The Hawaiian gazette., 1878-04-17


case, do not believe
That it must reside somewhere, and be APP
plicable to all cases. am convinced. aud | feel
no doubt that it belongs to Congress-
Judge Curtis was learned aud honored men,
Der OF the Supreme Court of the United States.
No appeal was taken from bis decision to the
Supreme Court of the United States and his
decision stood as authoritive exposition OF the
power of Congress TO disregard or abrogate a /
foreign treaty. 1t does not appear that Russia |
ever objected, and the collection of higher duty |
upon Russian hemp continued for years thereai-
ter, when, in April, 1871, the same question was
raised.
In the United States Circuit Court for the |
southern district of New York. in the case of
Ropes ct al vs. Clnch. the decision of which is
found in BIatchford. page 304. by Judge Wood
ruff. On page 3l2. discussing the modes by
which treaty may be rendered imperative, he
says;
so they TCougress may render imperative
by legislation in contradiction of its terms with
out formal allusion at all to the treaty and gen.
orally they may legislate as il no such treaty
listed, in modification or alteration of what by
force Of the treaty has been the law heretofore,
thus modifying the law of the land, without de-
Dying the existence of the treaty. or the obga-
tions thereof, between the two governments. as
a contract, and answer therefor to such foreign
government or meet its reclamation or retaa-
| ton as may be necessary.
The same doctrine was held in / Woolworth's
Circuit Court reports (page 1857 in the Clinton
| Bridge" case, where the decision was pronounced
by Justice Miller of the United States Supreme
| Court, in behalf of himself and District Judge
Love- holding the October term of the Circuit
| Court for the Northwestern circuit in 1867. A
bill in chancery had been filed, complaining of
the bridge on the ground that it was serious
obstruction to navigation, and asking its abate-
ment as nuisance. In reply. the defendant
cited. among other things. special act OF Con-
| gress authorizing the maintenance OF the bridge.
In rejonder, objection was raised against the
constitutionality of the said act of Congress for
the reason. among other things. that it violated
the obligation of treaties with France, which in
effect declared that the navigation of the Missis-
sppi river should remain free and unobstructed
forever. Justice Miller disposed of this objec-
ton as follows:
"In reference to the first of these objections,
we need not inquire whether the treaties refer
red to were designed to affect such cases as the
one before US or not, for we are of the opinion
that whatever obligation they may have impo-
sed upon our government, the courts possess no
power to declare a statute passed by Congress
and approved by the President void because it
may violate such obligations" (See " The Ami
able Isabella" 6 Wheaton, l)
Questions of this class are international ques-
tons and are to be settled between the foreign
interested in the treaties and the political de-
partment of our government. When those de-
partments declare treaty abrogated, annulled,
or modified, it is not for the judicial branch of
the government to set it up and assert its con-
tinued obligation. If the court could do this, it
could annual declarations of war, suspend the
levy Of armies, and become great international
arblter instead OF court OF justice for the adml
nistration of the laws OF United States. (See
Georgia vs. Stanton, Wallace SOY
DECISION BY THE SUPREME COURT.
These decisions lead up to conclusive de-
termination of the question by the Supreme
Court of the United States, found reported 10 IL
Wallace, 6l6 in the Cherokee tobacco case. Z"
The 10th section of the internal revenue act
of July 90 1868, enacted that the internal
revenue laws, imposing tax on distilled spirits
and fermented liquors, tobacco, snuff aud cigars,
I shall be construed to extend to such articles
, produced anywhere in the exterior boundaries of
the United States, whether the same shall be
within collection district or not" and the ques-
, ton was raised whether this provision applied to
and was in force 10 the Indian territory, en-
braced within the western district of Arkansas
and occupied by the Cherokee Nation of Indians,
Notwithstanding the tenth article of the prior
treaty of 1866 between the United States and
that nation, by which it was agreed that
, Every Cherokee Indian and freed person re-
siding in the Cherokee nation shall have the
) right to sell any products of his farm including
his or her live stock, or any merchandise or
manufactured products and to ship and drive
the same to market without restraint, paying
no tax thereon which is now or may be levied
by the United States on the quantity sold out
aide of the Indian Territory"
The case was deliberately argued, orally and on
briefs, by able counsel, and the opinion of the
court was delivered by Justice Swayne. 1t was
held by the court in this case that the law Of
: Congress confcted with prior treaty. The
court said Undoubtedly one or the other oil
these provisions must yield. The repugnance is
+ clear, and they cannot stand together" After
. quoting the article of the constitution which
, makes both treaties and statutes the supreme
!. law of the land
: THE OPINION PROCEEDS AS FOLLOWS:
5 "The effect of treaties and acts of Congress:
U when In conflict is not settled by the consttu-
q ton. But the question is not involved in any
r doubt as to its proper solution. treaty may
supercede prior act of Congress e Peters, 3l4
d and an act of Congress may supercede a priol
r treaty z Curtis 554; l Woolworth, l55. II
the referred to these principles applied
b to treaties with foreign nations,
: Treaties with Indian nations within the iuris
/ dictlon of the United States whatever consid
3 eratlons of humanity and good faith may be in
t volved and require their faithful observance
y cannot be more obligatory.
: They have no higher sanctity, and no greater
II inviolability or immunity from legislative inva
sion can be claimed for them. The consequence:
i in all such cases give rise to questions which
e must be met by the political department of the
: government. They are beyond the sphere oil
}. judicial cognizauce.
e In the case under consideration, the act o
h Congress must prevail as if the treaty were moi
$ an element to be considered. If a wrong hal
e been done, the power of redress is with Con
gress, not with the Judiciary; and that body
n upon being applied to, it is to be presumed will
e promptly give the proper relief"
q These decisions settle the Interpretation clear
y that Congress may by law alter or abrogat'
e any treaty whatever; and if prior treaty is il
J. conflict with subsequent action of Congress i
l. must give way, and no suspicion of dIshonor at
D. taches to such action, the nation with whom thu
't treaty existed being free to take any cours
:, known to international law. Thus EDgla nt
= recently made the passage of a law by Paria
g ment subsequent to our extradition treaty will
U her the ground of her refusal to surrender Win
slow In compliance with the treaty. No on
al claimed that this was breach of faith. We en-