314 BURR— THE TREATY-MAKING POWER [April 20. 



Taylor z's. Morton.' '•' Congress had passed a customs act alleged 

 to be in contravention of an existing treaty with Russia; and the 

 judge held that it was wholly immaterial to inquire whether the 

 statute departed from the treaty, inasmuch as it was the prerogative 

 of Congress to determine whether a treaty should be kept or abro- 

 gated, and that the will of Congress expressed in a statute was 

 obligatory on the judiciary, whether the departure from the treaty 

 was accidental or designed, or the reasons therefor, if designed, 

 were good or bad. 



This question reached the Supreme Court in 1870 in the case of 

 The Cherokee Tobacco,'-'^ wherein an act of Congress was in con- 

 flict with the existing treaty with the Cherokee nation. Said the 

 Court : 



" Undoubtedly one or the other must yield. The repugnancy is clear and 

 they cannot stand together. . . . The effect of treaties and acts of Congress, 

 when in conflict, is not settled by the Constitution. But the question is not 

 involved in any doubt as to its proper solution. A treaty may supersede a 

 prior Act of Congress (Foster & Elam z's. Neilson is here quoted in the 

 margin), and an Act of Congress may supersede a prior treaty (Taylor vs. 

 Morton is here quoted in the margin). In the cases referred to these 

 principles were applied to treaties with foreign nations."'"^ 



The Court therefore held that they applied equally to treaties with 

 Indian tribes, and that the statute must prevail over the provisions 

 of an earlier treaty. There are several interesting points to note 

 here. The first is that Foster & Elam vs. Neilson is quoted as estab- 

 lishing the principle that "a treaty may supersede a prior act of 

 Congress." Surely if it may do that, it is not necessary in order 

 that it should become efifective as a law of the land that it " be 

 sanctioned by an act of Congress." In the case under discussion, 

 the Act of Congress was passed under the power " to regulate com- 

 merce with foreign nations, and among the several States, and with 

 the Indian tribes." There had been an eiTective treaty regulating 

 commerce. Was it invalid as it dealt with a subject expressly com- 

 mitted to Congress? Such an idea never entered the minds of the 

 Court. In truth, while constitutional interpretation was forming 



""2 Curtis, 454 (1855)- 

 ^'"11 Wall., 616 (1870). 

 '" II Wall, pp. 620-1. 



