Slike strani

horse is a clear length ahead of the other horse. And if he crowds the other horse, thus impeding him, or compels his jockey to hold him in or change his course to avoid a collision, it is foul riding. McKey v. Irvine, * 10 Fed. R., 725.

$ 1074. The fact that a rider, when attempting such a foul, jeopardizes himself and horse as greatly as his competitor does not justify his making the attempt. Ibid.






See WAR.













SUMMARY When concluded, $ 1.— Laws conflicting with treaty, $ 2.- Power of congress to

repeal or annul, $ 3.— Judicial and political powers, SS 4, 5.— Treaty-making power, $ 6.The supreme law, $ 7.— Burlingame treaty, SS 8–10.

$ 1. Although it is true as a principle of international law that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature, the exchange of ratifications having a retroactive effect, confirming the treaty from its date, a different rule prevails where the treaty operates on individual rights. In such case the principle of relation does not apply to rights which were vested before the treaty was ratified. Haver v. Yaker, SS 11, 12.

§ 2. If an act of congress should levy a duty upon imports which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, the act and not the treaty gives the rule of decision in a judicial tribunal of the United States in a case to which one rule or the other must be applied. Taylor v. Morton, SS 13–15.

$ 3. The legislative power of congress is applicable to treaties as a part of our municipal law whenever they relate to subjects which the constitution has placed under that legislative power. Hence congress may either expressly or by antagonistic legislation repeal a treaty prescribing the duties to be levied upon a foreign import. Ibid.

$ 4. Whether a promise in a treaty has or has not been observed is a question for the political and not for the judicial department of the government. It is not for the courts to say whether or why congress has legislated in contravention of a treaty. Ibid.

$ 5. Whether or not a species of merchandise is like the product imported from Russia, within the meaning of the treaty covering duties upon Russian imports, is not a question for the judicial department of the government to decide, if the plain meaning of the act of congress upon the subject is to declare the amount of duty on such merchandise and imports, even though in violation of the terms of the treaty. Ibid.

.8 6. By article I, section 10, and article II, section 2, of the United States constitution the treaty-making power is surrendered by the states and vested in the president and senate of the United States. In re Parrott, SS 16–34.

§ 7. By article VI of the constitution of the United States treaties made under authority of the United States are declared to be the supreme law of the land. “anything in the constitution or laws of any state to the contrary notwithstanding.” Ibid.

$ 8. Article XIX of the constitution of California, which prohibits any corporation from employing, directly or indirectly, in any capacity any Chinese or Mongolians, and provides, further, that no Chinese shall be employed on any state, municipal, or other work, except in punishment for crime, and the act of February 13, 1880, to enforce it, making it a misdemeanor punishable by fine for any officer, agent, etc., of any corporation to employ Chinese or Mongolians, are null and void as being in conflict with the treaty of June 18, 1868, with China, securing to Chinese subjects residing in the United States the same privileges, immunities and exemptions in respect to travel and residence as may be enjoyed by the citizens or subjects of the most favored nation. Ibid.

$9. The provisions of the Burlingame treaty of June 18, 1868, between the United States and China, recognizing the rights of citizens and subjects of the two countries to migrate and emigrate from one country to the other for purposes of curiosity, trade, or as permanent residents, and insuring Chinese subjects visiting or residing in the United States the same privileges, immunities and exemptions, in respect to travel or residence, as may be enjoyed by the citizens of the most favored nations, are within the treaty-making powers conferred upon the president and senate of the United States, and therefore valid. Ibid.

$ 10. The privileges and immunities seci. red to the Chinese by the Burlingame treaty of June 18, 1868, include all those rights which are fundamental in free governments, and among those rights is the right to labor and pursue any lawful calling. Ibid.

[NOTES. — See SS 35-339.]



(9 Wallace, 32-35. 1869.) Opinion by Mr. JUSTICE Davis.

$ 11. A treaty as respects the rights of either government under et concludes and binds them from the date of its signature. The ratification retroacting confirms it from its date.

Error to the Court of Appeals of Kentucky.

It is undoubtedly true, as a principle of international law, that, as respects. the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, confirming the treaty from its date Wheaton's International Law, by Dana, 336, bottom paging.

$ 12. —but, as affecting individual rights, treaties are not considered as concluded and binding until there is an exchange of ratifications.

But a different rule prevails where the treaty operates on individual rights. The principle of relation does not apply to rights of this character which were vested before the treaty was ratified. In so far as it affects them it is not considered as concluded until there is an exchange of ratifications, and this we understand to have been decided by this court, in Arredondo's Case, reported in 6th Peters, 749. The reason of the rule is apparent. In this country a treaty is something more than a contract, for the federal constitution declares it to be the law of the land. If so, before it can become a law, the senate, in whom rests the authority to ratify it, must agree to it. But the senate are not required to adopt or reject it as a whole, but may modify or amend it, as was done with the treaty under consideration. As the individual citizen on whose rights of property it operates has no means of knowing any. thing of it while before the senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust and cannot be sanctioned.

These views dispose of this case, and we are not required to determine whether this treaty, if it had become a law at an earlier date, would have secured the plaintiffs in error the interest which they claim in the real estate left by Yaker at his death.

Judgment affirmed.


(Circuit Court for Massachusetts: 2 Curtis, 451-464. 1855.) Opinion by Curtis, J.

STATEMENT OF Facts.- This is an action of assumpsit for money had and received, brought against the defendant as collector of the customs of the port of Boston, to recover back moneys alleged to have been illegally exacted by him in payment of duties, upon a quantity of hemp imported by the plaintiffs from Russia while the tariff act of 1842 (5 Stat. at Large, 548) was in operation. The duties charged were at the rate of $10 per ton. The plaintiffs allege that $25 per ton was the true rate. The commercial treaty between the United States and Russia of the 18th December, 1832, stipulated, in substance, that no higher rates of duty should be imposed on the products of Russia imported from that country into the United States than on the like articles imported from other countries. The tariff act of 1842 imposed a duty of $40 per ton on all hemp excepting Manilla, Suera, and other hemps of India, on which a duty of $25 only was to be levied.

The plaintiff's counsel insists that the import now in question is within the meaning of the treaty an article “like” Bombay hemp; that congress has levied on Bombay hemp a duty of $25 per ton; that as soon as this lower duty had been levied on an article like Russian hemp, the stipulation in the treaty at once took effect as part of our municipal law, and reduced the duty levi. able on Russian hemp to $25 per ton; and so that, under the laws of the United States, the amount beyond $25 per ton was illegally exacted, and can be recovered back in this action.

Several questions involved in this position require examination. One of them, when stated abstractly, is this: If an act of congress should levy a duty upon imports, which an existing commercial treaty declares shall not be levied, so that the treaty is in conflict with the act, does the former or the latter give the rule of decision in a judicial tribunal of the United States in a case to which one rule or the other must be applied ?

The second section of the fourth article of the constitution is, “This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land." There is nothing in the language of this clause which enables us to say that, in the case supposed, the treaty, and not the act of congress, is to afford the role. Ordinarily treaties are not rules prescribed by sovereigns for the conduct of their subjects, but contracts by which they agree to regulate their own conduct. This provision of our constitution has made treaties part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. No such declaration is made even in respect to the constitution itself. It is named in conjunction with treaties and acts of congress as one of the supreme laws, but no supremacy is in terms assigned to one over the other. And when it became necessary to determine whether an act of congress repugnant to the constitution could be deemed by the judicial power an operative law, the solution of the question was found by considering the nature and objects of each species of law, the authority from which each emanated, and the consequences of allowing or denying the paramount effect of the constitution. It is only by a similar course of inquiry that we can determine the question now under consideration.

In commencing this inquiry I think it material to observe that it is solely a question of municipal as distinguished from public law. The foreign sovereign between whom and the United States a treaty has been made has a right to expect and require its stipulations to be kept with scrupulous good faith; but through what internal arrangements this shall be done is exclusively for the consideration of the United States. Whether the treaty shall itself be the rule of action of the people as well as the government, whether the power to enforce and apply it shall reside in one department or another, neither the treaty itself, nor any implication drawn from it, gives him any right to inquire. If the people of the United States were to repeal so much of their constitution as makes treaties part of their municipal law, no foreign sovereign with whom a treaty exists could justly complain, for it is not a matter with which he has any concern.

We may approach this question, therefore, free from any of that anxiety respecting the preservation of our national faith, which can scarcely be too easily awakened, or too sensibly felt. For this question, in that aspect of it, is not whether the act of congress is consistent with the treaty, but whether that is a judicial question to be here tried. If the act of congress, because it is the later law, must prescribe the rule by which this case is to be determined, we do not inquire whether it proceeds upon a just interpretation of the treaty, or an accurate knowledge of the facts of likeness or unlikeness of the articles, or whether it was an accidental or purposed departure from the treaty; and if the latter, whether the reasons for that departure are such as commend themselves to the just judgment of mankind. It is sufficient that the law is so written, and, if I mistake not, we shall find, by further examination, great reasons for not entering into these inquiries.

By the eighth section of the first article of the constitution power is conferred on congress to regulate commerce with foreign nations, and to lay duties, and to make all laws necessary and proper for carrying those powers into execution.

§ 13. In the exercise of its legislative power congress may repeal a treaty so far as it is municipcl law.

That the act now in question is within the legislative power of congress, unless that power is controlled by the treaty, is not doubted. It must be admitted, also, that, in general, power to legislate on a particular subject includes power to modify and repeal existing laws on that subject, and either substitute new laws in their place, or leave the subject without regulation in those particulars to which the repealed laws applied. There is therefore nothing in the mere fact that a treaty is a law which would prevent congress from re: pealing it. Unless it is for some reason distinguishable from other laws, the rule which it gives may be displaced by the legislative power at its pleasure.

The first and most obvious distinction between a treaty and an act of congress is that the former is made by the president and ratified by two-thirds of the senators present; the latter by majorities of both houses of congress and the president, or by the houses only, by constitutional majorities, if the president refuses his assent. Ordinarily it is certainly true that the powers of enacting and repealing laws reside in the same persons. But there is no reason, in the nature of things, why it may not be otherwise. In the country from which we have derived many political principles, the king, by force of his prerogative makes laws for the colonies, which parliament repeals or modifies at its discretion. Campbell v. Hall, Cowp., 204.

I think it is impossible to maintain that, under our constitution, the president and senate exclusively possess the power to modify or repeal a law found in a treaty. If this were so, inasmuch as they can change or abrogate one treaty only by making another inconsistent with the first, the government of the United States could not act at all to that effect without the consent of some foreign government; for no new treaty, affecting in any manner one already in existence, can be inade without the concurrence of two parties, one of whom must be a foreign sovereign. That the constitution was designed to place our country in this helpless condition is a supposition wholly inadmissible. It is not only inconsistent with the necessities of a nation, but negatived by the express words of the constitution. That gives to congress, in so many words, power to declare war — an act which, ipso jure, repeals all provisions of all existing treaties with the hostile nation inconsistent with the state of war.

It is true this particular power to repeal laws, found in treaties, is expressly given, and is applicable only to a case of war; but in the first place it is sufficient to prove the position stated above, that there is nothing in the nature of things which requires the same persons who make the law by a treaty should alone have power to repeal it. In the next place it is also true that the powers to regulate commerce and to levy duties are as expressly given as the power to declare war; and the former are as absolute and unrestrained as the latter.

It may be said that a declaration of war, being necessarily inconsistent with existing treaties with the hostile nation, the power to declare it is necessarily a power to repeal such treaties; but that power to regulate commerce and impose duties might be and was expected to be exercised in conformity with existing treaties. To a certain extent this may be admitted. But it cannot be admitted that these powers can be, or were expected to be, exerted under all circumstances which might possibly occur in the life of a nation, in subordination to an existing treaty; nor that the only modes of escape from the


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