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Having thus shown that the supremacy of treaties over all State statutes conflicting therewith has not only been upheld by the Federal courts, but has been universally recognized by the State courts, in the next chapter we will review the decisions of the Courts in regard to the relations of congressional legislation and treaties; we will find that the Courts necessarily determine questions in that branch of the subject from an entirely different standpoint on account of the acknowledged equality of statutes and treaties of the United States under Article VI of the Constitution.

versed in Harnden vs. Fisher, U. S. MARSHALL, Ch. J., but treaty and Sup. Ct. 1816, 1 Wheaton, 300, State statute point not affected.)





SECTION 360-Decisions in preceding chap 374—Treaty stipulations at times ter relate to State legis

self-operative; the British lation.

prisoners; Justice Wood361–Different rules applicable to bury's opinion; the Metzquestions arising from con

gar cases. flicting treaty stipulations 375—Practical difficulties removed and congressional legisla by legislation. tion.

376—Rights of individuals under 362—Different resulting effects of treaty stipulations; Head

congressional action upon Money cases.
treaties classified.

377-Chief Justice Marshall's rule 363–Necessity of legislation to in Foster vs. Neilson reitmake treaties effectual.

erated. 364-Treaties as contracts and as 378—Treaties and statutes; the laws; Chief Justice Mar

latest prevails; the Chershall's views in Foster vs.


Tobacco; Justice Neilson.

Swayne's opinion. 365—Treaties when self-operating 379-Statutes which violate trea

and when legislation re ties; difference between quired.

State and United States 366—Treaty stipulations and tar statutes in this respect; iff statutes.

the Chinese exclusion 367—Taylor vs. Morton ; opinion

laws. of Justice Curtis.

380— Wide scope of decisions in 368—Taylor vs. Morton; violations

Chinese Ecclusion cases. of treaties.

381–Summary of decisions in 369—Treaty stipulations and tar cases involving Congres.

iff laws; Whitney vs. Rob sional legislation as to Chiertson.

nese immigration. 370—Other treaty stipulations as 382—Termination of war by treaty to tariff; necessity for leg

of peace. islation.

383—When treaties take effect, as 371-Summary of treaty and tariff

to governments and as to decisions.

individuals. 372—Treaty-making power can 384—Abrogation of treaties; varinot appropriate money.

ous methods. 373—Turner vs. Am. Bap. Miss. 385—Direct abrogation by Con

Union ; Justice McLean's gressional action.
opinion as to appropria- 386—Abrogation by implication;

Ward vs. Race Horse.


SECTION 387—Repeals and abrogations by 390—Congressional legislation to implication not favored.

carry out treaty stipula388—Right of abrogation in gen

tions; Justice Field's opineral.

ion in the Ross 389—These views applied to Clay- 391—The construction of treaties.

ton-Bulwer treaty.


$360. Decisions in preceding chapter relate to State legislation.—The only decisions cited in the preceding chapter are those which relate to the supremacy of the treatymaking power of the United States, so far as State legislation is concerned, and which also demonstrate that State legislation, whether enacted prior to the treaty, or subsequently thereto, must give way whenever it conflicts with the plain import of treaty stipulations; that is to say it has been decided that the United States, as to any matter which is within the scope of the treaty-making power, can practically repeal, and render inoperative any existing, or subsequently enacted State laws which conflict with the provisions of a treaty.

In fact, it must be conceded that the cases cited in the last chapter in which treaty stipulations have so operated as to practically change, or nullify, State laws of succession and inheritance, and in which they have rendered nugatory antiChinese legislation, show beyond all peradventure that State laws are in all respects subordinate to the treaty-making power of the Central Government.

§ 361. Different rules applicable to questions arising from conflicting treaty stipulations and congressional leg. islation.—An entirely different condition, however, exists as to the relative effects of treaty stipulations and congressional legislation ; the decisions which will be cited in this chapter show that while a treaty can supersede a prior act of Congress, on the other hand a subsequent act of Congress may supersede a prior treaty, either by rendering it ineffect

§ 360.

(see $$ 356, et seq., pp. 48, et seq., 1 Except in those instances in ante) and even in those cases the which the police powers and taxing state acts have been closely scruof the State have been sustained; tinized by the Courts.

ual or by abrogating it; in fact, the courts, in construing Article VI of the Constitution have declared that the statutes enacted by Congress, and the treaties made in pursuance of the Constitution, having been placed upon the same plane, are necessarily co-ordinate in strength, and in case of conflict they must be construed as though they were both statutes, and the latest utterance must be taken as the law of the land; the courts, however, always observe the elementary rule of construction that two existing laws must be construed so as to operate jointly if possible, the later one superseding the earlier in case it is impossible for them to co-exist consistently.

§ 362. Different resulting effects of congressional action upon treaties classified. The cases that must be examined in considering this element of the treaty-making power may be divided into three classes ; first, cases in which it has been held that treaties duly made and ratified are yet inoperative because Congress has not passed the appropriate legislation to carry them into effect; second, cases in which a later statute conflicting with the stipulations of prior treaty has been held to supersede it so far as the municipal laws of this country are concerned; and, third, cases in which it has been held that Congress has abrogated an existing treaty, either by direct legislation to that effect or by implication through the enactment of legislation wholly inconsistent therewith. In the following sections they will be treated generally in the above order, although no particular classification will be attempted, as cases frequently fall within more than one class.

$363. Necessity of legislation to make treaties effectual.—The position taken by the House of Representatives that, while it disclaims any right to participate in the actual making of a treaty, it must unite with the Senate in enacting Congressional legislation to carry those stipulations which are not self-operative into effect, has finally been definitely accepted by all the departments of the Federal Government; it has become the settled custom as soon as a treaty has been ratified to introduce the proper bills in the Senate or the

1 See 88 296 et seq., pp. 429 et seq., Vol. I.


House--always in the House of Representatives, so far as appropriations of money are concerned—so that the necessary and proper legislation to carry it into effect may be enacted; the courts have decided that treaties which require such legislation remain inoperative until the statutes have been enacted and that officers of the government must continue to follow the statutes, or the municipal law of the land, even if inconsistent with, or in violation of, the stipulations of a treaty, until Congress shall have so changed the statute law that the Executive Department can execute it in conformity with the provisions of the treaty. 2

Although, as stated in an earlier chapter, the treaty of 1794 with Great Britain, as well as other treaties referred to, called forth long debates in the House of Representatives as to the extent of the legislation required, the necessary laws were enacted and no occasion arose for the courts to determine what the effect would have been had such legislation not been enacted.

$364. Treaties as contracts and as laws; Chief Justice Marshall's views in Foster vs. Neilson.—An opinion upon this subject was delivered by Chief Justice Marshall in 1829 in which he declared that a treaty is practically a contract addressing itself to the political side of the government, and not to the judicial side, and is in all respects to be regarded as the law of the land and as such equivalent to an act of legislature when it operates of itself without any legislative provisions, to which he added these significant words which have been quoted since then on numerous occasions: “but when the terms of the stipulations import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the legislature (Congress) must execute the contract before it can become a rule for the court.” 1 This utterance as it was then expressed and as it has since been re-iterated, forms the bulwark behind which the courts have intrenched themselves, and while refusing to construe treaties

2 See treaty and tariff cases in $$ 366 et seq. of this chapter post.

3 See $ 295, p. 429, Vol. I.

& 364.

1 Foster & Elam vs. Neilson, U. S. Sup. Ct. 1829, 2 Peters 253, MARSHALL, Ch. J., and see $ 377 post.


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