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 påy 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

and the rules affecting them are more properly the subject of a work on international law than of one of this nature.

upon the judicial tribunals, and must be respected and enforced by them. If, then, Congress, by legislation inconsistent with a treaty, creates a rule of conduct for its citizens, a rule for the guidance of its Courts, the only question is-has it enacted a law which operates to annul, or operates in disregard of, the provisions of a treaty? As I before observed, if this act does neither, then there is no question here. If it does either or both, then it seems to me within the constitutional power of Congress, and to be binding and conclusive.

"To avoid this view of the subject, the suggestion is, that the Court should not hold the treaty affected by the legislation, if satisfied, by means of which the Court can judicially take notice, that such was the intention of Congress-if satisfied that Congress, when they passed this statute, did it without having the treaty under actual consideration, and had no intention to violate its provisions, entertaining, so far as the subject was, in any technical sense even, before them, the purpose to maintain the treaty in its full vigor. The Court is thus called upon to say, in this case, nothing less, than that the law in question was wholly inoperative: for, there is nothing in the act imposing any duty upon Russia hemp, except the clause which declares that it shall be charged with a duty of forty dollars per ton. In a word, it unequivocally declares that the duty on Russia hemp shall be forty dollars, and, if it be not liable to that, it is liable to no duty. If the Court can inquire into the intention of the legislature, and be so brought to reach the conclusion that, while they passed that act, they nevertheless intended to preserve the treaty with Russia-in fact, that they intended that the duty on Russia hemp should not be greater than upon that of any other country-then the act of Congress becomes a nullity. For, if the words forty dollars' be struck out of the enactment, nothing remains imposing any duty on Russia hemp. I am, therefore, as it seems to me, called upon to declare, that the legislation which has been had was entirely inoperative, because Congress did not intend to pass a law which should be inconsistent with the terms of the treaty. In other words, although Congress has passed an act in explicit terms, of no doubtful meaning, susceptible of but one interpretation, this court is at liberty to declare that such law has no effect, and to refuse to regard it, because convinced that Congress did not intend that it should have the effect which necessarily follows from enforcing it. It is not within the scope of judicial inquiry to ask, in such a case, what was the intention of Congress for any such purpose; and the Court cannot be influenced by any such convictions.

"There are three modes in which Congress may practically yet efficiently annul or destroy the operative effect of any treaty with a foreign country. They may do it by giving the notice which the treaty contemplates shall be given before it shall be abrogated, in cases in which, like the present, such a notice was provided for; or, if the terms of the treaty require no such notice, they may do it by the formal

§ 372. Treaty-making power cannot appropriate money. -It has also been settled that the treaty-making power of

abrogation of the treaty at once, by express terms; and even where, as in this case, there is a provision for the notice, I think the Government of the United States may disregard even that, and declare that the treaty shall be, from and after this date, at an end,' and meet the consequences of their responsibility for a breach of faith with the Russian Government. And yet, while I state that as my judgment of the legal proposition I am not thereby intimating that it is a thing proper to be done, or that such a proposition can be presumed to be entertained by our Government, or, if at all, except upon exigencies and under the pressure of considerations of state, of such importance and necessity as compels a departure from good faith. But, as a legal proposition, I suppose it is possible in that way to destroy the legal operation of a treaty. So, they may render it inoperative by legislation in contradiction of its terms, without formal allusion at all to the treaty; and, generally, they may legislate as if no such treaty existed, in modification or alteration of what, by force of the treaty, has been the law heretofore, thus modifying the law of the land, without denying the existence of the treaty, or the obligations thereof between the two Governments, as a contract, and answer therefor to such foreign Government, or meet its reclamation or retaliation as may be necessary."

THE PORTUGUESE TONNAGE CASE.

Oldfield vs. Marriot, U. S. Sup. Ct. 1850, 10 Howard, 146, WAYNE, J. This was one of the earliest cases involving the apparent conflict of treaties and tariff or tonnage statutes. The question involved, and points decided, are stated in the syllabus, as follows:

"The second article of the treaty between the United States and Portugal, made on the 26th of August, 1840 (8 Stat. at Large, 560), provides as follows, viz:

"Vessels of the United States of America arriving, either laden or in ballast, in the ports of the kingdom of Portugal, and, reciprocally, Portuguese vessels arriving, either laden or in ballast, in the ports of the United States of America, shall be treated, on their entrance, during their stay, and at their departure, upon the same footing as national vessels coming from the same place, with respect to the duties of tonnage, lighthouse duties, pilotage, port charges, as well as to the fees and perquisites of public officers, and all other duties and charges of whatever kind or denomination, levied upon vessels of commerce, in the name or to the profit of the government, the local authorities, or any public or private establishment whatever.'

"This article is confined exclusively to vessels. It does not include cargoes, or make any provision for an indirect trade,—that is, it does not provide for the introduction of articles which are the growth, produce, or manufacture of some third country, into the ports of Portugal in American vessels upon the same terms upon which they are introduced in Portuguese vessels or the introduction of such articles into