George Sutherland

“ The effect of war upon treaties is a subject in respect of which there are widely divergent opinions. The doctrine sometimes asserted, especially by the older writers, that war ipso facto annuls treaties of every kind between the warring nations, is repudiated by the great weight of modern authority; and the view now commonly accepted is that 'whether the stipulations of a treaty are annulled by war depends upon their intrinsic character.' 5 Moore's Digest of International Law, § 779, p. ”

“ The decision below affects not only aliens crossing daily from Canada to labor in the United States, but, if followed, will extend to include those entering the United States for the same purpose from all countries, including Canada, who intend to remain for any period of time embraced within the meaning of the word 'temporary.' By the immigration rules, this time is defined as a reasonable fixed period to be determined by the examining officer, which may be extended from time to time, though not to exceed one year altogether from the date of original entry. ”

“ Those treaties from their very nature are subject to an implicit resolutory condition, namely a break in the state of peace. They cannot survive the outbreak of hostilities between the signatory States. War, to them, is a cause of final extinction and not of mere suspension. ”

“ The law of the subject is still in the marking, and, in attempting to formulate principles at all approaching generality, courts must proceed with a good deal of caution. But there seems to be fairly common agreement that at least the following treaty obligations remain in force: Stipulations in respect of what shall be done in a state of war; treaties of cession, boundary, and the like; provisions giving the right to citizens or subjects of one of the high contracting powers to continue to hold and transmit land in the territory of the other ”

“ Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms, in relation to this subject, we are satisfied, that the doctrine contended for is not universally true. ”

“ These cases are cited by respondents and relied upon as determinative of the effect of the War of 1812 upon article 3 of the treaty. This view we are unable to accept. Article 9 and article 3 relate to fundamentally different things. Article 9 aims at perpetuity, and deals with existing rights, vested and permanent in character, in respect of which, by express provision, neither the owners nor their heirs or assigns are to be regarded as aliens. These are rights which, by their very nature, are fixed and continuing, regardless of war or peace. ”

“ Thus, if the view of the court below prevail, it will result that aliens-not native of Canada or any other American country named in section 4 (c) -whose entry as immigrants is precluded, may land as temporary visitors and remain at work, in the United States for weeks or months at a time. ”

“ In view of this definite policy, it cannot be supposed the Congress intended, by admitting aliens temporarily for business, to permit their coming to labor for hire in competition with American workmen, whose protection it was one of the main purposes of the legislation to secure. ”