Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1886-09-10

applied ?" Through chain OF rea-
sOning cogent and convincing, but too
CLOSELY woven throughout to admit of
bIief extract, the Court arrived at the
conclusion that Congress has the pow
er of repeating treaties. This decision
was reached not only from the terms
of the Constitution itself, but upon the
further ground that any other inter
pretation would render the Govern.
ment of the United States unable to
change or abrogate a treaty without
the consent Of a foreign Government.
Said the learned and able Judge ::
" That the Constitution was designed
to place our country in this helpless
condition is supposition wholly mad
missible." Upon still broader basis
of reasoning he enforced primal
principle OF international law by de-
claring that the power to refuse to ex-
ecute treaty is a prerogative Of which
no nation can be deprived without
deeply affecting its independence"
and expressed his clear and profound
conviction Of this in the following
words, that the people Of the United
States have deprived their Government
OF this power in any case do not be-
lieve. That it must reside somewhere
and be applicable to all cases l am
convinced; feel no doubt that it be-
longs to Congress" The Court found
moreover leading precedent dating
back as far as the year 1898, when
Congress declares the treaties with
Frapce no longer obligatory on the
United States.
The same principle was affirmed by
Judge Woodruff in Ropes vs. Clinch,
i'll the Circuit Court of the United
States for the southern district Of New
York, so recently as April, 1871. Al
though the parties were different, the
subject matter was substantially the
same as that in Taylor VS.. Morton, the
suit having been brought against the
Collector OF the Port OF New York, to
recover duties paid under law in con-
fiict with our treaty Of 1882 before re-
ferred to; the duties having been paid
under protest. The sixth article OF the
treaty declared in substance that no
article, the produce or manufacture
OF Russia" should pay higher duty
than I" like article produced or man
ufactured in any other foreign coun-
try" whereas the act of Congress lev
led forty dollars per ton on the hemp
OF Russia, and but twenty-five dollars
per ton on the hemp OF India and Ma
nilla.
Here was direct conflict between
the express terms OF treaty and a
specific language of an act of Con-
gress of later date. The language OF
the act was held by the Court to be
incapable OF any inter-
pretation that would not place it in
direct conflict with the treaty. The
Court said: a understand it to be
conceded, and if it be not, / should
be constrained to hold that the legis-
lative department in the Government
may pass any law in pleases Gf it is
otherwise constitutionaD, notwith-
its conflicts, and notwith-
whatever degree greater or
less it conflicts, with the existing treaty
with a foreign nation" In the same
paragraph the Court declared that
the legislative department has power
to "give to those laws efficiency and
force" The question had, however,
come before the Supreme Court OF
the United States, in the previous
year, in the Cherokee Tobacco Case,
in which the merits were as fol-
lows:
BY the tenth article OF a treaty en-
tered into with the tribe in 1866, it
was agreed that Every Cherokee In
dian and freed person residing in Che
rokee nation shall have the right to
sell any products OF his farm includ-
ing his or her livestock, or anv mer-
chandise or manufactured products,
and ship and drive the same to mar
ket without restraint; paying any
tax thereon which is now or may be
levied by the United States in the
quantity sold outside of the Indian
Territory" In 1868 Congress passed
a law for the collection OF Internal
Revenue, which imposed a tax con
distilled spirits, fermented liquors, to-
bacco, snuff and cigars produced any
tlC CAtCIlOl
OF the United States" 1t is therefore
plain that while the treaty guaranteed
certain exemptions to the Cherokees,
the Internal Revenue law swept those
exemptions away. In the language
oi the decision OF the Court, delivered
by Mr.. Justice Swayne, undoubtedly
one or the other must yield, the re-
pugnance is clear, and they can not
stand together" The determination
Of the matter was lucidly set forth in
the following terms: "The effects OF
treaties and acts OF Congress " hen in
conflict, is not settled by the Constitu-
ton. But the question is not involved
in any doubt as to its proper solution !;
a treaty may supersede prior act Of
Congress. and an act OF Congress may
supersede prior treaty. In the cases
referred to (Foster ct al. vs. Nelson,