296 WRIGHT— POWER TO MEET RESPONSIBILITIES. 



the executive are able to enforce the provision without enabling 

 legislation. Fundamentally it depends upon whether the obligation 

 is imposed on private individuals or on public authorities. 



" A treaty," said Chief Justice Marshall, " is in its nature a contract be- 

 tween two nations, not a legislative act. ... In the United States a different 

 principle is established. Our Constitution declares a treaty to be the law of 

 the land. It is, consequently, to be regarded in courts of justice as equivalent 

 to an act of the legislature, whenever it operates of itself, without the aid of 

 any legislative provision. But when the terms of the stipulation import a 

 contract, 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 

 courts." 8 



Treaty provisions which define the rights and obligations of 

 private individuals and lay down general principles for the guidance 

 of military, naval or administrative oflftcials in relation thereto are 

 usually considered self-executing. Thus treaty provisions assuring 

 aliens equal civil rights with citizens, defining the limits of national 

 jurisdiction, and prescribing rules of prize, war and neutrality, have 

 been so considered.^ However, many treaty provisions are difficult 

 to classify. Thus a treaty regulating the taking of seal in a de- 

 fined area of Behring Sea and specifically enjoining the governments 

 concerned to enforce the regulation imposes a primary obligation 

 upon individuals and might seem self -executing. But it also imposes 

 a responsibility upon the government to prevent infractions and pun- 

 ish violators. Extradition treaties are of similar character. They 

 afTect primarily the individual fugitive from justice by withdrawing 

 his right of asylum, but they also specifically require the government, 

 to whose territory he has fled, to surrender him. In view of the 

 constitutional principle that federal courts can only punish crimes 

 defined by statute,^" such treaties are not self-executing in the 

 United States, except in so far as executive action is sufficient to 



® Foster v. Neilson, 2 Pet. 253, 314 (1829). See also infra, sec. 256. 



9 Hauenstein v. Lynham, 100 U. S. 483; La Ninfa, 75 Fed. 513; The 

 Phoebe Ann, 3 Dall. 319; Ex parte Toscano, 208 Fed. 938. There has been a 

 question in the United States whether treaties regulating commerce and 

 tariffs are of this kind. See infra, sec. 154. 



'^^ Supra, sec. 129. 



