WRIGHT— POWER TO MAKE AGREEMENTS. 345 



consular convention, heretofore concluded between the United States and 

 France; and that the same shall not henceforth be regarded as legally 

 obligatory on the Government or citizens of the United States." 

 This appears to be the only case of the kind. The courts have 



repeatedly held that until the political departments have acted they 

 are bound to apply voidable treaties. ^"^ 



" If the attitude of Italy was, as contended, a violation of the obligation 

 of the treaty, which in international law would have justified the United 

 States in denouncing the treaty as no longer obligatory, it did not auto- 

 matically have that effect. If the United States elected not to declare its 

 abrogation, or come to a rupture, the treaty would remain in force. It was 

 only voidable, not void; and if the United States should prefer, it might 

 waive any breach which in its judgment had occurred and conform to its 

 own obligations as if there had been no such breach, i Kent's Comm., p. 

 175." 



183. Conclusion of New Treaty. 



Treaties may be terminated by negotiation of a new treaty by 

 the same parties, for which the treaty power alone is competent. 

 Thus in vetoing the Chinese exclusion act of 1879 President Hayes 

 wrote : 10* . 



"The bill before me does not enjoin upon the President the abrogation 

 of the entire Burlingame treaty, much less of the principal treaty of which 

 it is the supplement. As the power of modifying an existing treaty, whether 

 by adding or striking out provisions, is a part of the treaty-making power 

 under the Constitution, its exercise is not competent for Congress, nor 

 would the assent of China to this partial abrogation of the treaty make the 

 action of Congress in thus procuring an amendment of a treaty a competent 

 exercise of authority under the Constitution." 



Provisions of an earlier treaty will of course be superseded by con- 

 flicting provisions of a later treaty between the same parties/"' but 

 in order to terminate the earlier treaty as a whole the intention so 

 to do must be clearly expressed, as was indicated by the controversy 

 over effect of the proposed Hay-Pauncefote canal treaty of 1900 



103 Charlton v. Kelly, 229 U. S. 447 ; Ware t'. Hylton, 3 Dall. 199, 261 

 (1796) ; In re Thomas, 12 Blatch 370; Terlinden z: Ames, 184 U. S. 270, 

 288 (1902); Doe V. Braden, 16 How. 638; Jones z: Walker, 2 Paine 688; 

 Moore, Digest, 5: 320; Willoughby, op. cit., p. 1007, supra, sec. 107, note 63. 



10* Richardson, Messages, 7: 519. 



1*^5 Gushing. Alt. Gen., 6 Op. 291; Wright, Am. Jl. Int. Law, 11: 576; 

 Moore, Digest, 5 : 363-4. 



