Page 33 - Law of Peace, Volume ,

Pam 27-161-1

legislation and apply the rule of construction that as be- tion the act of Congress must prevail as if the treaty were not an element
tween anterior and posterior laws in conflict, the one later to be considered. If a wrong has been done the power of redress is with
in time prevails. Congress, not with the judiciary, and that body, upon being applied to, it
is to be presumed, will promptly give the proper relief. 6
c. In the United States, the equality in rank of treaties
and acts of Congress is provided by Article VI, Clause 2, The "last-in-he" doctrine enunciated by the court in
of the Constitution. Since neither is superior to the other, Cherokee Tobacco has been consistently adhered to in
the one later in time is held to prevail. Hence a self-ex- subsequent decisions, as shown by The Over the Topdeci-
ecuting treaty, i.e., one whose provisions are directly ap- sion of 1925:
plicable as rules of domestic law without the need of im- THEOVERTHETOP
plementation by an act of Congress, supersedes the provi- SCHROEDER v. BISSELL
sions of prior and inconsistent Federal legislation. Should United States District Court, D.Conn., 1925.
the treaty not be self-executing, its provisions, once 5 F.2d 838.
enacted into rules of domestic law by act of Congress, also Three Libels by the United States, one against the schooner Over the
supersede (because they are later in time) the provisions Top, and two against its cargo, with application by A. L. Schroeder,
owner of the cargo, against Harvey Bissell, Collector, for return of cargo.
of prior and inconsistent Federal legislation.
Libels dismissed.
d. National courts are presented with a more difficult THOMAS, DISTRICT JUDGE.
issue when, absent an applicable constitutional provision, ****
they must resolve a conflict between an international From the evidence I fmd the following facts established: On August
agreement and domestic legislation that becomes effective 27, 1924, the schooner Over the Top, carrying a cargoof whisky and
operating under the British flag and under British registry, cleared for
at a later date. The rule of construction that the law later in
Cuba from St. Johns, New Brunswick. It arrived at a point off the coast
time prevails operates to deprive of internaleffect the con- of Block Island several weeks prior to October 19, 1924.
flicting provisions of the prior agreement. ****
The U.S. Supreme Court, in the 1870 Cherokee Tobacco On the 19th of October, 1924, at about 10 o'clock in the evening, the
supercargo on board the schooner sold 25 cases of whisky for $550 to a
case, 4 had an opportunity to comment upon the effect of special agent of the Internal Revenue Department. The sale was made
just such a conflict. The question before the court con- in the presence of the captain, and thereupon the crew of the vessel, in
cerned the effect to be given to, respectively, an 1868 Act the presence and under the direction of the Captain, unloaded these
cases of whisky and transferred the same to a sea sled employed in the
of Congress 5 and the tenth article of an 1866 treaty be- government service. . . . The transaction occurred at a point approx-
tween the U.S. and the Cherokee Indian nation. If terms imately 19 miles distant from the shore, or 115 degrees true from the
of the 1868 act were adjudged by the court to be applicable southeast light of Block Island, * * *
to the Cherokee territory in question, the earlier treaty On the following day, Over the Top was seized by officers of the
would be contravened. In noting the obvious inconsisten- United States coast guard, and the captain and crew were placed under
cy, the court declared: arrest, and the ship and her cargo were towed into the Port of New Lon-
don and turned over to the collector of customs and are now in his
... it is insisted that the section [of the act of Congress] cannot apply to custody. .. .
The Cherokee nation because it is in conflict with the treaty. Undoub- The government bases its claim of forfeiture upon the alleged viola-
tedly, one or the other must yield. The repugnancy is clear and they can- tion of sections 447,448,450,453,585,586,593, and 594 of the Tariff
not stand together. Act of 1922 * as well as upon the provisions of the American-British
The [second paragraph] of the [sixth article] of the Constitution of the Treaty which became effective May 22, 1924. The above sections of the
United States declares that "this Constitution and the laws of the United Tariff Act provide as follows:
States which shall be made in pursuance thereof, and all treaties which Sec. 447. Unlading-Place.-It shall be unlawful to make entry of
shall be made under the authority of the United States, shall be the any vessel or to unlade the cargo or any part thereof of any vessel
supreme law of the land." elsewhere than at a port of entry * * * .
It need hardly be said that a treaty cannot change the Constitution or Sec. 586. Unlawful Unlading-Exception.-The master of any
be held valid if it be in violation of that instrument. This results from the vessel from a foreign port or place who allows any merchandise (in-
nature and fundamental principles of our government. The effect of cluding sea stores) to be unladen from such vessel at any time after its
treaties and acts of Congress, when in conflict, is not settled by the Con- arrival within four leagues of the coast of the United States and before
stitution. But the question is not involved in any doubt as to its proper such vessel has come to the proper place for the discharge of such
solution. A treaty may supersede a prior act of Congress (Foster v. merchandise, and before he has received a permit to unlade, shall be
Neilson, 2 Pet. 314), and an act of Congress may supersede a prior liable to a penalty equal to twice the value of the merchandise but not
treaty (Taylor v. Morton, 2 Curt. 454; The Clinton Bridge, 1 Woolw. less than $1,000, and such vessel and the merchandise shall be sub-
155). In the cases referred to, these principles were applied to treaties ject to seizure and forfeiture: * * *
with foreign nations. Treaties with Indian nations within the jurisdiction But before we proceed to discuss the above-quoted sections of the
of the United States, whatever considerations of humanity and good Tariff Act as well as the treaty, it may be well to dispose of one of the
faith may be involved and require their faithful observance, cannot be contentions made by counsel in behalf of the cargo and schooner.
more obligatory. They have no higher sanctity; and no greater in- The proposition is advanced that, regardless of our municipal legis-
violability or immunity from legislative invasion can be claimed for lation, the acts complained of could not constitute offenses against the
them. The consequences in all such cases give rise to questions which United States when committed by foreign nationals, on foreign bot-
must be met by the political department of the government. They are toms, on the high seas at a point beyond the territorial jurisdiction of the
beyond the sphere of judicial cognizance. In the case under considera- country. Well-known principles of international practice are invoked in
support of this contention accompanied with the citation of authority.
4. The Cherokee Tobacco, 78 U.S. 616 (1870).
5. 15 Stat. 167 (1868). 6. 78 U.S. 616, 620-21.