322 BURR— THE TREATY-MAKING POWER [April 20, 



supremacy between laws and treaties, except that both are controlled by the 

 Constitution. A law requires the assent of both houses of Congress, and, 

 except in certain specified cases, the signature of the President. A treaty 

 is negotiated and made l)y tlie President, with the concurrence of two thirds 

 of the Senators present, but each of them is the supreme law of the land."'" 



The authorities are then quoted with approval."'' 



In Fok Yung Yo Z's. United States,"' the treaty of 1894 with 

 China, under consideration in United States zs. Lee Yen Tai, came 

 again before the United States Supreme Court. By Article 3 it was 

 "agreed that Chinese laborers shall continue to enjoy the privilege 

 of transit across the territory of the United States in the course of 

 their journey to or from other countries, subject to such regulations 

 by the Government of the United States as may be necessary to 

 prevent such privilege of transit from being abused." On December 

 8th, 1900, the Secretary of the Treasury, acting under this treaty, 

 issued regulations to the collectors of customs. A collector, acting 

 under these regulations, refused to permit the plaintiff to land. 

 His action was sustained by the Supreme Court, who recited the 

 paragraph of the treaty quoted above and said: 



" We regard this as explicitly recognizing existing regulations, and as 

 assenting to their continuance, and to such modification of them as might be 

 found necessary to prevent abuse. It dealt with the subject specifically, and 

 was operative without an Act of Congress to carry it into effect.""^ 



This is certainly a decision that a provision in a treaty leaving it to 

 the executive to regulate commerce in certain particulars, is valid 

 without an act of Congress, and that regulations made under it are 

 enforceable. 



Inasmuch as the Supreme Court has spoken so often, so uni- 

 formly, so positively, upon the question discussed in the preceding 

 cases, it would seem almost a work of supererogation to inquire how 

 many treaties have been made regulating commerce, and put into 

 eft'ect without any act of Congress. In Baldwin z's. Franks,"'' de- 

 cided in 1887, Mr. Justice Fields recited a list. There are, he said, 



" clauses found in some treaties with foreign nations, stipulating that the 

 subjects or citizens of those nations may trade with the United States, and, 



"^I82 U. S., p. 195. ^'^iSsU. S., p. 303. 



"» See note 9. '" 120 U. S., 678 (1887). 



"'185 U. S., 296 (1902). 



