162 WRIGHT— CONCLUSIVENESS OF THE ACTS 



only with meeting responsibilities under them as pointed out by 

 President Washington in the controversy over 'the Jay treaty.'^" 

 One hundred and twenty-five years later Former Secretary of State 

 Root explained the same point/^ 



" The making of a treaty ... is a solemn assurance to all the nations 

 that (the subject matter) is within the treaty making power and that the 

 promise to make war binds Congress as fully as it binds all other members 

 of our government to maintain the plighted faith of the United States. In all 

 governments the power to declare war rests somewhere, and an agreement 

 to make war is an agreement that that power shall be so exercised by the officers 

 in whom it rests. A refusal of Congress to pass the necessary resolution 

 would simply be a breach of the treaty." 



Consequently though failure of the Senate to consent can be 

 offered to foreign nations as a valid excuse for non-ratification/^ 

 failure of the House of Representatives to pass an appropriation, 

 declare war or take other measures necessary to give effect to a 

 ratified treaty can not be oft'ered as an excuse for avoiding the 

 responsibility.^" 



" If a treaty," says Dana, " requires the payment of money, or any other 

 special act, which cannot be done without legislation, the treaty is still 

 binding on the nation ; and it is the duty of the nation to pass the 

 necessary laws. If that duty is not performed, the result is a breach of the 

 treaty by the nation, just as much as if the breach had been an affirmative 

 act by any other department of the government. Each nation is responsible 

 for the right working of the internal system, by which it distributes its sov- 

 ereign functions ; and, as foreign nations dealing with it cannot be per- 

 mitted to interfere with or control these, so they are not to be affected or 

 concluded by them to their own injury." 



38. Interpretation of Treaties. 



But what of the interpretation of a treaty? Is interpretation 

 a step in the making, or in the execution of the treaty? Interpre- 



"■^ Message to House of Rep., March 30, 1796. Richardson, INIessages, 

 1 : 195, Moore, Digest, 5 : 225. 



78 Telegram to Governor Cox, October 21, 1920. See also Hamilton, Pa- 

 cificus Paper, quoted Corwin, The President's Control of Foreign Relations, 

 p. 14; Taft, op. cit., p. 115. 



^■9 Supra, sees. 24-26. 



so Dana, note to Wheaton, Int. Law, sec. 543, p. 715. See also Wil- 

 loughby, op. cit., p. 515; Moore, Digest, 5: 230. "A treaty though complete 

 in itself, and the unquestioned law of the land, may be inexecutable without 

 the aid of an act of Congress. But it is the constitutional duty of Congress 

 to pass the requisite laws. But the need of further legislation, however, 

 does not affect the question of the legal force of the treaty per se." 

 Cushing, Att. Gen., 6 Op. 291, 1854; Moore, Digest, 5: 226, 370. 



