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;' 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. 1See §§ 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 stipulations 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." 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 2 See treaty and tariff cases in §§ 366 et seq. of this chapter post. 3 See § 295, p. 429, Vol. I. § 364. 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. 1 De Lima vs. Bidwell (Insular Cases), U. S. Sup. Ct. 1901, 182 U. S. 1, BROWN, J., and see § 61b, p. 119, Vol. I, and also INSULAR CASES APPENDIX at end of Volume I (note dissenting opinions of MCKENNA, WHITE, SHIRAS and GRAY, JJ.). For effect of treaties of cession, see chap. XIII, post. relations, on the ground that the duties exacted were in excess of those stipulated by the treaty, although Congress had not passed statutes modifying the tariff to accord with such stipulations, and in the manner claimed by the importers.1 367. Taylor vs. Morton, opinion of Justice Curtis.—Mr. Justice Curtis of the Supreme Court, while sitting as Circuit Judge in Massachusetts in 1855, rendered an opinion which has always been regarded as a leading authority, and which the Supreme Court practically accepted as the decision and opinion of that Court in affirming the case on appeal.1 In this case merchants claimed, that under the treaty of 1832 with Russia, importers were entitled to certain reductions in duties on hemp which were not allowed under the then existing tariff laws, as they were executed by the Customs' Officers of the United States; that the exaction of duties according to the schedules in the tariff act, and not according to treaty stipu lations was a violation of the treaty, or contract with Russia, and that the Courts could compel the Executive Department of the Government to modify its action so as to comply with the provisions of the treaty regardless of existing statutes; they also claimed that as a treaty is the supreme law of the land it was as equally binding on all officers of the United States as the tariff law itself. Mr. Justice Curtis, following the views of Chief Justice Marshall, held that a promise in a treaty addresses itself to the political, and not to the judicial, department of the Government, and that the Courts could not try the question whether the treaty had been ob served or had been violated, but that it was a question for Congress to reduce the duty or to continue the exaction of the higher rate of duty, whether it was a violation of the treaty or not; he also further held that although a treaty were the law of the land, Congress might repeal it so far as it is a municipal law providing the subject-matter were within the legislative power of Congress. § 368. Taylor vs. Morton; violations of treaties.-As to § 366. 1 All the cases cited under the remaining sections of this chapter should be examined. § 367. 1 Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, CURTIS, J, affirmed U. S. Sup. Ct. 1862, 2 Black, 481, CLIFFORD, J. the effect of violating the treaty by either failing to enact the necessary legislation to carry it into effect, or by the actual enactment of legislation contrary to the spirit of the treaty, the opinion says: "Is it a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the view and acts of a foreign sovereign, manifested through his representative has given just occasion to the political departments of our goverment to withhold the execution of a promise contained in a treaty, or to the act in direct contravention of such promise? I apprehend not. These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them, but to the executive and legislative departments of our government. They belong to diplomacy and legislation, and not to the adminis tration of existing laws. And it necessarily follows, that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government. On the other hand, if it be admitted that Congress has these powers, it is wholly immaterial to inquire whether they have, by the Act in question, departed from the treaty or not; or if they have, whether such departure were accidental or designed, and if the latter, whether the reasons therefor were good or bad. If by the Act in question they have not departed from the treaty, the plaintiff has no case. If they have, their Act is the municipal law of the country and any complaint, either by the citizen, or the foreigner, must be made to those, who alone are empowered by the Constitution, to judge of its grounds, and act as may be suitable and just."1 $369. Treaty stipulations and tariff laws; Whitney vs. Robertson. The rule laid down in Taylor vs. Morton, has been followed consistently by the courts ever since; one or two other cases only will be referred to in the text, others will be found in the notes. The Supreme Court in 1888, again § 368. 12 Curtis C. C. p. 461. § 369. 1 See pp. 72, et seq., post. |