construed it would conflict with the German municipal law, and that in such case the court would be obliged to enforce the latter. In reporting the case the American minister at Berlin said: "As the case had been decided adversely from another standpoint, this declaration would seem to be of an abstract nature, and may not perhaps call for any representation. but I have thought it would be of some interest to the Department to be made acquainted with the view held by the supreme court of this land regarding the sanction of the provisions of a treaty with a foreign country, as compared with those of municipal law." President Harrison, annual message, Dec. 1, 1890, For. Rel. 1890, vii. enclosing the text of the decision of the imperial court at Leipzig, June 2, 1881, MS. Desp. Germany. "The arbitrator is not called upon to decide the question elaborately argued by the honorable representative of Hayti that under the constitution and laws of Hayti the commune of Port-au-Prince is alone responsible for the unlawful collection of the license taxes. The question submitted is, Is the Republic of Hayti liable upon this claim; and if so, to what amount? I do not deem it necessary to inquire as to whether the proceedings of the officials were strictly in accordance with local laws. The law which they were attempting to enforce was a law of the Republic of Hayti in violation of the treaty between the two nations. It need hardly be stated that the obligations of a treaty are as binding upon nations as are private contracts upon individuals. This principle has been too often cited by publicists and enforced by international decisions to need amplification here. I find that the law authorizing double taxation upon foreigners, so far as it relates to American citizens, was in violation of treaty rights, and that the seizure and sale of Metzger & Co.'s goods under the facts established or conceded in this case was under a law sought to be enforced in violation of treaty rights. About $1,200 worth of their goods was seized and sold. I am of opinion that the Republic of Hayti, in compensation for the goods and reparation for their seizure and sale in the manner herein found, should pay to the claimants. the sum of $5,000.” Award of the Hon. William R. Day, arbitrator, in the matter of the claims of John D. Metzger & Co. r. Hayti, protocol of Oct. 18, 1899, For. Rel. 1901, 262, 272–276. It is the duty of the courts not to construe an act of Congress as modifying or annulling a treaty made with another nation, unless its words clearly and plainly point to such a construction. Lem Moon Sing v. United States (1895), 158 U. S. 538. If it can be reasonably done, an act of Congress should be so construed as to further the execution of a treaty, and not to violate its provisions. (United States v. Mrs. Gue Lim (1900), 176 U. S. 459.) The Secretary of the Treasury stated that in a case of doubtful construction he would be slow to construe an act of Congress so that it might be held to do violence to a treaty stipulation; but that, in regard to the duty on tin cans under the act of February 8, 1875, he considered the language of the statute to be so clear as to admit of no doubt, and that it required the assessment of duty on such cans containing fish imported under the treaty of May 8, 1871. Mr. Cadwalader, Act. Sec. of State, to Sir Edward Thornton, British min., (3) STATUTE BY LATER TREATY. $ 777. A treaty, constitutionally concluded and ratified, abrogates whatever law of any one of the States may be inconsistent therewith. A treaty, assuming it to be made conformably to the Constitution in substance and form, has the legal effect of repealing, under the general conditions of the legal doctrine that "leges posteriores priores contrarias abrogant," all pre-existing Federal law in conflict with it, whether unwritten, as law of nations, of admiralty, and common law, or written, as acts of Congress. A treaty, though complete in itself, and the unquestioned law of the land, may be inexecutable without the aid of an act of Congress. But it is the constitutional duty of Congress to pass the requisite laws. But the need of further legislation, however, does not affect the question of the legal force of the treaty per se. Cushing, At. Gen., 1854, 6 Op. 291. See also Akerman, At. Gen., 1870, 13 Op. 354. See Davis v. Concordia, 9 How. 280; Fellows v. Blacksmith, 19 How. 366, 372: The Clinton Bridge, 1 Woolworth 150; Kull v. Kull, 37 Hun (N. Y.) 476. The provisions of the convention with China proclaimed December 8, 1894, were self-executing, so as to modify or repeal a prior statute with which they were in conflict. Knox, At. Gen., Oct. 10, 1901, 23 Op. 545, approving opinions of Conrad, Act. At. Gen., May 20, 1896, 21 Op. 347, and Harmon, At. Gen., May 26, 1896, 21 Op. 357. The words "confirmed by law mean confirmation by the act of that power which under our system enacts laws. A confirmation by treaty is a confirmation by law, inasmuch as a treaty is to be regarded as an act of the legislature, whenever it operates without the aid of a legislative provision. Coffey, At. Gen. ad interim, 1863, 10 Op. 507. (4) STATE CONSTITUTIONS AND STATUTES BY TREATIES. $ 778. "A treaty, constitutionally concluded and ratified, abrogates all State laws inconsistent therewith. It is the supreme law of the land, subject only to the provisions of the Constitution." Davis, Notes, U. S. Treaty Volume (1776–1887), 1227, citing Cushing, As to the effect of treaties, see also Wunderle v. Wunderle, 144 Ill. 40. Ware, administrator of Jones, sued one Hylton and others on a penal bond, dated July 7, 1774, for a certain sum of money. Jones was a British subject. The defendants, who were citizens of Virginia, pleaded various acts of the State of Virginia, passed during the Revolutionary war, which, if valid, barred the recovery of the debt. The plaintiff, in reply to this plea, relied upon the provisions of the 4th article of the treaty of peace of September 3, 1783, by which it was provided that creditors on either side should not meet with any legal impediment to the recovery in sterling money of bona fide debts theretofore contracted. The defendants rejoined (1) that the provisions of the treaty were inapplicable to the case, and (2) that the treaty had been violated and suspended by the acts of the British in carrying away negroes, in refusing to surrender the western posts, and in exciting the Indians to war. Held, that the plaintiffs were entitled to recover. Ware. Hylton (1796), 3 Dallas, 199. Iredell, J., who had delivered the opinion in the court below, holding that the plaintiffs were not entitled to recover, alone dissented. The convention of 1800, between France and the United States, enabling the people of one country holding lands in the other to dispose of them by testament, and to inherit lands in the other, without being naturalized, was held to dispense with limitations in a State statute on the alien inheritance. Chirac v. Chirac, 2 Wheat. 259. See, to the same effect, Hauenstein v. Lynham, 100 U. S. 483; Gordon v. A legislative act of the State of Oregon, which prohibits the employment, by contractors, of Chinese upon street improvements or public works, but permits all other aliens to be so employed, is in conflict with the treaty between the United States and the Emperor of China, which secures to the Chinese resident the same right to be employed and labor for a living as the subjects of any other nation, and is therefore void. Baker v. Portland, 5 Sawyer C. C. 566. See Mr. Wharton, Act. Sec. of State, to Mr. Denby, min. to China, No. 553, Sept. 24, 1890, For. Rel. 1890, 196. Nature of treaties. 7. EFFECT OF WAR. § 779. By Article VI. of the treaty of peace between the United States and Great Britain of September 3, 1783, it was declared that there should be "no future confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of the part which he or they may have taken in the present war," and that no person should," on that account, suffer any future loss or damage, either in his person, liberty or property." By Article IX. of the treaty between the same powers of November 19, 1794, it was agreed “that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens." By Article XXVIII. the first ten articles of the treaty were declared to be "permanent," while the subsequent articles, with one exception, were limited in their duration to twelve years. The question whether the stipulations of Article IX. were affected by the war of 1812 came before the Supreme Court of the United States in the case of the Society for the Propagation of the Gospel, a British association, against the Town of New Haven; and a decision was rendered to the effect that the stipulations remained in full force. The court, in the course of its opinion, said: “We think . . . that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new or repugnant stipulations are made, they revive in their operation at the return of peace." Society for the Propagation of the Gospel v. New Haven (1823), 8 Wheat. 464, 494. See, also, Carneal v. Banks, 10 Wheat. 181; Schr. Rapid, 1 Gall. 295, 303. In the former case it was held that titles to land in the United States acquired by French subjects under the sanction of the treaty of 1778 were not divested by the abrogation of that treaty or the expiration of the convention of 1800. Seven years later, in 1830, the same question was decided by the court of chancery in England, in the case of Sutton . Sutton, in which a citizen of the United States claimed the right, under Article IX. of the treaty of 1794, to hold and convey, in spite of his alienage, certain real estate in London. It appeared that in 1797 an act of Parliament (37 Geo. III. c. 97) was passed to carry the treaty into effect. Of this act, sections 24 and 25 related to Article IX., and the last section, which was the 27th, declared: "This act shall continue in force so long as the said treaty between His Majesty and the United States of America shall continue in force, and no longer." It was argued, both upon the strength of this section and upon general principles, that, as the result of the war of 1812, the-treaty of 1794 had ceased to be in force; that "it was impossible to suggest that the treaty was continuing in force in 1813," that is to say, during the existence of the war; that it "necessarily ceased with the commencement of the war; " that "the 37 G. 3, c. 97, could not continue in operation a moment longer without violating the plainest words of the act;" and that the word "permanent was used, "not as synonymous with perpetual or everlasting, but in opposition to a period expressly limited." It is to be observed that counsel impliedly conceded that if the word "perpetual" had been employed in the article, there would have been no doubt as to its survival. Sir John Leach, Master of the Rolls, decided that the article continued in full force at all times, saying: "The relations, which had subsisted between Great Britain and America, when they formed one empire, led to the introduction of the ninth section of the treaty of 1794, and made it highly reasonable that the subjects of the two parts of the divided empire should, notwithstanding the separation, be protected in the mutual enjoyment. of their landed property; and, the privileges of natives being reciprocally given, not only to the actual possessors of lands, but to their heirs and assigns, it is a reasonable construction that it was the intention of the treaty that the operation of the treaty should be permanent, and not depend upon the continuance of a state of peace. |