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when congress interposed, and passed the joint resolution of March 31, 1868. 15 St. 251." By that joint resolution, it was provided that "all moneys which have been received by any officer or employe of the government, or any department thereof, from sales of captured and abandoned property in the late insurrectionary districts, under or under color of the several acts of congress providing for the collection and sale of such property, and which have not already been actually covered into the treasury, shall immediately be paid into the treasury of the United States, together with any interest which has been received or accrued thereon." The language of this resolution affords some evidence that congress was aware of the manner in which the several acts relating to captured and abandoned property had been executed, and did not intend to disturb what had been previously done under the practice prevailing in the treasury department.

In view of the foregoing facts the case comes fairly within the rule, often announced by this court, that the contemporaneous construction of a statute by those charged with its execution, especially when it has long prevailed, is entitled to great weight, and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroEdwards v. Darby, 12 Wheat. 206, 210; U. S. v. Moore, 95 U. S. 760; Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. Rep. 494; U. S. v. Philbrick, 120 U. S. 52, 59, 7 Sup. Ct. Rep. 413.

We have said that the approval by the secretary of the treasury of an agent's account of expenses in the collection and sale of captured and abandoned property would not be conclusive, if it appeared either that such approval was procured by fraud, or that such expenses were incurred in violation of some positive statute, or in contravention of public policy. Much was said at the argument to the effect that the transactions of the defendant were based upon fraud; that he withheld or suppressed evidence that it was in his power to produce; and that what he did was calculated to debauch military officers to whom money was paid by him for the performance of services, in respect to which they were forbidden by law to accept compensation. It is only necessary to say that the findings of fact do not sustain these propositions. The record contains nothing to justify this court in holding that the defendant had been guilty of any fraud that would invalidate the settlement of his accounts with the government. Taking the findings of fact to be correct, as is our duty to do, we must assume that the payments made by the defendant, of the allowance of which complaint is now made, "were made necessary by the unsettled state of the country, the great accumulation of the cotton which the railroad company was unable to transport, the danger of theft and robbery, and the interference of other agents or persons claiming to be agents of the treasury department, and of military officers;" and, in respect to what are called military payments, that they "were all made in the bona fide belief that they were necessary to protect the interests of the United States in the cotton, to secure increased vigilance, or to prevent connivance with parties interfering with, or attempting to interfere with, the cotton." The utmost that the record establishes is that there were irregularities, perhaps carelessness, in the final closing of defendant's account with the government. It may be that he should have been required to present more satisfactory evidence than it may be supposed from the record he did in fact present. These considerations, however, even if entitled to weight as matter of law, lose much force after the lapse of years without action upon them by the government. The defendant ought not now to be held to the same strictness of proof that might justly have been required of him when all the circumstances connected with the cotton in question could have been readily established by competent evidence. We are of opinion that no case is made by the government to invalidate the settlement of defendant's accounts. We concur with the referee when he says that "it would be an exceedingly dangerous doctrine

that settled accounts, where the United States had acted on the settlement, and paid the balance found due on the basis of that settlement, could be opened or set aside merely because some of the prescribed steps in the accounting which it was the duty of a head of a department to see had been taken had been in fact omitted; or if they could be so opened and set aside on account of technical irregularities in the allowance of expenses years afterwards, when the remedy of the party against the United States is barred by the statute of limitations, and the remedies of the United States on the other side are intact, owing to its not being subject to any act of limitation." The facts found being sufficient to support the judgment, it is affirmed.

WHITNEY et al. v. ROBERTSON, Collector.1
(January 9, 1888.)

1. TREATIES-WITH DOMINICAN REPUBLIC-CUSTOMS DUTIES.

*

Plaintiff imported centrifugal and molasses sugars, the produce and manufacture of the island of San Domingo, similar in kind to sugars produced in the Hawaiian islands, which are by treaty admitted free of duty, and claimed that they should be admitted free, under article 9 of the treaty with the Dominican republic, (15 St. 475,) which provides that "no higher or other duty shall be imposed on the importation into the United States of any article, the growth, produce, or manufacture of the Dominican republic, ** than are on or shall be payable on the like articles, the growth, produce, or manufacture of any other foreign country." Held, that the treaty is a pledge that there shall be no discriminating legislation, against the importation of the articles mentioned, in favor of articles of like character imported from any other country, and, as it was never designed to prevent special concessions upon sufficient considerations touching the importation of specific articles, plaintiff would have to pay duty.

2. SAME CONFLICT WITH SUBSEQUENT LEGISLATION-CUSTOMS DUTIES.

The act of congress under which duties on centrifugal and molasses sugars from San Domingo are collected, authorized their exaction, and 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.

In Error to the Circuit Court of the United States for the Southern District of New York.

Action by James F. Whitney, Henry Buschmann, and Charles S. Whitney, plaintiffs, to recover money paid under protest to William H. Robertson, collector of the port of New York, as duty on sugars imported from San Domingo. Judgment for defendant. Plaintiffs appealed.

A. J. Willard, H. E. Tremain, and M. W. Tyler, for plaintiffs in error. Sol. Gen. Jenks, for defendant in error.

FIELD, J. The plaintiffs are merchants, doing business in the city of New York; and in August, 1882, they imported a large quantity 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 the treaty with the king of those islands, and the act of congress passed to carry the treaty into effect. They were duly entered at the custom-house at the port of New York; the plaintiffs claiming that, by the treaty with the republic of San Domingo, the goods should be admitted on the same terms, that is, free of duty, as similar articles, the produce and manufacture of the Hawaiian islands. The defendant, who was at the time collector of the port, refused to allow this claim, 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 was denied. They then paid, under protest, the duties exacted, and brought the present action to recover the amount. The complaint set forth the facts as 1 Affirming 21 Fed. Rep. 566.

to the importation of the goods; the claim of the plaintiffs that they should be admitted free of duty, because like articles from the Hawaiian islands were thus admitted; the refusal of the collector to allow the claim; the appeal from his decision to the secretary of the treasury, and its denial by him; and the payment, under protest, of the duties exacted; and concluded with a prayer for judgment for the amount. The defendant demurred to the complaint, the demurrer was sustained, and final judgment was entered in his favor; to review which the case is brought here.

The treaty with the king of the Hawaiian islands provides for the importation into the United States, free of duty, of various articles, the produce and manufacture of those islands, in consideration, among other things, of like exemption from duty on the importation into that country of sundry specified articles which are the produce and manufacture of the United States. 19 St. 200. The language of the first two articles of the treaty, which recite the reciprocal engagements of the two countries, declares that they are made in consideration "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 ninth article of the treaty with the Dominican republic, which is as follows: "No higher or other duty shall be imposed on the importation into 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, the growth, produce, or manufacture of any other foreign country, or its fisheries." 15 St. 475.

In Bartram v. Robertson, (decided at the last term,) 122 U. S. 116, 7 Sup. Ct. Rep. 1115, we held that brown and unrefined sugars, the produce and manufacture of the island of St. Croix, which is part of the dominions of the king of Denmark, were not exempt from 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 other party, who should "enjoy the same freely if the concession were freely made, and upon allowing the same compensation if the concession were conditional." 11 St. 719. The fourth article provided that no "higher or other duties" should be imposed by either party on the importation of any article which is its produce or manufacture into the country of the other party than is payable on like articles, being the produce or manufacture of any other foreign country. And we held, in the case mentioned, that "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.

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The counsel for the plaintiffs meet this position by pointing to the omission in the treaty with the republic of San Domingo of the provision as to free concessions, and concessions upon compensation; contending that the omission precludes any concession, in respect of commerce and navigation, by our government to another country, without that concession being at once extended

to San Domingo. We do not think that the absence of this provision changes the obligations of the United States. The ninth article of the treaty with that republic, in the clause quoted, is substantially like the fourth article in the treaty with the king of Denmark; and as we said of the latter, we may say of the former, 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.

But, independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs. 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. 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. 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 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, the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection 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. In Taylor v. Morton, 2 Curt. 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice CURTIS, of this court, and he held that whether a treaty with a foreign sovereign had been violated by him; whether the consideration of a particular stipulation of the treaty had 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 had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,-were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he justly observed, as a necessary consequence of these views, that, if the

power to determine these matters is vested in congress, it is, wholly immaterial to inquire whether by the act assailed 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, when a law is clear in its provisions, its validity cannot 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. In Head-Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247, it was objected to an act of congress that it violated provisions contained in treaties with foreign nations, but the court replied that, so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that, "so far as a treaty made by the United States with any foreign nation can be 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.' Judgment affirmed.

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KELLY v. HEDDEN, Collector.1

(January 9, 1888.)

TREATIES-WITH DOMINICAN REPUBLIC-CUSTOMS DUTIES.

Article 9 of the treaty with the Dominican republic, (15 St. 475,) which provides that "no higher or other duty shall be imposed on the importation into the United States of any article, the growth, produce or manufacture of the Dominican republic, *** than are on or shall be payable on the like articles, the growth, produce, or manufacture of any other foreign country," is a pledge that there shall be no discriminating legislation, against the importation of the articles mentioned, in favor of articles of like character imported from any other country, and it was never designed to prevent special concessions, upon sufficient considerations, touching the importation of specific articles.

In Error to the Circuit Court of the United States for the Southern District of New York.

A. J. Willard, H. E. Tremain, and M. W. Tyler, for plaintiff in error. Sol. Gen. Jenks, for defendant in error.

FIELD, J. This case, except in one particular, presents the same questions considered and determined in Whitney v. Robertson, ante, 456. The exceptional circumstance is this: that the act of 1883, under which the duties were levied and collected, to recover which the action is brought, declares that nothing in it "shall in any way change or impair the force and effect of any treaty between the United States and any other government, or any laws passed in pursuance of or for the execution of any such treaty, so long as such treaty shall remain in force in respect of the subjects embraced in this act." 22 St. 525. The most that can be conceded to this provision is that it leaves a previous treaty relating to the same subjects unaffected by the act. Our observations in the former case as to the effect of subsequent legislation in conflict with the stipulations of a treaty are therefore inapplicable to the present case. But all other considerations as to specific exemptions in return for special concessions remain, in answer to the alleged contention of the plaintiffs that articles, the produce and manufacture of the island of San Domingo should be admitted free of duty because similar articles, the produce and manufacture of the Hawaiian islands are thus admitted. Judgment affirmed.

1 Affirming 31 Fed. Rep. 607.

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