TREATY-MAKING POWER OF THE UNITED STATES. 



761 



A treaty is in its nature a contract between two 

 nations, not a legislative act. It does not generally 

 effect, of itself, the object to be accomplished, espe- 

 cially so tar as its operation is infra-territorial, but is 

 carried into execution by the sovereign power of the 

 respective parties to the instrument. In the United 

 States a different principle is established. Our Con- 

 stitution declares a treaty to be the supreme law of 

 the land. It is, consequently, to be regarded in courts 

 of iustice as equivalent to an act of tbe Legislature, 

 whenever it operates of itself, without the aid of any 

 legislative provision. But when the terms of the 

 stipulation import a contract, when either of the par- 

 ties engages to perform a particular act, the _ treaty 

 addresses itself to the political, not the judicial de- 

 partment : and the Legislature must execute the con- 

 tract before it can become a rule for the court. 



In Taylor vs. Morton (2 Curtis's Reports, 

 454), heard by the United States Circuit Court 

 in Massachusetts, in 1855, it was decided that 

 the duty on Russian hemp was to be deter- 

 mined by the Tariff Act of 1842, and not by 

 the Russian treaty of 1832. Justice Curtis 

 held that the act of Congress was to rule, be- 

 cause it was the later expression of the legis- 

 lative will. He s;iid: 



The foreign sovereign between whom and the United 

 States a treaty has been made has a right to expect 

 and require its stipulations to be kept with scrupulous 

 good faith ; but through what internal arrangements 

 this shall be done is exclusively for the consideration 

 of the United States. Whether the treaty shall itself 

 be the rule of action of the people as well as the Gov- 

 ernment, whether the power to enforce and apply it 

 shall reside in one department or another neither the 

 treaty itself nor any implication drawn from it gives 

 him any right to inquire. If the people of the United 

 States were to repeal so much of their Constitution as 

 makes treaties part of their municipal law, no foreign 

 sovereign with whom a treaty exists could justly com- 

 plain, for it is not a matter with which he has any 

 concern. . . . 



The second section of the fourth article of the Con- 

 stitution is: " This Constitution and the laws of the 

 United States, which shall be made in pursuance 

 thereof, and all treaties made, or which shall be made, 

 under the authority of the United States, shall be the 

 supreme law of the land." There is nothing in the 

 language of this clause which enables us to say that 

 in the'case supposed, the treaty, and not the act of 

 Congress, is to afford the rule. Ordinarily treaties are 

 not rules prescribed by sovereigns for the conduct of 

 their subjects, but contracts, by which they agree to 

 rezulate their o\vn conduct. This provision of pur 

 Constitution has made treaties part of our municipal 

 law. But it has not assigned to them any particular 

 degree of authority in our municipal law, nor declared 

 whether laws so enacted shall or shall not be para- 

 mount to laws otherwise enacted. No such declaration 

 is made even in respect to the Constitution itself. It 

 is named in conjunction with treaties and acts of Con- 

 gress, as one of the supreme laws, but no supremacy 

 is in terms assigned to one over the other. 



In 1861 Congress imposed a duty of forty 

 dollars a ton on Russian hemp. It was con- 

 tended that under a prior treaty with Russia no 

 higher duty than twenty-five dollars a ton could 

 be exacted. The United States District Court 

 in New York held in 1871 that the act of Con- 

 gress superseded the treaty. (Ropes vs. Clinch, 

 8 Blatchford's " Reports, 1 ' 304.) In the case 

 of Bartram vs. Robertson. (15 u Federal Report- 

 er," 212) the United States Circuit Court for 

 the Southern District of New York held in 

 1883 that the duty on Danish sugar imported 



into the United States was to be determined 

 by the acts of Congress of Ib70 and 1875, and 

 not by the treaty made with Denmark in 1870. 

 " That Congress," said Judge Wallace, " had 

 the power to annul this treaty, so far as it 

 might have validity as a rule of municipal law, 

 is not disputed. Both treaties and acts of Con- 

 gress are, under the Constitution, the supreme 

 law of the land, and each are of equal authority 

 within the sphere of the constitutional power 

 of the respective departments of the Govern- 

 ment by which they are adopted; therefore, 

 the treaty or the act of Congress is paramount, 

 according as it is the latest expression of the 

 will of the law-making power." Similar views 

 were expressed by Justice Field in the opinion 

 of the United States Circuit Court in California 

 in the case of Ah Lung (18 Federal Reporter, 

 28) decided September 24, 1883. The question 

 had reference to an alleged conflict between the 

 Chinese exclusion law passed by Congress and 

 the treaty with China. Justice Field said : 



A treaty is in its nature a contract between two 

 nations, and by writers on public law is generally so 

 treated, and not as having of itself the force of a legis- 

 lative act. The Constitution of the United States, 

 however, places both treaties and laws made in pur- 

 suance thereof in the same category, and declares 

 them to be the supreme law of the land. It does hot 



five to either a paramount authority over the other, 

 o far as a treaty operates by its own force, without 

 legislation, it is 'to be regarded by the courts as 

 equivalent to a legislative "act, but nothing further. 

 If the subject to which it relates be one upon which 

 Congress can also act, that body may modify its pro- 

 visions or supersede them entirely. The immigration 

 of foreigners to the United States, and the conditions 

 upon which they shall be permitted to remain, are 

 appropriate subjects of legislation as well as of treaty 

 stipulation. Iso treaty can deprive Congress of its 

 power in that respect. " As said by Mr. Justice Curtis, 

 in the case of Taylor -vs. Morton : " Inasmuch as 

 treaties must continue to operate as part of our mu- 

 nicipal law, and be obeyed by the people : applied by 

 the judiciary, and executed by the President, while 

 they continue unrepealed ; and inasmuch as the power 

 of repealing these municipal laws must reside some- 

 where, and nobody other than Congress possesses 

 it, then legislative power is applicable to such laws 

 whenever they relate to subjects which the Constitu- 

 tion has placed under that legislative power." (2 

 Curtis's Circuit Court Reports, 459). An act of Con- 

 gress, then, upon a subject within its legislative pow- 

 er, is as binding upon the courts as a treaty upon the 

 same subject. Both are binding, except as the later 

 one conflicts or interferes with the former. If the 

 nation with whom we have made the treaty objects to 

 the action of the legislative department, it may pre- 

 sent its complaint to the executive department, and 

 take such other measures as it may deem that justice 

 to its own citizens or subjects requires. The courts 

 can not heed such complaint, nor refuse to give effect 

 to a law of Congress, however much it may seem to 

 conflict with the stipulations of the treaty. NVlu'ihor 

 a treaty has been violated by our legislation, so as to 

 be the proper occasion of complaint by the foreign 

 government, is not a judicial question. To the courts 

 it is simply the case of conflicting laws, the last modi- 

 fying or superseding the earlier. 



In the Cherokee Tobacco case (11 Wall:i<v's 

 Reports, 616) the United States Supremo Court 

 in 1870 sustained the power of Congress to tax 

 certain tobacco in the territory of the Chero- 

 kee nation in the face of a prior treaty be- 



