of 18752 which provided for admitting sugar from those Islands free, it was claimed by importers of sugar from the Danish West Indies that under the treaties of 1826 and 1857 they were entitled to similarly import their sugar free of duty. The Supreme Court, however, decided that as Congress had not seen fit after the ratification of the Hawaiian treaty, to enact legislation for the free admission of such sugar, the courts could not relieve the importers from duties under the provisions of the general tariff law. On the argument of this case counsel having suggested that the National good faith and honor were involved, the Court asked the pertinent question whether the government of Denmark had made any claim under the treaty, which could be considered by the Court as it did not appear that any such claim had been made, and the Court decided that even if there had been a breach of the treaty it was not in the power of the court in the absence of Congressional legislation to rectify it, but that it would be a matter of reclamation by the govdominions of His Majesty the King | shall not equally extend to all other of Denmark; and no higher or other nations. duties shall be imposed on the importation into the said dominions of any article, the produce or manufacture of the United States, than are or shall be payable on the like articles, being the produce or manufacture of any other foreign country. Nor shall any higher or other duties or charges be imposed in either of the two countries on the exportation of any articles to the United States, or to the dominions of His Majesty the King of Denmark, respectively, than such as are or may be payable on the exportation of the like articles to any other foreign country. Nor shall any prohibition be imposed on the exportation or importation of any articles, the produce or manufacture of the United States, or of the dominions of His Majesty the King of Denmark, to or from the territories of the United States, or to or from the said dominions, which ARTICLE V The general convention of friendship, commerce and navigation, concluded between the United States and His Majesty the King of Denmark, on the 26th of April, 1826, and which was abrogated on the 15th of April, 1856, and the provisions contained in each and all of its articles, the 5th article alone excepted, shall, after the ratification of this present convention, again become binding upon the United States and Denmark; it being, however, understood, that a year's notice shall suffice for the abrogation of the stipulations of the said convention hereby renewed. 2 Convention respecting commercial reciprocity, concluded January 30, 1875, ratification exchanged June 3, 1875, U. S. Treaties and Conventions, edition, 1887, p. 546. ernment of Denmark upon the Government of the United States, and that the question before the court must be decided strictly by the municipal law of the United States as it had been established by Congress.3 $317. Chinese exclusion; conflict of statutes and treaties; opinion of Justice Field.-Another, and perhaps the most notable example of the apparent violation of treaties by the United States, through Congressional action, was the exclusion of the Chinese from our ports notwithstanding treaty stipulations as to reciprocal rights of subjects of the Chinese Empire and citizens of the United States to freely come and go, each in the territory of the other. The Chinese Exclusion Acts were claimed by many to be in direct violation of these treaty stipulations and the various Acts were tested in the courts and numerous decisions were rendered as to their validity and constitutionality. The courts uniformly sustained the Acts as constitutional. In 1889 Judge Field delivered a leading opinion of the Supreme Court on this subject in one of the Chinese cases from which the following extract is taken:1 "The validity of this act, as already mentioned, is assailed as being in effect an expulsion from the country of Chinese laborers in violation of existing treaties between the United States and the government of China, and of rights vested in them under the laws of Congress. The objection that the act is in conflict with the treaties was earnestly pressed in the court below, and the answer to it constitutes the principal part of its opinion.? Here the objection made is, that the act of 1888 impairs a right vested under the treaty of 1880, as a law of the United States, and the statutes of 1882 and of 1884 passed in execution of it. It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty 8 Bartram vs. Robertson, U. S. Sup. Ct. 1887, 122 U. S. 116, FIELD, J., and see extract from opinion in note on treaty and tariff cases under § 371, Vol. II, pp. 71, et seq. $317. 1 Chae Chan Ping VS. United States, (Chinese exclusion case) | U. S. Sup. Ct. 1889, 130 U. S. 581, FIELD, J., affirming In re Chae Chan Ping, U. S. Cir. Ct. California, 1888, 36 Fed. Rep. 431, SAWYER, J. 2 Citing In re Chae Chan Ping, U.S. Cir. Ct. Cal., 1888, 36 Fed. Rep. 431, SAWYER, J. of 1880, but it is not on that account invalid or to be restricted in its enforcement. The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control. "The effect of legislation upon conflicting treaty stipulations was elaborately considered in the Head Money Cases, and it was there adjudged 'that so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.' This doctrine was affirmed and followed in Whitney vs. Robertson, 124 U. S. 190, 195. It will not be presumed that the legislative department of the government will lightly pass laws which are in conflict with the treaties of the country; but that circumstances may arise which would not only justify the government in disregarding their stipulations, but demand in the interests of the country that it should do so, there can be no question. Unexpected events may call for a change in the policy of the country. Neglect or violation of stipulations on the part of the other contracting party may require corresponding action on our part. When a reciprocal engagement is not carried out by one of the contracting parties, the other may also decline to keep the corresponding engage 3 Edye vs. Robertson, U. S. Cir. Ct. | LER, J. Head Money Cases. And ment. In 1798 the conduct towards this country of the government of France was of such a character that Congress declared that the United States were freed and exonerated from the stipulations of previous treaties with that country."4 § 318. This same subject treated at length in a subsequent chapter.—It is, however, rather anticipating the regular order to refer to decisions of the courts, at this point; the legal principles established in the Chinese exclusion cases will be discussed as to the relative effects of treaty stipulations, and State laws in the next chapter,' and as to United States statutes in the next chapter but one.2 The specific instances in which treaties have been held to operate without legislation, whereby they have annulled State legislation or prior congressional legislation and where they have been affected or abrogated by subsequent legislation of Congress, also form the subject of a subsequent chapter, and no further reference will be made now to them in this chapter which should have been confined to the Congressional debates and action in regard thereto; in concluding this chapter on the participation of both houses in the treaty-making power, however, attention is called to the fact that while congressional action,—that is action by a majority of both houses,-may, contrary to the expectations of the framers of the Constitution, seriously affect treaty stipulations made with foreign powers, there is nothing in any of the cases decided, or in any congressional action already taken, which places any limitations upon the treaty-making power as it exists in the Central Government. The possibility of a majority of both houses of Congress being able, with the President's consent, to override, or of a majority of one branch being able to frustrate, the Executive and twothirds of the Senate, is not to be regarded a limitation upon the power, proceeding from any external or superior force, but only a difficulty in exercising it, owing to disagreement between themselves of the various elements of the Central 4 The quotation is on pages 599601, 130 U. S. Rep. § 318. 1 Chapter XI, and see especially §§ 336, et seq., Vol. II, pp. 24, et seq. | 2 Chapter XII, and see especially $$ 379, et seq., Vol. II, pp. 87, et seq. 8 Chapter XII, and see especially §§ 379, et seq., Vol. II, pp. 87, et seq. Government itself. The power, as lodged in the Central Government in all of its breadth and scope, in all of its farreaching effects over the Union and all of the constituent parts thereof, in all of its varied phases and aspects, has never been diminished by any of the decisions of the court or positions taken in Congress, and which relate only to the method of exercising the power, or of modifying the effects thereof, by the National Government itself, or of the various Departments of the National Government." 2 CONGRESSIONAL DISCUSSION OF 1902 AS TO CONTROL OF HOUSE OF REPRESENTATIVES OVER TARIFF LAWS AND TREATY STIPULATIONS AFFECTING TARIFF. The discussion as to the power of the House of Representatives to control tariff legislation and the necessity of Congressional action to make treaty stipulations affecting tariff provisions effectual, has been renewed in the 57th Congress just as this volume is going to press. On January 29th, 1902, Senator Cullom of Illinois, Chairman of the Committee on Foreign Relations, delivered an address in the Senate of the United States on the extent of the treaty-making power (Cong. Rec. January 29, 1902, pp. 1104–1111), in which he declared (p. 1111) that the "authority of the House of Representatives in reference to treaties has been argued and discussed for more than a century, and has never been settled in Congress, and perhaps never will be. The House, each time the question was considered, insisted upon its powers, but nevertheless has never declined to make an appropriation to carry out the stipulations of a treaty, and I contend that it was bound to do this, at least as much as Congress can be bound to do anything when the faith of the nation had been pledged. And this appears to me to be the only case in which any action by the House is necessary, unless the treaty itself stipulates, expressly or by implication, for such Congressional action." Senator Cullom cited the instances on which this subject has been discussed in Congress. He referred to the Hawaiian, Canadian and Mexican reciprocity treaties, and declared that they did not go into effect without legislation because the treaty expressly provided that legislation must first be enacted; he said (p. 1110): “In the reciprocity treaty with Mexico, negotiated by General Grant, Congress failed to enact the necessary laws and the treaty never went into practical effect. "Had the provision for Congressional action been omitted in the Hawaiian, Canadian and Mexican reciprocity treaties, they would have become effective at once upon the exchange of ratifications." The House of Representatives took up the gage thrown down by Senator Cullom, and on January 31st, 1902 (Cong. Rec., p. 1193), the following Resolution (House No. 114), was offered by Mr. Dalzell of Pennsylvania, from the Committee on Rules, and was agreed to: |