President. But, lest the power should be perverted, by his unwisdom or disloyalty, to the destruction of the country, a check is placed upon it by requiring the ratification of the senate. But it will be observed that the functions of the senate are only advisory, or at most extend to accepting or rejecting the work of the President. He alone has the right to determine whether a treaty shall be made. The senate cannot make a treaty nor dictate its terms. It might indeed advise the making of a treaty, but the President would be in no wise bound to heed its recommendations. Nor is he bound to consult the senate in advance. It may suggest amendments to a completed treaty, but these must be accepted by the President to be of any force. But, again, the latter has no power to make treaties except by and with the advice and consent of the senate, and with the concurrence of two-thirds of its members present. Hence a treaty which has not been thus ratified by the senate is wholly inoperative to affect antecedent laws or rights acquired under them.34 The signature of the President is essential to the validity of a treaty; and it does not take effect, though ratified by the senate, until he has signed it.35

By the law of nations all treaties operating upon purely national rights, as well those for the cession of territory as for other purposes, are binding upon the contracting parties, unless it is otherwise provided in them, from the day they are signed; the ratification of them relates back to the time of signing.30 36 But this rule does not apply when the treaty operates on individual rights. There the principle of relation does not apply to such rights which were vested before the treaty was ratified, and in so far as it affects them it is not considered as concluded until there is an exchange of ratifications.37 If the treaty is self-executing, it takes effect and becomes binding at once. 38 But a treaty containing provisions to be executed in the future is in the nature of a contract, and does not become a rule for the courts until legislative action shall be had on the subject. If the treaty involves the payment of money to the foreign power (as

34 U. S. v. Frelinghuysen, 2 Mackey (D. C.) 299.

35 Shepard v. Insurance Co., 40 Fed. 341.

36 Davis v. Police Jury, 9 How. 280; Garcia v. Lee, 12 Pet. 511.

37 Haver v. Yaker, 9 Wall. 32; Bush v. U. S., 29 Ct. Cl. 144.

38 Foster v. Neilson, 2 Pet. 253.

39 In re Metzger, 1 Parker, Crim. R. (N. Y.) 108.

39

in the case of purchase of territory), the very important question arises whether congress is bound as a matter of law to make the necessary appropriations, or whether, by refusing to vote the amount required, that body can nullify the treaty. On this point opinion has always been divided. The position taken by the house of representatives has negatived the idea that there was any such compulsion resting upon it. On the other hand, if congress could thus block the progress of international business wherever appropriations were needed, the President and senate would be stripped of a main division of their constitutional power to make treaties. The only possible answer to the question is that it is the duty of congress to give effect to the treaty by voting the necessary supplies, but that there is no legal method whatever by which it can be coerced into the performance of this duty.40

A treaty being the supreme law of the land, any state enactment, whether constitutional or statutory, which is in conflict with it, whether made before or after the treaty, must give way to it." But as regards acts of congress the case is different. Though made by different branches of the government, treaties and statutes are of exactly equal authority. Each is declared to be the "supreme law of the land." As between two laws which are in conflict, and of equal authority, the rule is that "leges posteriores priores contrarias abrogant." Consequently, if the courts are called upon to decide between a treaty and an act of congress, they will endeavor by construction to remove any repugnancy between them. But if this cannot be done-if there is an irreconcilable conflict-then that law, whether statute or treaty, which is of later date must repeal or displace that which was earlier.42 Such a disregard of the solemn obligations of a treaty as is implied in the enactment of laws inconsistent with it may be a breach of international good faith; but with this the courts have nothing to

40 On this subject, see 2 Story, Const. § 1840; Miller, Const. p. 181; Turner v. Missionary Union, 5 McLean, 344, Fed. Cas. No. 14,251.

41 Ware v. Hylton, 3 Dall. 199; In re Race Horse, 70 Fed. 598; Wunderle v. Wunderle, 144 Ill. 40, 33 N. E. 195; Gordon v. Kerr, 1 Wash. C. C. 322, Fed. Cas. No. 5,611.

42 Foster v. Neilson, 2 Pet. 253; The Cherokee Tobacco, 11 Wall. 616; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. 456; Fong Yue Ting v. U. S., 149

do.

Whether a treaty has been violated by our legislation, so as to furnish a proper occasion of complaint by a foreign government is not a judicial question. To the courts it is simply a question of conflicting laws, the later modifying or superseding the earlier.** It should also be noted that an award by arbitrators under a treaty between the United States and another nation, by which the contracting nations agree that the decision of the tribunal of arbitration shall be a final settlement of all questions submitted (such as the award of the Behring Sea tribunal), becomes the supreme law of the land, and is as binding on the courts as an act of congress." But it is held that vested rights which have accrued under, or are guarantied by, a treaty cannot be divested either by an act of congress or by the actions of the political department of government in the making of subsequent treaties.45 A court cannot inquire whether a treaty was properly executed, or whether it was procured by undue influence. In the construction and interpretation of a treaty, the courts will follow that adopted by the executive department unless such construction is repugnant to the language or purpose of the treaty.*:

44

APPOINTMENTS TO OFFICE.

76. The President has power to appoint the diplomatic and consular agents of the government, the judges of the federal courts, and all other officers of the United States, subject to the following limitations:

(a) The offices to be filled must first be created by the constitution or laws.

U. S. 698, 13 Sup. Ct. 1016; Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; North German Lloyd S. S. Co. v. Hedden, 43 Fed. 17; The Welhaven, 55 Fed. 80; In re Clinton Bridge, 1 Woolw. 150, Fed. Cas. No. 2,900; Thingvalla Line v. U. S., 24 Ct. Cl. 256.

43 In re Ah Lung, 18 Fed. 28. The courts have no power to set themselves up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disregard. Botiller v. Dominguez, 130 U. S. 238, 9 Sup. Ct. 525.

44 The La Ninfa, 75 Fed. 513.

45 Eastern Band of Cherokees v. U. S., 20 Ct. Cl. 449.

48 Leighton v. U. S., 29 Ct. Cl. 288.

47 Castro v. De Uriarte, 16 Fed. 93.

(b) Officers whose appointment is otherwise provided for in the constitution are not subject to the appointing power of the President.

(c) Nominations must be submitted to the senate, which body has the power, by a majority vote, to reject any of which they do not approve.

(d) Congress may by law vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments.

77. The power of appointing to office includes the power of removing from office, with certain restrictions.

The constitution provides that the President "shall nominate, and by and with the advice and consent of the senate shall appoint, ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. The President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session."

With the exception of the small number of offices which are created by the constitution, it is the right and duty of congress to decide what offices shall be created and for what purposes. That is a legislative function. But when the office is brought into existence, it is for the executive to choose the incumbent. For, in order to the effective administration of the government, it is necessary that those officers, at least, whose duties are not merely clerical but involve the exercise of discretion and are political in their character, should be in sympathy with the executive for the time being. But at the same time it was deemed necessary to impose a check upon this great power of the President, lest he should be able, by the unre- : strained choice of the federal officers, to subvert the whole administrative machinery of government to his own selfish or disloyal pur poses. To this end a power of rejecting unsuitable nominations has been lodged with the senate.

The offices which are "otherwise provided for" in the constitution are those of President and Vice-President, presidential electors, and the members of the senate and house of representatives. To these must also be added the officers of the two houses of congress, who, according to the constitution, are to be chosen by the respective ⚫ houses. All other officers of the United States are subject to the joint appointing power of the President and senate, save those inferior officers whose appointment is intrusted by law to the President alone, or to the courts or the heads of departments.

Who are "inferior officers" within the meaning of the constitution? As the term is relative, the question cannot be answered abstractly with any degree of precision. But it has been said that "the word 'inferior' is not here used in that vague, indefinite, and quite inaccurate sense which has been suggested-the sense of petty or unimpor tant; but it means subordinate or inferior to those officers in whom respectively the power of appointment may be vested, the President, the courts of law, and the heads of departments. It is a word having definite relation to a superior." 48 Practically, however, congress has not gone to this extent in providing for the appointment of inferior officers. As examples of the distinction which is actually made, we may mention the fact that postmasters of the first three classes are appointed by the President and confirmed by the senate, while those of the fourth class are appointed by the postmaster general; and commissioned officers of the navy are likewise appointed by the President subject to the confirmation of the senate, while warrant officers are appointed by the President alone. It should be noticed that appointments to office can be made by the heads of departments only in those cases which congress has authorized by law; and therefore the appointment of an agent of fortifications by the secretary of war, there being no act of congress conferring that power upon that officer, is irregular.50

48 Collins v. U. S., 14 Ct. Cl. 568.

49 A clerk of a district court is one of the "inferior officers" here meant. In re Hennen, 13 Pet. 230. A receiver of a national bank, who is appointed by the comptroller of the currency with the concurrence of the secretary of the treasury, is an officer of the United States. Platt v. Beach, 2 Ben. 303, Fed. Cas. No. 11,215.

BO U. S. v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747.