. cit., p. 214. The lack of legislation to give effect to 

 international law was not thought by Great Britain to absolve the United 

 States from responsibility for its failure to secure the release of Alexander 

 McLeod from state jurisdiction in 1841. (Lord Ashburton, British Minister, 

 to Secretary of State Webster, July 28. 1842, Moore, Digest, 2: 28.) Italy 



