The Hawaiian gazette., 1878-04-17
WEDNESDAY Y. APRIL Il. 1878.
TREATIES AND LEGISLATION C0HTRIsTED.
Important Questions Discussed.

By our last arrivals from California we have
Senator Sergeant's great speech on the powers |
of Congress to abrogate, annul and set aside |
treaty stipulations at will. This doctrine ls
avowed and maintained by the senator in the dis |
cussion of the Chinese question. The doctrines
avowed by the senator are of so much import
ance to the rest of the world, and consequently
to this Government that we deem it a duty to
transfer to our columns those portions of the
speech bearing upon the powers of the law
making branch of a country, to pass laws that
conflict with treaty stipulations as a recognized
doctrine of international law.
In this connection we are free to say that the
judicial decisions cited by the senator in support
Of his position are not only of the highest au-
thority, but are apt and to the point, and make
out strong case. 1t is because we so consider
the question, that we reprint the argument, that
our people may see what mischief may be at any
time done, by misrepresentation of facts rela-
tive to the workings of treaties with own
Government, and how easy it is TO prejudice
whole nation against another between which
treaties of amity and mutual advantage may
exist Speaking of the right and power of Con-
gress to pass laws to abrogate treaties he says
This doctrine is consistent with the princi-
| Piles announced in such matters by the Attorneys
General of the United States, with the frequent
| action of Congress and the decisions of the Cir
cult and Supreme Court of the United States.
| This concurrence of authority has lett no doubt
upon the subject. 10 1851, Attorney General
tt. / Al.
| question in the light of the constitution in the
Florida claims" which were claims upon the
United States government for injuries sustained
| by Spanish officers and individual Spanish in
habtants during the military operations of the
! American army in Florida preferred under the
ninth article of the treaty between the United
States and Spain, and required by said treaty to
be established "judicially." The act of Con-
gress passed to carry that article of the treaty
into effect did not make the decisions of the
courts conclusive in regard to them, but gave
reUsory power to the Secretary of the Treasury,
who, being satisfied of the justice of the claims.
and of their being within the provisions of the
treaty, was required to pay them. 10 fact, tr-
bunal was created for the adjudication of these
claims, consisting of the Judges and Secretary of
the Treasury. The Attorney General held that
it was not the intention of Congress to limit the
revlsory power of the Secretary of the Treasury
to questions of jurisdiction, but to extend it to
the merits. This apparent conflict between the
treaty and the subsequent acts of Congress to
give it effect was considered by the Attorney
General and he held that even if there was such
a conflict the Act of Congress must prevail.
He says:
IAN act of Congress must have effect though
inconsistent with prior treaty. An
act of Congress is as much the supreme law Of
the land as treaty. They are placed on the
same footing. and no preference or superiority
is given to the one over the other. The last ex.
preston of the law.gving power must prevail
and just for the same reason and on the same
principal that subsequent act must prevail and
} have effect though Inconsistent with prior act
so must an act of Congress have effect, though
inconsistent with prior treaty-Opnons At,
torney General, volume 5, page 1913, 3l5."
The same doctrine was held by Attorney Gen
eral Alderman in 1870 in the Interpretation o.
the legislation of Congress and certain treate:
with the Choctaw tribe of Indians By the ac
of March 2, 1861, the Secretary of the Treasury
was authorized to issue to the Choctaw tribe o.
Indians bonds of the United States to the
amount of $3.50 900. An act of March 8, 1865
withdrew this authority from the Secretary
The authority was revived by the treaty will
said tribe of April 28 1866; and the question
was, whether such bonds could be lawfully is
sued to those Indians. In his decision the AT
torney General says:
Under the constitution, treaties, as well al
statutes, are the law of the land both the ont
] and the other, when not inconsistent with the
constitution, standing upon the same level ant
being of equal force and validity; and. as in thu
case of all laws emanatIng from an equal author
ity, the earlier in date yields TO the latter"
ANOTHER INSTANCE.
Tba Of tbo A+to
uncontradicted by any subsequent statement O
action by the executive branch of the govern
7 ment. The subject was brought to the atten
ton of the Judiciary OF the United States in tn,
: case of Taylor ct al. VS.. Morton, 2 Curtis, Cir
cult Court reports Asa. The treaty with Rus
STA, of December, 1882, stipulated that no highe
rate of duties should be imposed on goods i'm
ported from Russia than on like articles impor
ted from other places. This was an action 0
assumpsit, brought against the defendant as col
lector OF customs, to recoTer moneys alleged Il
, have been illegally exacted by him in the pay
ment OF duties upon quantity of hemp impor
ted from Russia while the tariff act Of 1912 wa
!, in operation. This act imposed duty of S4
> per ton upon all hemp except Manila and India
y hemps, on which it levied duty at only S25 pc
b ton. There was conflict between the treat
and the statue law and Judge Curtis was calle
upon to decide which should prevail Ate
quoting the constitutional, provision that tn
constitution and laws of the United States whic
shall be made in pursuance thereof, and all treat
les made, or which shall be made, under the au
thority of the United States, shall be made th
supreme law of the land" and remarking tina
There is nothing in the mere fact that treat
is a law which would prevent Congress from re
pealing it" he proceeds in a strong argument, G
which the following is the conclusion
i" / think it is impossible to maintain that IN
der our constitution the President and Senat
exclusively possess the power to modify or re
peal law found in treaty. If this were sc
inasmuch as they can change or abrogate on
treaty only by making another inconsistent wit
the first, the government of the United State
could not act at all to that effect, without tn
consent of some foreign government for no neV
\ treaty affecting, in any manner. one already i
existence can be made without the concurrenc
of two parties, one Of whom must be a foreig
power"
That the constitution was designed to plac
our country in this helpless condition is a SUI
position wholly inadmissible. 1t is not only il
At consistent with the necessities of nation
but it is negatived by the express words
the constitution. That gives to Congress
in SO many words, power to declare war
an act which, ipso facto, repeats all power
of all existing treaties with the hostile natio
R inconsistent with state of war
4 1t is true that this particular power to repei