$279. First Congress under Constitution meets; earliest tariff statutes.-The first Congress, under the new Constitution, met in the City of New York on March 4, 1789. No act was passed until June 1st, when the first statute of the United States Government was enacted, regulating the time and manner of administering oaths of office;1 on July 4, 1789, Congress exercised its power to protect by tariff the manufactures of the United States, by the second statute placed upon the statute books of the United States, the first section of which is as follows: "Whereas, it is necessary for the support of government, for the discharge of debts of the United States, and the encouragement and protection of manufactures that duties be laid on goods, wares and merchandise imported: Be it enacted by the Senate and House of Representatives in Congress assembled, That from and after the first day of August next ensuing, the several duties hereinafter mentioned shall be laid on the following goods, wares and merchandise imported into the United States from any foreign power or place, that is to say: " and then follow the schedules.2 $280. Power of United States to protect manufactures discussed. In the debate on this statute many questions were raised as to the power of the United States to "protect" manufactures: while it was conceded that the right existed § 279. 11 U. S. Stat. at L. p. 23. 21 U. S. Stat. at L. p. 24. to raise revenue, "protection" to many seemed beyond the power of the Central Government, because it was not specifically named or enumerated in the Constitution as having been delegated by the States. Under the leadership of James Madison, however, the bills became statutes, and the Central Government, at the first opportunity, thus exerted on behalf of the industries of the States, the protecting power which the States themselves could not have done under any circumstances or conditions.1 § 280. should be laid for the support of 1 For interesting accounts of the the Government; second, that they debate on the first tariff acts see should be laid for the payment of McMaster's History of the People the public debt; and third, that of the United States, vol. I, pp. 545, they should be also laid for the enet seq.; see also History of the Pro-couragement and protection of tective Tariff Laws by R. W. Thomp-manufactures. Each of these propson, ex-Secretary of the Navy of ositions was distinct from the the United States, 3d edition, Chi- other two. Yet, whether considcago, 1888, from which the follow-ered singly or combined, they ining extract is taken (from chap. volved the exercise by Congress IV, p. 47-54): "The first important law passed by the first Congress indicated its character so plainly as to leave no room for any doubt whatsoever. Its title was, 'An act for laying a duty on goods, wares and merchandise imported into the United States;' and its first section, or that part which properly stands as its preamble, is in these expressive words: "Whereas, it is necessary for the support of the Government, the discharge of the debts of the United States, and the encouragement and protection of manufactures, that duties be laid on goods, wares and merchandise imported.' of clearly granted constitutional power-about which, at that time, there was no difference of opinion. "It has been said that this preamble was written by Mr. Madison. This is probably true, as the sentiments conveyed by its language were precisely such as he was known to entertain, and, more than once, expressed. His authorship of it, however, is not material, inasmuch as-being a member of Congress at the time-he supported and voted for the bill, which passed the House of Representatives by a vote nearly unanimous, there having been only eight votes against it. The duties discriminated in favor of manufactures, and were therefore protective as the language above quoted expressly imports. The preamble was manifestly intended to convey this idea, for, although not absolutely necessary to the law, it furnishes a rule of "Plainer, simpler, or more expressive language could not be found. It is not equivocal in the least, and every common-sense man, with ordinary intelligence, can understand its meaning. It asserts three distinct propositions: first, that duties interpretation by which its true § 281. Department of Foreign Affairs established; the State Department.-The third statute imposed a duty on tonnage, and the fourth was "An Act for establishing an Executive Department to be denominated the Department of Foreign Affairs," passed July 27, 1789,1 which is the foundation of the present State Department of the United States through which all negotiations of treaties, and all relations with foreign powers ever since that date have been, and at present are, conducted. The Department of State as it now exists was organized under subsequent acts of Congress, and is now conducted under the provisions of the Revised Statutes in relation thereto. § 282. No treaties negotiated until 1794.-Although immediately after the adoption of the Constitution, the courts were called upon to construe the effects of the treaties which had been negotiated under the Confederation,1 and to determine the rights, duties and liabilities which had been created thereby, no new treaty was concluded by the United States, under the power vested in the Executive and Senate, until more than five years after the adoption of the Constitution; in fact, it was not until Washington's second term of office meaning is to be ascertained-it is, | tion without any adventitious aid, in other words, an index to point while others, for want of the fosterout the legislative intention. The ing hand of the Government, will be history of this law is, consequently unable to go on at all.' In this apt most instructive, not only on ac- language Mr. Madison embraced count of its great general import- the whole question of constituance, but because it identifies Mr. tional power. Although it had not Madison, by his direct agency in been insisted that the protection of the House of Representatives, and manufactures would violate the Washington, by his approval of it Constitution, yet, with the motive as President, and nearly all the already indicated, he probably demembers of the first Congress, with sired to place the question of conthe first distinctive measure of pro-stitutionality beyond all cavil, by tection which the exigencies of the public service and the common interests of the country demanded at the very beginning of the Government... "In supporting the measure, Mr. Madison said: There may be some manufactures which, being once asserting, at once and unqualifi- 11 U. S. Stat. at L. p. 28. 1 Ware vs. Hylton, U. S. Sup. Ct. formed, can advance toward perfec- | 1796, 3 Dallas, 199 and see § 324, et that the powers vested in him as President to make treaties by and with the consent of two-thirds of the Senate, was exercised. § 283. Jay's treaty; excitement and opposition.-In 1794, however, the famous Jay treaty1 was concluded between Great Britain and the United States; at once excited discussion arose; questions involving the extent of the treatymaking power, as to the right of the President and the Senate to make treaties, the extent to which treaties could alter existing legislation, and also the right or duty of the House of Representatives to participate in the ratification of the treaty, or, if not in the ratification itself, in the legislation necessary to make the treaty effectual, were debated, not only in Philadelphia where Congress then met, but throughout the entire fifteen States, for by that time Vermont and Kentucky had been admitted to the Union.2 § 284. Strained relations between United States and Great Britain; Washington's message.-Grave causes of difference existed at the time of the negotiation of this treaty between the United States and Great Britain; in fact, the seq., Vol. II, for this and other cases 1See note to § 285, p. 422, post. moved or suspended these grave causes of difference. It named a day for the withdrawal of British troops from the territories of the United States. The United States undertook to make compensation to British creditors who had been prevented by lawful impediments,' in violation of the treaty of 1783, from the recovery of their debts. Great Britain agreed to make compensation to the merchants and citizens of the United States whose vessels had been illegally captured 1 In speaking of this treaty, J. C. or condemned. The United States Bancroft Davis makes the follow-undertook to make compensation ing remarks, and gives the follow- to certain British subjects whose ing references in his notes on Great vessels or merchandise had been Britain, p. 1321, in the 1889 edition | captured within the jurisdiction of of the " Compilation of Treaties the United States and brought into between the United States and For- the same; or had been captured by eign Powers:" vessels originally armed in the ports of the United States. It was agreed that provisions and other "The treaty concluded by Jay on the 19th of November, 1794, re relations between the two countries had become so strained that President Washington informed both Houses of Congress by a special message in regard to the occupation by the British of forts in the Western Territory that "this new state of things suggests the propriety of placing the United States in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon $285. Rights of the people; necessity of legislation to enforce the treaty.-The Jay treaty' was the first one negotiated under the constitutional power, and it gave rise to many important points affecting the people in their relations, both as to those matters which were admittedly under Federal control, and as to those which were admittedly, in the absence of foreign relations, exclusively under State jurisdiction; not only national and commercial relations were affected, but the relations of individual debtors to British cred articles not generally contraband | Note. On the 5th of May, 1796, of war should not be confiscated if President Washington submitted seized, but that the owners should to the Senate an explanatory artibe fully indemnified; and that cle with the reasons which had vessels approaching a blockaded made it necessary, and another export, in ignorance of the blockade, planatory article was added in should not be detained, nor the March, 1798. cargo confiscated unless contraband. "The appropriations for carrying into effect the Treaty of 1794 were made by Congress on the 6th of May, 1796, and by Parliament on the 4th of July, 1797." See "The instructions to Jay embraced many other subjects. How far they were executed, and why he failed to comply with some of § 295, p. 429, post. them, will appear by reference to 2 The message was a very brief the instructions and correspond-one dated May 21, 1794, and will be which accompanied the found in Richardson's Messages of President's message of June 8, the Presidents, vol. I, p. 155. transmitting the Treaty to the Sen§ 285. ence ate. The reasons which induced 1 Treaty of Amity, Commerce and the President and his advisers to Navigation; concluded November assent to it are detailed in a letter 19, 1794; ratifications exchanged at from Pickering to Monroe of Sep- London, October 28, 1795, protember 12, 1795. This treaty was claimed, February 29, 1796; U. S. the cause of the long and able de-Treaties and Conventions, edition, bates in Congress, which have been 1889, p. 379, 8 U. S. St. at L. p. 116. referred to in the Introductory | |