The Washington herald., 1914-03-31
TREATIES AND THE
ACTS OF CONGRESS
Crammond Kennedy Says President S
Opponents Are Relying on Blunders
of English Lawyers.

EultOIs Inc w dSnlnSton t1tfdlu. INS
articles contributed by English lawyers
to the London Law Review have been
exploited on this side of the Atlantic for
far more than they are worth by advO-
Gates OF the exemption OF our coastwise
shipping from the payment OF tolls on
thc Panama Canal These articles were
reprinted more than a year ago in the
Con gressional Record and last week
Senator Jones, of Washington, reproduced
Mr. CoX-Sinclairs conclusions. including
the proposition that any aggrieved party
Aas an appropriate and impartial and 2
competent tribunal in the Supreme Court
of the United States"
This astounding proposition betrays an
entire misapprehension of the situation.
II is not Congress. but the States, that
are forbidden by the Constitution OF the
United States to pass any law impairinS
the obligation of a contract; and if Con-
gress passes an act i'm violation of a
treaty. the Supreme Court cannot declare
the act null and void, but is bound to
give il effect as the last expression of the
will of the supreme legislature on the
subject, and leave the diplomatic ques-
tions which would be raised by a viola
tion Of the treaty TO be settled by the
two governments concerned ny diplomacy
or war.
The law on the subject of a conflict be-
tween a treaty and later act OF Con-
gress was stated by Mr.. Justice Miller.
speaking for the Supreme Court Of the
United States in the Head Money Cases.
1l2 L. s. $50. 59S as follows:
"A treaty is primarily a compact be-
tween independent nations. II depends
for the enforcement of its provisions on
the interest and the honor of the gov
ernments which are parties TO II. II
fhaSn fail fnfrarfipp harpuopg tho
subject of international negotiations and
reCIamations, so far as the injured party
chooses TO seek redress which may in
the end be enforced by actual war. II
is obvious that with all this the judicial
courts have nothing to do and can give
no redress"
The learned justice, however. proceeds
as follows:
But treaty may also contain pro-
visions which confer certain rights upon
the citizens or subjects Of one of the
nations residing in the territorial limits
OF the other. which partake of the ma
tUre of municipal law. and which are
capable of enforcement as between pri-
vate parties in the courts of the country,
An illustration of this character is found
i'm treaties which regulate the mutual
rights of citizens and subjects OF the
contracting nations in regard TO rights
OF property DN descent or inheritance.
when the individuals concerned are aliens
The Constitution OF the United States
places such provisions as these in the
same category IS other laws of Congress-
by its declaration that this Constitution
and the laws made in pursuance thereof.
and all treaties made. or which shall be
made. under authority Of the United
States. shall he the supreme law of the
land.
When property rights of private per-
sons are secured under n treaty and are
act of Congress, effect will be Givn to
them bv the Supreme Court as il they
were secured by municipal law.
The doctrine Of the Head Money Cases.
cited above. has been affirmed in a num-
her Of cases. one of the more recent he
ing Thomas VS.. Gay. 169 L. s. 27l, in
which Mr. Justice Shiras, speaking for
the court. said:
1t is we'll settled that an act OF Con-
Gress may supersede a prior treaty, and
that any questions that may arise are
beyond the sphere Of judicial coGnizance,
and must be met by the political depart
mpnt of the government"
In a later case. Stephens VS.. Cherokee
Nation. ia L. s. As. 4SI, it was held that
AN act OF Congress is not unconstitu-
tional because it supersedes n prior
treaty. and the words of Mr.. Justice
Shiras. quoted above. We're repeated with
approval by Mr.. Chief Justice Fuller.
the opinion of the court
II thus appears that che suggestion of
Mr. CON-SincIair that Congress should
not he asked to repeal the provision eX-
the coastwise shipping of the
United States from payment of tolls be-
cause the question Of the validity of that
provision could he tested in the Supreme
Court OF the United States. is without
and entirely chimerical
Another mistake made in one OF these
English essays is the appli-
cation by Mr.. HercshOh Bartlett of the
decision in Olsen VS.. Smith, 195 L. S,
3H, to the question Of equal terms. or
rather terms of entire equality" under
the Hay -PauncefOte treaty. The English
writer cited this case. decided by the
Supreme Court of the United States in
1894. as authority for the proposition
that
"A British vessel engaged in foreign
commerce was not entitled under the
treaty of 1876 Cbetween Great Britain and
the United Statesl to the exemption from
paying pilOtage accorded by law to Am
erican vessels engaged in the cOasting
trade" or. as the Court said by Mr..
inow ChieO Justice White:
NelIntT inc eASHlpI!oH VI 'odHbNiSe
steam vessels from pilOtage resulting
from the law of the United States, nor
any lawful exemption Of coastwise ves-
sells created by State Law, concerns YES
sells in the foreign trade, and therefore
any such exemption does not operate to
produce discrimination against British
vessels engaged in such trade. In sub
stance the proposition hut asserts that
because by the law of the United States
steam vessels in the cOastwise trade