Judgment was delivered on Wednesday by his Honour Judge Lobingier in respect of the demurrer entered by Mr. C. S. Franklin, In giving his decision he said in_ part The treaty—provisions relied upon are as follows:
"Citizens of the United States who shall attempt to trade clandestinely with such of the ports of China as are not open to foreign commerce, or who shall trade in opium or any other contraband articles of—merchandise, shall be ~subject to he dealt. with by the Chinese governnent without. being entitled to any countenance or protection from that of the United States.'* The above was reincorporated into the next subsequent treaty with slight change in the phra-geology, but in the same year a separate treaty was negotiated which defines ''contraband goods" as follows:
"Import and export trade is auks prohibited in the following articles:
Gunpowder, shot, cannon, -fowling-pieces, rifles, muskets, pistols and.
all other munitions and implements of war, and salt."?
In the annex to the latest of these treaties the following appears:
"Except at the requisition of the Chinese Government, or for sale to Chinese duly authorized to purchase them.. import trade is prohibited in all arms, ammunition. and munitions of war of every description. No permit to land them will be issued until the Customs have proof that tha necessary authority has been given to the importer. Infraction of this rule will be punishable by confiseation of all the goods concerned."
It is contended that each of these treaties supersedes and abrogates the preceding one, defendant's counsel citing the following dictum of a District Judge:
shall not consider the treaty of 1869. because as the treaty of 1083 covers the whole subject-matter of the former treaty, it mav_be considered as impliedly repealed.??
But the decisions invoked by its author in support of this statement do not concern treaties and the doctrine seems inconsistent with an carlier and celebrated decision of the Supreme Court, where in considering the first two
Text read from the printed page and cleaned; old type leaves the occasional error.