CHAPTER XII.

DECISIONS OF FEDERAL COURTS IN REGARD TO THE RELATIVE EFFECT OF TREATY STIPULATIONS AND CONGRESSIONAL ACTION.

387-Repeals and abrogations by 390-Congressional legislation to

implication not favored.

388-Right of abrogation in gen

eral.

carry out treaty stipulations; Justice Field's opinion in the Ross case.

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.1

§ 361. Different rules applicable to questions arising from conflicting treaty stipulations and congressional legislation. 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.

1 Except in those instances in which the police powers and taxing of the State have been sustained;

(see §§ 356, et seq., pp. 48, et seq., ante) and even in those cases the state acts have been closely scrutinized 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 a 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;1 it has become the settled custom as soon as a treaty has been ratified to introduce the proper bills in the Senate or the § 363.

1 See §§ 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 stipu lations 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.3

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." 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

1

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

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.