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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The treaty between the United States and France of April 16, 1869, was impliedly repealed by the industrial-property treaty of 1883 (25 Stat. 1372) since the latter treaty covered the whole subject-matter of the former one.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 detraction, 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 ternis. 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."

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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 . 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.)

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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.
Inst. Spain, XVII. 558.

"The result of several late decisions in this country, as well as two at
least of the opinions of the Attorneys-General, seem to lead to the
conclusion that an act of Congress of later date than a treaty,
although in violation of its terms, must be obeyed as municipal law
within the country, although in no manner binding on the foreign
state, and although it in no manner affords a sufficient excuse for a
violation of treaty provisions." (Mr. Fish, Sec. of State, to Mr.
Cushing, Feb. 13, 1877, MS. Inst. Spain, XVIII, 110.)

Although Art. VI. of the treaty with Russia of 1832 stipulates that no higher duties shall be imposed on goods imported from Russia than

on like articles imported from other places, if Congress has imposed a higher duty on Russian hemp it must be collected. (Taylor r Morton, 2 Curtis, 454; Ropes r. Clinch, 8 Blatch. 304.) That the same principle, as to legislative repeal, applies to Indian as to other treaties, see not only the Cherokee tobacco cases, cited by Mr. Fish, but also United States v. Old Settlers (1893), 148 U. S. 427, and Thomas v. Gay, 169 U. S. 264, 271, 18 Sup. Ct. Rep. 340, reversing 46 Pac. Rep. 578.

See Marshall, C. J., in 1 Cranch, 109, and Cushing, At. Gen., 6 Op. 658.

A treaty is primarily a compact between independent nations, and depends for the enforcement of its provisions on the honor and the interests of the governments which are parties to it. If these fail, its infraction becomes the subject of international reclamation and negotiation, which may lead to war to enforce them. With this judicial tribunals have nothing to do. But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of a nature to be enforced in a court of justice, and which furnish, in cases otherwise cognizable in such courts, rules of decision. The Constitution of the United States makes the treaty, while in force, a part of the supreme law of the land in all courts where such rights. are to be tried. In this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in the courts of the country, they are subject to such acts as Congress may pass for their enforcement, modification, or repeal.

Head Money Cases, 112 U. S. 580.

See, to the same effect, Horner v. United States, 143 U. S. 570, 12 S. Ct. 522.

By the Constitution of the United States a treaty is placed juridically on the same footing, and made of like obligation, with an act of legislation. When the two relate to the same subject the courts will always endeavor to construe them so as to give effect to both, if this can be done without violating the language of either; but if the two are inconsistent, the one later in date will control, provided that the stipulation of the treaty is self-executing.

Whitney. Robertson (1888), 124 U. S. 190.

In the course of its opinion, which was delivered by Mr. Justice Field,
the court said: "If the country with which the treaty is made is
dissatisfied with the action of the legislative department, it may pre-
sent its complaint to the executive head of the government and take
such other measures as it may deem essential for the protection of
its interests. The courts can afford no redress."
See, also, Bartram v. Robertson, 122 U. S. 116; Kelly v. Hedden, 124
U. S. 196; s. c. 43 Fed. Rep. 17; Ely's Adm. v. United States (1898),
171 U. S. 220, 223-4; Williams r. The Welhaven, 55 Fed. Rep. 80;
The Clinton Bridge, 1 Woolworth, 150; United States v. Lee Yen
Tai (1902), 185 U. S. 213; Lone Wolf v. Hitchcock (1903), 187
U. S. 553.

By Article I. of the treaty between the United States and China of November 17, 1880, it was agreed that the government of the United States might regulate, limit, or suspend, but not absolutely prohibit, the coming or residence of Chinese laborers. By Article II. of the same treaty it was declared that Chinese laborers who were then in the United States should be allowed to go and come of their own free will, and should be accorded all the rights, privileges, immunities, and exemptions accorded to the citizens and subjects of the most-favored nation. By acts approved May 6, 1882, 22 Stat. 58, and July 5, 1884, 23 Stat. 115, provision was made for the execution of these stipulations, and, among other things, for the issuance to the exempted class of Chinese laborers on their departure from the United States of certificates establishing their right to return under the treaty. By an act of Congress approved October 1, 1888, 25 Stat. 504, it was provided that no further certificates under the acts of 1882 and 1884 should be issued; that every certificate previously issued in pursuance thereof was void and of no effect, and that the Chinese laborer claiming admission under such certificate. should not be permitted to enter the United States. It was held that the act of October 1, 1888, was a constitutional exercise of legislative power, and that, so far as it conflicted with existing treaties, it operated to that extent to abrogate them as part of the municipal law of the United States, though it could not have the effect of destroying their international obligation.

The Chinese Exclusion Case (1899), 130 U. S. 581, 9 S. Ct. 623.

See, to the same effect, Fong Yue Ting v. United States (1893), 149 U. S. 698.

"A treaty duly ratified is as much a part of the supreme law of the land as a statute. The later expression of the lawgivers will replace preceding law if inconsistent or repugnant, even if there is not an express repeal. While repeals by implication are not favored, where a later law entirely substitutes new provisions for the scheme of the earlier law, it is displaced by the later statute."

Knox, At. Gen., Oct. 10, 1901, 23 Op. 545, affirming 21 Op. 347, and hold-
ing that Art. II. of the convention with China of December 8, 1894.
repealed a part of sec. 7 of the act of December 13, 1888, 25 Stat. 476,
assuming that the act was in force a question reserved in Li Sing
v. United States, 180 U. S. 486, 488, 490, where it was held that,
without regard to the question whether the act ever became effect-
ive, sec. 12 could not be considered as in force.
On the question of conflict between a treaty and a statute, the Attorney-
General cited Cherokee Tobacco v. United States, 11 Wall. 616; Fos-
ter v. Neilson, 2 Pet. 314; Taylor . Morton, 2 Curtis, 454; Murdock v.
Mayor of Memphis, 12 Wall. 590; United States v. Tynen, 11 Wall. 88.

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