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tradition treaties already made or which may hereafter be made.

$ 376. Rights of individuals under treaty stipulations ; Head Money Cases.—In the Head Money Cases the Supreme Court sustained a per capita tax on immigrants, payable by the owner of the vessel bringing them, although it was contended that the act violated treaty stipulations as to the free ingress and egress of citizens. In his opinion Chief Justice FULLER says: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.' A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

$ 376.
Edye vs. Robertson, U. S. Cir. Ct.


$ 375.

1 For general extradition statutes see $ 436, post.

“But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

“A treaty is made by the President and Senate. Statutes are made by the President, the Senate and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be

If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be

1 made by Congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

“In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal."

Other cases in which the effect of treaties on private rights are considered are referred to in the notes.?


S. D. N. Y. 1883, 21 Blatchf. 460, Alaska, 1891, 49 Fed. Rep. 575, BLATCHFORD, J., affirmed U. S. BUGBEE, J., and U. S. Cir. Ct. Sup. Ct. 1884, 112 U. S. 580, MIL- App. 9th Cir. 1896, 75 Fed. Rep. LER, J. (Head Money Cases.) 513, HAWLEY, J.

2 The Pilot, U. S. Dist. Ct. Wash. In re Rodriguez, U. S. Dist. Ct. 1891, 48 Fed. Rep. 319, HARD- Texas, 1897, 81 Fed. Rep. 337, FORD, J., reversed in U. S. Cir. Ct. MAXEY, J. App. 9 Cir. 1892, 7 U. S. App. 188, United States

Schooner GILBERT, J.; also reported as Duns- Peggy, U. S. Sup. Ct. 1801, 1 muir vs. Bradshaw, 7 Id. 193. Cranch, 103, MARSHALL, Ch. J.

Respublica vs. Gordon, Sup. Ct. United States Diekelman, Penna. 1788, 1 Dallas, 252, MC-U. S. Sup. Ct. 1875, 92 U. S. 520, KEAN, J.

WAITE, Ch. J., reversing DiekelTown vs. De Haven, U. S. Cir. Ct. man vs. United States, 8 Ct. Claims, Oregon, 1878, Ő Sawyer, 146, 371, LORING, J., on appeal granted DEADY, J., Fed. Cases, 14,113, on application reported in 9 Ct. La Ninfa, The, U. S. Dist. Ct. Claims, 320.


$ 377. Chief Justice Marshall's rule in Foster vs. Neilson reiterated. The only conclusion that can be reached by an examination of all the reported decisions in regard to the necessity of legislative action to make treaties operative is the single sentence which has already been quoted from the opinion of Chief Justice Marshall in Foster vs. Neilson ;' it is for the court to determine in each instance, in accordance with the subject matter of the case at bar, and the terms of the treaty, whether or not the particular stipulation involved has become operative without legislative action or whether it requires such action; in view of the oft repeated notice of the Supreme Court that its decision on constitutional points must be confined to the exact state of facts as presented in the case decided, and cannot be inferentially extended, it is impossible to express an authoritative opinion as to the exact classes into which treaty stipulations can be divided in regard to the necessity of congressional action, except so far as they have been generally classified in the foregoing sections and illustrated by the cases above referred to in this chapter.

$ 378. Treaties and statutes; the latest prevails; the Cherokee tobacco; Justice Swayne's opinion.—As a general conclusion, however, it can be stated that although treaties and statutes have been held by the courts to be on the same plane as the supreme law of the land, and that while treaties can supersede prior acts of Congress; and acts of Congress can supersede prior treaties, as was held in a case


United States vs. Rauscher, U. S. Canal Appraisers vs. People, Sup. Ct. 1886, 119 U. S. 407, MIL- N. Y. Court of Errors, 17 Wendell,

570, WALWORTH, Chanc. 1836. Chae Chan Ping vs. United Davis vs. Police, Jury &c. U. S. States, U. S. Sup. Ct. 1889, 130 Sup. Ct. 1850, 9 Howard, 280, U. S. 581, FIELD, J. See extract WAYNE, J., and see other cases from opinion on p. 95, post. collated under chap. XIII, post,

Chew Heong vs. United States, involving private rights as affected U. S. Sup. Ct. 1884, 112 U. S. 536, by treaties of cession of, and transHARLAN, J. See extract from fer of sovereignty over territory. opinion on p. 94, post.

$ 377. Fong Yue Ting vs. United States, 1 Foster vs. Neilson, U. S. Sup. Ct. U. S. Sup. Ct. 1893, 149 U. S. 698, 1829, 2 Peters, 253, MARSHALL, Ch.J. GRAY, J., and see especially quota- | And see $ 364, p. 66, ante. tion on p. 103, post.

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decided by Mr. Justice Swayne in 1879, it more often happens that the statute abrogates, and supersedes, the treaty, $ 378.

results from the nature and funda1 The Cherokee Tobacco, U. S. mental principles of our governSup. Ct. 1870, 11 Wallace, 616, ment. The effect of treaties and SWAYNE, J.

acts of Congress, when in conflict, Indians and freedmen residing in is not settled by the Constitution. the Cherokee Nation were not sub- But the question is not involved in jected to the payment of taxes on any doubt as to its proper solution. any of their products sent to mar- A treaty may supersede a prior act ket, by the Cherokee treaty of 1866. of Congress, and an act of Congress The Internal Revenue Act of 1868 may supersede a prior treaty. In levied a tax upon spirits, liquors, the cases referred to these printobacco, etc., “ produced anywhere ciples were applied to treaties with within the exterior boundaries of foreign nations. Treaties with Inthe United States."

dian nations within the jurisdiction The Indians claimed that not of the United States, whatever conwithstanding this act they were ex-siderations of humanity and good empt under the prior treaty, but faith may be involved and require the court held that the terms of the their faithful observance, cannot be act included the Indian Reserva- more obligatory. They have no tions and that notwithstanding the higher sanctity; and no greater intreaty, the act would apply under violability or immunity from legisthe rule that an act of Congress lative invasion can be claimed for supersedes a prior treaty. On them. The consequences in all pp. 620–622 the court says:

such cases give rise to questions “But conceding these views to which must be met by the political be correct, it is insisted that the department of the government. section cannot apply to the Chero- They are beyond the sphere of jukee nation because it is in conflict dicial cognizance. In the with the treaty. Undoubtedly one under consideration the act of or the other must yield. The re- Congress must prevail as if the pugnancy is clear and they cannot treaty were not an element to be stand together.

considered. If a wrong has been “The second section of the fourth done the power of redress is with article of the Constitution of the Congress, not with the judiciary, United States declares that this and that body, upon being applied Constitution and the laws of the to, it is to be presumed, will United States which shall be made promptly give the proper relief. in pursuance thereof, and all trea “ Does the section thus conties which shall be made under the strued deserve the severe stricauthority of the United States, tures which have been applied to shall be the supreme law of the it? As before remarked, it extends land.'

the revenue laws over the Indian “ It need hardly be said that a territories only as to liquors and treaty cannot change the Constitu- | tobacco. In all other respects the tion or be held valid if it be in vio- | Indians in those territories are exlation of that instrument. This lempt. As regards those articles


than that the treaty abrogates, and supersedes, the statute; not because a statute is a higher order of law than a treaty but because the statute goes into effect without further congressional action, while the treaty may, and, in many instances, does, require such assistance.

This same principle applies in the tariff cases, and also in the Chinese exclusion cases, in fact there are many cases in which treaties have been superseded by conflicting statutes and in wbich the Supreme Court has decided that the later statute prevails as to the administration of law, and all questions of whether or not the faith of the nation is involved are referred to Congress, and to the Executive, as political matters and without the domain of the judiciary.4

only the same duties are exacted Chew Heong vs. United States, as from our own citizens. The bur- U. S. Sup. Ct. 1884, 112 U. S. 536, den must rest somewhere. Reve- p. 565, HARLAN, J. nue is indispensable to meet the Head Money Cases, U. S. Sup. Ct. public necessities. Is it unreason- 1884, 112 U. S. 580, p. 597, MILable that this small portion of it LER, J. shall rest upon these Indians? Ward vs. Race Horse, U. S. Sup.

The frauds that might otherwise Ct. 1896, 163 U. S. 504, p. 511, be perpetrated there by others, WHITE, J. under the guise of Indian names Draper vs. United States, U. S. and simulated Indian ownership, is Sup. Ct. 1896, 164 U. S. 240, p. 243, also a consideration not to be over- WHITE, J. looked.

Thomas vs. Gay, U. S. Sup. Ct. “ We are glad to know that there 1898, 169 U. S. 264, p. 271, SHIRAS, J. is no ground for any imputation And see also upon the integrity or good faith of Fong Yue Ting vs. United States, the claimants who prosecuted this U. S. Sup. Ct. 1893, 149 U. S. 698, writ of error. In a case not free GRAY, J. See extract on p. 103, from doubt and difficulty they post. acted under a misapprehension of Chinese Exclusion Cases, U. S. their legal rights." Messrs. Jus- Sup. Ct. 1889, 130 U. S. 581, p. 600. tices BRADLEY and DAVIS dis- See extract on p. 95, post. sented.

La Abra Silver Mining Co. vs. 2 See § 371 pp. 68, et seq., ante. United States, U. S. Sup. Ct. 1899,

8 See $$ 379-81, pp. 87, et seq. 175 U. S. 423, p. 460, HARLAN, J. post.

United States vs. Mrs. Gue Lim, 4 Besides the tariff cases referred U. S. Sup. Ct. 1900, 176 U. S. 459, to, see cases in which the Cherokee p. 464, PECKHAM, J. Tobacco has been cited, as follows: Whitney v. Robertson, U. S. Sup

United States v. McBratney, Ct. 1888, 124 U. S. 190, p. 194, U. S. Sup. Ct. 1881, 104 U. S. 621, FIELD, J. p. 623, GRAY, J.

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