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Argument for the United States.

for the determination of the political departments of the Government, and courts will respect their decision. Foster v. Neilson, 2 Pet. 253; The Cherokee Tobacco, 11 Wall. 616; Whitney v. Robertson, 124 U. S. 190; Botiller v. Dominguez, 130 U. S. 238; Fong Yue Ting v. United States, 149 U. S. 698. Cuba has concurred in the action of this Government, and the arrangement was essentially reciprocal. Both the United States and Cuba have put this treaty into effect on the same day to operate prospectively, and there is nothing to indicate that the two governments are not perfectly satisfied that the true intent of the treaty has been observed. The argument, reiterated by our opponents, that one party to the agreement has undertaken to modify it without consulting the other party, is simply disproved by the facts.

The case of United States v. Burr, 159 U. S. 78, is controlling. There the tariff act of 1894 specifically required its retrospective operation; yet the court looked to the spirit of the law. The doctrine of United States v. Heth, 3 Cranch, 398 was affirmed; the court held the question was one of intention, and emphasized the rule that tariff laws should have a prospective operation in order that there might be an interval before the act took effect for business to adjust itself to the change, and thus avoid confusion and mischief to the country. Those considerations apply with even greater force in this case, where the retrospective intention does not appear on the face of the statute, but rests on inference, based on an assumption that Congress knew of the exchange of ratifications, which convicts it of inconsistency in its direction as to proclamation by the President. If Congress knew that ratifications had been exchanged several months before, why say the treaty should take effect on the tenth day after exchange? Congress was evidently anticipating something yet to occur, and intending to give adequate notice to business men.

The Senate resolution requiring approval of Congress was valid and operative. There is an inconsistency between the theory of appellees' protest and their brief. The protest says

Argument for the United States.

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that the clause of the treaty stipulating for approval by Congress is inoperative, and yet anticipates the act and relies on it when passed. Now they concede that the amendment was operative and the Senate had power thus to amend. There is no doubt of this. An act of Congress is not necessary to the validity of a treaty, but may be to its taking effect. Foster v. Neilson, 2 Pet. 253; United States v. Arredondo, 6 Pet. 691. It is not necessary to determine whether this treaty is self-executing or not, since it in terms stipulates that it shall not take effect until approved by Congress, and Congress in giving its approval enacted the necessary legislation to carry the treaty into execution.

The sugars not actually removed from the bonded warehouse until after December 27, 1903, but for which withdrawal entry had been made and permit to deliver issued prior to that date, were properly held to have been withdrawn before the treaty took effect (sec. 20, Customs Administrative Act, as amended by act Dec. 15, 1902, 32 Stat. 753). There was a constructive withdrawal of the goods. This court has held that goods are to be deemed to have been warehoused from the time of importation, because from that time they are in the custody and control of the Government. Hartranft v. Oliver, 125 U. S. 525; Seeberger v. Schweyer, 153 U. S. 609. It therefore follows that the period of warehousing must be held to end when the withdrawal entry is made and a permit to deliver issued, because the goods then cease to be in the custody and control of the Government. This is the only practical rule to adopt, and it has been followed by the Treasury Department from the first in applying the Cuban treaty. T. D. 24,855; T. D. 29,924.

To hold that because liquidation occurred after the treaty became operative the goods were entitled to the benefit of its terms would be to make the date of liquidation and not the date of withdrawal the determining factor, contrary to sec. 20, Customs Administrative Act. The law does not prescribe the time in which liquidation shall be made, but only that, after

202 U.S.

Argument for the Sugar Refining Companies.

liquidating, the collector may not, in the absence of fraud or protest, reliquidate after a year from the date of entry. Act June 22, 1874, sec. 21, 18 Stat. 186; Abner Doble Co. v. United States, 119 Fed. Rep. 152; United States v. De Rivera, 73 Fed. Rep. 679; Gandolfi v. United States, 74 Fed. Rep. 549. And see Merritt v. Cameron, 137 U. S. 542, 549-551. The date of liquidation is important only in its bearing upon the time for making protest and reliquidation. There is no provision in the treaty or the act requiring the liquidation or reliquidation of goods previously entered in accordance with its terms. This shows that the treaty and act were not intended to be retroactive in any respect. United States v. Burr, supra, citing Barney v. Rickard, 157 U. S. 352. The merchandise was liquidated as entered, there was no change in the classification, the original assessment of duty was right, and the final liquidation was the same. The estimated duties paid at the time of withdrawal are the duties.

Mr. John G. Johnson, with whom Mr. John E. Parsons and Mr. H. B. Closson were on the brief, for appellee in this case and for appellant in No. 652, argued simultaneously herewith.1

There was also a separate brief by Mr. Edward S. Hatch and Mr. J. Stuart Tompkins in behalf of certain importers having similar interests.

By the convention itself, the term of its duration was fixed, viz., five years from the tenth day of April, 1903, which date was ten days after that of exchange of the ratifications by the respective governments.

This contention rests upon the unequivocally expressed provision that "the convention shall go into effect on the tenth day after the exchange of ratifications, and shall continue in force for a term of five years from the date of going into effect."

The treaty, as made by the respective plenipotentiaries, after execution by them, required the confirmation of the 1 Franklin Sugar Refining Company v. United States, post, p. 580.

Argument for the Sugar Refining Companies.

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Presidents of the respective governments, and of the Senates of each county.

Until these confirmations, there could be no exchange of ratifications, and of course it was necessary to provide that it should not go into effect until such exchange.

As originally drafted, the convention must have failed altogether, because of the inability to exchange ratifications on or before the thirty-first day of January, 1903. The supplemental convention which was entered into, was requisite to save such failure; but it still remained necessary the exchange should take place on or before the thirty-first day of March, 1903.

There was an obvious reason why a limit of time for commencement of the reduction was fixed. The principal product which would be imported into the United States from Cuba would be sugar. The negotiations for the treaty were conducted, we may assume, in anticipation of the exportation to, and importation into, the United States, of the crop for 1902. In the ordinary course of trade, this crop would begin to be imported in February, 1903, the importations being at their maximum in April, and ceasing substantially on the first day of July.

An extension of the date to December, 1903, would have lost to Cuba the benefit of a reduction upon a crop which was undoubtedly in the minds of both the contracting parties.

Of course we must deal with the effect of words inserted, at the instance of the Senate of the United States, in accordance with the report of its Committee on Foreign Relations; providing that "This convention shall not take effect until the same shall have been approved by the Congress."

Whatever may be urged as to the interpretation of the convention, with these words inserted, it cannot be urged, with conviction, that the intent was to alter, or to do anything other than to guard against the possibility of its becoming non-enforceable because of its affecting a tariff duly enacted by the Congress of the United States.

202 U. S.

Argument for the Sugar Refining Companies.

One of the provisos, inserted in the act, discloses the jealousy of the House of Representatives of its right, claimed by it to exist, that customs duties could not be changed other than by "an act of Congress originating in said House."

The Senate, it may be assumed, was equally jealous of its right of approval of treaties without any consent of the House of Representatives. We think it may be asserted, confidently, it was not intended by the Senate, that Congress should approve the treaty, but simply that it should give approval to what might be necessary, in the way of legislation, in removing all possibility of question of enforcement in the United States, of its conditions.

The Senate knowing it had been provided the term should commence "on the tenth day after the exchange of ratifications," did not alter said provision; but knowing, also, that a question existed as to the right to make any treaty which altered a revenue law, it directed that though the term should continue as prescribed, the convention itself should not be effective until approved by the Congress.

No doubt as to the actual intention of the Senate can exist, in view of the explanation of Senator Bacon, and of what was said in its committee's report as to the ratification of certain reciprocity treaties to which we have already referred. This report shows that the Senate considered the words, "prohibiting the taking of effect until the same shall have been approved by Congress," as the equivalent of the words, "shall not take effect without the approval of Congress."

It was not intended by the Senate, by the insertion of these words, to affect the exchange of ratifications. It was evident that if this should not take place on or before the thirty-first day of March, 1903, the convention would fall, by its own terms. Knowing that the ratifications must be thus exchanged, it was obvious the term must commence anterior to the time when Congress could act, inasmuch as it had adjourned, the Senate being in session under a special call.

We must read article XI, it is true, with the words we are