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, 109 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. C t. Rep. 623; 32 L. ed. 1068; La Abra Silver -Mining Co. v. United States, 175 U. S. 423; B0 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.

9 190 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 Representative*, Chapters XLVIII and XL1X.

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 Case11 the court say. "The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is rot 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 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 Hep. 217; 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 (121 U. S. 100; 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, in ust not be lightly assumed, but must appear clearly and dis-tinctlv from the words used in the statute or in the treaty"13

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

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

13 See also Johnson v. Browne, 205 U. 6. 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. Cashing, At Gen. 1854 (6 Op. 291). See also Akerman, At. Gen. 1870 (13 Op. 354).

In fact, however, there have been few (the writer is not certain that there have been any) instances in which a treaty inconsistent with a prior act of Congress has been given full force and effect as law in this country without the assent of Congress. There may indeed have been cases in which, by treaty, certain action has been taken without reference to existing federal laws, as, -for example, where by treaty certain populations have been collectively naturalized, but such treaty action has not operated to repeal or annul the existing law upon the subject. Furthermore, with specific reference to commercial arrangements with foreign powers, Congress has explicitly denied that a treaty can operate to modify the arrangements which it, by statute, has provided, and, in actual practice, Congress in every instance succeeded in maintaining this point.