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WHITNEY v. ROBERTSON.

SUPREME COURT OF THE UNITED STATES

124 U.S. 190; 8 S. Ct. 456; 31 L. Ed. 386; 1888 U.S. LEXIS 1852

Argued December 13, 14, 1887.January 9, 1888, Decided

PRIOR HISTORY: ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERNDISTRICT OF NEW YORK.

THIS was an action to recover back duties alleged to have been illegally exacted. Verdict for the defendant andjudgment on the verdict. The plaintiffs sued out this writ of error.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff merchants filed a complaint against defendant collector of the port after heexacted duties on the merchants' goods and the Secretary of the Treasury denied their appeal of the duties. The CircuitCourt of the United States for the Southern District of New York entered judgment in favor of the collector of the portand the merchants appealed.

OVERVIEW: Merchants, who imported sugars from San Domingo into the United States, alleged that they should nothave had to pay duties on their imported products because the sugars were similar to goods imported from the HawaiianIslands, which were exempt from duties. The court held that the treaty between the United States and the DominicanRepublic did not provide for any concessions of special privileges, which exempted the imported sugar from duties, andthe Court affirmed the circuit court's judgment in favor of the collector of the port. The court held that the treaty did notcover concessions like those made to the Hawaiian Islands for a valuable consideration. The treaty imposed anobligation upon both countries to avoid hostile legislation that would discriminate against one country's goods in favorof goods of like character imported from any other country. However, the treaties were not intended to interfere withspecial arrangements with other countries founded upon a concession of special privileges.

OUTCOME: The court affirmed the judgment in favor of the collector of the port who exacted duties on the merchants'goods.

CORE TERMS: treaty, manufacture, island, republic, importation, sugars, free of duty, self-executing, imported,fisheries, foreign country, contracting parties, collector, foreign sovereign, foreign nations, legislative department,judicial cognizance, modification, navigation, commerce, construe, assailed, footing, exempt, freely, pledge, repeal,belong, duties exacted, engagements

LexisNexis(R) Headnotes

Constitutional Law > Supremacy Clause > General OverviewContracts Law > Contract Conditions & Provisions > General OverviewContracts Law > Sales of Goods > Form, Formation & Readjustment > Formation > Modification, Rescission &Waiver[HN1] If there be any conflict between the stipulations of a treaty and the requirements of a law, the latter must control.

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A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law.For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other.When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect,and such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. Ifthe treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to thatextent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as theybind the United States, or supersede them altogether. By the Constitution a treaty is placed on the same footing, andmade of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of theland, and no superior efficacy is given to either over the other.

Constitutional Law > Separation of PowersEvidence > Judicial Notice > General OverviewInternational Law > Treaty Interpretation > General Overview[HN2] When the a law and a treaty relate to the same subject, the courts will always endeavor to construe them so as togive effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the onelast in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If thecountry with which the treaty is made is dissatisfied with the action of the legislative department, it may present itscomplaint to the executive head of the government, and take such other measures as it may deem essential for theprotection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint,or our country was justified in its legislation, are not matters for judicial cognizance.Constitutional Law > Separation of PowersGovernments > Federal Government > U.S. CongressInternational Law > Treaty Formation > General Overview[HN3] Whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particularstipulation of the treaty has been voluntarily withdrawn by one party so that it was no longer obligatory on the other;whether the views and acts of a foreign sovereign have given just occasion to the legislative department of the UnitedStates government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of suchpromise, are not judicial questions; the power to determine these matters has not been confided to the judiciary, whichhas no suitable means to exercise it, but to the executive and legislative departments of the United States government;and they belong to diplomacy and legislation, and not to the administration of the laws. And as a necessary consequenceof these views, if the power to determine these matters is vested in Congress, it is wholly immaterial to inquire whetherby the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if thelatter, whether the reasons were good or bad.

Constitutional Law > The Judiciary > Jurisdiction > General OverviewConstitutional Law > Separation of PowersInternational Law > Dispute Resolution > Tribunals[HN4] When a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity tostipulations of a previous treaty not already executed. Considerations of that character belong to another department ofthe government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will.

Constitutional Law > The Judiciary > Congressional LimitsEvidence > Judicial Notice > General OverviewInternational Law > Dispute Resolution > Tribunals[HN5] So far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance inthe courts of the United States, it is subject to such acts as congress may pass for its enforcement, modification, orrepeal.

LAWYERS' EDITION HEADNOTES:

Page 2124 U.S. 190, *; 8 S. Ct. 456, **;

31 L. Ed. 386, ***; 1888 U.S. LEXIS 1852

Dominican Treaty -- effect of -- infractions of -- obligation of -- statutory law -- effect of on Treaty. --

Headnote:

1. The 9th article of the Treaty with the Dominican Republic, which provides that no higher duty shall be imposed, onthe importation into the United States, of any article, the produce of that country, than is imposed on like articles fromany other foreign country, is a pledge that there shall be no discriminating legislation against the importation of articleswhich are the produce of that country in favor of articles of like character imported from any other country; but it has nogreater extent.

2. Such Treaty was never designed to prevent special concessions, upon sufficient consideration, touching theimportation of specific articles into this country, from another foreign country.

3. A treaty is primarily a contract between two independent Nations; and for the infraction of its provisions a remedymust be sought by the injured party, through reclamations upon the other. Whether the complaining Nation has justcause of complaint is not matter for judicial cognizance.4. By the Constitution of the United States, a treaty is placed on the same footing, and made of like obligation, with anAct of legislation. Both are declared by that instrument to be the supreme law of the land; and no superior efficacy isgiven to either, over the other.

5. When a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity tostipulations of a previous treaty, not already executed.

6. So far as a treaty, made by the United States with any foreign Nation, can be made 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.

SYLLABUS

The treaty of February 8, 1867, with the Dominican Republic (art. 9) provides that "no higher or other duty shall beimposed on the importation into the United States of any article the growth, produce, or manufacture of the DominicanRepublic, or of her fisheries, than are or shall be payable on the like articles the growth, produce, or manufacture of anyother foreign country or of its fisheries." The convention of January 30, 1875, with the king of the Hawaiian Islandsprovides for the importation into the United States, free of duty, of various articles, the produce and manufacture ofthose islands, (among which were sugars,) in consideration of certain concessions made by the king of the HawaiianIslands to the United States. Held, that this provision in the treaty with the Dominican Republic did not authorize theadmission into the United States, duty free, of similar sugars, the growth, produce, or manufacture of that republic, as aconsequence of the agreement made with the king of the Hawaiian Islands, and that there was no distinction in principlebetween this case and Bartram v. Robertson, 122 U.S. 116.

By the Constitution of the United States a treaty and a statute are placed on the same footing, and if the two areinconsistent, the one last in date will control, provided the stipulation of the treaty on the subject is self-executing.

COUNSEL: Mr. A. J. Willard and Mr. H. E. Tremain for plaintiffs in error. Mr. M. W. Tyler was with them on theirbrief.

Mr. Solicitor General for defendant in error.

OPINION BY: FIELD

OPINION

Page 3124 U.S. 190, *; 8 S. Ct. 456, **;

31 L. Ed. 386, ***; 1888 U.S. LEXIS 1852

[*190] [**456] [***387] MR. JUSTICE FIELD delivered the opinion of the court.

The plaintiffs are merchants, doing business in the city of New York, and in August, 1882, they imported a largequantity [*191] of "centrifugal and molasses sugars," the produce and manufacture of the island of San Domingo.These goods were similar in kind to sugars produced in the Hawaiian Islands, which are admitted free of duty under thetreaty with the king of those islands, and the act of Congress, passed to carry the treaty into effect. They were dulyentered at the custom house at the port of New York, the plaintiffs claiming that by the treaty with the Republic of SanDomingo the goods should be admitted on the same terms, that is, free of duty, as similar articles, the produce andmanufacture of the Hawaiian Islands. The defendant, who was at the time collector of the port, refused to allow thisclaim, treated the goods as dutiable articles under the acts of Congress, and exacted duties on them to the amount of$21,936. The plaintiffs appealed from the collector's decision to the Secretary of the Treasury, by whom the appeal wasdenied. They then paid under protest the duties exacted, and brought the present action to recover the amount.

The complaint set forth the facts as [**457] to the importation of the goods, the claim for the plaintiffs that they shouldbe admitted free of duty because like articles from the Hawaiian Islands were thus admitted, the refusal of the collectorto allow the claim, the appeal from his decision to the Secretary of the Treasury and its denial by him, and the paymentunder protest of the duties exacted, and concluded with a prayer for judgment for the amount. The defendant demurredto the complaint, the demurrer was sustained, and final judgment was entered in his favor, to review which the case isbrought here.

The treaty with the king of the Hawaiian Islands provides for the importation into the United States, free of duty, ofvarious articles, the produce and manufacture of those islands, in consideration, among other things, of like exemptionfrom duty, on the importation into that country, of sundry specified articles which are the produce and manufacture ofthe United States. 19 Stat. 625. The language of the first two articles of the treaty, which recite the reciprocalengagements of the two countries, declares that they are made in consideration [*192] "of the rights and privileges"and "as an equivalent therefor," which one concedes to the other.

The plaintiffs rely for a like exemption of the sugars imported by them from San Domingo upon the 9th article of thetreaty with the Dominican Republic, which is as follows: "No higher or other duty shall be imposed on the importationinto the United States of any article the growth, produce, or manufacture of the Dominican Republic, or of her fisheries;and no higher or other duty shall be imposed on the importation into the Dominican Republic of any article the growth,produce, or manufacture of the United States, or their fisheries, than are or shall be payable on the like articles thegrowth, produce, or manufacture of any other foreign country, or its fisheries." 15 Stat. 473, 478.

In Bartram v. Robertson, decided at the last term, (122 U.S. 116,) we held that brown and unrefined sugars, the produceand manufacture of the island of St. Croix, which is part of the dominions of the king of Denmark, were not exemptfrom duty by force of the treaty with that country, because similar goods from the Hawaiian Islands were thus exempt.The first article of the treaty with Denmark provided that the contracting parties should not grant "any particular favor"to other nations in respect to commerce and navigation, which should not immediately become common to the otherparty, who should "enjoy the same freely if the concession were freely made, and upon allowing the same compensationif the concession were conditional." 11 Stat. 719. The fourth article provided that no "higher or other duties" should beimposed by either party on the importation of any article which is its produce or manufacture, into the country of theother party, than is payable on like articles, being the produce or manufacture of any other foreign country. And we heldin the case mentioned that "those stipulations, even if conceded to be self-executing by the way of a proviso orexception to the general law imposing the duties, do not cover concessions like those made to the Hawaiian Islands for avaluable consideration. They were pledges of the two contracting parties, the United States and the king of [*193]Denmark, to each other, that in the [***388] imposition of duties on goods imported into one of the countries whichwere the produce or manufacture of the other, there should be no discrimination against them in favor of goods of likecharacter imported from any other country. They imposed an obligation upon both countries to avoid hostile legislationin that respect. But they were not intended to interfere with special arrangements with other countries founded upon aconcession of special privileges."

Page 4124 U.S. 190, *190; 8 S. Ct. 456, **;

31 L. Ed. 386, ***; 1888 U.S. LEXIS 1852

The counsel for the plaintiffs meet this position by pointing to the omission in the treaty with the Republic of SanDomingo of the provision as to free concessions, and concessions upon compensation, contending that the omissionprecludes any concession in respect of commerce and navigation by our government to another country, without thatconcession being at once extended [**458] to San Domingo. We do not think that the absence of this provisionchanges the obligations of the United States. The 9th article of the treaty with that republic, in the clause quoted, issubstantially like the 4th article in the treaty with the king of Denmark. And as we said of the latter, we may say of theformer, that it is a pledge of the contracting parties that there shall be no discriminating legislation against theimportation of articles which are the growth, produce, or manufacture of their respective countries, in favor of articles oflike character, imported from any other country. It has no greater extent. It was never designed to prevent specialconcessions, upon sufficient considerations, touching the importation of specific articles into the country of the other. Itwould require the clearest language to justify a conclusion that our government intended to preclude itself from suchengagements with other countries, which might in the future be of the highest importance to its interests.

But, independently of considerations of this nature, there is another and complete answer to the pretensions of theplaintiffs. The act of Congress under which the duties were collected authorized their exaction.It is of generalapplication, making no exception in favor of goods of any country. It was passed [*194] after the treaty with theDominican Republic, and, [HN1] if there be any conflict between the stipulations of the treaty and the requirements ofthe law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is soregarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured partythrough reclamations upon the other. When the stipulations are not self-executing they can only be enforced pursuant tolegislation to carry them into effect, and such legislation is as much subject to modification and repeal by Congress aslegislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require nolegislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congressmay modify such provisions, so far as they bind the United States, or supersede them altogether. By the Constitution atreaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by thatinstrument to be the supreme law of the land, and no superior efficacy is given to either over the other. [HN2] Whenthe two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if thatcan be done without violating the language of either; but if the two are inconsistent, the one last in date will control theother, provided always the stipulation of the treaty on the subject is self-executing. If the country with which the treatyis made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head ofthe government, and take such other measures as it may deem essential for the protection of its interests. The courts canafford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in itslegislation, are not matters for judicial cognizance. In Taylor v. Morton, 2 Curtis, 454, 459, this subject was veryelaborately considered at the circuit by Mr. Justice Curtis, of this court, and he held that [HN3] whether a treaty with aforeign sovereign had been violated by him; whether the consideration of a particular stipulation of the treaty had beenvoluntarily withdrawn by [*195] one party so that it was no longer obligatory on the other; whether the views and actsof a foreign sovereign had given just occasion to the legislative department of our government to withhold the executionof a promise contained in a treaty, or to act in direct contravention of such promise, were not judicial questions; that thepower to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, butto the executive and legislative departments of our government; and that they belong to diplomacy and legislation, andnot to the administration of the laws. And he justly observed, as a necessary consequence of these views, that if the[**459] power to determine these matters is vested in Congress, it is wholly immaterial to inquire whether by the actassailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter,whether the reasons were good or bad.

In these views we fully concur. It follows, therefore, that [HN4] when a law is clear in its provisions, its validitycannot 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 construeand give effect to the latest expression of the sovereign will. In Head Money Cases, 112 U.S. 580, it was objected to anact of Congress that it violated provisions contained in treaties with foreign nations, but the court replied that so far as

Page 5124 U.S. 190, *193; 8 S. Ct. 456, **457;

31 L. Ed. 386, ***388; 1888 U.S. LEXIS 1852

the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after afull and elaborate consideration of the subject, it held that [HN5] "so far as a treaty made by the United States with anyforeign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts asCongress may pass for its enforcement, modification, or repeal."

Judgment affirmed.

Page 6124 U.S. 190, *195; 8 S. Ct. 456, **459;

31 L. Ed. 386, ***388; 1888 U.S. LEXIS 1852