ment by which the treaty is made, which gives it this superior sanctity. In short we are of the opinion that, so far as

a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts of Congress as Congress may pass for its enforcement, modification or repeal."

The doctrine thus unqualifiedly stated has been repeatedly followed in later cases.8 Especially strong is the Chinese Exclusion Case, Chae Chan Ping v. United States.9

§ 208. Whether the Treaty-Making Power may Modify or Repeal Laws Enacted by Congress.10

To Congress is given the power by the Constitution to legislate with reference to certain matters. We have already learned that by statute the President has been authorized in a number of instances to enter into international agreements for the regulation of certain matters within the legislative control of Congress. We have now to examine whether, without congressional direction or permission, it is competent for the treaty-making power to regulate a matter which it is within the legislative power of Congress to control; or, by international agreements, to alter arrangements which Congress has by statute already established.

That the treaty-making power extends to subjects within the ordinary legislative powers of Congress there can be no doubt.

8 Butler, op. cit. II, 86, cites the following cases in which acts superseding prior treaties in conflict with them have been sustained by the Supreme Court: United States v. McBratney, 104 U. S. 621; 26 L. ed. 869; Chew Heong v. United States, 112 U. S. 536; 5 Sup. Ct. Rep. 255; 28 L. ed. 770; Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244; Draper v. United States, 164 U. S. 240; 17 Sup. Ct. Rep. 107; 41 L. ed. 419; Thomas v Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740; Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905; Chinese Exclusion Cases, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068; La Abra Silver Mining Co. v. United States, 175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223; United States v. Gue Lim, 176 U. S. 459; 20 Sup. Ct. Rep. 415; 44 L. ed. 544.

9130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.

10 For a very full account of discussions of this subject in Congress, see Hinds' Precedents of the House of Representatives, Chapters XLVIII and

That is to say, the treaty-making power is fully competent to enter into agreements with foreign powers in respect to those matters which are binding internationally upon the United States. The question here to be considered is, however, whether these international compacts become, so far as they are self-executing, immediately binding municipally, that is, may be enforced as law in our courts. The Supreme Court has, in a number of instances, declared that treaties and acts of Congress stand, as law, upon exactly equal planes, and, therefore, that the later treaty operates to supersede the earlier law, exactly, as we have seen, the later law has the effect of abrogating a prior inconsistent treaty. Thus in Cherokee Tobacco Case" the court say: -The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress (Foster v. Neilson, 2 Pet. 253; 7 L. ed. 415) and an act of Congress may supersede a prior treaty. (Taylor v. Morton, 2 Curt. C. C. 454; The Clinton Bridge, 1 Wolv. 155.)”

In United States v. Lee Yen Tail2 the court declare: "That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject. In Foster v. Neilson (2 Pet. 253; 7 L. ed. 415), it was said that a treaty was to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.' In the case of The Cherokee Tobacco (11 Wall. 616), this court said 'a treaty may supersede

11 11 Wall. 616; 20 L. ed. 227.

12 185 U. S. 213; 22 Sup. Ct. Rep. 629; 46 L. ed. 878.

a prior act of Congress and an act of Congress may supersede a prior treaty.' So in the Head Money Cases (112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798) this court said: 'So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal.' Again, in Whitney v. Robertson (124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386); 'By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always that the stipulation of the treaty on the subject is self-executing.' (See also Taylor v. Morton, 2 Curt. C. C. 454, Fed. Cas. No. 13,799; Clinton Bridge Case, Woolw. 155, Fed. Cas. No. 2,900; Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; 2 Story, Const. § 1838.) Nevertheless, the purpose by statute to abrogate a treaty or any designated part of a treaty, or the purpose by treaty to supersede the whole or a part of an act of Congress, must not be lightly assumed, but must appear clearly and distinctly from the words used in the statute or in the treaty.":

"13

13 See also Johnson v. Browne, 205 U. S. 309; 27 Sup. Ct. Rep. 539; 51 L. ed. 816.

Moore, in his Digest of International Law (V, 370), says: "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 preexisting 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).

In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing federal laws, as, for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, Congress in every instance succeeded in maintaining this point.

§ 209. Treaties and Revenue Acts.

There would seem to be certainly one exception to the rule that the later treaty abrogates the prior inconsistent statute, and this is in reference to acts for raising revenue. The Constitution expressly declares that "all bills for raising revenue shall originate in the House of Representatives."14 Strictly interpreted this provision might be held to apply only to "bills," that is to propositions for a statute, but in practice the spirit of the clause has been followed rather than its exact letter.

In 1816 the question received an especially careful discussion in Congress with reference to a convention which the treatymaking power had entered into in 1815 with Great Britain. The house passed a bill specifically enacting in detail the provision of the treaty, with the evident purpose of making it plain that

See Davis v. Concordia, 9 How. 280; 13 L. ed. 138; Fellows v. Blacksmith, 19 How. 366; 15 L. ed. 684; The Clinton Bridge, 1 Woolworth, 155; 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).”

14 Art. I, Sec. VII, Cl. 1.

without such legislative enactment the provisions would be without legal force. The Senate refused its concurrence upon the ground that the treaty was self-operative and, therefore, that the legislative approval should be only declaratory in form. After reference to a committee of conference, a bill was agreed upon between the two Houses, based upon the principle, conceded by the Senate, that "whilst some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question, how far such provision was necessary, must be founded upon the peculiar character of the treaty itself." 15

This was clearly a compromise agreement, but later practice has served to strengthen the position of the House and it is believed that there has been no instance in which a treaty has, without legislative permission, been allowed to repeal or annul existing revenue laws.

In 1846, the Senate Committee on Foreign Affairs, to which had been referred a reciprocity treaty negotiated by Mr. Wheaton, reported adversely in the following words: "The committee

are not prepared to sanction so large an innovation upon ancient and uniform practice in respect of the department of government by which duties on imports shall be imposed. The convention which has been submitted to the Senate changes duties which have been laid by law. It changes them ex directo and by its own vigor, or it engages the faith of the nation and the faith of the legislature through which the nation acts to make the change. In either aspect it is the President and Senate who, by the instrumentality of negotiation, repeal or materially vary regulations of commerce and laws of revenue which Congress had ordained. More than this, the executive department, by the same instrumentality of negotiations, places it beyond the power of Congress to exceed the stipulated maximum of import duties for at least three years, whatever exigency may intervene to require it. In the judgment of the committee the legislature is the department of government by which commerce should be regu15 Moore's Int. Law Digest, V, 223.