There would seem to be certainly one exception to the rule that the later treaty abrogates the prior inconsistent statute, and this is in reference to acts for raising revenue. The Constitution expressly declares that "all bills for raising revenue shall originate in the House of Representatives."14 Strictly interpreted this provision might be held to apply only to "bills," that is to propositions for a statute, but in practice the spirit of the clause has been followed rather than its exact letter.

In 1816 the question received an especially careful discussion in Congress with reference to a convention which the treaty-making power had entered into in 1815 with Great Britain. The house passed a bill specifically enacting in detail the provision of the treaty, with the evident purpose of making it plain that without such legislative enactment the provisions would be without legal force. The Senate refused its concurrence upon the ground that the treaty was self-operative and, therefore, that the legislative approval should be only declaratory in form. After reference to a committee of conference, a bill was agreed upon between the two Houses, based upon the principle, conceded by the Senate, that "whilst some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question, how far such provision was necessary, must he founded upon the peculiar character of the treaty itself."15

See Davis v. Concordia, 9 How. 280; 13 L. ed. 138; Follows v. Blacksmith, 19 How. 306; 15 L. ed. 684; The Clinton Bridge, 1 Woolworth, 15.3; Kull v. Kull, 37 Hun (N. Y.), 476.

The provisions of the convention with China, proclaimed December 8, 1894, were self-executing, so as to modify or repeal a prior statute with which they were in conflict. Knox, At. Gen., Oct. 10, 1901 (23 Op. 545) approving opinions of Conrad Act. At. Gen., May 20, 1896 (21 Op. 347) and Harmon, At. Gen.. May 26. 1896 (21 Op. 357)."

"Art. I, Sec. VII, Cl. 1.

This was clearly a compromise agreement, but later practice has served to strengthen the position of the House and it is believed that there has been no instance in which a treaty has, without legislative permission, been allowed to repeal or annul existing revenue laws.

In 1846, the Senate Committee on Foreign Affairs, to which had been referred a reciprocity treaty negotiated by .Mr. Wheaton, reported adversely in the following words: "The committee . . . are not prepared to sanction so large an innovation upon ancient and uniform practice in respect of the department of government by which duties on imports shall be imposed. The convention which has been submitted to the Senate changes duties which have been Laid by law. It changes them ex directo and by its own vigor, or it engages the faith of the nation and the faith of the legislature through which the nation acts to make the change. In either aspect it is the President and Senate who, by the instrumentality of negotiation, repeal or materially vary regulations of commerce and laws of revenue which Congress had ordained. More than this, the executive department, by the same instrumentality of negotiations, places it beyond the power of Congress to exceed the stipulated maximum of import duties for at least three years, whatever exigency may intervene to require it. In the judgment of the committee the legislature is the department of government by which commerce should be regulated and laws of revenue be passed. The Constitution, in terms, communicates the power to regulate commerce and to impose duties to that department." It communicates it, in terms, to no other. Without engaging at all in examination of the extent, limits, and objects of the power to make treaties, the committee believes that the general rule of our system is indisputably that the control of trade and the functions of taxing belong, without abridgement or participation, to Congress. They infer this from the language of the Constitution, from the nature and principles of our Government, from the theory of republican liberty itself, from the unvaried practice, evidencing the universal belief of all, in all periods and all parties and opinions. They think, too, that, as the general rule, the representatives of the people, sitting in their legislative capacity, with open doors, under the eye of the country, communicating freely with their constituents, may exercise this power more intelligently, more discreetly, may acquire more accurate and more minute information concerning the employments and the interests on which this description of measures will press, and may better discern what true policy prescribes and rejects than is within the competence of the executive department of the Government. To follow, not to lead; to fulfil, not to ordain, the law; to carry into effect, by negotiation and compact with foreign governments, the legislative will, when it has been announced, upon the great subjects of trade and revenue; not to interpose with controlling influence; not to go forward with too ambitious enterprise - these seem to the committee to be the appropriate functions of the Executive."16

15 Moore's Int. Late Digest, V, 223.

16 Compilation of Reports of the Committee on Foreign Relations, VIII, 36. With reference to this report, Mr. Calhoun, then Secretary of State, wrote to Mr. Wheaton, "If this be the true view of the treaty-making power it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution." He then continued: "From the beginning and throughout the whole existence of the Federal Government, it [the treaty-making power] has been exercised constantly on commerce, navigation, and other delegated powers, to the almost entire exclusion of the reserved, which, from their nature, rarely ever come into question between us and other nations. The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions In the reply of Secretary Calhoun to the report of the Senate committee, Calhoun asserted that from the beginning of the government it had been the practice of the treaty-making power to compact regarding matters within the legislative powers of Congress. It will be observed, however, that neither the report, nor the reply of Calhoun bear upon the point we are now considering, namely, whether, when a treaty is entered into providing for the regulation of a matter within the ordinary legislative control of Congress, that treaty before it may be given full force and effect in this country as law, requires congressional approval.

After an account of the practice of the government and of discussions of the subject in Congress, Mr. Crandall, writing in 1904, says: "From this historical review it appears that, whatever may be the ipso facto effect of the treaty stipulations, entered into by the President and Senate, upon prior inconsistent revenue laws, not only has the House uniformly insisted upon, but the Senate has acquiesced in, their execution by Congress; that in case of proposed extensive modifications a clause has been inserted in the treaty by which its operation is expressly made dependent upon the action of Congress; and that in the recent Cuban treaty such a clause was inserted on the initiative of the Senate."17 are within the legislative powers of Congress. Thus in 1902, Senator Cullom emphatically asserted that only with reference to the appropriation of money is legislative assistance needed in order that treaties may receive acceptance as law in our courts.,19 It is to be remarked, however, that in Bertram v. Robertson19 and Whitney v. Robertson,20 though the point is not expressly discussed, it would seem that the court impliedly held that a treaty might modify revenue laws, for in these cases the effect of treaties upon existing tariff laws is considered without a suggestion that the inquiry is an unnecessary one because of the inability of the treaty power to modify such statutes.

It is to be observed, before leaving this subject, that in no case has the treaty-making power, whatever its actual concessions, ever admitted in full terms its inabilitv to fix as law matters which that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject-matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposes, that the mere fact of a power being delegated to Congress excludes it from being the subject of the treaty stipulations, that even its exclusive delegation, if we may judge from the habitual practice of the government, does not - of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made en this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation." Moore's Diaest of International Law, V, 164.

17 Treaties and Treaty Making, p. 145.

18 Cf. Butler, I, 457.

19122 U. S. 116; 7 Sup. Ct. Rep. 1115; 30 L. ed. 1118.

20 124 U. S. 190; 8 Sup. Ct. Rep.-456; 21 L. ed. 386.