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as statutes until Congress shall have acted upon them, have protected themselves from all charges of violating, by judicial action, the good faith of the nation by throwing the burden of responsibility upon Congress for its own nonaction, or improper action, as the case may be, in case foreign nations with whom treaties have been made shall claim that the law is not administered in accordance with stipulations therein contained, and for which valuable concessions may possibly have been given to the citizens of the United States.

§ 365. Treaties when self-operating and when legislation required.—The opinion in Foster vs. Neilson shows, however, that the Chief Justice foresaw that though cases might arise in which the court, could not follow the treaty on account of conflicting legislation, that there would be instances in which legislation would not be required to make the treaty operative; in those cases he declared that the courts could regard it as the law of the land. The question, therefore, which always is presented to the court for its decision in regard to the construction and operation of a treaty, where there is either legislation conflicting with it, or no subsequent legislation carrying it into effect, is whether or not the treaty stipulations involved require legislation to make them operative or whether they are self-operative, and also whether or not any subsequent legislation conflicts therewith, so as to render them inoperative or abrogated in whole or in part.

The Supreme Court of the United States has just decided that as soon as territory ceded by a treaty has been delivered to the United States, the treaty becomes operative, and without further legislation the territory ceases to be foreign so far as revenue laws are concerned.1

$366. Treaty stipulations and tariff statutes.-Questions of this nature have been raised and determined quite frequently in tariff cases, in which importers have claimed rebates of duties on merchandise imported from countries with which the United States has entered into reciprocal tariff

§ 365.

APPENDIX at end of Volume I (note 1 De Lima vs. Bidwell (Insular dissenting opinions of MCKENNA, Cases), U. S. Sup. Ct. 1901, 182 U. S. WHITE, SHIRAS and GRAY, JJ.). 1, BROWN, J., and see 616, p. 119, For effect of treaties of cession, see Vol. I, and also INSULAR CASES chap. XIII, post.

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relations, on the ground that the duties exacted were in excess of those stipulated by the treaty, although Congress had not passed statutes modifying the tariff to accord with such stipulations, and in the manner claimed by the importers.

8 367. Taylor vs. Morton, opinion of Justice Curtis.-Mr. Justice Curtis of the Supreme Court, while sitting as Circuit Judge in Massachusetts in 1855, rendered an opinion which has always been regarded as a leading authority, and which the Supreme Court practically accepted as the decision and opinion of that Court in affirming the case on appeal.' [ In this case merchants claimed, that under the treaty of 1832 with Russia, importers were entitled to certain reductions in duties on hemp which were not allowed under the then existing tariff laws, as they were executed by the Customs' Officers of the United States; that the exaction of duties according to the schedules in the tariff act, and not according to treaty stipulations was a violation of the treaty, or contract with Russia, and that the Courts could compel the Executive Department of the Gorernment to modify its action so as to comply with the provisions of the treaty regardless of existing statutes; they also claimed that as a treaty is the supreme law of the land it was as equally binding on all officers of the United States as the tariff law itself. Mr. Justice Curtis, following the views of Chief Justice Marshall, held that a promise in a treaty addresses itself to the political, and not to the judicial, department of the Government, and that the Courts could not try the question whether the treaty had been ob. served or had been violated, but that it was a question for Congress to reduce the duty or to continue the exaction of the higher rate of duty, whether it was a violation of the treaty or not; he also further held that although a treaty were the law of the land, Congress might repeal it 80 far as it is a municipal law providing the subject

matter were within the legislative power of Congress.

X . ($ 368. Taylor vs. Morton ; violations of treaties. As to

$366.

8 367. 1 All the cases cited under the re 1 Taylor vs. Morton, U. S. Cir. Ct. maining sections of this chapter Mass. 1855, 2 Curtis, 454, CURshould be examined.

TIS, J, affirmed U. S. Sup. Ct. 1862,

2 Black, 481, CLIFFORD, J.

the effect of violating the treaty by either failing to enact the necessary legislation to carry it into effect, or by the actual enactment of legislation contrary to the spirit of the treaty, the opinion says: “Is it a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other ; whether the view and acts of a foreign sovereign, manifested through his representative has given just occasion to the political departments of our goverment to withhold the execution of a promise contained in a treaty, or to the act in direct contravention of such promise ? I apprehend not. These powers have not been confided by the people to the judiciary, which bas no suitable means to exercise them, but to the executive and legislative departments of our government. They belong to diplomacy and legislation, and not to the administration of existing laws. And it necessarily follows, that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government. On the other hand, if it be admitted that Congress has these powers, it is wholly immaterial to inquire whether they have, by the Act in question, departed from the treaty or not; or if they have, whether such departure were accidental or designed, and if the latter, whether the reasons therefor were good or bad. If by the Act in question they have not departed from the treaty, the plaintiff has no case. If they have, their Act is the municipal law of the country and any complaint, either by the citizen, or the foreigner, must be made to those, who alone are empowered by the Constitution, to judge of its grounds, and act as may be suitable and just."

$ 369. Treaty stipulations and tariff laws; Whitney vs. Robertson.-The rule laid down in Taylor vs. Morton, has been followed consistently by the courts ever since; one or two other cases only will be referred to in the text, others will be found in the notes.) The Supreme Court in 1888, again $ 368.

$369. 12 Curtis C. C. p. 461.

1 See pp. 72, et seq., post.

1

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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:2 “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 protec

2 Whitney vs. Robertson, U. S. I 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 legislation; 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, 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.

$ 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.

United States vs. Quimby, U. S. 1 See $ 123, p. 213, Vol. I. 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 1 Taylor vs. Morton, U. S. Cir. Ct. Thousand Feet of Pine Lumber, Mass. 1855, 2 ('urtis, 454, CURTIS, J.; U.S. Dist. Ct. N. D. N. Y. 1858, 4 affirmed, U. S. Sup. Ct. 1862, 2 Blatchf. 182, NELSON, J.

Black, 481, CLIFFORD, J.; and see United States Hathaway, $$ 367, et seq., pp. 67, et seq., ante. U. S. Sup. Ct. 1866, 4 Wallace, 404, 2 See note on p. 458, post. NELSON, J.

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