Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1882-06-23
TIL E G. H | N E s E
CHINA GU ESTION-
Xa.ioa. "rr.",i~mt> L., Abrogntion OF
-
Riga, ct C",.-."-> {" innul Treaties.
judicial D-ci,ion> ant Opinions Of the
TeNt-Nritrrs.

question nom Il lt9iI Sllhu- point ~
or own Government, we have tC
bear III mind that it is presented IL
two aspects. First, the legal i.hl
of Congress to rercl IL treaty. Sec
ond, the moral lificution for such
repeal. The FORMER Was Indicated 10y
judicial litta n-arly century ago.
In the case of Ware V. Hylton, be-
fore the Supreme Court of the Uni
ted States, III the year 1896, it WAS
asserted by Justice IredelI thai il
Congress should declare treat,
void, he should deem il his IT -
20 consid. I it " AMI 'h,n f.,.b II
any share in executing it lis IL ia iIr.
The question bcc.m", however, Ehe
-u!,Irct of more careful and deter
minute consideration about tiitv
years ago, and thc principles invO:vcd
have been elaborated by Il scri -
of Judicial opinions ana judicial de-
clslorS extending nearly to the pres
ent date. 1t Was carefully entered
INTO in 1851 10y the then Attorney
General with reference to the Secre-
tary Of the Treasury in the matter OF
Florida claims preferred under the
ninth article of the treaty between
the United States and Spain.
Regarding this it was fully con
ccded that an act of Congress, sub
sequent to the treaty, contlicted with
the latter. The opinion is careful
and exhaustive, and its conclusions
were expressed in no uncertain terms.
1t set forth that the only provision
of the Constitution relating to the
is, that This Constitution and the
laws of the United States which
shall be made IN pursuance thereof,
and all treaty made, or which shall
be made under the authority Of the
United States shall be the supreme
lay of the land. After quoting
this, the sole authority under which
the Government may conclude a
treaty the opinion continues: An
act of Congress, then, is as much
n supreme law of the land as treaty
They are placed on the same foo :
ing, and no preference or superio-
rity is given to the one over the
other. The last expression then
of the law-glvinS power must pre-
vail, and just for the Same reason.
and on the same principle chat n
subsequent ac: must prevail and
have effect though inconsistent with
a prior treaty"
Further on in the same opinion
the same jurist condenses the con-
trolling principles of constitutional
and international law bearing upon
the question under consideration, in
language SO clear as to be worthy of
extended quotation. He says: "The
supreme political and Legislative
power of this country is placed in
in the hands of the Government of
the United States under the con-
stitution: and its acts are uncontrol-
lalle except only by that constitu-
ton does not say that Congress
shall pass no law inconsistent with a
treaty, and it would have been a
strange anomaly if 1t had imposed
any such prohibition. There may
cases of treaties so injurious, or
which may become so by change of
circumstances, that it may be the
right and duty of the government to
renounce or disregard them. Every
government must Judge and deter
mine for itself the proper occasion
for the exercise of such power;
aud such power, l suppose, is i'm
p!icity reserved by every party to q
treaty, and | hope and believe
belongs inalienabiy to the Govern
ment of the United States. 1t is
true that such power may be
abused, so may the treaty making
power, and ali other powers, but
for oar security against such abuse
We may and must rely on the in
teerity, wisdom, and good faith of
our government. From this opin-
ion of the law officer of the govern
ment, designed to aid the latter in
its relations with foreign powers, we
may turn to the decisions of our
courts in which the same problem
has been presented to their jurisdic-
ton in matters of domestic concern.
In 1866 the question of the power
of Congress to repeal treaty. came
before the United States Circuit
Court for the first circuit, in Taylor
V. Morton, before Judge B. II. Cur
It's, whose profound learning in the
higher branches of the law has long
been the subject of legal encomium.
The action related to the collection
OF duties, on the importation of Rus
sian hemp, levied under al act of
Congress admitted to be in direct
collision with the treaty concluded
with Russia in 1882. The question
SO far as it relates to the issue under
consideration, was stated by the
Court in the following words: That
an act of Congress should levy =
duty upon imports which any ex-
listing commercial treaty declares
shall not be levied, SO that the
treaty is in conflict with the act
itself, shall the former or the latter
give the rule of decision in the ju-
dicial tribunals of the United States
in case to which ono rule or the
other must be applied ?" Through a
chain of reasoning cogent and con.
vincing, but too closely woven
throughout to admit of brief extract,
the Court arrived at the conclusion
that Congress has the power of re-
pealing treaties. This decision was
reached not only flom the terms of
the constitution itself, but upon the
further ground that any other inter-
probation would render the Govern
ment OF the United States unable to
change or abroSate a treaty without
the consent of a foreign government.
Said the learned and able Judge: