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

VII.
As concerns the treatment Of this
! question from legal standpoint by
our own Government, We have to bear
in mind that it is presented in two as
poets. First, the legal right Of Con-
gress to repeal treaty. Second, the
moral justification for such repeal
The former was indicated by judicial
dicta nearly century ago. In the
case Of Ware vs.. Hylton, before the
Supreme Court OF the United States,
in the year 1876, il was asserted by
Justice Iredell that if Congress should
declare treaty void, lie should deem
it his duty to so consider it and then
forbear any share in executing it as a
Judge" The question became, how
ever, the subject of more careful and
determinate consideration about thirty
years ago, and the principles involved
have been elaborated by a series of ju-
dicial opinions and judicial decisions
extending nearly to the present date
1t was carefully entered into in 1851
by the then Attorney General with re-
ference to the Secretary of the Treas
ury 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 conceded
that an act of Congress, subsequent to
the treaty, conficted with the latter.
The opinion is careful and exhaustive,
and its conclusions We're expressed in
no uncertain terms. 1t set forth that
the only provision Of the Constitution
relating to the matter is, that This
Constitution and the laws Of the Uni
ted States which shall be made in pur-
suance thereof, and all treaties made,
or which shall be made under the au-
thority OF the United States shall be
the supreme law Of the land" After
quoting this, the sole authority under
| which the Government may conclude
a treaty the opinion continues: can
act of Congress, then, is as much a su-
preme 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. The
last expression then OF the law-giving
power must prevail, and just for the
same reason, and on the same princi.
pie that subsequent act must prevail
and have effect though inconsistent
with prior treaty."
Further on in the same opinion the
same jurist condenses the controlling
principles of constitutional and inter-
national law bearing upon the ques-
ton 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 the hands of the
Government of the United States un-
der the constitution and its acts are
uncomfortable except only by that
constitution; it does not say that Con-
gress shall pass no law inconsistent
with treaty, and it would have been
q strange anomaly if it had imposed
any such prohibition. There may be
cases of treaties so injurious, or which
may become so by change of circum-
stances, that it may be the right and
duty of the Government to renounce
or disregard them. Every Govern
ment must judge and determine for
itself the proper occasion for the exer-
else of such power; and such a
power, l suppose, is implicitly reserved
by every party to treaty. and hope
and believe belongs inalienably to the
Government Of the United States. It
is true that such power may be
abused, SO may the treaty making
power, and all other powers, but for
our security against such abuse we
may and must rely on the integrity,
wisdom, and good faith of our Govern
ment." From this opinion OF the law
officer OF the Government, designed to
aid the latter in its relations with for
eign powers, We may turn to the de-
cisions OF our courts in which the
same problem has been presented to
their jurisdiction in matters of domes.
tic concern.
In 1855 the question OF the power
of Congress to repeal treaty, came
before the United States Circuit Court
for the first circuit, in Taylor vs.. Nor
| ton. before Judge B. R. Curtis, whose
profound learning in the higher
branches OF the law has long been the
subject Of legal encomium. The ac-
ton related to the collection Of duties,
on the importation OF Russian hemp,
levied under an act Of Congress ad:
mitted 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 a duty upon imports
which any existing 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