consent of both Houses of Congress is necessary; therefore be it resolved, etc.'

3

What has been said regarding the power of Congress to refuse to appropriate moneys for the payment of which the United States has been obligated by the treaty-making power applies with equal force to whatever other legislation may be required in order to put a treaty into full force and effect.

Though, as is seen from the foregoing, it cannot be said that precedent has established the doctrine one way or the other, it is quite clear that whatever moral obligation, as a matter of good faith, or principle of expediency, may urge Congress to pass appropriation or other laws required for putting into full force and effect agreements entered into by the treaty-making power, there is no constitutional means by which, in case of refusal, such legislation may be compelled; nor is there any constitutional right on the part of the executive or judicial branches of the Federal Government to supply the lacking legislation. A treaty is by the Constitution declared to be a law of the land, and where its provisions operate directly upon a subject, it may be enforced as such without further legislative sanction. But where the treaty is not thus directly executory, the executive and judicial departments must wait until Congress has enacted the necessary legislation. Justice McLean declares: "A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign government may be presumed to know that so far as the treaty stipulates to pay money the legislative sanction is required."*

In Foster v. Neilson Chief Justice Marshall with reference to the legal character of a treaty, as fixed by United States Constitutional Law, says: "Our Constitution declares a treaty to

3 For other discussions in Congress upon this subject, see Butler, Chapter X. 4 McLean, Constitutional Law, p. 347. As to whether the last statement of McLean is correct or not, see post, Section 221.

52 Pet. 253; 7 L. ed. 415.

be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without aid of any legislative provision. But when the terms of the stipulation import a contract when either of the parties engages to perform a particular act-the treaty addresses itself to the political, not to the judicial department; and the legislature must execute the contract before it can become a rule for the court."

§ 207. Congress May by Statute Abrogate Treaties.

As has been said, treaties, so far as they are self-executory, are the supreme law of the land, and in this respect rest upon a plane of equality with acts of Congress. But upon no higher plane. Resulting from this, it has been held in a number of well considered cases that an act of Congress operates to repeal or annul prior treaty provisions inconsistent with it.

In Edye v. Robertson, after reviewing various cases, the court say: "A treaty, then, is a law of the land as an act of Congress is, whenever its provisions present a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute. But even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect which may be repealed or modified by an act of a later date. Nor is there anything in its essential character or in the branches of the govern

6 See also United States v. Percheman, 7 Pet. 51; 8 L. ed. 604, and Garcia v. Lee, 12 Pet. 511; 9 L. ed. 1176. "If Congress . . . does not choose to carry out a treaty or if it prefers to violate one, citizens of the United States, or even subjects of foreign powers, seeking relief in our courts, may not, in that manner, be able to obtain redress for evils arising from the failure of the government of the United States to comply with treaty stipulations. The courts are bound by the laws enacted by Congress, and cannot declare them either unconstitutional or inoperative because they violate national contracts or national good faith and honor." Butler, I, §§ 451, 315.

7 Headmoney Cases, 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798.

ment by which the treaty is made, which gives it this superior sanctity. In short we are of the opinion 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 of Congress as Congress may pass for its enforcement, modification or repeal."

8

The doctrine thus unqualifiedly stated has been repeatedly followed in later cases. Especially strong is the Chinese Exclusion Case, Chae Chan Ping v. United States."

§ 208. Whether the Treaty-Making Power may Modify or Repeal Laws Enacted by Congress.10

To Congress is given the power by the Constitution to legislate with reference to certain matters. We have already learned that by statute the President has been authorized in a number of instances to enter into international agreements for the regulation of certain matters within the legislative control of Congress. We have now to examine whether, without congressional direction or permission, it is competent for the treaty-making power to regulate a matter which it is within the legislative power of Congress to control; or, by international agreements, to alter arrangements which Congress has by statute already established.

That the treaty-making power extends to subjects within the ordinary legislative powers of Congress there can be no doubt.

8 Butler, op. cit. II, 86, cites the following cases in which acts superseding prior treaties in conflict with them have been sustained by the Supreme Court: United States v. McBratney, 104 U. S. 621; 26 L. ed. 869; Chew Heong v. United States, 112 U. S. 536; 5 Sup. Ct. Rep. 255; 28 L. ed. 770; Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244; Draper v. United States, 164 U. S. 240; 17 Sup. Ct. Rep. 107; 41 L. ed. 419; Thomas v Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740; Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905; Chinese Exclusion Cases, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068; La Abra Silver Mining Co. v. United States, 175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223; United States v. Gue Lim, 176 U. S. 459; 20 Sup. Ct. Rep. 415; 44 L. ed. 544.

9 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.

10 For a very full account of discussions of this subject in Congress, see Hinds' Precedents of the House of Representatives, Chapters XLVIII and

That is to say, the treaty-making power is fully competent to enter into agreements with foreign powers in respect to those matters which are binding internationally upon the United States. The question here to be considered is, however, whether these international compacts become, so far as they are self-executing, immediately binding municipally, that is, may be enforced as law in our courts. The Supreme Court has, in a number of instances, declared that treaties and acts of Congress stand, as law, upon exactly equal planes, and, therefore, that the later treaty operates to supersede the earlier law, exactly, as we have seen, the later law has the effect of abrogating a prior inconsistent treaty. Thus in Cherokee Tobacco Case" the court say: "The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress (Foster v. Neilson, 2 Pet. 253; 7 L. ed. 415) and an act of Congress may supersede a prior treaty. (Taylor v. Morton, 2 Curt. C. C. 454; The Clinton Bridge, 1 Wolv. 155.)"

In United States v. Lee Yen Tai12 the court declare: "That it was competent for the two countries by treaty to have superseded a prior act of Congress on the same subject is not to be doubted; for otherwise the declaration in the Constitution that a treaty, concluded in the mode prescribed by that instrument, shall be the supreme law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject. In Foster v. Neilson (2 Pet. 253; 7 L. ed. 415), it was said that a treaty was to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.' In the case of The Cherokee Tobacco (11 Wall. 616), this court said 'a treaty may supersede

11 11 Wall. 616; 20 L. ed. 227.

12 185 U. S. 213; 22 Sup. Ct. Rep. 629; 46 L. ed. 878.

a prior act of Congress and an act of Congress may supersede a prior treaty.' So in the Head Money Cases (112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798) this court said: '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.' Again, in Whitney v. Robertson (124 U. S. 190; 8 Sup. Ct. Rep. 456; 31 L. ed. 386); "By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always that the stipulation of the treaty on the subject is self-executing.' (See also Taylor v. Morton, 2 Curt. C. C. 454, Fed. Cas. No. 13,799; Clinton Bridge Case, Woolw. 155, Fed. Cas. No. 2,900; Ropes v. Clinch, 8 Blatchf. 304, Fed. Cas. No. 12,041; 2 Story, Const. § 1838.) Nevertheless, the purpose by statute to abrogate a treaty or any designated part of a treaty, or the purpose by treaty to supersede the whole or a part of an act of Congress, must not be lightly assumed, but must appear clearly and distinctly from the words used in the statute or in the treaty.'

9713

13 See also Johnson v. Browne, 205 U. S. 309; 27 Sup. Ct. Rep. 539; 51 L. ed. 816.

Moore, in his Digest of International Law (V, 370), says: "A treaty assuming it to be made conformably to the Constitution in substance and form, has the legal effect of repealing under the general conditions of the legal doctrine that 'leges posteriores priores contrarias abrogant,' all preexisting federal law in conflict with it, whether unwritten as law of nations, of admiralty, and common law, or written as acts of Congress. A treaty, though complete in itself, and the unquestioned law of the land, may be inexecutable without the aid of an act of Congress. But it is the constitutional duty of Congress to pass the requisite laws. But the need of further legislation, however, does not affect the question of the legal force of the treaty per se. Cushing, At Gen. 1854 (6 Op. 291). See also Akerman, At. Gen. 1870 (13 Op. 354).