laid down the rule as to the effect of treaties on tariff law, as appears by the following utterance of that eminent authority on constitutional law, Mr. Justice FIELD: "The act of Congress under which the duties were collected authorized their exaction. It is of general application, making no exception in favor of goods of any country. It was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing they can only be forced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protec2 Whitney vs. Robertson, U. S. Ct. S. D. N. Y. 1884, 21 Fed Rep. Sup. Ct. 1888, 124 U. S. 190, FIELD, 566.

J.; affirming same case, U. S. Cir.

tion of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance."

§ 370. Other treaty stipulations as to tariff; necessity for legislation. The treaties with Great Britain of 1854, and of 1871, not only contained stipulations as to promised reciprocal modifications of the existing tariffs, of the United States and Canada, but mutual stipulations were also made as to the future regulation of fisheries, canals, etc.; in all of those cases it was necessary for Congress to pass new laws carrying out the treaties or to repeal or amend existing statutes, before the treaties became operative; the same rule was applicable to the various Canadian Provinces, Great Britain having agreed to request them to enact similar legisla tion; as to those provisions the treaty could not be enforced in Canada any more than it could in this country without such legislation.' The proclamation of the President issued July 1st, 1873,2 shows that the Executive Department of the Government of the United States did not consider that the treaty of Washington of 1871 went into effect, until upwards of two years had elapsed after it had become "the supreme law of the land," so far as all those matters which required no legislation to make it effectual were concerned.3

§ 371. Summary of treaty and tariff decisions.-The rule laid down by Mr. Justice Curtis in Taylor vs. Morton' seems to be the best exposition of the law in regard to treaty stipulations and tariff statutes, and the rights of importers thereunder, so far as the courts are concerned. Some addi

§ 370.

1 See § 123, p. 213, Vol. I.

United States vs. Quimby, U. S. Sup. Ct. 1866, 4 Wallace, 408, NEL

2 Richardson's Messages of the soN, J. Presidents, vol. VII, p. 228. $ 371.

3 One Hundred and Thirty-Four Thousand Feet of Pine Lumber, U. S. Dist. Ct. N. D. N. Y. 1858, 4 Blatchf. 182, NELSON, J.

United States VS. Hathaway, U. S. Sup. Ct. 1866, 4 Wallace, 404, NELSON, J.

1 Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, CURTIS, J.; affirmed, U. S. Sup. Ct. 1862, 2 Black, 481, CLIFFORD, J.; and see §§ 367, et seq., pp. 67, et seq., ante. 2 See note on p. 458, post.

tional cases are referred to in the notes. The liability of this government to citizens of a foreign government with

8 TREATY AND TARIFF CASES.

THE SUGAR CASES.

Bartram vs. Robertson, U. S. Cir. Ct. S. D. N. Y. 1883, 21 Blatchf. 211, 15 Fed. Rep. 212, WALLACE, J., (affirmed U. S. Sup. Ct. 1887, 122 U. S. 116, FIELD, J.).

The treaty with Denmark of 1826 provides that no higher or other duties shall be imposed on articles, the produce of Denmark imported into the United States, than shall be payable on like articles, the products of any other foreign country. In 1875 a treaty was made with the Hawaiian Islands providing for the free entry into the United States of Hawaiian sugar and molasses to take effect whenever congress should pass the necessary legislation which was done in 1876. Duties under the general tariff law continued to be exacted on sugar and molasses brought from the Danish West Indies against the protest of the importers who claimed they were entitled to free entry by reason of the provisions of the treaty, and the subsequent removal of duties on similar sugar from Hawaii. The court held that Congress had power to annul this treaty and that it had power to pass a general tariff law which would supersede it and relied upon the case of Taylor vs. Morton, 2 Curtis, 454, for authority that the treaty with the Hawaiian Islands did not in any way modify the tariff act, except as to Hawaii. The court also held that the stipulation in the Danish treaty referred to a general levying of duties with foreign nations and not to the particular relations with one country.

In this respect the Circuit Judge said in his opinion (21 Blatch. 216): "The meaning of the stipulation is, that there shall be no unfriendly discrimination, in the imposition of duties, between the products of Denmark and those of other countries. The stipulation is satisfied when there is no discrimination, according to the rule and policy observed with foreign nations in general. The plaintiff's argument involves the assumption that the exception is to be deemed the general rule. There is a broader view of the controversy, however, which cannot be slighted. Stipulations like the one relied on are found in upwards of forty treaties made between the United States and foreign powers since 1815. Without attempting an enumeration, it suffices to say, there is a similar stipulation in the treaty with Prussia, with Sweden and Norway, with the Two Sicilies, with Portugal, with Nicaragua, with Hayti, with Honduras and with Italy, all of which were in force when Congress enacted the present tariff act. If the argument for the plaintiffs is sound, all these treaty stipulations are to be deemed embodied in the tariff act, so as practically to exempt from duty the importations of all these foreign countries, whenever the products of a single country may be exempted from duty. Can it be for a moment supposed that a stipulation in a treaty with a single power, exempting the products of that country from the payment of duty when im

which treaty stipulations have been made and which this government has not fulfilled, is an entirely different question.

ported here, made in the interest of our own commerce or manufactures, or founded upon special considerations of comity between the two nations, could be intended to affect such a far-reaching abrogation of our own revenue laws as would thus ensue? The proposition is too startling to be entertained."

Netherclift vs. Robertson, U. S. Cir. Ct., S. D. N. Y. 1886, 23 Blatchford, 546; 27 Fed. Rep. 737, Coxe, D. J.

This was a case involving the right of the United States to continue to collect duties on sugar brought from the Dominican republic, at the regular tariff schedule, notwithstanding the existence of the treaty of 1867 that no higher duty should be charged on products of that government than were charged on similar products of other governments, and the subsequent treaty with Hawaii in 1876 for the free admission of sugar from the territory of that government.

The case is almost identical with that of Bartram vs. Robertson (15 Fed. Rep. 213, 21 Blatchf. 211, affirmed U. S. Supreme Court, 122 U. S. 116), where the same issue was involved, except as to sugar brought from the Danish West Indies, a similar clause existing in the treaty with Denmark of 1827.

In deciding this case the opinion is expressed (pp. 548-549), as follows: In Bartram vs. Robertson (21 Blatchf. C. C. R. 211), this court decided that Congress has power to annul a treaty, so far as it operates as a rule of municipal law; that the provisions of the Danish treaty, (8 U. S. Stat. at Large, 340,) which are similar to those now in question, and which, it was argued, admitted the productions of Denmark on the same terms as those of the Hawaiian Islands, could not be enforced, because, subsequent to the treaty, Congress had imposed duties upon all sugar and molasses of designated grades. The general law included Denmark, and her products could not, therefore, be admitted free without an express legislative enactment.

"The court held, also, that, even though the provisions of the Danish treaty were incorporated in the tariff law, it would not change the result, the fair meaning of the stipulation being, that there should be no unfriendly discrimination against Denmark, and there is none when she is placed on an equal footing with all foreign nations, with one exception only."

THE OPIUM CASE.

Powers vs. Comly, U. S. Sup. Ct. 1879, 101 U. S. 789, WAITE, Ch. J. Under the act of 1872, opium, the produce of Persia, when imported, from a country west of the Cape of Good Hope, to the United States, was subjected to an additional duty of 10 per cent ad valorem; certain importers claimed that this was in conflict with the provisions of the treaty with Persia. The Supreme Court decided that the duty was not a violation. The entire opinion is as follows:

"This case is substantially disposed of by Hadden vs. The Collector,

Such claims would have to be presented to the State Department by the proper department of the foreign government

5 Wall. 107 and Sturges vs. The Collector, 12 id. 19. Section 3 of the act of June 6, 1872, (17 Stat. 232), is in all material respects like the statutes under consideration in those cases where we held that countries 'beyond the Cape of Good Hope' and countries east of the Cape of Good Hope' meant countries with which, at that time, the United States ordinarily carried on commercial intercourse by passing around that Cape. Although the act of 1872 was passed after the Suez Canal was in operation, we see no indication of an intention by Congress to give a new meaning to the language employed which had already received a judicial construction. The words used are words of description and indicate to the popular mind the same countries now that they did before the course of trade was to some extent changed by cutting through the Isthmus of Suez. The object of Congress was to encourage a direct trade with these Eastern countries. For this purpose, in legal effect, a bounty was offered to those who imported the products of that region directly from the countries themselves, instead of from places west of the Cape.

"We see nothing in the act of Congress which is in conflict with the treaty with Persia. 11 Stat. 709. If the subjects of Persia export their products directly to the United States, they are required to pay no more duties here than the merchants and subjects of the most favored nation.' It is only when their products are first exported to some place west of the Cape, and from there exported to the United States, that the additional duty is imposed. Under such circumstances, the importation into the United States is not, commercially speaking, from Persia, but from the last place of exportation."

THE RUSSIAN HEMP CASE.

Ropes vs. Clinch. U. S. C. C. S. D. N. Y. 1871, 8 Blatchf. 304, WOODRUFF, Cir. J.

This was an action against the collector to recover back duties paid on raw Russian hemp, based on the equal duty clause in the treaty with Russia of 1832.

Russian hemp by the tariff act of 1861 was charged forty dollars per ton; manila and other hemps of India twenty-five dollars per ton.

It was a jury case, and the court orally instructed the jury to find for the defendant, and sustained the right under the tariff act to collect a larger duty. In the course of his charge the judge referred to the right of Congress to legislate disregarding a treaty, as follows:

"Our system of government divides itself into three departments,— legislative, executive and judicial-and the supreme power of legislation, subject only to the Constitution, is vested in the legislature. They legislate, and thereby affect all rights and privileges, and impose all restrictions and obligations upon our own citizens, and upon the citizens of other nations who come within the influence of our laws, subject to the responsibilities of this Government, in its national character, for any breach of its faith with foreign nations; and that legislation is binding