DISSENTING OPINION.
De Vries, Judge:The issues are aptly stated in the majority opinion. I am regrettably not in accord therewith and respectfully submit the following considerations:
The tariff act of 1913, among other matters, enacted in the order below recited certain provisions, which, together with treaty Article I of the treaty of 1852 with Netherlands (10 Stat., 982), also quoted, fairly present the laws to be construed:
Be it enacted by the Senate and Bouse of Representativos of the United States of America in Congress assembled, That on and after the day following the passage of this act, except as otherwise specially provided for in this act. *339Hiere shall be levied, collected, and paid upon all articles when imported from any foreign country into the United States or into any of its possessions (except the Philippine Islands and the islands of Guam and Tutuila) the rates of duty which are by the schedules and paragraphs of the dutiable list of this section prescribed, namely:
* 5j; * * * * *
Paragraphs 1 to 386 levy duties at prescribed rates upon certain described imported merchandise.
Section IV. A. That for the purpose of readjusting the present duties on importations into the United States and at the same time to encourage the export trade of this country, the President of the United States is authorized and empowered to negotiate trade agreements with foreign nations wherein mutual concessions are made looking toward freer trade relations and further reciprocal expansion of trade and commerce: Provided, however, That said trade agreements before becoming operative shall be submitted to the Congress of the United States for ratification or rejection.
B. That nothing in this act contained shall be so construed as 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 the eleventh day of December, nineteen hundred and two, or the provisions of the act of Congress heretofore passed for the execution of the same except as to the proviso of article eight of said treaty, which proviso is hereby abrogated and repealed.
* >}s # * sj« * #
J. Subsection 1. That a discriminating duty of 10 per centum ad valorem, in addition to the duties imposed by law, shall be levied, collected, and paid on all goods, wares, or merchandise which shall be imported in vessels not of the United States, or which, being the production or manufacture of any foreign country not contiguous to the United States, shall come into the United States from such contiguous country; but this discriminating duty shall not apply to goods, wares, or merchandise which shall be imported in vessels not of the United States entitled at the time of such importation by treaty or convention or act of Congress to be entered in the ports of the United States on payment of the same duties as shall then be payable on goods, wares, and merchandise imported in vessels of the United States, nor to such foreign products or manufactures as shall be imported from such contiguous countries in the usual course of strictly retail trade.
J. Subsection 7. That a discount of 5 per centum on all duties imposed by this act shall be allowed on such goods, wares, and merchandise as shall be imported in vessels admitted to registration under the laws of the ■ United States: Provided, That nothing in this subsection shall be so construed as to abrogate or in any manner impair or affect the provisions of any treaty concluded between the United States and any foreign nation.
Netherlands treaty of 1852 (10 Stat., 982) : Art. I. Goods and. merchandise, whatever their origin may be, imported into or exported from the ports of the United States, from and to any other country, in vessels of the Netherlands, shall pay no higher or other duties than shall be levied on the like goods and merchandise imported or exported in national vessels. Reciprocally, goods and merchandise, whatever their origin may be, imported into or exported from the ports of the Netherlands, from and to any other country in vessels of the *340Unitea States shall pay no higher or other duties than shall be levied on the like goods and merchandise imported or exported in national vessels.
The bounties, drawbacks, and other privileges of this nature which may be granted in the States of either of the contracting parties on goods imported or exported in national vessels shall also and in like manner be granted on goods imported or exported in vessels of the other country.
The appeals present for decision the question (1) whether J, subsection 7, upon enactment of the tariff act of 1913, became operative in prmenti or in futuro; and (2) if the former, are the treaty articles either self-executing or executed by subsection 7, thereby extending the 5 per cent discount to all such treaty nations ?
The conclusion is of unusual importance both as to the magnitude of the interests, affecting the immediate parties, and the international rights involved. The issues should, therefore, be resolved as illuminated by all applicable sources of enlightenment.
The object here sought to be accomplished by Congress, as distinguished from the intent manifested by the enactment employed to that end, is written in the judicial and legislative history of the subject matter — the American merchant marine.
The long-established practice of the courts in the determination of the relative effects of statutes and treaties, and the congressional 'intent in such statutes, is to trace the history and policy of the Government upon the subject matter as witnessed by the treaties concluded, statutes made, and the administrative and executive policies adopted. Oldfield v. Marriott (10 How., 51 U. S., 146); Downs v. United States (187 U. S., 496); Aldridge v. Williams (3 How., 44 U. S., 8, 23); United States v. Trans-Missouri Freight Association (166 U. S., 290, 318); Tilge v. United States (2 Ct. Cust. Appls., 129, 131; T. D. 31662); United States v. American Express Co. (2 Ct. Cust. Appls., 95; T. D. 31636); United States v. Whitridge (197 U. S., 135); United States v. Union Pacific Railroad Co. (91 U. S., 72, 79).
The condition sought to be remedied was the conspicuous insignificance of the American merchant marine when compared with that of the other greater nations. Historically ours had been in the earlier days of the nation, and even in the colonial days, proportionally many times greater.
In so far as this decadence may have been effected by legislation, it was before the Congress at this enactment that from the period of 1789 to 1815 laws effecting almost complete discrimination were of our statutes; from 1815 to 1828, partial discrimination with partial treaty reciprocity obtained; and from 1828 to 1909, practically complete treaty reciprocity. Be it noted that the policy of discrimination was maintained by positive statute and the gradual transition to the policy of reciprocity was by all the mediative acts, that of March 3, 1815 (3 U. S. Stat., 224), of January 7, 1824 (4 U. S. Stat., 2), and of May 24, 1828 (4 U. S. Stat., 308), legislatively rested con*341ditionally upon the finding of conditions and proclamation thereof by the President. All these acts were in fact and in practice conditional and became effective only upon diplomacy first effecting by treaty the proclaimed condition precedent. In other words, sometimes with and sometimes without the statute naming the condition, the transition from the period of discrimination to that of reciprocity was, in fact and practice, made conditional upon diplomatic agreement. Concurrently with this change and continuance of policy occurred the commencement and continuance of the decadence of the American merchant marine.
This decline" Congress knew gradually continued to date, and so continues. The debates disclose that the first act passed by the American Congress July 4, 1789, section 5, allowed a discount of 10 per cent of all duties imported in American-built vessels. In 1795, 92 per cent of our imports and 88 per cent of our exports were so carried'; in 1826, 95 per cent of our imports and 89.6 per cent of our exports; in 1830, 93.6 per cent of our imports and 86.3 per cent of our exports; in 1845, 87.3 per cent of our imports and 75.3 per cent of our exports; in 1860, 63 per cent of our imports and 69.7 per cent of our exports; in 1870 American ships carried 35.6 per cent of our foreign trade, which has gradually declined to 9.4 per cent in 1912 and 8.7 per cent in 1913.
In this political and legislative status paragraph J, subsection 7, was passed by the House of Representatives without the proviso, subsequently added in conference, as follows:
J. Subsection 7. That a discount of 6 per cent on all duties imposed by this act shall be allowed on such goods, wares, and merchandise as shall be imported in vessels .admitted to registration under the laws of the United States: * * *
If these words permitted any doubt as to their purpose, the report of the Ways and Means Committee thereupon submitted- to the House tolerated no such uncertainty. It read:
Subsection VII of paragraph J is new legislation providing that a discount of 5 per cent of all duties imposed at the customhouse shall be allowed on such goods, wares, and merchandise as shall be imported in vessels admitted to registration under the laws of the United States. It is a discrimination in favor of American shipping, similar to the provisions of some of the first tariff bills that were enacted by the Congress of the United States. Under like legislation the merchant marine of the United States was encouraged and developed in the early decades of the last century until our merchant marine became the largest carrier of merchandise in the world. We believe that to again discriminate in favor of American shipping will build up our merchant fleet and keep at home millions of dollars that are now being paid to foreign vessels to carry the products of our country to foreign markets. (Report, to accompany H. R. 3321, of Committee on Ways and Means, 63d Cong., first session. Rept. No. 5, p. LII.)
*342It would' seem to be important and subsequently instructive to inquire what would have been the precise effect upon existing pertinent treaties had this bill become a law. Upon this point Mr. James R. Mann, minority House leader (Cong. Rec., 63d Cong., 1st sess,, vol. 50, pt. 1, p. 744), categorically catechised Mr. Oscar Underwood, chairman of the reporting committee, and House majority leader, to answer:
There is nothing in the bill there with reference to the treaties * * *. Does the discount apply only to goods brought in American bottoms?
And, after many days for consideration (Cong. Rec., 63d Cong., 1st sess., vol. 50, pt. 2, p. 1358), Mr. Underwood replied:
Now, there are gentlemen who contend that if subsection 7 were enacted law it would mean, instead of discriminating in favor of American shipping, that we will reduce the duties on all imported'goods coming into this country by foreign vessels by reason of treaty rights. I never have believed in that contention. I do not think it is a fair construction of the law; but I have in my office here letters transmitted to me by the State Department from three of the leading maritime nations of the world protesting against this section because they say it is a discrimination against their vessels. Now, if the contention that is being made by gentlemen on that side of the House is cor, rect, that goods coming from Germany, or Prance, or England, would be admitted (i per cent cheaper than they would if this section was removed, I can not see why the ambassadors from three great maritime nations should protest against this paragraph. It may be that the chancellors, supposed to be learned in the law of nations, supposed to be here to guard their own countries, are mistaken as to the effect of this paragraph, and that the gentlemen on that side of the House are better lawyers as to the effect on their commerce and their ships than are the chancellors, but I am inclined to think that with the weight of their protests leaning in favor of the construction that I placed on this paragraph in the opening of this debate, it is safe to say that in the end this construction will be maintained.
Was Mr. Underwood in error ? If these relevant treaty articles are executory he. was right. If the pertinent treaty articles are self-executing and were not repealed thereby, he was wrong.
If these articles are executory, the proposed enactment contravened ¿he treaty promise of this country; if they are self-executing and would not have been repealed or would have been executed by the proposed enactment, the treaty conventions would have been neither abrogated nor impaired thereby, but would have become, perforce the treaty in the first and the statute in the latter case, a part of the mwnieipod law of the land cognizable as such by the courts. In that view, unless they were executory only, there was no reason for complaint by the combined learning of the chancellors of the leading nations of the world, as the proposed statute, in this view, would in no wise have contravened the treaties.
The legal status seems to have been, however, that if the treaty articles were self-executing they would not survive such an enactment, but being a municipal law would have been repealed thereby, *343t'.nd thus the treaty articles would hare been contravened. In no event would the proposed law inure to the benefit of the treaty nations save in the view that it would have executed executory 1 reaty articles, which obviously was not the view of Mr. Underwood or anyone concerned. J. Ribas y Hijo v. United States (194 U. S., 315); Chae Chan Ping v. United States (139 U. S., 581); Whitney v. Robertson (124 U. S., 190).
Since the controversy here concerns the effect of the proviso added by the Senate, it will be instructive to first inquire the scope and effect in the disputed particulars of the House language.
What would have been the status and rights of the treaty nations had the House provision without the proviso become the law ? That question must be answered by a reference solely to the treaty articles. Are they self-executing or are these treaty articles executory— promissory ?
The board held these treaty articles executory and not self-executing. The majority opinion of this court holds the contrary. I am not clear whether the majority opinion relies upon the status that the treaty articles are self-executing or have been executed by J, subsection 7. In either view I am of the opinion that the board did not err in this particular.
Mr. Justice Day, in his monograph upon treaties (38 Cyc., 961-982, at p. 972), has concisely stated the distinctions between self-executing and executory treaties. Under the title “Treaties”— “ Self-Executing Provisions ” it is stated:
A treaty is to lie regarded in courts of justice as equivalent to an act of Congress whenever it operates of itself without the aid, of any legislative provision.
An executory treaty is defined by him as:
When the terms of the stipulation import a contract, or when either of the parties engages to perform a particular act, the treaty addresses itself to the political and not the judicial department of the Government.
The difference resides in the character of the treaty article itself and not in the affecting legislation, age, or construction of the convention. Before a treaty becomes or is self-executing it must contain as a fart thereof a complete codification or admeasurement of the penalty, reparation, or right due the subjects of the other high contracting power upon contravention of the particular article, so that the courts can look alone to the treaty and adjudge in terms measured solely thereby the right guaranteed or reparation due.
The Supreme Court has tersely remarked the distinction between those self-executing treaties which are municipal laws of the land enforcible by the courts and those not, in these words:
A treaty, then, is a law of the land as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a *344court of justice, that court resorts to the treaty for the rule of decision for the case before it as it would a statute. Head Money Cases (112 U. S., 580, 598, 599); Foster v. Neilson (2 Pet., 27 U.S., 253, 314); Taylor v. Morton (23 Fed. Cas., Case No. 13799, p. 784); Bartram v. Robertson (122 U. S., 116); Whitney v. Robertson (124 U. S., 190); United States v. Forty-three Gallons of Whisky (93 U. S., 188, 196).
While the majority opinion relies upon these cases for the contrary construction of these treaty articles, rather than extend a’ necessarily lengthy opinion for support of the position here taken, reference is had to a full review upon this point of the above cases and others in the dissenting opinion, American Express Co. v. United States (4 Ct. Cust. Appls., 164 to 174, inclusive; T. D. 33434).
A self-executing treaty article derives its character as such from the nature of the article per se. Such a treaty duly made needs no law to execute it, but is a codification per se of the subject matter prescribing the agreed rights and reparation.
Executory treaties, upon the other hand, being promissory only and usually being applicable to a variety and possibly different classes of acts and degrees thereof, which may violate or contravene them, can not possibly per se anticipate or admeasure in advance the appropriate or particular reparation which may become due upon every one of a variety of acts of contravention. And, therefore, that adjustment or its denial must necessarily be one of political wisdom not measured l)y any law of the land, and such treaties, therefore, are not addressed for enforcement to the courts, which enforce its rnunicipal laws only, but to the political departments of the Government.
Many of the cases urged upon the court and. adopted by the majority as precedents of self-executed treaty articles, are, in my view, not applicable. They are of a large class of cases relating to treaty articles which stipulate personal rights of citizens and subjects and are addressed to, stipulated of, and enforceable in our courts, the. language of the treaty being a full and complete definition of the particular asserted and adjudged right, no resort being necessary to any statute or other law than the treaty language for the ascertainment of that right. These treaty articles are of a character that brings them exactly within the definition of self-executing treaty articles as rules of action. Perhaps the most concise definition and differentiation of these is found in Head Money cases (112 U. S., 580, 598), as follows;
A treaty is primarily a compact between independent nations. It depends for tbe enforcement of its provisions, on tbe interest and tbe honor of tbe Governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, sc far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain *345rights Upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partaice of the nature of municipal lato, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that “ this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.” A treaty, then, is a law of the land, as an act of Congress is, ichenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the .case before it, as it would to a statute.
A very early exposition of this class of cases is had in Ware v. Hylton (3 Dallas, 3 U. S., 199, 242, et seq.). Article IY of the treaty with Great Britain, 1783, was in these words:
It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.
Chief Justice Chase said:
A laioful impediment to prevent a recovery of a debt can only be matter of law, pleaded in bar to the action. If the word lawful had been omitted, the impediment would not be confined to matter of law. * * * I consider the fourth article in this light, that it is not a stipulation that certain acts shall be done, and that it was necessary for the legislatures of individual States to do those acts; but that it is an express agreement that certain things shall not be permitted the American courts of justice, and that it is a contract on behalf of those courts, that they will not allow such acts to be pleaded in bar, to prevent a recovery of certain British debts. * * * No one can doubt that a treaty may stipulate that certain acts shall be done by the legislature, that other acts shall be done by the executive, and others by the judiciary.
In other words, this treaty article stipulated a rule of action for the courts, and was in itself the'complete legal expression upon the subject, declaring as a rule of law for the courts that a certain plea in bar must be sustained.
The Supreme Court in United States v. Rauscher (119 U. S., 407, 418) quoted the rule as laid down in Head Money cases with the approving words:
This whole subject is fully considered in the Head Money cases (112 U. S., 580), in which the effect of a treaty as a part of the law of the land, as distinguished from its aspect as a mere contract bettoeen independent nations, is expressed in the following language—
Citing also Chew Heong v. United States (112 U. S., 536, 540, 565). Again invoking the same principle in the Chinese Exclusion case (130 U. S., 581, 609), the court said:
Thus in the Head Money eases the court speaks of certain rights being in some instances conferred upon the citizens or subjects of one nation residing in *346the territorial limits of tlie other, which are “capable of enforcement as between .private parties in the courts of the country." “An illustration of this character,” it adds, “ is found in treaties which regulate the mutual rights of citizens •and subjects of the contracting nations in regard to rights of property by descent •or inheritance when the individuals concerned are aliens.”
See also In re Cooper (143 U. S., 472, 500); Geofroy v. Riggs (133 U. S., 258, 267); Hauenstein v. Lynham (100 U. S., 483, 486-488).
There is, however, an obviously broad distinction between this class of cases stipulating a rule of law addressed the courts for the benefit and avail of the citizen or subject and a broad national promise to legislate or not legislate in a discriminatory way.
In the very nature of the case, a guaranty that our courts will or will not do a-certain thing, usually if not always concerning property or personal rights of the citizen or subject, addressed to or stipulated on behalf of our courts, which alone adjudicate and enforce such rights, is vastly different from a promise that the nation which acts ¡alone through Congress or its political agencies will or will not do ■certain things. The one, when stipulated, becomes a rule of action or law for the courts; the other a promise on behalf of the country, to be accordingly observed, ignored, or parleyed.
The expression by Chief Justice Chase, in Ware v. Hylton (3 Dallas, 3 U. S., 199, 242), is replete with pertinent thought:
No one can doubt that a treaty may stipulate that certain acts shall be done 'by the legislature, that other acts shall be done by the executive, and others by •the judiciary.
Ex necessitate, a general treaty stipulation, like the familiar ■favored-nation clauses, covering an indefinite variety of acts, embraces, according to subject matter, all such. When invoked, compliance rests, according to the subject matter, with the particular governmental department — executive, legislative, or judicial — having ■cognizance thereof as so invoked. If a matter of import duties as ■this, of course, “ Congress,” being the sole constitutional source of ■such, is the only reparatory source. If the less important subject matter is one of mere executive jurisdiction and performance, such .-as is presented by the letter of the Attorney General, January 12, 1915, referred to in the majority opinion, the appropriate department, with or without advice of the Attorney General, acts.
Unquestionably a treaty which otherwise might be executory in character may, by express reference to an existing status, as in United States v. Percheman (7 Pet., 32 U. S., 51), or by express reference to existing or future legislative enactments, as in United States v. Forty-three Gallons of Whisky (93 U. S., 188, 191-196), so complete its terms by thus adopting as a part of the treaty which makes it a complete codification of rights on the particular subject matter «s to be self-executing, but such is not the present case.
*347This legal status differs in no essential particular from those treaties wherein these rights are fully defined and made a rule of law for the courts in the treaty article itself, as in Hauenstein v. Lynham (100 U. S., 483, 486), and the Peggy (1 Cranch, 5 U. S., 102). See also Tucker v. Alexandroff (183 U. S., 424, 436); Charlton v. Kelly (229 U. S., 447).
There is nothing in Olsen v. Smith (195 U. S., 332) to the contrary. The fact that the court therein adopted another ground of decision does not argue the treaty article other than executory. To have decided that point also would have been a work of supererogation.
An executory treaty can, of course, be executed by legislation. The treaty, however, in such cases does not become the municipal law of the land enforcible by the courts, but the statute executing the treaty is such. The treaty remains executory, awaiting other applications, the statute being the admeasured compliance with its promise thus fulfilled as to the particular subject matter of the statute by the legislative department of the Government. The executing statute is the law and the whole law for the courts to construe and enforce. The courts have nothing to do with the treaty promise save that in cases of doubtful intent in the statute they can look to the treaty promise as an instructive guide. Chew Heong v. United States (112 U. S., 536-549).
Conceding and reaffirming all said in the majority opinion as to long recognition, approval, and action under these treaties, neither their age nor previous application nor recognition nor ratifying legislation executes an executory treaty. To hold otherwise rejects the obvious distinction between ratification and execution of a treaty; and in most of the enumerated instances clothes the executive departments of the Government with legislative powers — it being the ex-elusive province of Congress to execute executory treaties. Execu-tory treaties can be executed solely by Congress legislating not mere approval of the treaty promise — ratification—but admeasuring the stipulated performance or reparation as to the particular subject matter, which statute and that alone becomes the municipal law of the land cognizable by the courts.
Of course, every treaty and treaty article is by the Constitution declared to be and is of the supreme laws of the land, but it does not follow that being such the courts must enforce all our laws, whether or not treaties, or that a treaty ceases to be a law when not enforcible by the courts. Indeed, the great majority of our laws are enforced by other tribunals than the courts and remain laws. From the very nature of treaties, being international promises, neither their construction nor enforcement naturally falls to the courts of either of *348the high contracting parties. As was said by the Supreme Court in Head Money Cases (112 U. S., 580-598):
A treaty is primarily a compact between independent nations. It depends for tbe enforcement of its provisions on tbe interest and tbe honor of tbe Governments wbicb are parties to it. If these fail, its infraction becomes tbe subject of international negotiations and reclamations, so far as tbe injured-party chooses to seek redress, wbicb may in tbe end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress.
In fact, judicial construction and enforcement of treaty articles is comparatively exceptional, that office and duty being usually cod fined to other departments of the Government.
So that courts need entertain no fear nor assume any unwarranted jurisdiction upon the assumption that our treaty promises will otherwise go unheeded and our national honor be -lost. The coordinate branches of the Government can quite as well be relied upon to do their duty, as they can not be assumed less vigilant, and certainly are much better qualified to enforce or parley infraterritorial demands.
Undoubtedly it is within the jurisdiction of the appropriate courts to take cognizance of and interpret all treaties and all treaty articles when a proper case is made, whether they be executory or self-executing. But having once determined a particular treaty article to be executory in character and so declared, the court is without further jurisdiction to proceed to enforce the same or admeasure remedies thereunder, but must for that reason deny the relief sought. That was exactly the course pursued by Mr. Justice Curtis in Taylor v. Morton, supra, in passing upon a precisely similar article to those of the Russian treaty of 1832, and is the logical result of such a legal situation. Having examined the treaty articles and found them executory — promissory—a law, but not one cognizable by the courts, as said by Mr. Justice Curtis, “until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject.” See also Terlinden v. Ames (184 U. S., 270).
Aside from any reasoning upon the subject as to the executory or self-executing character of these treaty articles it may be deemed quite sufficient to justify the position taken, that the Supreme Court has many times approved a decision holding executory a precisely similar provision of the Russian treaty of December 18, 1832, Article VI (8 Stat., 444), which reads:
No bigber or other duties shall be imposed on tbe importation into tbe United States of any article tbe produce or manufacture of Russia; and no bigber or other duties shall be imposed on tbe importation into tbe Empire of Russia of any article the produce or manufacture of tbe United States, than are, or shall be, payable on tbe like article being tbe produce or manufacture of any other foreign country.
*349That was the treaty article the subject of Taylor v. Morton (Fed. Cas., 23, case No. 13799, p. 784), Taylor v. Morton (67 U. S., 481), opinion by Mr. Justice Curtis, of the Supreme Court, sitting in circuit, an opinion repeatedly and uniformly referred to by the Supreme Court in every similar case for the last half century as the leading case upon executory and self-executing treaty articles. Of this convention Mr. Justice Curtis said:
The truth is that this clause in the treaty is merely a contract, addressing itself to the legislative power. The distinction between such treaties and those which operate as laws in courts of justice is settled in our jurisprudence.
Advertence to the several treaty articles here invoked discloses that all and every one is promissory in terms and that no one of them by its own terms admeasures the relief here sought, to wit, 5 per cent or other fixed definite reduction of duties upon certain imports. On the contrary, the quantum of relief sought, 5 per cent reduction, is written in the statute and not the treaty. Nor is the stipulation one affecting the rights of the citizen or subject, but is a compact between nations.
But it is said that upon enactment of the statute the terms of the treaty immediately attach and at once apply in favor of the parties to the treaty; that if the treaty be a law of the land that the treaty and the act are laws in pari materia, and must be so considered.
Without yielding the position that in executed treaties the executing statute is the law and whole law for the courts, looking to the treaty only as a guide in construction and not as a part of the law, in pari materia, let us here assume that the treaty article does not become such and consider before us all of the thus assumed law in pari materia, including the treaty article.
The importation was, let us say, of linen collars and cuffs, assessed under paragraph 277 of the act of 1913 at 30 per cent ad valorem, imported in a vessel concededly not admitted to registration under the laws of the United States, but a vessel of a treaty country. The law in pari materia is:
1. Tile first provision of the act, supra, declaring: “ * * * there shall be levied, collected, and paid upon all articles when imported from any foreign country into the United States * * * the rates of duty which are py the schedules and paragraphs of the dutiable list of this section prescribed, namely: ”
2. Schedule J, paragraph 277, provides:
“ Shirt collars and cuffs, composed in whole or in part of linen, 30 per centum ad valorem.”
3. J, subsection 7, provides: “ That a discount of 5 per centum on all duties imposed by this act shall be allowed on such goods, wares, and merchandise as shall be imported in vessels admitted to registration under the laws of the United States: Provided, That nothing in this subsection shall be so construed *350as to abrogate or in any manner impair or affect tbe provisions of any treaty concluded between tbe United States and any foreign nation.”
4. Tbe treaty stipulations provide: That no higher or other duty shall be imposed upon goods imported into the United States in the vessels of the other contracting nation than are charged when imported in vessels of the United States and reciprocally.’
Whether we read the applicable conspectus of law which the courts may apply as confined to the statutes of Congress, looking only to the treaty, if necessary, as a guide to interpretation or as including the treaty articles as a part of the law in pari materia the result will be the same.
Subsection 7, it will be noted, in express limited terms carves out an exception to the foregoing paragraphs, thus limiting the reduced duty to goods imported in “vessels admitted to registration under the laws of the United States.” That is the express limitation and scope of the words of the law before the court to be enforced — the only statutory exception to the preceding pro'visions of the tariff act. The courts must and can only enforce the law as written upon the statute rolls. We must enforce the law and the whole thereof as we find it written. Obviously to grant the relief herein prayed for the court must disregard the comprehensive language of the first clause and paragraph 277 of the act, levying 30 per cent duty upon such articles when imported from “ any foreign country,” or it must amend subsection 7 by striking out its express limitation to “ vessels admitted to registration under the laws of the United States.” If we look to the whole of the relevant acts of Congress we find an express levy of 30 per cent ad valorem upon these importations when imported from any foreign country, and a discount of 5 per cent limited by the words of the statute to those goods only imported in vesels of American registry. The simple issue is, Shall the courts strike out this limiting language of the statute, or amend by inserting the equivalent of “ and also in the vessels of treaty nations,” as Congress did in the acts of July 30, 1846, August 5, 1861, and in J, subsection 1, this act, quoted, infra; or, is not this a case for and shall not the courts await the action of Congress, which alone under the Constitution can amend its statutes? In the precise situation Mr. Justice Curtis said: “Until such act be passed, the court is not at liberty to disregard the-existing law on the subject.”
If we hold that the treaty articles are self-executing or are executed by the statute, or for any reason shall be read in pari materia with all the provisions of the act, as is done by the majority, incontrovertibly, there is a conflict in this code of applicable law in that the treaty law gives this reduction to goods imported in the vessels of all, or rather to each, of the treaty nations, while the statute de*351nies it to any one of these, and in its express words limits the discount to those goods only imported in vessels of American registry. The-conflict is obvious. How shall the courts resolve this conflict ? What canon of construction here controls the courts? That rule is well' known and long established. Concededly these treaties were concluded prior to the enactment of the statute. The accepted rule is:
While there is no provision in the Constitution as to the effect of conflict between treaties and acts of Congress, they are placed by that instrument upo» the same footing, each being declared to be the supreme law of the land, so-that neither having inherent superiority over the other, either may supersede-the other, and in case of conflict the one which is later in date will control. (38 Cyc., 975; Ribas v. United States, 194 U. S., 315; Chae Chan Ping v. United States, 130 U. S., 581; Whitney v. Robertson, 124 U. S., 190; Ropes v. Clinch, 8 Blatch., 304; Fed. Cas., vol. 20, 1171, No. 12041, referred to with approval in. and see Head Money Cases, 112 U. S., 580-598.)
The legal status and duty of the courts in such a condition of law is well settled. A treaty being but a contract between nations, the rules controlling the construction of treaties are in no wise occult or different from those applicable to contracts between individuals. Tucker v. Alexandroff (183 U. S., 424-437).
Being a contract, enactment of a contravening statute does not. abrogate the treaty. Treaties may be violated and not abrogated in. the sense that they are denounced or terminated but continue to exist as international contracts. As said by Mr. Justice Day (38 Cyc., 980):
The violation of a treaty by one party does not of itself terminate or render-void the treaty but makes it voidable at the option of the other party, who may waive or remit the infraction or demand satisfaction therefor. Terlinden v. Ames (184 U. S., 270).
The statutory language confining the discount to American vessels undoubtedly conflicts with the treaty language promising not to-so legislate. The duties of courts confronted with such a legislative-status are clearly defined by the Supreme Court in Botiller v. Dominguez (130 U. S., 238-247), stating:
With regard to the first of these propositions it may be said that so far a» the act of Congress is in conflict with the treaty with Mexico, that is a matter in which the court is hound to follow the statutory enactments of its own Government. If the treaty was violated by this general statute enacted for the purpose of ascertaining the validity of claims derived from the Mexican-Government, it was a matter of international concern which the tioo States-must determine hy treaty or hy such other means as enables one State to enforce upon another the obligations of a treaty. This court, in a class of cases-like the present, has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the Government of the United States, as a sovereign power, chooses to disregard. The Cherokee-Tobacco (11 Wall., 616); Taylor v. Morton (2 Curtis, 454); Head Money cases. (112 U. S., 580-598); Whitney v. Robertson (124 U. S., 190-195).
*352Again, the Supreme Court in Thomas v. Gay (169 U. S., 264-271) reiterated the doctrine in the words:
It is well settled that an act of Congress may supersede a prior treaty, and that any questions that may arise are beyond the sphere of judicial cognisance, •and must be met by the political department of the Government.
In such emergencies the courts confine their jurisdiction and decrees to the words of the statute — here limited to American ships— and the treaty rights are left for determination and adjustment by the political powers of the Government.
It is inconceivable how, when the courts are bound to give effect to all the statutes and parts thereof and the statute expressly grants this bounty to “American” ships only, they can decree it also to foreign ships — and this whether the treaty be executory, self-executing, or executed.
That this position does not ignore the proviso to J, subsection 7, which is simply and only a limiting rule of the construction to be given purview of the paragraph, adding nothing to but limiting its ■substantive force, will be a matter of later consideration.
The Senate, after taldng advices from the Department of State ■and full debate, struck the House provision from the act. The debates indicate various motives therefor impelling different Senators. While some, like Senator John Sharp Williams, took the position that the decadence of our merchant marine was due to such natural causes as the discovery of the uses of iron and steel in shipbuilding and our Civil War, and others, like Senator Gallinger and Senator Jones ■of Washington, attributed the decline to our early laws, treaties, and more or less questionable subventions and bounties given in the face •of these treaty stipulations by foreign powers; nevertheless, these early acts of Congress permitting, and the reciprocity treaties made thereunder before recited, were generally held by Senators, to a great •extent at least, responsible therefor. A uniform desire appeared to restore our prestige upon the sea, and an equally uniform expression was made that in order to return thereto these reciprocity treaties must first be eliminated. In no part of this debate, however, and in no line of any advices submitted to the Senate can it fairly be said that should the House provision become a law it was self-executing and would at once accrue to the benefit of the treaty nations. On the •contrary, running through the entire proceedings is the implied assumption that that provision so contravened these treaties that retaliation and like discrimination would follow or reparation be sought, not through our courts but through diplomatic polemics. The probability of retaliation and discrimination which would nullify all advantage of the House provision seemed so strong with Senators that it, probably more than any other cause, led to the defeat of the House provision.
*353The attitude of the Senate, measured by a full review of the debates, seems accurately reflected by the report of the Finance Committee upon the subject, which was upheld by vote of the Senate. It States:
Tour committee struck out subsection -7 of paragraph J, page 263, giving a discount of 5 per cent on all duties upon goods imported in American bottoms. 'Phe provision was in contravention of some 19 or 20 treaties of the United States, without having been preceded by the courtesy of a notice of revocation, and was very properly protested against by the high contracting parties with whom we had treaties. In our opinion it would have led to no good result, as every other country could have retaliated, and all the countries at the end would have been just about where they si arted. Moreover, the country which could use that principle with most force and effect in injuring other countries would be the country with the largest merchant marine, and the country which could least effectively use it would be the country with the smallest merchant marine. We were, therefore, not only inviting an endless retaliation but a retaliation where our opponents would have had in nearly every ease the better of it, and in many cases infinitely the better. (Report Senate Finance Committee, Cong. Rec., vol. 50, pt. 3, p. 2515, 63d Cong., 1st sess.)
The contravention by the House provision of existing treaties moved the Senate to action respecting the provision. Its respect and consideration for these treaties led it also to reject all amendments enacting abrogation in any limited time. Obviously, then, the Senate attitude was that these treaties should be abrogated by consent alone.
But, in passing, what did the Senate attitude argue as to these treaty articles being executory or self-executing? If the Senate deemed the House provision executed these treaties, or that they were self-executing and were not thereby abrogated, why report that retaliation would follow? Is an act of Congress which the Senate reports so contravenes our treaties as would lead to retaliation in the view of the Senate an act executing a treaty? Would retaliation foil ow an enactment that executed a treaty thereby reducing duties on foreign imports 5 per cent and giving an advantage to alL treaty nations of 5 per cent on our imported goods carried by their vessels? As between the high contracting powers in that view what discrimination was there? Nor did the letters of Secretary of the Treasury, Mr. McAdoo,nor Mr. John Bassett Moore (Cong. Rec., vol. 50, pt. 5, pp. 4237-4263), claim or imply that the House provision, if enacted, would immediately inure to the benefit of the treaty nations; that the treaty articles were self-executing or would be executed by that enactment, Contemplating retaliation, protest, and diplomatic parley, they must have explicitly assumed the contrary.
The idea seemed general and paramount with Senators that these treaties were an insuperable objection to the present enactment of the House provision and its subsequent immediate operation and effect as a statute.
*354In this mind of the respective Houses of Congress the House bill and Senate act, as stated, went to conference, was reported to the two Houses, adopted, and became a law, subsection 7 being adopted as the best solution of their respective ideas under existing conditions.
The fact that it is the House provision with a proviso relating to the treaties which the Senate deemed, and on vote held, an objection to present enactment of the House provision seems significant that the conferees combined therein the ideas of the two Houses; that is, to grant the discount when the treaties ceased to be an objection thereto.
Whatever view the Senate may have taken of the effect of the House provision upon the treaty articles, whether executory or self-executing and thereby contravened (certainly not executory and thereby executed), subsection 7 was intended to meet the dual purpose of the House to enact a discriminating duty in favor of our ships and meet the objections thereto by the Senate that the integrity and promise of the treaties should not be disturbed. That the purpose of the House is therein maintained is testified by the entire House provision being retained in haec verba. Did the Congress having thus decreed this effect, by the proviso execute these treaty articles thereby extending the discount to the vessels of all these treaty nations as well as ours; or, by postponing the operation of the House provisions until the treaty articles could be eliminated ?
It is said in the opinion of the majority:
If tliese treaties require legislative action to give force and effect thereto, they have it in the proviso to the subsection as well'as in the numerous preceding tariff acts.
That a proviso declaring that nothing in its contents or its purview constituting the subsection “ shall be construed to abrogate or in any manner impair or affect ” a treaty executes that treaty would in addition. to the foregoing reasons seem to be refuted by the. very words employed. Congress in similar situations impelled by motives to execute similar treaties has employed language of far different import, clear and unmistakable. In 1903 by act of December 17 (33 Stats., 3, c. 1), Congress executed the Cuban treaty, similar in import and classed with these treaty articles in the cases here presented, by enacting as a statute the precise terms and fixed rates of duty agreed by the treaty to be granted Cuba (33 Stats., 3, c. 1). Likewise, when by “An act to promote reciprocal trade relations with-the Dominion of Canada, and for other purposes,” July 26, 1911, Congress executed the reciprocity agreement with Canada, it enacted the precise rates and all the terms prescribed by the treaty as a Federal statute. Why? Because when a treaty article is executed and becomes a rule of action or municipal law, cognizable and enforcible *355by the courts, the courts look to the act alone and not the treaty for the law of the case, referring only to the treaty as a guide in doubtful construction.
Looking now to subsection 7, how does that compare with the executing statutes of the Cuban and Canadian treaties? Its grant is expressly confined to “vessels of American registry,” and the language of the statute measures the powers of the court. How different those acts spreading upon the statutes cognizable by the courts, statutory admeasurement in words and figures of each treaty promise, and this claimed executing act providing that “ nothing in the subsection shall be construed to in any manner affect any treaty with any nation.” It might recognize hut probably not even ratify, not to say execute, a treaty article.
Moreover, whenever Congress has desired to extend such bounties to treaty nations in conformity with treaty promises, it has used apt and no uncertain words to-that end. The wording of prior and contemporaneous statutes in pari materia are always legitimate and valuable guidances in statutory interpretation. Reiche v. Smythe (113 Wall., 80 U. S., 162-165); United States v. St. Anthony Railroad Co. (192 U. S., 524).
Congress on previous occasions has legislated upon the subject of favoring American ships, then as now confronted with these treaty stipulations. It is significant that, on those occasions as well as in this very act, when Congress intended the treaty nations to equally enjoy this bounty it in express terms so enacted.
That such has been the particular caution upon part of Congress in all discriminating-duty acts from 1816 to date is admitted by the majority opinion, express reference being made to the tariff act of 1897. Other particular instances follow.
The tariff act of Congress passed on the 30th day of July, 1846, has the following section:
Schedule 1. (Exempt from duty.) * * * Coffee and, tea, when imported direct from the place of their growth or production in American vessels or m foreign vessels entitled hy reciprocal treaties to he exempt from discriminating duties, tonnage, and other charges. * * *
So the act of August 5, 1861, section 3, provided:
Sec. 3. And he it further enacted, That all articles, goods, wares, and merchandise imported from beyond the Cape of Good Hope in foreign vessels not entitled hy reciprocal treaties to he exempt from discriminating duties, tonnage, and other charges, and all other articles, goods, wares, and merchandise not imported direct from the place of their growth or production or in foreign vessels entitled hy reciprocal treaties to he exempt from discriminating duties, tonnage, and other charges shall be. subject to pay, in addition to the duties imposed by this act, ten per centum ad valorem: Provided, That this rule shall not apply to goods, wares, and merchandise imported from beyond the Cape of Good Hope in American vessels.
*356In the act here under consideration — tariff act of 1918, section 4, J, subsection 1, levying a discriminating duty upon goods imported in vessels not of the United States — it is provided:
J. Subsection 1. That a discriminating duty of 10 per centum ad valorem in addition to tbe duties imposed by law shall be levied, collected, and paid on all goods, wares, or merchandise which shall be imported in vessels not of the United States or which, being the production or manufacture of any foreign country not contiguous to the United States, shall come into the United States from such contiguous country; tut this discriminating duty shall not apply to goods, wares, or merchandise which shall he imported in vessels not of the United States entitled at the time of such importation, hy treaty or convention or act of Congress, to he entered in the ports of the United States on payment of the same duties as shall then be payable on goods, wares, and merchandise imported in vessels of the United States, nor to such foreign products or manufactures as shall be imported from s\ich contiguous countries in the usual course of strictly retail trade.
Here we have a legislative interpretation by Congress extending over a period of more than half a century, and exercised in the very act -under review, that an enactment expressly extending and confining a bounty to or discrimination in favor of “American ” vessels would not without express words extend to treaty-nation vessels. How different this from the language in J, subsection 1 ? In the one Congress by express, apt words extended the same privileges to treaty-nation vessels; in the other it not only failed to so do, but expressly enjoined the courts from construing any treaty as being “affected” by its enactment; in other words, the treaties were to stand and be effective exactly as before, when and as though there was no such enactment.
It may here be opportune to refer to the case of Oldfield v. Marriott (10 How., 51 U. S., 146), quoted at length by counsel for importers and greatly relied upon by both them and the majority of this court to sustain the position that these treaty articles are executed and put in motion by this enactment. From my limited point of view it shows exactly the contrary. It construed the provision of the act of June 30,1846, supra, as affecting the treaty with Portugal. The court held it did not set in motion the treaty, because the treaty terms applied to ship tonnage and not duties on goods. All the language of the court as to the application of the treaty had it applied to duties on goods here quoted and cited, must he read in connection with the statute, which expressly extended its exemption from duties not only to “American vessels ” hut to “ foreign vessels entitled hy reciprocal treaties to he exempt from discriminating duties.” The case is against the majority contention. If the treaty article was sufficient per se, as here held, to extend the exemption, why did Congress expressly extend it to treaty ships? Obviously because Congress then, as in all similar acts, deemed these words essential if treaty ships were to receive the exemption.
*357Let us examine the subsection thus enacted, permitting its words to speak as their own interpreter. The words of every statute are the primary guidance in its interpretation. The proviso reads:
Provided, That nothing in this subsection shall be so construed as to abrogate or in any manner impair or affect the provisions of any treaty concluded between the United States and any foreign nation.
It is not substantive. It neither levies a duty nor grants relief from such. It is expressly a rule of construction addressed to and binding upon all courts and tribunals called upon to apply the purview to which it is added, the House provision. It was neither intended to add to nor detract from the House provision, but to control its construction. To construe is to give effect to a statute, hence the proviso here is in words confined to the office of controlling the effect to be given the House provision. Without the proviso it would be given immediate effect. With and by it was other than the same effect contemplated? In terms it is confined to the purview and does not change or purport to change or control the construction to be given the treaties. Let us analyze this rule of construction.
In terms it is related only to “ concluded ” treaties. The treaty-making power is vested by the Constitution in the President and the Senate. After negotiation by the President or his agencies it is submitted for ratification by the Senate. Mr. Justice Day states (38 Cyc., 967): “After ratification by each of the contracting powers there must be an exchange of these ratifications, which constitutes the delivery and conclusion of the treaty, and up to this time the treaty is inchoate and may never take effect.” Armstrong v. Bidwell (124 Fed., 690); Ex parte Ortiz (100 Fed., 955). He likewise states a treaty may be “incomplete ” for want of approval by the House of Representatives in matters requiring their approval under the Constitution. (38 Cyc., 972.) Such treaties are often termed “unconstitutional,” whereas they are in fact valid so far as completed, but incomplete as to the particular article. The question would not seem to arise here, for there is no question that these ‘treaties have been duly “concluded,” though possibly “incomplete,” and that is the sole requirement of the proviso.
I am in perfect accord with the conclusion asserted in the majority opinion that—
. We are of tbe opinion that, considering the constitutional challenge alone, these treaties are clearly within the right of the treaty-making power to negotiate and ratify, and that when duly proclaimed in accordance with their terms they are, until denounced, or until they expire by their own limitation, or are by express or necessary implication repealed by act of Congress, operative and in force as the law of the land.
Of course all these treaties as a whole are, and ever since respectively concluded have been, regarded as binding upon the nation, and *358many of their articles have been invoked and observed by other branches of the Government. But in no case has any court held the particular articles here in question of these treaties complete for the purpose herein claimed without express legislative action unquali-fiedly and literally extending the claimed favor to the treaty nations. Undoubtedly, in their making, the treaty-making power was within its constitutional rights, and as the treaty articles invoked to-day stand, they are not unconstitutional, but the converse; but,. until approved by both Houses of Congress, they can not be made the basis of such a claim in the courts. As suggested by the Supreme Court in De Lima v. Bidwell (182 U. S., 1, 198), the treaty article probably obligated Congress to enact in accordance with the treaty promise, and that is precisely the situation here. The treaty article is valid, binding, and constitutional, but it is a promise that Congress under the Constitution must consider and fulfill in the particular case according to its measure of justice; and until Congress so acts the treaty article is an incomplete law in so far as the courts are concerned. Until acted upon in a case like this it is addressed to Congress alone. The acts of Congress herein concern the duty — -import laws. Their extent is under the Constitution literally and legally defined entirely by the words of the acts of Congress. Under the Constitution neither the treaty-malting power nor any court but Congress alone is constitutionally empowered to change, enlarge, or modify the words of Congress as written in such statutes.
Upon this and the point that the treaty-making power can not usurp the functions of Congress and, by a treaty law, provide that which the Constitution has confided to Congress alone to enact, the decision of Mr. Justice McLean, sitting in circuit, in Turner v. American Baptist Missionary Society (5 McLean, 344; Fed. Cas., 344, No. 14251) seems convincing:
A treaty under the Federal Constitution is declared to be the supreme law of the land. This unquestionably applied to all treaties where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and can not be the supreme law of the land where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as where the appropriation of money is required, the treaty is not perfect. It is not operative, in the sense of the Constitution, as money can not be appropriated by the treaty-making power. This results from the limitations of our Government. The action of no department of the Government can be regarded as a law until it shall have all the sanctions required by the Constitution to make it such. As well might it be contended that an ordinary act of Congress without the signature of the President was a law as that a treaty which engages to pay a sum of money is in itself a law. And in such case the representatives of the people and the States exercise their own judgments in granting or withholding the money. They act upon their own responsibility and not upon the responsibility of the treaty-making power. It can not bind or control the legislative action in this respect, and every foreign Government may be presumed to know *359that so far as the treaty stipulates to pay money the legislative sanction is required.
The treaty articles are international promises which, until “ Congress ” acts, admeasuring and enacting compliance, remain such, and are not within the jurisdiction of our courts and thereby therein available to the citizen or subject.
So that if we adopt the doctrine of the majority of necessarily reading the treaty and statute law together, we have no efficacious treaty law, for it has not as yet been constitutionally enacted as a complete law for the invoked purposes. It may be obligatory upon Congress or the Executive; but, for the courts, not within their cognizance until duly enacted in accordance with the constitutional requirements as to the enactment of all import revenue laws. For the purpose of this class of cases, therefore, these treaty articles are not unconstitutional but incomplete under the Constitution as a municipal law of the land enforcible in the courts. They are for the political departments of the Government.
To continue the diversion to the conclusion of the immediate subject matter it may be said that while the Supreme Court has not expressly passed upon this controversy between the House and Senate it has nevertheless held the power to fix import duties so sacredly vested by the Constitution in “ Congress ” that it upheld the reciprocity treaties of recent years solely on the grounds that Congress had previously 'fixed the exact alternative or conditional rates of duty, leaving to the treaty-making and executing powers the determination only of the time when or condition upon which one or the other of the schedules of or rates fixed by Congress should be operative. That Congress could not otherwise even delegate this constitutional duty even to the treaty-making power. Field v. Clark (143 U. S., 649, 692, et seq.). Of course, Congress may refer to a treaty or treaties or articles thereof, and the latter alike may make reference to a statute as a part of the enactment or treaty, respectively, thereby making the respective laws (treaty or statute) a part of the same. But assuredly that was not this language, as is shown when we proceed to consider the same.
Other words of limitation of the proviso are that the subsection shall not be so construed as to “ abrogate ” or in any manner “ impair ” or “ affect ” the provisions of the treaties. It is a fundamental rule of construction that every word of a statute must be given some effect. The rule is so elementary that citation seems surplusage. The meaning of and distinction between “ abrogate ” and “ impair,” as applied to treaties, is patent and unimportant. The rule stated requires that a different meaning or effect be given the word “ affect.” Lexicographically the definitions are singularly uniform, as follows: Webster’s New International Dictionary: “Affect. * * * To lay *360bold on; to act upon; to produce an effect upon; * * Standard Dictionary, Twentieth Century Edition: “Affect. To have an effect upon; act upon; lay hold of; * * Worcester’s Dictionary: “Affect. To act upon; * * The Century Dictionary and Cyclopedia: “Affect. * * * To act upon; * * Judicially these definitions and their common import have naturally been followed, save in cases where the context constrained a more limited meaning. Thus there are a class of cases where, being so constrained by the context and obvious intent as used, “ affect ” has been confined to the more limited meaning to “ injuriously ” or “ adversely” affect. In re Davis’ Estate (32 Oklahoma, 209); Nelson Bennet Co. v. Twin Falls Land & Water Co. (13 Idaho, 767); Baird v. St. Louis Hospital Association (116 Mo., 419). Where, however, not so constrained by the context, the word has uniformly been given its broad natural meaning. Thus in Sacramento Terminal Co. v. McDougall (19 Cal., 562) it was held that the word “ affect” meant “ to produce an effect upon,” to “ act upon.” In Lyons v. Elston (211 Mass., 478) it was held that the word “affected” signified “acted upon, moved or changed.” The Iowa Supreme Court has held “ to ‘ affect ’ does not mean to impair, but to work a change upon.” “A right is affected if it is either enlarged or abridged.” Holland v. Dickerson (41 Iowa, 367); Clark v. Riddle (101 Iowa, 270). The doctrine seems to be accurately stated by the Missouri Court of Appeals, stating: “Undoubtedly a party may be beneficially affected, as well as injuriously affected, by anything, and the word affect' standing alone, may be said to be equivocal.” Tyler v. Wells (2 Mo. Appls. Repts., 526). See also to the same effect Home Building & Loan Association v. Nolan (21 Mont., 205); Canniff v. City of New York (4 E. D. Smith, 430-9); Westbury v. Simmons (35 S. E., 764). So the United States Circuit Court of Appeals for the Fourth Circuit states: “ ‘ Shall not affect ’ means shall not diminish or enlarge.” The same doctrine was announced by the Supreme Court. The controversy grew out of the titles settled by Federal grant to the occupants of the territory ceded by France to this country in 1803, which act provided that “nothing herein contained shall be construed to affect the rights of any person claiming such lands,” etc., confirmed by a designated commission. The court said:
How “ affect ” them ? If in the sense of simply acting upon them, then his title is excepted from the operation of the act. But this exception is not within the reason of the proviso, and the court is at liberty to adopt another construction, if it may he fairly done, by giving full and just effect to the words used. * * * It is unnecessary to give the various definitions of the word “ affect.” It is enough to say that it is often used in the sense of acting injuriously upon persons and things, and in this sense we are all of the opinion it was used in this proviso. This interpretation accords with the reason and manifest intent of the proviso. Ryan et al. v. Carter et al. (93 U. S., 78).
*361Tbe indisputable deduction from this peculiarly consistent line of adjudications is that the word “ affect ” when used in a statute is to be given its natural significance unless the plain intent of the statute indicates a more limited use. If we are to give heed to that cardinal principle of construction, that where possible every phrase and word of a statute must be given some effect not had by the others, there is no escape from the construction that since the entire and every degree of injurious and adverse effect upon a treaty is covered by “ abrogate ” and “ in any manner impair,” in order to give any effect whatever to the word “ affect,” not embraced by the others, such can only be done by assigning its use to the field of advantageous as well as injurious and adverse effects.
In this case, however, the court is not at liberty to select of these definitions, for the plain intent of the Congress as to its employment of the word is expressly written in the statute. It states “ that nothing in this subsection shall be so construed as to * * * in any manner * * * affect the provisions of any treaty * * In the presence of this unmistakable postulate written in a rule of eonstruetion expressly addressed by the Congress to all courts before whom this statute may duly come for interpretation, it is not difficult to understand the intent of the Congress to have here used the word “ affect,” and we have no discretion but must apply the word in its broad, natural sense often approved by the courts, “ to act upon ”; “ to produce an effect upon ”; “ to work a change upon ”; “ to enlarge or diminish.” We are, therefore, upon proceeding to construe subdivision 7, confronted by the congressional condition that no construction shall be put thereupon which will hold said proviso as “ acting upon,” or “ producing any effect upon,” or- “ working any change upon,” or “ enlarging or diminishing ” said treaty provisions.
I am unable to conour when the court, conceding that a word is frequently legally applied in different senses, proceeding under an express statutory rule of construction to give it effect “ in any manner” applicable, can select one meaning and reject other admitted senses of the word. It is to my mind proceeding in direct disregard of and in conflict with the very words of the act.
Some latitude of application must, of course, be given that fundamental rule of statutory interpretation, which most of all such rules acquits of tautology and pays tribute to the literary precision of the legislature, that each and every word in a statute must be given some effect different from and not embraced within other words of the act. United States v. Gooding (12 Wheat., 460); Bend v. Hoyt (13 Pet., 263); Hardy v. Hoyt (13 Pet., 292); Early v. Doe (16 How., 610); Eyster v. Centennial Board of Finance (94 U. S., 500); Wilmot v. Mudge (103 U. S., 217); East Tenn., etc., R. Co. v. Interstate Commerce Commission (181 U. S., 1); Murphy v. Utter (186 *362U. S., 95); Market Co. v. Hoffman (101 U. S., 112); Stephens v. Cherokee Nation (174 U. S., 445); Adams v. Woods (2 Cranch., 336).
We are unavoidably confronted with the dilemma that these treaty provisions are certainly either executory or self-executing or executed by subsection 7 and must be sp construed. We are confronted with the further fact that if any rule of construction is applied to this statute which gives it present operation that it will “ affect ” these treaties however they may be construed. There seems no escape from these results.
If executory and not executed by the subsection, its present operation “ affects ” and contravenes the treaty promises, vitalizes and 'makes them the foundation of claims of equal treatment upon the legislative department of the Government or reparation by the Executive.
If selffiexecuting, upon the subsection being given operation, the subsection equally “ affects ” them as they would be as thus construed, a part of the municipal law of the land and, upon operation of the subsection, be contravened or repealed.
If executory, and we construe subsection 7 as executing the treaty articles, it “ affects ” the treaty articles, for, if the enactment so executes, it must necessarily “ act upon ” them. Moreover, by executing an executory treaty promise the enactment executing “ enlarges ” the treaty promise, or national obligation, theretofore enforcible or performed only by legislation and diplomacy, and not the courts, by enacting the treaty promise into municipal law as a Federal statute enforceable by the courts establishing, which it must do to so execute, as a municipal law, the measure of reparation for breach of the particular promise. An executing statute therefore “ affects ” an executory treaty by prescribing the penalty of its breach as to the particular subject matter, affording a new tribunal for its determination 'and, usually, the determined reparation.
In this connection it would seem an appropriate place in the consideration of these appeals to observe that after stating the case and reciting the various issues presented the majority opinion proceeds to announce and support with ample authorities several well-known and universally accepted rules of statutory construction; and then states: “ The force and application of these rules will be kept in mind in the discussion.” The following pages and the conclusion reached attest this observance and under ordinary circumstances would seem indubitable. The difficulty, however, which arises seems to be that the Congress by this proviso has unequivocally and affirmatively denied the courts the right to invoke in the construction of this statute any of the well-known rules of construction which tend to a certain conclusion, which conclusion each and all of those rules invoked by the majority opinion tend and are held to establish. The plain un*363mistakable mandate of the proviso addressed the courts is that ho rule of construction shall be adopted which will cause this statute to affect any existing treaties; nevertheless, the opinion of the majority seems to adopt those rules of construction which as applied give this statute such force and effect as acts upon and vitalizes these dormant promissory treaty provisions, laws in repose, and makes them the foundation not only of claims against this Government but, they hold, of such claims enforcible by decree of the courts.
The inquiry is prompted, What, if any, recognized rule of construction is applicable to this subsection which will give this provision effect, harmonize the manifest purposes of the Congress, and the language it has here enacted ?
We recapitulate, to emphasize the congressional purpose, that this provision of law emanated from a conference between the House standing for the purview of the provision and the Senate opposing it upon the ground, chiefly, that it would contravene our treaty promises, and thereby, so long as those treaties existed, would bring upon us retaliation which would not only be injurious to our commerce but defeat the very purpose of the law. We know that the Senate had rejected the proposition to either legislatively terminate those treaties or fix a limited time for the President to annul them upon notice, thereby indicating the Senate’s unwillingness to abrogate these treaty articles other than by mutual agreement. I am unable to read the amendments rejected by the Senate as resulting that it “had expressly refused to provide for the orderly abrogation of these treaties ” as interpreted by the majority. The one provided immediate abrogation, the other directed such within the treaty time, one year. Their rejection seemed a declaration of the Senate against abrupt or limited abrogation, but not abrogation by agreement or consent. The Senate being constitutionally a part of the treaty-making power and the House not, naturally was more tenacious of its previous acts. Subsection 7 represents, these combined views, to wit, that of the House, subvention for our merchant marine, and that of the Senate, that it' should not become effective so long as it ‘abrogated or in any manner impaired or affected any treaty with any foreign nation.’
It therefore seems incontrovertible that any rule of construction giving effect in prcesenti to this subsection would be violative of the congressional purpose in that it would of necessity abrogate, impair, or in some manner affect the treaties. What rule of construction avoids that effect ?
In passing it may be noted that the construction put upon this proviso by the opinion of the majority extending the purview to treaty vessels is in violation of the usual construction of provisos. “The general purpose of a proviso, as is well known, is to except the clause *364covered by it from the general provisions of a statute, or from some provisions of it, or to qualify the operation of the statute in some particular.” Georgia Banking Co. v. Smith (128 U. S., 174—181); Minis v. United States (15 Pet., 40 U. S., 423-425). The construction given does not qualify but extends the purview from American to all treaty vessels.
A familiar office of a proviso is to “ so qualify the operation of the statute” as to suspend its operation until its terms are satisfied. Thus in Voorhees v. United States Bank (10 Pet., 35 U. S., 449-471) the Supreme Court states:
The various acts required to be done, previous to sale, are prescribed by a proviso, which in deeds and laws is a limitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate, nor the other be exercised, unless in the case provided.
In Austin v. United States (155 U. S., 417-431) this opinion was quoted with approval. The Supreme Court of New Jersey in Snydef v. Insurance Co. (59 N. J. L., 544-548) declared: “Proviso, when used, always implies a condition unless subsequent words change it to a covenant.” The Supreme Court of New York, in Waffle v. Goble (53 Barbour, 517-522), epitomized the functions of a proviso as follows:
A proviso in a statute always implies a condition, unless modified by subsequent words. The difference between an exception and a proviso in a statute is that the first exempts absolutely from the operation of the enactment, whereas the latter only defeats the operation of the enactment conditionally. (Bouv. Law D-ict., tit. “Proviso,” and cases there cited.)
A proviso is something engrafted on a preceding enactment by way of limitation or otherwise, and is held to operate as a repeal of the purview of the act where it is inconsistent with it, as expressing the last intention of the lawgiver. (Smith’s Commentaries on Statute and Constitutional Law, 712.)
Bouvier’s Law Dictionary, vol. 2, article Proviso, succinctly states:
A proviso differs from an exception; 1. * * • An exception exempts, absolutely, from the operation of an engagement or an enactment; a proviso defeats their operation, conditionally.
An apt illustration of a congressional act upon condition which might or might not ever become effective is illustrated in Dunlap v. United States (173 U. S., 65) and cases therein cited.
So that if we construe this subsection as one upon the condition that it shall not become effective so long as it contravenes any of these treaties, which condition is prescribed by the proviso, the latter is satisfied and conditional efect is given the subsection. Thus we neither declare the act merely a declaration of policy nor void nor give to the proviso the objectionable construction that it is repugnant to the purview as inhibited by Dollar Savings Bank v. United States *365(19 Wall., 86 U. S., 227), hut declare it a substantive law upon condition to take efect when that condition is satisfied.
Moreover, this - construction does not deny but gives application and full force and effect to each and all of the rules of construction applicable to the subsection enumerated by the majority, to wit: ‘ It will not be held that the lawmaking body has done a vain thing, but that it intends that its acts and every part thereof are valid and capable of being carried into effect ’ (Lewis’s Sutherland Statutory Construction, sec. 497); ‘that the statute is so construed as to sustain rather than defeat it, to give it operation ’ — in futuro — and ‘ is not treated as meaningless’; Bird v. United States (187 U. S., 118); Bernier v. Bernier (147 U. S., 242); Platt v. Union Pacific Railroad Co. (99 U. S., 48); Market Co. v. Hoffman (101 U. S., 112); Louisville Water Co. v. Clark (143 U. S., 1); ‘that it rules the excepted thing to be within the general words of the purview and that the proviso is not repugnant to the body of the section ’; Minis v. United States (15 Pet., 40 U. S., 423); Greely v. Thompson (10 How., 51 U. S., 225-236); Dollar Savings Bank v. United States (19 Wall., 86 U. S., 227); Sonneborn Sons v. United States (1 Ct. Cust. Appls., 443; T. D. 31504); Interstate Commerce Commission v. Baird (194 U. S., 25-36); and ‘ permits the statute itself to furnish its own rule of interpretation.’ (Lewis’s Sutherland Statutory Construction, sec. 366.)
The construction reading this subsection as a statute upon condition prescribed by its proviso places it in the same class with all legislation upon the subject of discriminating and retaliatory duties from 1815 to date. Almost if not every aet of Congress du/ring said period and now in force providing for the levy or withdrawal of discriminating duties was and is a statute upon condition, and this condition was usually, if not uniformly, effected or extinguished by diplomacy and treaty pourparlance. That was true of the acts of 1815,1824, and 1828. It is equally true of section 42'28, Revised Statutes, embodying the features of the act of 1828, now in force, proclamation of the fulfillment of the condition precedent to its application to Cuba of which was made as late as July 3, 1902 (32 U. S. Stat., pt. 2, p. 2013).
That class of legislation has long since and continuously been upheld by the Supreme Court, so that it is no longer questioned that Congress can enact legislation to become effective or suspended or repealed upon certain contingencies either named in the act itself or in other acts or implied. Brown v. Barry (3 Dallas, 3 U. S., 365); Levey v. Stockslager (129 U. S., 470). So Congress may rest the vitality and force of an act upon a condition that may not be acted upon. Beaty v. Knowler (4 Pet., 29 U. S., 152). If there were necessity to justify or vindicate the wisdom of such legislation, that *366has long since been done by the Supreme Court in Field v. Clark. The court said:
There are many things upon which wise and useful legislation must depend which can not be known to the law-making power, and must therefore be a subject of inquiry and determination outside of the halls of legislation. (Field v. Clark, 143 U. S., 649-694; United States v. American Sugar Refining Co., 202 U. S., 563.)
Indeed, in this very act we find numerous instances of similar conditional legislation, and this construction fully harmonizes this subsection with the other provisions of the act. J, subsection 1, supra, is a conspicuous instance relating to retaliatory duties conditionally levied, and numerous instances occur in other parts of the act. Indeed, this class of legislation seems to have particularly actuated the framers of this more than any previous tariff act.
There would, therefore, seem to be no escape from the conclusion that this subvention was granted vessels of American registry to take effect only upon these reciprocal treaty promises being removed or satisfied.
It was peculiarly natural that since any possible contributing legislative cause to the decadent condition of our merchant marine was wrought by conditional legislation permitting and being followed by reciprocity treaties contributing thereto, that the repairment of that decadence should be approached by like conditional legislation looking to the elimination of those treaties, contemplating like pourpar-lance, and this reflex sheds no little light on the congressional intent in subsection 7.
But it is strenuously urged by counsel for the importers that this conclusion is negatived in that “ the termination of a treaty on notice is the function of Congress, and Congress having in this particular instance, after full consideration and knowledge, not only deliberately refused to exercise its prerogatives, but having adopted a- proviso indicating its purpose not to abrogate or impair existing treaties,” etc., hence the treaty-making power was left powerless to abrogate or negotiate substitute treaty provisions. It certainly can not be seriously contended that the failure of. Congress to legislate, or any affirmative legislation by Congress, can nullify or arrest in any degree the functions and activities of the treaty-mahing power, including that of substitute treaties vested by the Constitution in the President and the, Senate. Indeed, that the notice of abrogation to terminate a treaty, while as said by Moore (International Law Digest, vol. 5, p. 322), is usually authorized by joint resolution of Congress, that has not always been the case, and when done unquestioned. Articles VIII and XII, inclusive, of the treaty of . 1850 between the United States and Switzerland, being the most favored nation and reciprocal duty provisions thereof, were by notice pur*367suant thereto given March 23, 1899, terminated by the Executive of this country and no congressional action had. Malloy’s Treaties (vol. 2, p. 1763).
The treaty of 1832 between the United States and Russia was terminated by notice pursuant thereto, given December 17, 1911, by the Executive of this country, and not until afterwards approved by the Congress by joint resolution (37 Stat., 627).
Aside from these considerations, all these suggested objections find ready answer in the provisions of the act itself, which strongly corroborate, if they do not demonstrate, the congressional purpose. Assuming that subsection 7 standing alone suggested and authorized no negotiations whereby these reciprocal treaties could be eliminated, in construing an act it is elementary that we must read all parts together to ascertain the congressional purpose, and by so doing we find such a provision in subsection 7 would have been surplusage, for Congress had already in subsection A, this section, fully authorized and empowered the President to negotiate trade agreements looking to further reciprocal expansion of trade and commerce. Why, then, here reiterate this grant of power?
So that, reading all the provisions of the act together, we find a consistent scheme of legislation. J, subsection 1, enacting a discriminating duty of 10 per cent to prevent discrimination against this country, long a provision of our statutes, and here reenacted, a statute upon condition, which condition was not named therein, but intended to be, and which has uniformly been removed by diplomatic parlance; subsection 7, granting a discount upon conditions not named therein, intended to be as customarily removed by diplomatic parlance, which by subsection 1 was authorized and its ratification expressly therein provided.
We may here pause to inquire why, if Congress did not understand that it had authorized and anticipated the negotiation of reciprocal commercial treaties affecting the public revenues, it enacted as a proviso as to all such treaties negotiated under Section IV, paragraph A, “that said trade agreements before becoming operative shall be submitted to the Congress of the United States for ratification or rejection”?
And so the Sixty-third Congress embarked upon the task, in so far as it could by legislation be accomplished, of restoring the American merchant marine to its former prestige by the natural method of returning thereto by the same course we departed therefrom, without violating any national treaty promise, but by keeping faith with all nations; without violent interruption of trade and commerce, but with a gradual adjustment; not in a hapless way, without thorough knowledge of all the secret as well as obvious causes of our difficulty, but in a studious way ascertaining and eliminating as we *368proceed all alleged discriminations in violation of onr present national conventions and other contributing causes and conditions.
The next inquiry in order following this conclusion is, if the operation of the provision is thus suspended, is it conditional upon the elimination of all the treaties or does it become effective as to each country as the particular treaty permits? If the latter, it is of course presently effective as to all nontreaty nations; that is, nations without the particular treaty article. The answer to this inquiry seems to be made by the language of the proviso itself. The effect thereof being to postpone application of the paragraph until the conditions written in the proviso are satisfied, it follows that it must be suspended so long as it ‘shall abrogate or in any manner impair or affect the provisions of any treaty concluded between the United States and any foreign nation.’ That is, - it is not effective in prai-senti as to any nation or its vessels. The statute construes itself, and “ 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. Whitney v. Robertson (124 U. S., 190-194).
But, it is said by the majority of this construction, that “ a construction Avhich leads to that result manifestly is at war with the rule that a proviso shall not be held to defeat the purview of a statute,” etc. If to suspend means defeat, that argument is applicable. If suspend does not mean defeat, the argument has no place here. The approved language of the Supreme Court, Field v. Clark, seems more in point:
Half the statutes on our- books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. Field v. Clark (143 U. S., 649, 694).
It is further urged with much assurance that if this' construction is adopted as to subsection I the like construction must be put upon the similar language of subsection B, section 4, in consequence whereof, as that subsection relates to the whole tariff act, its operation would be suspended until the Cuban treaty is eliminated. The contention overlooks controlling differences between the respective treaties and subsections. The Cuban treaty in its full import was at the time of this enactment not a promissory law in repose, but an executed treaty, the executing statute being in full operation and effect, and it is so continued ex -vi termini under this act regardless of subsection 7. There is therefore nothing in subsection 7 which does abrogate, impair, or in any manner affect the Cuban treaty by acting upon or calling it into effect. This would seem conclusiye, but instructive lessons are here afforded.
*369The Cuban treaty signed December 11, 1902 (33 Stat., 2136-2142), was by act of Congress ratified and executed December 17, 1903 (33 Stat., 3, ch. 1). That act, as previously stated, enacted as a Federal municipal statute all the provisions of the Cuban treaty fixing in definite figures and terms the automatically preferential rates between Cuba and the United States. It thus became a statute cognizable by our courts. The promissory treaty articles were thus executed and recourse afforded to the courts .by a substitute municipal law for enforcement.
The schedule of the tariff act of 1909 would have repealed this act and relegated Cuba to reclamation by retaliation or parlance but for section 3 of that act, precisely in the language of J, subsection '7. So the schedules of the act of 1913 would have repealed, with like effect upon the Cuban treaty, the act of December 17,1903, executing the Cuban treaty. But Congress incorporated in the act of 1913, subsection B, former section 3 of the act of 1909. .
Subsection B, however, differs crucially from subsection 7 in that it not only provides it shall not be construed “to abrogate or in any manner impair or affect the provisions ” of the Cuban treaty, but in addition extends those inhibitions to “ the 'provisions of the act of Congress heretofore passed for the execution ” of the Cuban treaty.
The effect of this additional provision was to retain in force and, in effect, reenact the act of December 17, 1903, as a part of the tariff act of 1909, and again as a part of the present act of 1913. In this legislative status, when the municipal law of the United States affecting Cuba is laid before the courts, there is included as a part of the tariff act of 1913 the act of December 17, 1903. The promissory treaty articles are not important or a part of that law or relevant save as constructive indices. Without reference to any treaty article we read, as before, the duty on linen cuffs (products and imported from Cuba) under paragraph 277 is 30 per cent. We read not from the treaties, but from the statutes — act of December 17, 1903 — that a 20 per cent reduction is allowed by act of Congress, expressly retained in force by subsection B as a part of the tariff act of 1913. Here we find an executed treaty. Here we find a case cognizable and enforcible by the courts, because the rights are fixed not by a treaty promise but by Federal municipal law, to which and which alone the courts can look for all the law in the case necessary to sustain the action and admeasure judgment.
The issue is in the case, What effect does subsection J have upon the Cuban treaty? Apparently none. Subsection B carefully recited that nothing in this act shall affect the Cuban treaty or the provisions of the act of Congress heretofore possessed for the execution of the same. Subsection 7 is “ in this act,” and by subsection B *370it is provided that nothing “ in this act ” shall “ affect ” the provisions of the act of 1903, which automatically'fixes the relative rates of duty to be charged upon Cuban importations under all American tariff acts, present and future. Subsection B expressly excludes subsection 7 from any effect upon the Cuban treaty and the act of 1913 executing that treaty.
The necessity for subsection B in the act of 1913 and its parallel predecessor, section 3, in the act of 1909, are convincing that the Congress believed what seems obvious, that the enactment of the dutiable schedules of those acts without such a saving section would repeal the act of 1903 and violate the Cuban treaty promise.
In that situation, if it were sufficient to execute that treaty promise and restore it to the previously executed status enforcible in the court enjoyed under the act of 1903, to provide only that nothing therein “ shall be construed to abrogate or in any measure impair or affect the treaties,” why did'Congress, in section 3, act of 1909, and subsection B, act of 1913, after using that language, proceed further and expressly save the act of 1903, executing the Cuban treaty ? And if that language is sufficient to execute all these treaty articles, why did Congress go further in both these tariff acts of 1909 and 1913 as to the Cuban treaty to indulge the surplusage legislation of preserving the executing act of 1903 ?
For these reasons I am constrained to the opinion that Congress did not intend subsection 7 to be presently effective; and, that if so, the treaty provisions herein invoked are executory and neither self-executing nor executed by said subsection.
Finally, courts in construing an act must always seek out the intent of Congress and give effect thereto. The very words of this act and every particle of the history of this enactment demonstrate the congressional purpose to discriminate in favor of American ships.
While it is true, as shown by the majority opinion, that owing to the great number of uncertain and indeterminable factors, it is impossible to accurately estimate the relative amount of tonnage carried in American as compared with foreign treaty vessels that would receive the benefits of this law, as construed by the majority opinion, there is sufficient of certain factors to disclose that at least twelve times more benefits would accrue to foreign than to American ships, and that really all the great maritime nations of the world would share therein equally with our merchant marine. Where, then, under this interpretation, is the advantage or benefit or favor to American vessels? How can it Toe said we discriminate in favor of American shipping when we give the same favor to all its important and effective competitors?
*371If we consult current history and the report of the Ways and Means Committee herein, the present tariff act was constructed upon narrow lines of revenue without more incidental protection than deemed necessary to equalize the difference in cost of production and delivery. On the figures of the majority opinion this ruling reduces the duties 5 per cent upon at least more than one-half of our dutiable imports. Did Congress intend after all its labored adjustment of rates, in accordance with the stated principles, by this single paragraph to menace, if not destroy, the effect of all preceding carefully adjusted schedules?
It appears from the majority opinion that there are at least 5,500 treaty-nation vessels in the American foreign trade. It is certain that there are not over 50 American vessels. Did Congress, in order to benefit these 50 vessels and such as might in the course of years— necessarily few under this interpretation — register under our flag immediately give an equal bounty to 5,500 other vessels? If so, where was the “ favor ” to “ our ships ” ?
The fact that during the enactment of this provision Congress changed its terms from American “built” vessels to vessels of American “ registry ” showed a desire to induce foreign ships to take advantage of the American registry. Is that intention sub-served by extending this subsection alike to the foreign vessels of all the great shipbuilding nations of the world?
Placing such a construction upon this act not only does violence to the rule of construction prescribed in the proviso but to numerous well-settled, long-established rules of interpretation.
Thus in Hill v. American Surety Co. (200 U. S., 197, 203) the Supreme Court said:
Statutes are not to be so literally construed as to defeat the purpose of the legislature. “A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter.” • (United States v. Freeman, 3 How., 556.) “The spirit as well as the letter of a statute must be respected; and where the whole context of a law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent.” Chief Justice Marshall in Durousseau v. United States (6 Cranch, 307); United States v. St. Anthony Railroad Co. (192 U. S., 524).
In United States v. Kirby (7 Wall., 74 U. S., 482, 486) an equally applicable rule was exercised:
All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. Jacobson v. Massachusetts (197 U. S., 11, 39); Treat v. White (181 U. S., 264, 267).
*372And, in Lau Ow Bew v. United States (144 U. S., 47, 59), that court said:
Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid unjust or an absurd conclusion. Church of the Holy Trinity v. United States (92 U. S., 259); United States v. Kirby (7 Wall., 482); Oates v. National Bank (100 U. S. 239).
The additional intent being manifested in the provision, however, that this purpose of Congress should not be put into force and effect so long as our treaty obligations stand in the way, I am of the opinion that the statute should be so construed as “ will effectuate the legislative intention ” when and as soon as possible.
If the gist of these views may be accented in conclusion, it is that the statute in question is an existing law of the land effective in futuro; that the treaty articles in question are constitutional and even ratified promises addressed to and to be regarded, disregarded, performed, or parleyed by the political branches of the Government and not enforced as complete municipal laws of the land.
For these reasons, it would seem that the protests of the importers herein are without judicial cognizance and should be dismissed.