611.413 Coal/37

Brief by Direction of the Secretary of State Submitted to the United States Customs Court, Third Division 62

George E. Warren Corporation } Protest 628415–G/18227
and British Coal
Domestic Fuel Corporation, Protest 629225-G/353
Plaintiffs, German Coal
vs.
The United States, Revenue Act of 1932.
Defendant.

Brief by Direction of the Secretary of State of the United States

It is understood that coal from Canada and Mexico is being admitted into the United States free of duty and that in 1932 the Collector of Customs at New York, acting under Section 601 of the Revenue Act of 1932 (Public No. 154—72d Congress), imposed a duty of ten cents per hundred pounds on anthracite cobbles and anthracite nuts produced in Wales and imported into the United States from Great Britain by the George E. Warren Corporation and on “Westph. anthracite nut coal” produced in Germany and imported into the United States from Germany by the Domestic Fuel Corporation.

The pertinent portion of Section 601 of the Revenue Act of 1932 reads:

“(a) In addition to any other tax or duty imposed by law, there shall be imposed a tax as provided in subsection (c) on every article imported into the United States unless treaty provisions of the United States otherwise provide.

. . . . . . . . . . . . . .

“(c) There is hereby imposed upon the following articles sold in the United States by the manufacturer or producer, or imported into the [Page 510]United States a tax at the rates hereinafter set forth, to be paid by the manufacturer, producer, or importer:

. . . . . . . . . . . . . .

“(5) Coal of all sizes, grades, and classifications (except culm and duff), coke manufactured therefrom; and coal or coke briquettes, 10 cents per 100 pounds. The tax on the articles described in this paragraph shall apply only with respect to the importation of such articles, and shall not be imposed upon any such article if during the preceding calendar year the exports of the articles described in this paragraph from the United States to the country from which such article is imported have been greater in quantity than the imports into the United States from such country of the articles described in this paragraph.”

It is understood that for the calendar year 1931, the balance of trade in coal between the United States and Canada and between the United States and Mexico was in favor of the United States; and that the balance of trade in coal between the United States and Great Britain and the United States and Germany was against the United States.

The admission free of duty of coal from Canada and Mexico, and the imposing of a duty of ten cents per hundred pounds of coal from Great Britain and Germany obviously places British coal and German coal at a disadvantage on importation into the United States as compared with Canadian coal and Mexican coal, in that higher or other duty is imposed on British and German coal than is imposed on Canadian and Mexican coal.

The action brought by George E. Warren Corporation and Domestic Fuel Corporation against the United States in the United States Customs Court, raises the question whether the plaintiff companies are entitled to import coal from England and Germany, the former by reason of Article 2 of the Treaty of 1815 between the United States and Great Britain (8 Stat. 228),63 and the latter by reason of Article 7 of the Treaty of 1923 between the United States and Germany (44 Stat. Pt. III, p. 2137), free from duty, on the ground that coal is admitted into the United States free of duty from Canada and Mexico under the Revenue Act of 1932.

The pertinent treaty provisions are:

Article II

(Treaty of 1815 with Great Britain)

“No higher or other duties shall be imposed on the importation into the United States of any articles the growth, produce or manufacture of His Britannick Majesty’s [territories] in Europe, and no higher or other duties shall be imposed on the importation into the territories of His Britannick Majesty in Europe of any articles the growth, produce or [Page 511]manufacture of the United States, than are or shall be payable on the like articles being the growth, produce or manufacture of any other foreign country;” …

Article VII

(Treaty of 1923 with Germany)

. . . . . . . . . . . . . .

“Each of the High Contracting Parties binds itself unconditionally to impose no higher or other duties or conditions and no prohibition on the importation of any article, the growth, produce or manufacture, of the territories of the other than are or shall be imposed on the importation of any like article, the growth, produce or manufacture of any other foreign country. (Paragraph 2)

. . . . . . . . . . . . . .

“Any advantage of whatsoever kind which either High Contracting Party may extend to any article, the growth, produce, or manufacture of any other foreign country shall simultaneously and unconditionally, without request and without compensation, be extended to the like article the growth, produce or manufacture of the other High Contracting Party. (Paragraph 4)

. . . . . . . . . . . . . .

“With respect to the amount and collection of duties on imports and exports of every kind, each of the two High Contracting Parties binds itself to give to the nationals, vessels and goods of the other the advantage of every favor, privilege or immunity which it shall have accorded to the nationals, vessels and goods of a third State, and regardless of whether such favored State shall have been accorded such treatment gratuitously or in return for reciprocal compensatory treatment. Every such favor, privilege or immunity which shall hereafter be granted the nationals, vessels or goods of a third State shall simultaneously and unconditionally, without request and without compensation, be extended to the other High Contracting Party, for the benefit of itself, its nationals and vessels.” (Paragraph 6)

The demand of importers of British and German coal that they be accorded the same exemptions with respect to customs duties as are allowed to the importers of Canadian and Mexican coal presents the following questions:

1.
Have Article 2 of the Treaty of 1815 with Great Britain and Article 7 of the Treaty of 1923 with Germany ever had the force of law in the United States, no legislation of [sic] having been enacted by the Congress to effectuate them?
2.
If the first question is answered in the affirmative,
(a)
have the articles been abrogated or otherwise rendered ineffective and,
(b)
what meaning is to be attributed to the articles?

[Page 512]

These questions will be discussed in the order in which they are stated.

1. Have Article 2 of the Treaty of 1815 with Great Britain and Article 7 of the Treaty of 1928 with Germany ever had the force of law in the United States, no legislation having been enacted by the Congress to effectuate them?

Article 5 of the Treaty of 1815 with Great Britain provided that upon the exchange of ratifications the treaty should be binding and obligatory on the United States and His Majesty for four years from the date of signature. Ratifications were exchanged December 22, 1815. The treaty became effective on the date last mentioned.

Article 31 of the Treaty of 1923 with Germany provided that the treaty should take effect in all its provisions on the exchange of ratifications. Ratifications were exchanged on October 14, 1925. The treaty became effective on that date.

Consideration of the first question set out above leads at once to Article 6, Clause 2, of the Constitution of the United States. Clause 2 reads as follows:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”

It is noteworthy that the constitutional provision quoted declares all treaties to be the supreme law of the land. The Constitution makes no distinction between different classes of treaties. When the President concludes a treaty by and with the advice and consent of the Senate in the exercise of authority conferred upon him by Article 2, Clause 2, of the Constitution of the United States, and the treaty so made is ratified and the ratifications are exchanged with the foreign government concerned, the treaty is the law of the land and the President is amply warranted in proclaiming it as such. This is true whether the treaty be a commercial treaty, containing most-favored-nation clauses or other provisions which are usually incorporated in commercial treaties or whether the treaty be a treaty of navigation, of amity, or one pertaining to any other subject within the competence of the treaty making power.

It is deemed useful here to set forth the views of President Washington on the scope of the treaty making power and the requisites for carrying treaties into effect as stated in a message sent by him to the House of Representatives on March 30, 1796, in response to a resolution adopted by the House on March 24 of that year, requesting the President to lay before the House a copy of the instructions given to the Minister of the [Page 513]United States who negotiated the Jay Treaty with Great Britain (8 stat. 117 [116])64 and copies of other correspondence.

The following quotation from that Message clearly indicates President Washington’s views:

“The course which the debate has taken on the resolution of the House leads to some observations on the mode of making treaties under the Constitution of the United States.

“Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the Government to this moment my conduct has exemplified that opinion—that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared and they have believed that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.

“There is also reason to believe that this construction agrees with the opinions entertained by the State conventions when they were deliberating on the Constitution, especially by those who objected to it because there was not required in commercial treaties the consent of two-thirds of the whole number of the members of the Senate instead of two-thirds of the Senators present, and because in treaties respecting territorial and certain other rights and claims the concurrence of three-fourths of the whole number of the members of both Houses, respectively, was not made necessary.

“It is a fact declared by the General Convention and universally understood that the Constitution of the United States was the result of a spirit of amity and mutual concession; and it is well known that under this influence the smaller States were admitted to an equal representation in the Senate with the larger States, and that this branch of the Government was invested with great powers, for on the equal participation of those powers the sovereignty and political safety of the smaller States were deemed essentially to depend.

“If other proofs than these and the plain letter of the Constitution itself be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the Department of State. In those journals it will appear that a proposition was made ‘that no treaty should be binding on the United States which was not ratified by a law,’ and that the proposition was explicitly rejected.

“As, therefore, it is perfectly clear to my understanding that the assent [Page 514]of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light, and as it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request.” (Messages and Papers of the Presidents, Richardson, Vol. I, pp. 195–196.)

It is significant that the Treaty which was before the Congress at the time the President’s Message was sent to the House of Representatives contained what is known as a most-favored-nation clause. It is quite clear from President Washington’s Message that he regarded every treaty to be the law of the land. There is nothing to indicate that he considered legislation by Congress necessary to carry the most-favored-nation clauses of that treaty into effect.

It will be noted that President Washington referred in his Message to the proceedings which took place in the General Convention leading to the adoption of the provisions pertaining to the concluding of treaties and the status of treaties. The proceedings which took place in the General Convention in regard to the treaty making power are reviewed in The Making of the Constitution, by Charles Warren, beginning at page 651. Mr. Warren’s review reveals that proposals were made that provisions be included in the Constitution prescribing varying methods of concluding different classes of treaties and requiring confirmation of treaties by legislation enacted by the Congress to give them effect. These proposals were not adopted. On the contrary the uniform method of concluding treaties prescribed in Article 2, Clause 2, of the Constitution, was adopted and all treaties regardless of their character were declared to be the supreme law of the land.

Inquiry into the practice which has been followed by the Government in dealing with commercial treaties containing most-favored-nation clauses seems pertinent to this discussion. On November 19, 1794, there was concluded between the United States and Great Britain what was known as the Jay Treaty (8 Stat. 117 [116]), to which reference has already been made. On March 1, 1796, President Washington submitted to the Congress a copy of the Treaty for the information of the Congress and stated that ratifications of the Treaty had been exchanged at London on the 28th day of October, 1795, (Messages and Papers of the Presidents, Richardson, Vol. I, page 192). That Treaty contained what is known as a most-favored-nation clause (Article 15). The Jay Treaty contained also articles which provided for the establishment of commissions for designated purposes. Congress passed an Act which was approved May 6, 1796, and which read as follows: [Page 515]

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that towards defraying the expenses which may arise in carrying into effect the Treaty of Amity, Commerce and Navigation, made between the United States and the Kingdom of Great Britain, there be appropriated a sum not exceeding Eighty Thousand, Eight Hundred and Eight dollars to be paid out of the duties on impost and tonnage, to the end of the present year, not already appropriated; provided that the compensation to be allowed to any of the commissioners appointed or to be appointed in pursuance of any article of the said Treaty, shall not exceed, to those who will serve in Great Britain, the rate of Six Thousand, Six Hundred and Sixty Seven Dollars and Fifty Cents per annum; and to those who shall serve in the United States, the rate of Four Thousand, Four Hundred and Forty Five Dollars.” (1 stat. L. 459). By an act approved June 30, 1797 (1 stat. L. 523).

A further appropriation was made for the purpose of the treaty. Money was appropriated again by an Act of November 16, 1803 (2 stat. L. 248) to carry out the treaty. Further appropriations were made by the Act approved November 24, 1804; the Act of March 3, 1805 (2 Stat. L. 307, 336). Reference is also made to Article III of that treaty and to the Act of Congress of March 2, 1799, (1 Stat. 701).

It is apparent that the Acts of Congress just quoted and cited were adopted to carry out the provisions of the Treaty requiring the expenditure of money. It is obvious that the Acts had no relation to the most-favored-nation clause of the same Treaty and could not have been intended, or have served, to carry out the most-favored-nation clause of the Treaty. No legislation for that purpose was recommended by the President and none was adopted. The practice of enacting legislation to enable the Government to meet financial obligations undertaken by Treaty is well illustrated by this instance. That legislation was not necessary to effectuate most-favored-nation clauses commercial in character such as the one contained in the Jay Treaty and the ones contained in the Treaty with Germany is, it is believed, indicated by this instance.

The action taken with respect to the Treaty of July 3, 1815, which has been invoked in the litigation now before the United States Customs Court, is informative. On December 23, 1815, President Madison submitted to the Congress copies of the proclamation of that Treaty and recommended such legislative provisions as the treaty called for on the part of the United States. (Messages and Papers of the Presidents, Richardson, Vol. 1, page 570) Congress passed an Act approved March 1, 1816, reading as follows:

“Be it enacted and declared by the Senate and the House of Representatives of the United States of America, in Congress assembled [that] so much of any act as imposes higher duty of tonnage or of impost on [Page 516]vessels and articles imported in vessels of Great Britain than on vessels and articles imported in vessels of the United States contrary to the provisions of the Convention between the United States and His Britannic Majesty, the ratifications whereof were mutually exchanged the 22nd day of December, One Thousand Eight Hundred and Fifteen be from and after the date of the ratification of the said Convention and during the continuance thereof deemed and taken to be of no force or effect.” (3 Stat. L. 255)

Article 2 of the Treaty of 1815 contained in addition to the usual most-favored-nation clause a provision against charging any higher dues on British vessels entering the ports of the United States than was to be charged on vessels of the United States. The Article also contained a provision that the same duties should be paid on articles, the growth, produce or manufacture of British Territories in Europe imported into the United States whether such importations were on vessels of the United States or in British vessels. The two provisions of Article 2 of the Treaty last described established what is known as national treatment as distinguished from most-favored-nation treatment. The Act of March 1, 1816, quoted above gave effect to the provisions of the Treaty entitling British goods and vessels to national treatment. The Act, however, had no effect as to the most-favored-nation clause of the Treaty. It will be observed that in submitting the Treaty to the Congress, President Madison recommended such legislation as was necessary on the part of the United States. He did not mention any particular item or items of the Treaty which he deemed to require legislation. The Congress enacted legislation in regard to the clauses of the Treaty entitling British vessels and goods to national treatment but enacted no legislation pertaining to the most-favored-nation clause of the Treaty. The Congress apparently deemed it unnecessary to enact legislation to give effect to the most-favored-nation clause of the treaty.

There has been a uniform custom to obtain appropriations from Congress to satisfy money commitments made in treaty provisions and no attempt has been made to appropriate money by treaties. The treaties with Great Britain, to which reference has been made exemplify this custom. There can be no doubt that there has been from the beginning of the Government to the present time a practice with respect to most-favored-nation clauses of commercial treaties distinct from that followed with respect to provisions of treaties requiring the payment of money. The action taken pursuant to the Treaties of 1794 and 1815 with Great Britain exemplify this practice no less emphatically than it reveals the practice to obtain appropriations by legislation.

It should be emphasized that most-favored-nation clauses of commercial treaties are here under consideration, and that it is into the practice which has been followed with respect to such treaties that we are [Page 517]inquiring. We are not concerned with the practice which has been followed in executing treaties requiring the payment of money or adopting a schedule of customs duties or granting exemption from customs duties. Most-favored-nation clauses of treaties do not require payment of money; they do not prescribe schedules of duties; they are not revenue measures at all; they are not adopted to raise revenue; they are adopted for the purpose of obtaining in foreign countries for products of the United States, customs treatment no less favorable than that accorded similar merchandise produced in other countries. It is the purpose of these most-favored-nation articles to permit merchandise produced in the United States to enter the trade of foreign countries on the basis of equality so far as import duties are concerned, with merchandise entering the same trade from other countries. These most-favored-nation articles in treaties are designed to relieve products of the United States of the disadvantage in the markets of foreign countries which flows from the imposition of discriminatory duties on American products. In consideration of the advantages obtained for products of the United States in the markets of foreign countries under most-favored-nation clauses of treaties, the United States in those treaties undertakes to impose no higher or other duties on the products of the countries with which treaties containing most-favored-nation clauses are in force, than are imposed on the products of the country most favored in that regard.

The purpose of the treaty of 1815 with Great Britain is stated in the preamble of the treaty to be “to regulate the commerce and navigation between their respective countries, territories, and people, in such a manner as to render the same reciprocally beneficial and satisfactory”. The purpose of the Treaty of 1923 with Germany is stated in the preamble of that treaty to be “to promote friendly intercourse between their respective territories through provisions responsive to the spiritual, cultural, economic and commercial aspirations of the peoples”. These treaties were not in any sense revenue measures.

The carrying out of the most-favored-nation clauses of treaties does not raise revenue. They forbid the imposition of discriminatory duties. The most-favored-nation clauses of treaties do not forbid the raising or lowering of import duties. If the obligations of these articles are performed on the part of the United States, the Government of the United States is in a position to insist on compliance with them by the foreign countries concerned. If the obligations of these clauses are disregarded on the part of the United States, the Government of the United States is no longer able to insist on equality of treatment of American products in the countries concerned. Most-favored-nation clauses of treaties are not bills for raising revenue and have been given effect without confirmatory legislation.

[Page 518]

Article 1, section 7, clause 1 of the Constitution, which provides that all bills for raising revenue should originate in the House of Representatives, has not, in practice, been deemed to require the enactment of legislation to carry out most-favored-nation clauses of treaties. Treaties containing some form of most-favored-nation clauses have been concluded under the Constitution as far back as 1794. The Jay Treaty with Great Britain was concluded that year. A treaty with Norway containing a most-favored-nation clause was proclaimed by the President September 15, 1932 (Treaty Series No. 852).65

Although there have been more than fifty treaties concluded which contain most-favored-nation commercial articles, diligent search fails to reveal a single instance in which legislation was enacted to carry out most-favored-nation clauses.

The position of most-favored-nation clauses of treaties in the legal system of the United States, and their enforceability in the courts of the United States is indicated by American Express Company, et al, against the United States, and E. Bertuch and Company, et al, against the United States, 1912, 4 Court Customs Appeals 146; VII American Journal of International Law 891.

The opinion of the Court of Customs Appeals in this case is valuable for the discussions of other pertinent court decisions which it contains, as well as for the reasoning employed and the conclusion reached.

The Court discussed the decision in Taylor v. Morton, 1855, 23 Fed. Cases 784, which is sometimes cited on the proposition that most-favored-nation clauses of treaties are not enforceable in the courts. It is emphasized in the opinion in American Express Company against the United States that what the Court really decided in Taylor against Morton was that an act of Congress had laid a duty on Russian hemp at $40 per ton, and that as the act was later in date than the treaty the Court was bound by the later act. Examination of the opinion in Taylor against Morton does not sustain the view that it was decided in that case that favored-nation clauses of treaties are not enforceable in the courts of the United States.

The United States Customs Court in the American Express Company v. U.S., discussed also Bartram v. Robertson, 1887 [1886], 122 U.S. 116, and Whitney v. Robertson, 1887, 124 U.S. 190. It was pointed out that in Bartram v. Robertson, the Court construed the treaty and ruled that the treaty did not grant the rights for which plaintiffs contended. The Court did not rule in Bartram v. Robertson that most-favored-nation clauses of treaties are not the law of the land and are not enforceable in the courts as is sometimes contended. The case of Whitney v. Robertson [Page 519]was described as deciding that if the treaty provisions have been repealed by an Act of Congress they are no longer in force. The Court of Customs Appeals referred with approval to the holding in Whitney v. Robertson on this point. Whitney v. Robertson is not properly cited on the proposition that most-favored-nation clauses of treaties are not enforceable in the courts. The following is quoted from the opinion in that case.

“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 in 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.”

The rulings in Taylor v. Morton and Whitney v. Robertson, that a later Act of Congress prevailed over an earlier treaty, and the ruling in Bartram v. Robertson that the treaty invoked in that case did not grant the rights for which plaintiffs contended, recognized that the treaty provisions involved in those cases had been in force and had been the law of the land. The decision in American Express Company v. U.S., declared that the most-favored-nation clauses invoked in that case were the law of the land and were enforceable in the courts.

The concluding paragraph in the opinion of the Court of Customs Appeals is deemed worthy to reproduce here:

“It follows that a nonprohibited exportation from any nation having the favored-nation clause of an untaxed material of the same kind and character answers all the requirements and should stand upon the same footing as the goods so imported from Canada, It will not do to say that wood pulp and wood are more accessible from Canada than from other countries. The treaties speak in no such language of distinction. They recognize no difference between nations in different quarters of the globe. If any exception or reservation from the language of the treaty is to be made, it must be made by an authority which has power to abrogate the treaty in whole or in part. It does not lie with the courts or with an administrative department to annex or affix conditions to a treaty which is, unless abrogated by a legislative enactment, the supreme law of the land.

“The decision of the Board of General Appraisers is reversed and the importation admitted free.” (7 American Journal of International Law, pp. 891, 909).

Kelly v. Hedden, 1887, 124 U.S. 196, and Whitney v. Robertson were decided on the same day. The two cases had been argued together. In [Page 520]both cases the plantiffs sought to recover duty which they alleged had been unlawfully collected.

Kelly v. Redden was distinguishable from Whitney v. Robertson in that the Act of Congress under which the duties were imposed declared that nothing in the Act “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.”

The Supreme Court of the United States ruled that in view of the saving clause quoted the Act under which the duty was collected did not supersede the earlier treaty, but ruled further, in effect, that the treaty provisions—most-favored-nation articles—did not grant the right for which plaintiff contended.

This ruling clearly meant that the treaty articles invoked in this case- Article 9 of the Treaty of 1867 with the Dominican Republic, (15 Stat. 478) had become effective; that the article continued in effect; and that the article, although in effect did not grant the exemption for which plaintiff contended.

In discussing the treaty question in Head Money Cases, 1884, 112 U.S. 580, 597, the Supreme Court of the United States, Mr. Justice Miller rendering the opinion, stated:

“The precise question involved here, namely, a supposed conflict between an Act of Congress imposing a customs duty, and a treaty with Russia on that subject, in force when the Act was passed, came before the Circuit Court for the District of Massachusetts in 1855. It received the consideration of that eminent jurist, Mr. Justice Curtis of this court, who in a very learned opinion exhausted the sources of argument on the subject, holding that if there were such conflict the Act of Congress must prevail in a judicial forum. Taylor v. Morton, 2 Curtis, 454.”

It is clear from this quotation that the treaty question before the court was whether a later statute prevailed in the courts over an earlier treaty. That was the treaty question decided in Head Money Cases.

The rulings of the Supreme Court that later acts of Congress supersede earlier treaties clearly means that the treaties to which these rulings relate had been in effect. If they had not been in effect they could not have been superseded.

The rulings interpreting most-favored-nation articles of treaties clearly means that those articles were in effect. If the articles had not been in effect, why would courts have interpreted them?

It may be stated with confidence that, beginning with the Jay Treaty of 1794 and continuing to 1932, Presidents have concluded commercial treaties containing most-favored-nation articles; that in no instance did [Page 521]a President recommend the enactment of legislation to carry out such articles; that the Congress did not at any time enact any legislation to carry out most-favored-nation articles of commercial treaties and that the courts of the United States have recognized the efficacy of such treaty provisions, have declared them to be the law of the land, and have interpreted them and given them effect.

The conclusion is believed to be inescapable that Article 2 of the Treaty of 1815 with Great Britain, and Article 7 of the Treaty of 1923 with Germany, are equally, with any Act of Congress, the supreme law of the land; that those articles have not been abrogated or superseded, and that they have the force of law and should be enforced.

2. If the first question is answered in the affirmative,

(a)
Have the articles been abrogated or otherwise rendered in effective and,
(b)
What meaning is to be attributed to the articles?

It has been shown above that the Treaty of 1815 with Great Britain and the Treaty of 1923 with Germany became effective upon the exchange of ratifications. By a Convention concluded August 6, 1827 between the United States and Great Britain (8 Stat. 360)66 the duration of the Treaty of 1815 was indefinitely extended subject, however, to abrogation by notice by either party upon the expiration of ten years. No notice of termination has been given and the Treaty of 1815 therefore remains in force.

The Treaty of 1923 with Germany was likewise to become effective upon the exchange of ratifications. Ratifications were exchanged on October 14, 1925. According to Article 31 the Treaty was to endure for a period of ten years. The ten year period has not yet expired. The Treaty therefore remains in effect.

The question then arises have Article 2 of the Treaty of 1815 with Great Britain and Article 7 of the Treaty of 1923 with Germany been superseded by a later statute. The Revenue Act of 1932 is, of course, later in date than either treaty. It is necessary to inquire whether Section 601 of the Revenue Act of 1932, under which a duty of ten cents per hundred pounds has been assessed on British and German coal, supersedes the treaties.

Apparently the Customs authorities consider that Section 601 of the Revenue Act of 1932 is irreconcilable with the treaty articles and that the Revenue Act of 1932 being later in date than the treaties, Section 601 of the Act must be applied and the articles of the treaties must be disregarded so far as coal from Great Britain and Germany is concerned.

It is not believed, however, that Section 601 of the Revenue Act of 1932 is irreconcilable with the treaty articles which have been invoked [Page 522]in this litigation. It is believed that if the actual language of Section 601 of the Revenue Act of 1932 is considered and the Section is construed as laws relating to treaties should be construed, it will not be found necessary or permissible to destroy the efficacy of the articles of the treaties with Great Britain and Germany with respect to coal imported into the United States from those countries.

Section 601 of the Revenue Act of 1932 opens in subsection (a) by declaring that there shall be imposed a tax as provided in subsection (c) “on every article imported into the United States unless treaty provisions of the United States otherwise provide”.

Subsection (a) ought, it is believed, to be regarded as a clause to save treaty provisions which might be violated by the imposition of the tax in accordance with Section 601. The language of subsection (a) ought to be regarded as directing that if the imposition and collection of the tax prescribed in Section 601 on any merchandise imported from any country would entail a violation of a treaty between the United States and the country from which the merchandise came, the tax should not be levied. It is clear that Article 2 of the Treaty with Great Britain and Article 7 of the Treaty with Germany make provision against the burden of a higher or other duty on British and German coal imported into the United States than is imposed in the United States on coal coming from any other country. The treaties “otherwise provide” and should be saved and given effect.

As to the contention that the reference to treaty provisions in subsection (a) relate only to the Treaty with Cuba, it may be said that it is most unusual to employ a general expression such as that used in subsection (a) for the purpose of reaching a treaty with one country. If subsection (a) was to save only the Treaty with Cuba specific reference would have been made to that treaty and the broad, general statement in all probability would not have been used. The English language is amply elastic to admit of the use of specific terms to save a single treaty. It has been customary to make in tariff acts of the United States specific reference to the Cuban Treaty when it was desired to save that treaty. The Tariff Act of 1930 (46 Stat. 672 [590], 695) contains in Section 316 thereof, the following:

“Nothing in this Act shall be construed to abrogate or in any manner impair or affect the provisions of the treaty of commercial reciprocity concluded between the United States and the Republic of Cuba on December 11, 1902,67 or the provisions of the Act of December 17, 1903, Chapter 1.”68

The Tariff Acts of 1909 (36 Stat. 83); 1913 (38 Stat. 192); and 1922 [Page 523](42 Stat. 947) contained a similar section. It is apparent that the Congress has adopted a specific and definite formula when referring to the Treaty with Cuba. Inasmuch as subsection (a) does not contain the usual specific reference to the Treaty with Cuba and does contain a broader expression which is susceptible of comprehending all treaties which would be violated by the collection of one or more of the items of duty defined in Section 601, subsection (a) should be given broader application and should be administered to include in the saving clause all treaties which would be violated by the imposition of a discriminatory tax.

It is deemed proper to mention several established rules of construction.

1. Repeal by implication is not favored and where a statute and a treaty 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.

In Chew Hong v. United States, 1884, 112 U.S. 536, the Supreme Court of the United States ruled that an Act of Congress and a treaty should stand together. The following is quoted from the opinion in that case, p. 549:

“But, even in the case of statutes, whose repeal or modification involves no question of good faith with the government or people of other countries, the rule is well settled that repeals by implication are not favored and are never admitted where the former can stand with the new act.”

The following quotation from State v. Stoll, 17 Wall [ace], 425, 430 [431] was used in the opinion in Chew Hong v. United States:

“It must appear that the latter provision is certainly and clearly in hostility to the former. If by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible and only in that event, the former law is repealed in part, or wholly, as the case may be.”

The following is quoted from the opinion in Whitney v. Robertson, 124 U.S. 190, 194:

“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.”

In United States v. Lee Yen Tai 1902 [1901], 185 U.S. 213, the Supreme Court of the United States ruled that a statute could stand with a subsequent [Page 524]treaty and that both should be enforced. The following is quoted from the opinion, p. 221:

“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, must not be lightly assumed, but must appear clearly and distinctly from the words used in the statute or in the treaty.”

Citations and quotations on the rule might be multiplied.

2. Treaties should be construed so as to uphold the sanctity of the public faith.

On this point a statement in the opinion of the Supreme Court of the United States in Chew Hong v. United States, 1884, 112 U.S. 536, is pertinent. The following is quoted from the opinion, p. 540:

“Aside from the duty imposed by the Constitution to respect treaty stipulations when they become the subject of judicial proceedings, the Court cannot be unmindful of the fact, that the honor of the Government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected. [And] it would be wanting in proper respect for the intelligence and patriotism of a coordinate department of the Government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.”

In the opinion of the Supreme Court of the United States in Ward v. Race Horse, 1896 [1895], 163 U.S. 504, 516, the following statement is found:

“Doubtless the rule that treaties should be so construed as to uphold the sanctity of the public faith ought not to be departed from. But that salutary rule should not be made an instrument for violating the public faith by distorting the words of a treaty in order to imply that it conveyed rights wholly inconsistent with its language and in conflict with an Act of Congress and also destructive of the rights of one of the states.”

These rules and these quotations are peculiarly pertinent in the present discussion. These rules should be applied in considering the relation to Section 601 of the Revenue Act of 1932 to the Articles of the treaties with Great Britain and Germany and in considering whether Section 601 repealed these articles.

Paragraph (b) of the second question, which is stated at page 20 of the brief69 does not require extended consideration. If it can be found and decided that the treaty articles are in effect; that they have the force of law and are enforceable, the meaning which should be attributed to the articles would yield to ready determination. Furthermore, this brief has been prepared without opportunity to study the court record in the [Page 525]litigation which precipitated the discussion. It is deemed preferable in the circumstances to refrain from discussing herein the meaning of the treaty articles.

Respectfully submitted,

J. A. Metzger

Assistant Legal Adviser

April 13, 1933.70

  1. The Secretary of State sent this document to the Attorney General on April 6. 1933, with the request that it be delivered to the court.
  2. Also printed in Hunter Miller (ed.), Treaties and Other International Acts of the United States of America, vol. 2, p. 595.
  3. Also printed in Miller, Treaties, vol. 2, p. 245.
  4. Treaty of Friendship, Commerce, and Consular Rights between the United States and Norway, and additional article, signed at Washington, June 5, 1928, and February 25, 1929, Foreign Relations, 1928, vol. iii, p. 646.
  5. Also printed in Miller, Treaties, vol. 3, p. 309.
  6. Foreign Relations, 1903, p. 375.
  7. An act to carry into effect a convention between the United States and the Republic of Cuba, 33 Stat. 3.
  8. Ante, p. 521.
  9. This date appears on file copy of the brief, which is not a carbon copy of the original and may have been retyped after the transmittal of the brief to the Attorney General; the letter of transmittal, dated April 6, 1933, is not printed.