American Express Co. v. United States

4 Ct. Cust. 146, 1913 WL 20029, 1913 CCPA LEXIS 69

Opinions

Montgomery, Presiding Judge,

delivered the opinion of the court:

These cases involve the importations of chemical wood pulp and sulphide wood pulp from Norway, Russia, Austria-Hungary, and Germany. Free importation was claimed on the ground that by virtue of the favored-nation clause in subsisting treaties between the United States and the various exporting countries, when construed in connection with section 2 of the act of July 26, 1911, entitled “An act to promote reciprocal trade relations with the Dominion of Canada and for other purposes,” free importation was provided for.

The goods were assessed for duty under paragraphs 406 and 409 of the tariff act of 1909. The board overruled the protest, and the importers have appealed to this court.

Many of the questions discussed in the brief of the importers, counsel have been eliminated by concessions made by the Assistant Attorney General in his brief and on argument.' It was argued before the board — and the argument found some favor — that Canada was not a nation within the meaning of the favored-nation clause. But it is now assumed by counsel for the Government that Canada is an autonomy with which a treaty was made, and that the court will not pause to inquire as to the municipal government of such autonomy. It is assumed that it is a nation for treaty purposes, and this may well be assumed, as this Government has itself so treated it.

It is also conceded, for the purposes of this case, that the treaties in question, while employing different language, in some of which the language may be construed as being contractual only, and in others taking the form of positive assurance, no distinction on that account should be made between the several countries represented by the protest, and that for the purposes of this litigation it is admitted that the position of each of these nations is equal to the one haring the most advantageous treaty.

It is also conceded that section 2 of the act of 1911 is operative, notwithstanding the fact that Canada refused to avail itself of the option to establish reciprocity as to any other importations as provided for in other sections of the act.

The case would seem, therefore, to be narrowed down to three questions, the first of which is whether the court may enforce treaty provisions in this form of action, i. e., whether the treaty is a part of the municipal law, binding upon the courts, or whether the enforcement and observance of treaties is in all cases a political question to be left to other departments of government; secondly, whether the treaty in question is, as it relates to the goods imported from a contracting nation, a self-executing provision; and thirdly, if both of these questions are answered in the affirmative whether the provisions of section 2 of the act of July 26, 1911, were adojAed upon a consideration moving from Canada to the United States, for admittedly if this agreement admitting to free entry the importations from Canada of wood pulp and paper was upon a special consideration passing from the Canadian Government to the United States, such treaty would constitute no infraction of the favored-nation clause here in controversy. ■

We summarize the contentions of counsel for the Government upon the first point by quoting from the Government’s brief:

In short, to say that our contracts with foreign countries have been kept or fulfilled is a legislative or executive office, not a judicial one. It follows that if a treaty is promissory it is not part of the supreme law. * * *

It has been said numberless times in this and similar cases that favored-nation clauses are “self-executing if the concession granted is voluntary.”

But what power decided whether it was intended to receive a consideration for a favor granted?

And after a discussion of the subject it is further stated:

In effect, then, whether a treaty is self-executing or only executory is not a question for the courts; its status is wholly political and for the political department to settle, and whether an act of Congress derogates from a treaty is not a judicial question. The proper political department upon complaint made is charged with the duty of deciding and adjusting the whole matter. As a political question, it makes no difference when representations are made to the State Department whether the treaty claimed to have been violated by us was the one sort or the other. To say our courts had held it not to be violated would hardly be accepted by an aggrieved foreign nation as conclusive of the subject; but, on the contrary, our whole foreign policy would depend upon an adjustment honorable to both parties, no matter what our courts might have .said; and with wisdom born of the consciousness of this fact the courts have held it not to be a judicial question.

There is no question that jurisdiction exists in the Board of General Appraisers and on appeal in this court to determine the rate and amount of duty, if any, to be imposed upon all merchandise imported into the ports of this country. This jurisdiction is subject to no restriction whatever unless the contention of the Government’s counsel should be accepted, and unless it should be held that when the law which is invoked consists of a treaty the question presented is no longer a judicial question.

Article VI of the Constitution provides:

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: * * *

Unquestionably the duty imposed upon this court of determining the force and effect of the treaty here in question is a delicate one. If, however, a treaty is binding as a law of the land, it would seem to be the duty of any tribunal whose functions consist of construing and applying the law whenever the conditions arise which make such treaty applicable to declare its force and effect. As was said by Chief Justice Marshall in Marbury v. Madison (1 Cranch, 137, at 178):

It is, emphatically, the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

And again, as early as 1829, in the case of Foster v. Neilson (2 Pet., 253), the court, having under consideration a treaty between Spain and this Government, in an opinion by Chief Justice Marshall, said:

A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to 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 the 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 the judicial department, and the legislature must execute the contract before it can become a rule for the court.

The opinion then proceeds to show that the treaty under consideration was not self-executing.

In Story on the Constitution, volume 2, section 1838, it is said:

In regard to treaties, there is equal reason why they should be held, when made, to be the supreme law of the land. It is to be considered that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed and enforced, no foreign nation would consent to negotiate with us; or, if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals or war. It is therefore indispensable that they should have the obligation and force of a law, that they may be executed by the judicial power and be obeyed like other laws.

So far as we know, the rule as stated so tersely in Foster v. Neilson has not been departed from by the Supreme Court.

This court, in Shaw v. United States (1 Ct. Cust. Appls., 426), summarized the rule as follows:

The general rule, as laid down by the courts, is that they are bound to give treaties the same effect as the fundamental law of the land as they do the provisions of the laws of Congress. They are denominated “the supreme law of the land,” citing United States v. The Peggy (1 Cranch, 103); Strother v. Lucas (12 Pet., 410, 439); Foster v. Neilson (2 Pet., 253, 314). Where, however, by its terms, a treaty speaks in the nature of an executory promise it is the rule that it is not self-executing, and before it can be' given the same force and effect as the law of the land action by Congress so legislating must be had.

In numerous cases, as in Chew Heong v. United States (112 U. S., 536), United States v. Lee Yen Tai (185 U. S., 213), and United States v. Mrs. Gue Lim (176 U. S., 459), the Supreme Court has construed statutes and treaties together when they were claimed to be in conflict, and determined which should prevail, and applied the rule that the purpose to evade by a subsequent legislative enactment the solemn engagements of a treaty should not be imputed to the lawmaking body until and unless it was declared in plain terms.

The Assistant Attorney General cites three cases which are claimed to be decisive of these appeals. We will consider them in their order, first stating, without citing familiar authorities in support of the rule, that in construing a judicial opinion it is to be treated as controlling authority only so far as it deals with the point actually involved in the case.

The first case cited is that of Taylor v. Morton (2 Curtis, 453; 23 Fed. Cases, 784). That case involved an importation of Russian hemp. Under the tariff act of 1842 it was provided that hemp should pay a duty of 840 per ton, except Manila and Bombay hemp, which should pay $25 per ton. The collector demanded $40 per ton on the importation from Russia. The importer protested the payment and brought suit to recover $15 per ton, claiming that the favored nation stipulation of the treaty of 1832 was operative ex proprio vigore, and that Russian hemp was entitled, under such treaty, to as favorable terms as hemp from Manila and Bombay. The opinion was by Mr. Justice Curtis, sitting at the circuit.

The first question discussed in the opinion was stated by the learned justice as follows:

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?

In discussing this question, the conclusion is reached by irrefra-gable logic that as under the Constitution laws enacted by Congress and treaties made under the authority of the United States are alike the supreme law of the land, that there is nothing to indicate that the one is paramount to the other, and it follows that where a law is enacted which repeals or abrogates a treaty in whole or in part, the law being later in point of time, must be the rule which controls judicial action. This rule being determined, it is then said:

Is it a judicial question whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative, have given just occasion to the political departments of our Government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise?

This was negatived, and it was said:

These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our Government. They belong to diplomacy and legislation, and not to the administration of existing laws. And it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere in our system of Government. On the other hand, if it be admitted that Congress has these powers, it is wholly immaterial to inquire whether they have, by the act in question, departed from the treaty or not; or if they have, whether such departure was accidental or designed, and if the latter, whether the reasons therefor were good or bad. If by the act in question they have not departed from the treaty the plaintiff has no case. If they have, their act is the municipal law of the country, and any complaint, either by the citizen or the foreigner, must be made to those who alone are empowered by the Constitution to judge of its grounds and act as may be suitable and just.

It Is obvious that in the use of this language it was .implied by the learned justice all the way through that the tariff act of 1842, in fact fixed a duty of $40 per ton on hemp imported from Russia, and that the question which was held to be a political one was whether there was just ground for the enactment by Congress of such a law which in effect discriniinated against Russian hemp, and therefore to an extent abrogated the treaty with Russia. We do not construe this language as in auy way in conflict with the rule that the courts have the right to enforce the subsisting provisions of a treaty as a part of the law of the land. Indeed much of the discussion, in the opinion of Justice Curtis, would have been wholly foreign to the case had such been the view which he entertained.

The opinion then proceeds to discuss the contention that a construction should be placed upon the treaty which would admit Russian hemp, but finds insuperable objections to such construction, and concludes by holding that the terms of the treaty there under consideration imported a contract, and in effect that the provisions were not self-executing. This is in no way in conflict with Foster v. Neilson, supra.

The next case, cited is Bartram v. Robertson (122 U. S., 116). In that case unrefined sugar and molasses, the produce and manufacture of the Isle of St. Croix, a part of the dominions of the King of Denmark, were imported and the tariff duty fixed by general statute was demanded and paid. The plaintiffs claimed that- the goods should have been admitted free of duty under the treaty with Denmark, because like articles, the produce and manufacture of the Hawaiian Islands, were under the treaty with their king, and by the act of Congress of August 5, 1876, admitted free of duty, and brought suit to recover the amount paid. The court proceeded to construe the first article of the treaty with Denmark, by which the parties engaged—

mutually not to grant any particular favor to other nations in respect of commerce and navigation which should not immediately become common to the other party, but should enjoy the same freely, if the concession were freely made, or upon allov ing the same compensation, if the concession were conditional—

And the fourth article, which provided that—

no higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominions of his majesty the King of Denmark; and no higher or other duties shall be imposed upon 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.

The treaty between the King of the Hawaiian Islands and the United States purported to be and was in fact made upon a consideration moving from Hawaii to the United States. The decision of the point involved was as follows:

Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the general law imposing the duties, do not cover concessions like those made to the Hawaiian Islands for a valuable consideration. They were pledges of the two contracting parties, the United States and the King of Denmark, to each other, that, in the imposition of duties on goods imported into one of the countries which were the produce or manufacture of the other, there should be no discrimination against them in favor of goods of like character imported from any other country. They imposed an obligation upon both countries to avoid hostile legislation in that respect. But they were not intended to interfere with special arrangements with other countries founded upon a concession of special privileges. The stipulations were mutual, for reciprocal advantages. “No higher or other duties” were to be imposed by either upon the goods specified; but if any particular favor should be granted by either to other countries in respect to commerce or navigation, the concession was to become common to the other party upon like consideration; that is, it was to be enjoyed freely if the concession were freely made, or on allowing the same compensation if the concession were conditional.

The conclusion of the opinion is:

The treaty with Denmark does not bind the United States to extend to that country, without compensation, privileges which they have conceded to the Hawaiian Islands in exchange for valuable concessions. On the contrary, the'treaty provides that like compensation shall be given for such special favors. When such compensation is made it will be time to consider whether sugar from her dominions shall be admitted free from duty.

Clearly this case does not hold that the question of the force and effect of an existing treaty is a nonjudicial one.

The last case cited is the case of Whitney v. Robertson (124 U. S., 190). In that case there was under consideration a treaty with the Dominican Republic, which was claimed to entitle the importer to free importation of sugar and molasses under the same treaty with the King of the Hawaiian Islands, that was under consideration in Bartram v. Robertson. It was held in that case that following Bartram v. Robertson-, and referring to the ninth article of the treaty with the Dominican Republic, and stating that it was substantially like the fourth article of the treaty with the King of Denmark—

That it is a pledge of the contracting parties that there shall be no discriminating legislation against the importation of articles which are the growth, produce, or manufacture of their respective countries, in favor of articles of like character, imported from any other country. It has no greater extent. It was never designed to prevent special concessions, upon sufficient considerations, touching the importation of specific articles into the country of the other. It would require the clearest language to justify a conclusion that our Government intended to preclude itself from such engagements with other countries, which might in the future be of the highest importance to its interests.

This is but a declaration, of the now well-recognized rule that the favored-nation clauses in various treaties do not prevent reciprocity agreements fixing lower duties or admitting importations free from other countries upon consideration passing from such country to us.

The rule is fully recognized in the opinion that self-executing treaties are a part of the law of the land, and it is said:

If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the Constitution a treaty is placed on the samé 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 the stipulation of the treaty on the subject is self-executing.

And after discussing the case of Taylor v. Morton, it is further said:

It follows, therefore, that when a law is clear in its provisions, its validity can not be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the Government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will.

We do not read this opinion as affirming that the courts can not in any case construe or give effect to existing treaties, but quite the reverse. The opinion considers a self-executing treaty as a part of the law of the land. It also declares in terms that it is the duty of the court to construe and give effect to the latest expression of the sovereign will. The case does hold, what is conceded by the importers’ counsel in the present case, that if the treaty provisions have been repealed by an act of Congress, they are no longer of force, and that the considerations of justice, equity, or policy of such repeal, or whether such action of Congress was had with due regard to the rights of the treaty nation, are not questions with which the courts can deal, and this we fully recognize.

No contention appears to be made in the present case that there has been any direct repeal of the treaties here under consideration, or of any of their provisions. Indeed the concession of counsel for the Government would seem to imply that the treaties are still in full force, the contentions being limited to the points stated at the outset of this opinion. But there is language in Whitney v. Robertson which would seem to imply that an act of Congress which imposes duties upon commodities of all kinds, making no exception in favor of the goods of any country, is to be treated as a repeal of the provisions of the treaty pro tanto. It is said:

The act of Congress under which the duties were collected authorized their exaction. It is of general application, making no exception in favor of goods of any country. It was passed after the treaty with the Dominican Republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter’must control.

This is a correct statement of the law. But it could hardly have been intended by this language to declare that an enactment of a general law imposing uniform duties upon all imports would have the effect of abrogating treaties such as these here in question, in whole or in part. Such a general enactment is not in itself a departure from the treaty provisions but rather, as it applies alike to all nations, in furtherance of its provisions, establishing as it does a uniform rate among all nations, and is therefore in no sense inconsistent with the treaty. It would seem that there was some confusion in applying the rule, which is correctly stated. The first departure from the treaty provisions by Congress, if any departure was shown, occurred when the treaty with Hawaii was made, and approved by act of Congress. That is to say, there was free entry accorded to importations from Hawaii, and except for the considerations which passed from Hawaii to the United States, that act would have been in conflict with the treaty. The question therefore of the effect of a treaty with Hawaii and whether it operated to give the same rates as those granted to the Dominican Republic, was before the court, and would appear to have been the real question which stood for decision. The court had already determined that the treaty with Hawaii, when construed with the treaty with St. Domingo, did not have the effect of admitting the importations of the latter country free, and as an additional reason stated the rule that if there is any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. But in this case we discover no indication of a purpose on the part of the court to depart from the rule that a treaty is to be treated as a part of the law of the land.

We think it is manifest that in both these cases, Taylor v. Morton and Whitney v. Robertson, the court proceeded upon the view that the purpose of Congress was to fix a different rate of duty upon importations from Bombay in the one case and from the Hawaiian Islands in tbe other than that exacted from the nation claiming under the favored-nation clause, and that this intention had been manifested by an enactment later in point of time than the treaty under consideration. As the later law displaced the earlier (the treaty), it is obvious that the courts could not negative the legislative enactment clearly expressed, and that therefore the treaty stipulations could not be controlling.

So in this case, unless it may be said that the enactment by Congress of section 2 of the act of July, 1911, when construed with the existing treaties, legally imported that whatever grant of rights was made by such act should immediately inure to the benefit of the treaty nations, the importers must fail in their contention. As to what constitutes self-executing provisions, see Cooley’s Constitutional Limitations (p. 119).

In an article by Justice Day, in 38 Cyc., page 972, it is said:

When a treaty does not require subsequent legislation to render it effective, after ratification it is tbe law of tbe land and will be enforced by tbe courts the same as a Federal legislative act; but where a treaty is incomplete within itself and requires subsequent legislation to render it effective, manifestly it can not be enforced by the courts until such necessary legislation is had; such as, for instance, where an appropriation of money is necessary to carry the treaty into effect, and until Congress makes such an appropriation the treaty is incomplete, for under the constitution money can not be appropriated by the treaty-making power. A treaty is to be regarded in courts of justice as equivalent to an act of Congress whenever it operates of itself without the aid of any legislative provision; but when the terms of the stipulation import a contract, or when either of the parties engages to perform a particular act, the treaty addresses itself to the political and not the judicial department of the Government.

We take it that what is meant by the language quoted is that the treaty must fix a right which, in the state of things existing when it is invoked in the courts, is capable of enforcement by the courts. The right is necessarily one defined in the treaty itself, but the conditions under which the treaty becomes operative may be fixed by subsequent legislative changes.

This is illustrated by the case of United States v. Forty-Three Gallons of Whisky (93 U. S., 188). In that case a treaty was concluded between the Red Lake and Pembina bands of Chippewa Indians of the United States on the 3d of October, 1863, and was proclaimed May 5, 1864. This treaty provided, among other things, that—

the laws of the United States now in force or that may hereafter be enacted prohibiting the introduction and sale of spirituous liquors in the Indian Territory shall be in full force and effect throughout the country hereby ceded until otherwise directed by Congress or the President of the United States.

By the act of March 15, 1864, a penalty was imposed upon any person who should introduce or attempt to introduce any spirituous liquor or wine into the Indian country. It was said in the case:

The power to define originally the “Indian country,” within which the unlicensed introduction and sale of liquors were prohibited, necessarily includes that of enlarg ing the prohibited, boundaries whenever, in the opinion of Congress, the interests of Indian intercourse and trade will be best subserved.

It is true Congress has not done this, but the Constitution declares a treaty to be the supreme law of the land; and Chief Justice Marshall, in Foster and Elam v. Neilson (2 Pet., 314), has said “that a treaty is 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.” No legislation is required to put the seventh article in force, and it must become a rule of action if the contracting parties had power to incorporate it in the treaty of 1863. About this there would seem to be no doubt.

It will be noted that this treaty was made operative only when the statute affixed a penalty to an importation of liquors into the Indian country when it was held the treaty at once attached itself to that provision, and the status of the territory ceded by the treaty to the United States was fixed by the treaty, and the subsequent legislation was given force therein. The case is closely analogous to the present if the view be adopted that the provision of the treaty that “if either party shall hereafter grant to any such nation any particular favor in navigation or commerce it shall immediately become common to the other party” is the controlling provision or a provision permissible to be considered in this case.

Upon this subject the opinion of the Attorney General In re Norse American Line of Steamers (14 Opinions, 468) is forcefully in point. That opinion construes a treaty provision with Sweden, contained in article 2 of the treaty of 1783, in which the King of Sweden and the United States mutually engage not to grant thereafter any particular favor to other nations in respect to commerce and navigation which should not immediately become common to the other party (8 Stat., 62), and article 8 of the treaty with Sweden and Norway of July 4, 1827 (8 Stat., 350), reading:

The two high contracting parties engage not to impose upon the navigation between then' respective territories, in the vessels of either, any tonnage or other duties of any kind or denomination which shall be higher, or other than those which shall be imposed on every other navigation, except that which they have reserved to themselves, respectively, by the sixth article oi the present treaty.

Bv article 4 of the treaty between the United States and Belgium of July 17, 1858, it was stipulated that steam vessels of the United States and Belgium engaged in regular navigation between their respective countries should be exempt from the payment of duties of tonnage, anchorage, buoys, and lighthouses. It was said in the opinion:

From the simple reading of these treaty provisions in the order above set forth, the conclusion is inevitable that whatever favors or exemptions are enjoyed by the regular steam navigation of Belgium plying between that country and the United States are “common” to the like navigation of Sweden and Norway. For “no higher or other duties” can be imposed upon it in the ports of the United States than are imposed on every other navigation. The Departments of State and of the Treasury concede that the claim of this Norse line of steam vessels to be exempt in the ports of the United States from the payment of duties of tonnage, etc., is just and reasonable, and they are brought to this concession by an examination and review of the treaty provisions above set forth. But if it is just and reasonable, now and in the future, that steam vessels of Sweden and Norway, engaged in regular navigation between those countries and the United States, should be exempt, in the ports of the latter, from 1he payment of tonnage duties, it has been so at all times in the past, since the ratification of the treaty with Belgium of July 17, 1858. No language can make this plainer than it is upon the face of the treaties.

* * *

It results from what has been said that the moneys which have been paid for duties of “tonnage, anchorage, buoys, and lighthouses” by the “Norse American Line” of steamers to the customs officers of the United States have been exacted contrary, therefore, to law.

This opinion, is important in two aspects: First, it in effect holds that the general provision providing that any special favor shall immediately become common to the other party is operative, notwithstanding special provisions relating to the particular subject of navigation. Secondly, it holds that the treaty with Belgium was in effect a new law, and that the effect of such new law not in terms relating to the treaty with Sweden has the force of creating a state of facts upon which the treaty with Sweden became operative, and authorized refund of money by the Treasury without legislative change. If such is the effect of a treaty with a particular country, which amounts to no more than a new law relating to such country, it would seem that the same rule should be taken as to subsequent legislation; that there can be no distinction between a state of things created by subsequent treaty with another nation and a state of things created by statutory enactment, if such conditions are created as are provided for by the treaty invoked.

It is said that this provision, although present in the treaty with Russia, was not invoked in the case of Taylor v. Morton, but that discussion was confined to the first clause, which was held to be promissory. This fact alone would demonstrate that this case is not authority in support of the proposition that the second clause is not self-executing nor that it is not applicable to the case here presented. But this is not all. The reason why the second clause was not invoked is clear. The act under which the tax was laid in terms fixed a duty of $40 per ton on all hemp except manila, suera, and other hemps of India, on which a duty of $25 per ton was laid. There was clearly no room for- the operation of either article of the treaty except as a promissory agreement, for Congress had by differentiating the duty between Bombay hemp and Russian hemp left no room for inference that the intent was to fix a like rate on both, and had excluded the legal consequences which would follow upon the establishment of a rate of duty on Bombay hemp in the absence of express language excluding Russian hemp. Indeed, the contention was made that as Russian bemp was not specially named, the true construction of the act should be—

upon all unmanufactured hemp not hereinafter excepted either expressly or by force of the treaty with Russia the duty is to be §40 per ton and upon those so excepted §25 per ton.

This construction was not allowed. It was said to do violence to the language of the act. What the case decided was that as the act of Congress had laid a duty on Russian hemp of $40 per ton, and as the act was of later date than the treaty, the court was bound by such later enactment.

It has been suggested that article 9 above quoted is not a controlling provision of the favored nation treaty; that article 5, providing against the imposition of higher duties by each contracting nation than are imposed upon those of any other nation or country, exhausts that subject; and that article 9, in providing that if either party shall grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party, can not be held to have reference to importations. But if the treaty be examined, it will be found that the subjects of commerce and navigation are treated of in various paragraphs of tire treaty preceding article 9 in question. In fact the first eight articles are devoted to those subjects. If it be said that full treatment of either of these subjects as declaratory of rights excludes such subject from the provisions of article 9, then it follows that article 9 has nothing whatever to act upon. It relates to a particular favor in navigation or commerce and both subj ects are dealt with egually in the preceding eight articles. The fair interpretation is therefore that while article 5 declares the right and is promissory in its terms, and provides against legislation which shall impose higher duties upon articles- imported from one nation to the other than are imposed upon articles from any other foreign nation, article 9 was designed to provide a remedy or declare a right which attaches not in case of such adverse legislation, but in case conditions shall arise which make room for its operation, namely, when a particular favor, either in navigation or in commerce is granted to some other nation. Whenever this occurs, then article 9 has operation and not before, either as it affects navigation or commerce. That the introduction of commodities from Canada into this country is commerce needs only to be stated to be accepted. It seems clear, therefore, that this article has application in the present case.

The result of the decisions we think is this, that the courts will not enforce a treaty which is executory in its character for the obvious reason that it has not the power to do. so. Legislation must be had to give effect to such executory provisions. The courts, under the constitutional provision that,a treaty is like a law of Congress a part of the law of the land, will, as to a self-executing provision in a treaty, enforce it whenever the occasion, and conditions arise which attach the self-executing provision to existing facts. Where it is claimed that a treaty and a subsequent congressional enactment conflict, it is essential, and it has been common for the courts, to construe the treaty with the law to ascertain whether the latter displaces the former, or whether it creates a condition to which the self-executing provisions of the treaty apply.

We proceed to consider whether the provisions of these treaties are self-executing.

Take as an illustration our treaty with Austria-Hungary:

No higher or other duties shall be imposed on the importation into the United States of any article the produce or manufacture of the dominions of Austria; and no higher or other duties shall be imposed on the importation into the dominions of Austria of any article the produce or manufacture of the United States than are or shall be payable on the like article, being the produce or manufacture of any other foreign country. * * *

If either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party. * * *

Similar provisions are contained in other treaties, but as it is conceded by the Government in the present case that the position of each of the nations whose products are here in question is equal to that of the one having the most advantageous treaty, we need not set them forth at length.

If this were an agreement between parties, there would be little difficulty in saying that this is a self-executing provision. The grant of any privilege by one party to the contract to a third person would under such language as that employed immediately inure to the benefit of the other party to the contract. We see no reason why the same interpretation should not be placed upon the language of a treaty. The privilege could not immediately become common to the party to this agreement if it depended upon some future act by another or upon further legislation to make the same effective. If legislation were required before it could be given effect, it would be a contradiction of terms to say that the privilege immediately became common to the parties to the treaty. A more inapt term intended to convey a promise of a future legislative grant of a right could hardly have been devised.

This brings us to a consideration of the act of July 26, 1911. The section involved reads as follows:

Pulp of wood mechanically ground; pulp of wood, chemical, bleached, or unbleached; news print paper, and other paper, and paper board, manufactured from mechanical wood pulp or from chemical wood pulp, or of which such pulp is the component material of chief value, colored in the pulp, or not colored, and valued at not more than four cents per pound, not including printed or decorated wall paper, being the products of Canada, when imported therefrom directly into the United States, shall be admitted free of duty, on the condition precedent that no export duty, export license fee, or other export charge of any kind whatsoever (whether in the form of additional charge or license fee or otherwise), or any prohibition or restriction in any way of the exportation (whether by law, order, regulation, contractual relation, or otherwise, directly or indirectly), shall have been imposed upon such paper, board, or wood pulp, or the wood used in the manufacture of such paper, board, or wood pulp, or the wood pulp used in-the manufacture of such paper or board.

Putting aside for a moment tbe question hereafter to be considered as to whether this section 2 is an agreement based upon consideration, so that within the American doctrine it is not a violation of the favored-nation provision, but treating it as a direct grant of the right to Canada to import freely its wood pulp and print paper, what is its force and effect as affecting the products of other nations having treaties containing the favored-nation clause? Counsel for Government say in their brief:

Neither does the United States as a litigant here claim that the assessment of duty on the importations in question is to be sustained on the ground, other arguments failing, that in any case Congress had the naked power to violate and destroy these treaties by its later act, and that effect must be given to the act of Congress, even though it be accomplished by this momentous and deplorable logic. The congressional transactions at the time of the passage of the act indicate very clearly that Congress had not only no intention of thereby violating or putting an end to these treaties, qua treaties, but rather the contrary. That question was considered in Congress, and also the possible effect of these treaty clauses in making the provisions of section 2 available to the treaty countries was discussed. There was no agreement of opinion among the Members of Congress on the latter proposition and the matter was allowed to rest upon the understanding that the act should pass, the Government to abide by the construction which should later be placed upon it by duly constituted authority.

This is a correct statement of .the attitude of Congress as indicated by the debates in the Senate. It would appear that having in mind these provisions Congress proceeded to enact section 2 with a full understanding that the question would arise thereunder whether the provisions of the treaties with favored nations would attach, and whether by the very force of such enactment like commodities from other nations having the favored-nation clause would be admitted on the same terms as they were from Canada. (Record, 62d Cong., 1st sess., vol. 47, No. 29, pp. 2258-2818.)

If we assume, as counsel for Government appears to, that there was no purpose on the part of Congress by the act of July 26 to violate these treaties, it would seem to follow that the self-executing provisions of these treaties would at once be brought into force and that a lawful act of Congress admitting certain products of Canada into this country free of duty would immediately inure to the benefit of the other parties to these treaties. Indeed, it is difficult to know just when such a provision as that contained in this treaty could have operation at all except it be in a case where lawful authority had granted a new privilege to some other nation. It is equally difficult to know why, when that privilege is so granted, the terms of the treaty do not at once apply in favor of the parties to the treaty. If the treaty be a part of the law of the land, and if there was no purpose on the part of Congress to violate or put an end to the treaty, it would seem very clear that the treaty and the act hi question are laws in pari materia and must be so construed. It is undoubtedly true that where a provision is enacted conferring rights upon another nation, on a condition which would require some affirmative act by parties to the treaty before they could bring themselves within its provisions, at least the case should show that such action had been taken before their rights would inure under this favored-nation provision. But if it be assumed that here there is no more than a naked grant of right, and nothing remains under the terms of the treaty to be done by either party to the treaty, it would logically follow that its grant of this privilege to Canada ivas expected to be followed by the.consequences provided for by the treaty, and that the goods of other countries should be admitted on the same terms as are those admitted from Canada. See 14 Opinions Attorneys General, 468; United States v. 43 Gallons of Whisky (93 U. S., 188); McEvoy v. Wyman (191 Mass., 276); In re Scutella’s Estate (129 N. Y. Sup., 20).

This brings us to a consideration of the question whether there was consideration for this special grant to Canada ,of the right of free importation. It is said that the appellants have not shown that this grant to Canada was voluntary and not founded upon sufficient consideration, and it is argued that in international bargains, as well as in private agreements, the existence of consideration is a question of fact always requiring proof for its establishment, whether the whole consideration is recited in the instrument or not. We think the answer to this is that section 2 is a provision standing by itself. There is nothing to indicate any consideration other than that found within its provisions if there be such, and there is no hint or suggestion that there is aliunde evidence of such consideration. This provision is wholly independent of the reciprocity provision of the act. It is an act of Congress, standing by itself. It would be a novel procedure to attempt to show what considerations controlled Congress other than those which appear in its published proceedings.

It is also suggested that it is conceivable that the Government gave Canada concessions contained in section 2 as an inducement to her to introduce and try to pass the reciprocity schedule. But it is sufficient answer to this to say that there is no evidence afforded by the act itself that such was the inducement or that there was in fact any agreement to introduce and try to pass the reciprocity schedule based upon the consideration of the enactment of section 2. Further more, such consideration is negatived by the fact that section 2 was made effective at once and independently of either action or attempted action by the Canadian Parliament.

But it is urged that there is in the terms of section 2 itself evidence of a sufficient consideration which brings this case within the rule established by courts and in diplomatic correspondence of the Department of State that where a special privilege is granted to a particular nation upon a peculiar consideration passing from such nation to this Government, an agreement permitting free importation of an article at a lower rate is not in conflict with the favored-nation clause, and illustrations of this have already been pointed out by reference to Whitney v. Robertson and other cases. But were there special concessions exacted of Canada as a condition to free importation of wood pulp and paper which would not apply to other paper of other- countries in like circumstances ?

The language of section 2 above quoted is open to two possible constructions: The first is a construction which affixed as a condition to free entry the establishment of free exportation of all wood pulp and pulp wood from all parts of Canada. The second construction is one which attaches the condition to the specific importation and results in admitting free all the products named whenever such product, untaxed, has been produced from wood also untaxed. It is to be noted that the first construction has not been adopted by the Treasury Department. The second has obtained, and without repeating or enlarging upon the reasoning of ¡Judge Martin in the Cliff Paper Company case, it will suffice to say that we are agreed that the construction which has obtained since the enactment of the statute is the correct one.

It follows that a nonprohibited exportation from any nation having the favored-nation clause of an untaxed material of the same kind and character answers all the requirements and should stand upon the same footing as the goods so imported from Canada. It will not do to say that wood pulp and wood are more accessible from Canada than from other countries. The treaties speak in no such language of distinction. They recognize no différence between nations in different quarters of the globe. If any exception or reservation from the language of the treaty is to be made, it must be made by an authority which has power to abrogate the treaty in whole or in part. It does not lie with the courts or with an administrative department to annex or affix conditions to a treaty which is, unless abrogated by a legislative enactment, the supreme law of the land.

The decision of the Board of General Appraisers is reversed and the importation admitted free.

Smith, Barber, and MartiN, Judges, concur.