I9I2-] OF THE UNITED STATES. 317 



Mr. Chief Justice Marshall in Foster & Elam vs. Neilson and of 

 Mr. Justice Miller, already quoted above, is unanimously approved 

 and set forth in full.^-'' 



The cases of Bartram z's. Robertson^^" and Whitney -z's. Robert- 

 son"^ will be next considered. These grew out of a treaty made 

 January 30th, 1875, with the King of the Hawaiian Islands providing 

 for the importation free of duty into the United States of certain 

 produce of these islands. It was held in the former case that the 

 existing treaty with Denmark, and in the latter case that the existing 

 treaty with the Dominican Republic, did not by the provisions 

 therein contained against discrimination in favor of products of 

 other countries, operate to cause the existing tariff to be lowered 

 in favor of those nations. The ground given in Bartram vs. Robert- 

 son for this decision was that the treaty stipulations relied on, 

 " even if conceded to be self-executing by the way of a proviso or 

 exception to the general law imposing the duties, do not cover con- 

 cessions like those made to the Hawaiian Islands for a valuable 

 consideration." In Whitney vs. Robertson the former case is 

 quoted with approval, and the same ground is given for the decision. 

 The Court then proceeds to state as a second controlling considera- 

 tion the fact that the Act of Congress under which the duties were 

 collected on importations from San Domingo, was subsequent in 

 date to the treaty. On this point the Court quoted with approval 

 Taylor vs. Morton, and Head Money Cases, and said: 



"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 pro- 

 visions, 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 

 obhgation, 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."'^^ 



This is the language of Mr. Justice Field speaking for a united 

 Court in a case involving the comparative efficacy of treaty pro- 

 visions and an Act of Congress respecting duties. Can it be said 



""Ibid., pp. 418-9. '"124 U. S., 190 (1888). 



"»i22 U. S., 116 (1887). ''-Ibid., p. 194- 



PROC. AMER. PHIL. SOC. LI. 206 R, PRIiNTED SEPT. 6, I9I2. 



