dents Harding and
Coolidge.

DETERMINATION WHETHER A TREATY HAS LAPSED

At the same time, there is clear judicial recognition that the President
may without consulting Congress validly determine the question whether
specific treaty provisions have lapsed. The following passage from
Justice Lurton's opinion in Charlton _v._ Kelly[188] is pertinent: "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 automatically 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 obligation as if there had been no such breach. * * *
That the political branch of the Government recognizes the treaty
obligation as still existing is evidenced by its action in this case.
* * * The executive department having thus elected to waive any right to
free itself from the obligation to deliver up its own citizens, it is
the plain duty of this court to recognize the obligation to surrender
the appellant as one imposed by the treaty as the supreme law of the
land as affording authority for the warrant of extradition."[189] So
also it is primarily for the political departments to determine whether
certain provisions of a treaty have survived a war in which the other
contracting state ceased to exist as a member of the international
community.[190]

STATUS OF A TREATY A POLITICAL QUESTION

All in all, it would seem that the vast weight both of legislative
practice and of executive opinion supports the proposition that the
power of terminating outright international compacts to which the United
States is party belongs, as a prerogative of sovereignty, to Congress
alone, but that the President may, as an incident of his function of
interpreting treaties preparatory to enforcing them, sometimes
authoritatively find that a treaty contract with another power has or
has not been breached by the latter and whether, for that reason, it is
or is not longer binding on the United States.[191] At any rate, it is
clear that any such questions which arise concerning a treaty are of a
political nature and will not be decided by the courts. In the words of
Justice