ment of this legislation may be simultaneously issued by the executive departments of the two governments with the understanding that the commercial arrangement thus put in operation shall remain in force so long as neither government shall definitely, at least three months in advance, inform the other of its intention and decision to consider it at an end at the expiration of the time indicated; provided, however, that the termination of the commercial arrangement shall begin to take effect either on the 1st of January or on the 1st day of July.' "In a note of the same date the Secretary of State accepted the terms that were offered, but the arrangement did not go into effect. till the 1st day of April, 1891, which was the date fixed in the act of Congress for the free admission of sugars into the United States. “It is manifest that the arrangement thus concluded rested wholly on legislation adopted by the United States of America and the United States of Brazil, respectively, and that the terms of this legislation were well known to the executive departments of both governments, and were recognized by them as the basis of their action. So far, therefore, as the arrangement may have been considered as an international agreement it was made subject to the terms of that legislation. "It is not suggested that the third section of the act of 1890 assumed to confer on the executive departments of this government any power to bind Congress in its future action as to the laying of duties and the raising of revenue. It merely provided that, on and after January 1, 1891, the President whenever and so often' as he should be satisfied that countries exporting certain specified articles to the United States imposed duties or exactions upon the agricultural or other products of the United States,' which, in view of the free admission of the specified articles into the United States, he might deem to be reciprocally unequal and unreasonable,' should 'suspend' by proclamation the free entry of those articles, which should then become subject to certain fixed rates of duty. It is obvious that this act did not contemplate the creation of a condition of things which it would not be within the power of this government, or any other government that might be affected at any time, to alter. "The Constitution of the United States, like the constitution of Brazil, points out the way in which treaties may be made and the faith of the nation duly pledged. In the United States treaties are made by the President, by and with the advice and consent of the Senate; in Brazil they are made by the President, subject to the approval of the Congress. Of such provisions in each other's constitutions governments are assumed to take notice. The municipal constitution of every particular state,' says Wheaton, determines in whom resides the authority to ratify treaties negotiated and concluded with foreign powers, so as to render them obligatory upon the nation; and it is, he declares, consequently an implied condition in negotiating with foreign powers that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the state.' (Elements of International Law, Dana's ed., pp. 337, 338.) "Of all subjects in relation to which the treaty-making power has been exercised, it may be said that there is none of greater importance, or of greater delicacy, than that of taxation. As the power to tax is an essential power of government, any attempt to contract or restrict it by the exercise of the treaty-making power has always been regarded in this country with jealousy, and in a few cases in which reciprocity treaties have been ratified and carried into effect by the United States they have encountered criticism and opposition on that ground. "In view of these well-known principles of law and matters of fact, it can not be supposed that it was intended, by the simple exchange of notes on January 31, 1891, to bind our governments, as by a treaty, to certain duties or remissions of duty on the specified articles, beyond the time when the Congress of the United States might, in the exercise of its constitutional powers, repeal the legislation under which the arrangement was concluded. By the terms of that legislation the President, so long as it was enforced, was invested with power to suspend its provisions touching the free entry of the specified articles, under certain conditions the existence of which was to be determined by himself. It is to be assumed that the stipulation in the notes referred to, in relation to the termination of the arrangement with Brazil was made with reference to that power, and that it was intended by the Executive merely as a declaration of the manner in which he would, in the particular case, exercise the special power conferred upon him. No other effect, it is conceived, can reasonably be ascribed to the stipulation.” Mr. Gresham, Sec. of State, to Mr. Mendonça, Brazilian min., Oct. 26. 1894, For. Rel. 1894, 79. This correspondence is referred to in President Cleveland's annual mes- "Referring to our conversation this forenoon, I have the honor to inform As to an effort which it was reported would be made in the Brazilian force the arrangement referred to in Mr. Gresham's note to Mr. Mendonça, supra, see Mr. Adee, Act. Sec. of State, to Mr. Conger, min. to Brazil, No. 51, May 23, 1891, MS. Inst. Brazil, XVII. 517. 6. IMPLIED REVOCATION OR REPEAL. (1) EARLIER BY LATER TREATY. § 775. By Article IV. of the treaty between the United States and Japan of June 17, 1857, it was provided that Americans "committing offenses in Japan" should be " tried by the American consul-general or consul" and "punished according to American laws." By Article VI. of the treaty of July 29, 1858, it was provided that " Americans committing offenses against Japanese" should be tried in American consular courts and punished according to American law; and by Article XII. of the same treaty it was declared that, as "all the provisions" of the treaty of 1857 were incorporated in the latter treaty, the former was "revoked." Held, that the revocation of the treaty of 1857, since it was made upon the declared assumption that all its provisions were incorporated in the treaty of 1858, must be held to be limited to the provisions which were in fact so incorporated, and not to extend to the unincorporated provisions; and that the American consuls continued to possess the right to try and punish American citizens for offenses against persons other than Japanese. Such had in reality been the practical construction given to the alleged revocation by the authorities of both countries. In re Ross (1891), 140 U. S. 453, 465; 11 Supreme Ct. Reporter, 897. The treaty between the United States and France of April 16, 1869. was impliedly repealed by the industrial-property treaty of 1883 (25 Stat. 1372) since the latter treaty covered the whole subject-matter of the former one. La Republique Française v. Schultz, (1893), 57 Fed. Rep. 37. The treaty of 1844 between the kingdom of Würtemberg and the United States, providing that where land owned by a citizen or subject of one country should descend to a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject might sell it, and withdraw the proceeds, exempt from all duties of detrac tion, was abrogated by the treaty of December 11, 1871, between the United States and the German Emperor, who, under the constitution of the empire, of which the kingdom of Würtemberg had become a part, represents the empire among nations, enters into alliances with foreign countries, etc. In re Strobel's Estate, 39, N. Y. S. 169. The fact that by the treaty between the United States and Great Britain of 1794 tar and turpentine were placed in the list of contraband did not release France from the obligation of the stipulation in the treaty with the United States of 1778, so long as it remained in force, that those articles should "not be reputed contraband." The James and William (1902), 37 Ct. Cl. 303. In 1885 the Siamese minister in London suggested to Mr. Phelps, then American minister at that capital, whether some agreement could be arrived at as to the construction of the term "munitions of war" in Article II. of the treaty between the United States and Siam of March 20, 1833. Mr. Phelps, in reporting this conversation to the Department of State, suggested that the first point to be determined was whether the treaty of 1833 was superseded by the subsequent treaty of 1856. The Department replied: "As a general rule unless a particular contract undertakes to abrogate all former contracts between the parties, it only vacates such portions of former contracts as are inconsistent with its ternus. The same rule is applied to statutes covering more or less the ground of former legislation. If this rule be applied in the present case, then the clause in the treaty of 1833 precluding the importation or sale in Siam (except to the King) of munitions of war' is still in force. My conclusion, under all the circumstances, is that it is so in force." Mr. Bayard, Sec. of State, to Mr. Phelps, min. to England, No. 181, Jan. 7, 1886, MS. Inst. Great Britain, XXVII, 640, (2) TREATY, BY LATER STATUTE. $ 776. "Provisions of treaties and of statutes are made by the Constitution alike the supreme law of the land, and such law remains in full force and equally binding until repealed, abrogated, or set aside by competent authority. "But it is difficult to deduce from the Constitution or elsewhere any standard by which to measure the relative weight to be accorded to law, when made by the negotiation of a treaty, over that made by enacting a statute. "It has been held quite frequently that a subsequent treaty supersedes an act of Congress with which it is in conflict, as in Ware . Hylton, 3 Dall. 199; Dean er dem. Fisher . Hernden, 1 Paine C. C. 55; and the converse that an act of Congress subsequent to a treaty must be enforced as the supreme law of the land, although in violation of the provisions of the treaty, has been held quite frequently. (Taylor. Morton, 2 Curtis C. C. 455; Ropes e. Church, 8 Blatch. 304; The Clinton Bridge, 1 Woolworth, 155; The Cherokee Tobacco Cases, 11 Wall. 616.) "You consider the decision in the Cherokee tobacco cases, however, obiter, because the treaty was an Indian treaty. Still the general question was distinctly passed on by the court, and no such question was there raised, and it has been decided on legal authority that a treaty with Indian tribes has the same dignity and effect as a treaty with a foreign power, being a treaty within the meaning of the Constitution, and the supreme law of the land. (Turner v. The American Baptist Missionary Union, 5 McL. C. C. 349.) "Mr. Crittenden, while Attoreny-General, held, in reference to the Florida claims, that an act of Congress is as much a supreme law of the land as a treaty. They are placed on the same footing, and no preference or superiority is given to the one over the other.' (5 Op. Att. Gen. 345.) "In the general discussion of the question in the early cases, such as the United States v. The Schooner Peggy, 1 Cranch, 109, and Foster v. Elam, 2 Pet. 314, a treaty is considered as equivalent, not superior, to an act of Congress. "Judge Story, too, declares that treaties are subject to legislative enactment; and Judge Cooley, in his edition, and in a note to Judge Story's text, states the rule very broadly that an act of Congress may supersede a prior treaty. "In a strict legal sense the difficulty lies in considering law, when enacted, regardless of the method of enactment, as other than binding in the highest degree. “Of course, in speaking of the effect of subsequent legislation upon the provisions of a prior treaty, I refer only to the effect in the country where the legislation is enacted, and upon the officers and people of that country. "The foreign nation whose rights are invaded thereby has no less cause of complaint and no less right to decline to recognize any internal legislation which presumes to limit or curtail rights accorded by treaty." Mr. Fish, Sec. of State, to Mr. Cushing, min. to Spain, July 20, 1876, MS. "The result of several late decisions in this country, as well as two at Although Art. VI. of the treaty with Russia of 1832 stipulates that no higher duties shall be imposed on goods imported from Russia than |