Concurring Opinion: Lamar, J., Fuller, C. J.

two, whenever, and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country as follows, namely." 26 Stat. 612.

We do not think that legislation of this character is sustained by any decision of this court, or by precedents in congressional legislation numerous enough to be properly considered as the practice of the government. One of the instances referred to, as legislation analogous to this section, is that embodied in the acts of Congress of 1809 and 1810 known as the "non-intercourse acts," pronounced by this court to be valid in the case of The Brig Aurora, 7 Cranch, 383. The act of March 1, 1809, forbidding any importation after May 20, 1809, from Great Britain or France, provided that "the President of the United States be, and he hereby is, authorized, in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation," after which the trade suspended by that act and the act laying an embargo could be renewed with the nation so doing. 2 Stat. 528, c. 24, § 11. That act having expired, Congress, on the first of May, 1810, passed an act, (2 Stat. 605, c. 39, § 4,) which enacted "that in case either Great Britain or France shall, before the third day of March next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact

Concurring Opinion: Lamar, J., Fuller, C. J.

the President of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner," the restrictions of the embargo act, "shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to . the nation thus refusing or neglecting to modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid."

These enactments, in our opinion, transferred no legislative power to the President. The legislation was purely contingent. It provided for an ascertainment by the President of an event in the future, an event defined in the act and directed to be evidenced by his proclamation. It also prescribed the consequences which were to follow upon that proclamation. Such proclamation was wholly in the nature of an executive act, a prescribed mode of ascertainment, which involved no exercise by the President of what belonged to the law-making power. The supreme will of Congress would have been enforced whether the event provided for had or had not happened, either in the continuance of the restrictions, on the one hand, or on the other, in their suspension.

But the purpose and effect of the section now under consideration are radically different. It does not, as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes farther than that, and deputes to the President the power to suspend another section in the same act whenever "he may deem" the action of any foreign nation producing and exporting the articles named in that section to be "reciprocally unequal and unreasonable;" and it further deputes to him the power to continue that suspension and to impose revenue duties on the articles named. "for such time as he may deem just." This certainly extends to the executive the exercise of those discretionary powers which the Constitution has vested in the law-making depart

Concurring Opinion: Lamar, J., Fuller, C. J.

ment. It unquestionably vests in the President the power to regulate our commerce with all foreign nations which produce sugar, tea, coffee, molasses, hides or any of such articles; and to impose revenue duties upon them for a length of time limited solely by his discretion, whenever he deems the revenue system or policy of any nation in which those articles are produced reciprocally unequal and unreasonable, in its operation upon the products of this country.

These features of this section are, in our opinion, in palpable violation of the Constitution of the United States, and serve to distinguish it from the legislative precedents which are relied upon to sustain it, as the practice of the government. None of these legislative precedents, save the one above referred to, have, as yet, undergone review by this court or been sustained by its decision. And if there be any congressional legislation which may be construed as delegating to the President the power to suspend any law exempting any importations from duty, or to reimpose revenue duties on them, upon his own judgment as to what constitutes in the revenue policy of other countries a fair and reasonable reciprocity, such legislative precedents cannot avail as authority against a clear and undoubted principle of the Constitution. We say revenue policy, because the phrase "agricultural or other products of the United States" is comprehensive, and embraces our manufacturing and mining as well as agricultural products, all of which interests are thus entrusted to the discretion of the President, in the adjustment of trade relations with other countries, upon a basis of reciprocity.

Whilst, however, we cannot agree to the proposition that this particular section is valid and constitutional, we do not regard it as such an essential part of the Tariff Act as to invalidate all its other provisions; and we therefore concur in the judgment of this court affirming the judgments of the court below in the several cases.

APPENDIX.

In Memoriam.

JOSEPH P. BRADLEY, LL.D.

MR. JUSTICE BRADLEY died at his residence in Washington. on the morning of Friday, January 22, 1892. On the coming in of the court, on that day, the Chief Justice said: "Since the adjournment yesterday a very heavy loss has befallen the country and the court, and a great sorrow been visited upon us in the death of Mr. Justice Bradley. The court will not proceed with business, but will adjourn until Tuesday next at the usual hour, when motions noticed for Monday will be entertained."

On the following Sunday, brief services were held at the house of the deceased in Washington, and on Monday, the 25th, the remains, accompanied by the family, and by the court and its officers, were taken to Newark, New Jersey, where, after public funeral services in the North Reformed Church, on Broad Street, they were buried.

At noon on Saturday, the 6th day of February, 1892, the bar of the Supreme Court of the United States and the officers of the court met in the court room in the Capitol, to take action in this matter. The meeting was called to order by J. Hubley Ashton, Esq., of the District of Columbia. On his motion, George Gray, Esq., of Delaware, was called to the chair, and James H. McKenney, Esq., Clerk of the court, was requested to act as Secretary.

On motion of George Harding, Esq., of Pennsylvania, the chair appointed George Frisbie Hoar, Esq., of Massachusetts, George Harding, Esq., Cortlandt Parker, Esq., of New Jersey, J. Hubley Ashton, Esq., Thomas J. Semmes, Esq., of Louisiana, Joseph H. Choate, Esq., of New York, John T. Morgan, Esq., of Alabama, and John B. Henderson, Esq., of Missouri, a committee to prepare and report resolutions for consideration and adoption by the meet

Proceedings on the death of Mr. Justice Bradley.

ing. Mr. Harding, on behalf of the committee, reported a series of resolutions which, after remarks by Mr. Parker, Mr. Harding, Mr. A. Q. Keasbey, of New Jersey, Mr. Samuel Dixon, of Pennsylvania, and Mr. J. Dixon, of New Jersey, were unanimously adopted; after which, on motion of Mr. Ashton, the meeting adjourned.

On Monday, the 7th of March, 1892, MR. ATTORNEY GENERAL, in compliance with the request of the bar, presented these resolutions to the court with the following remarks:

MAY IT PLEASE THE COURT: On the 6th day of February last, the bar of this court adopted a memorial which I now have the honor to present:

Resolved, That the members of the bar of the Supreme Court of the United States desire to record their sense of the loss that has come to the profession and to the nation in the death of Joseph P. Bradley, Justice of this court.

"He brought to the bench long experience, great energy, strong and patriotic convictions, a scholarship as wide and varied as it was thorough and exact, and an unyielding courage. He was at the same time one of those rare characters in which vast learning is united with intense activity and business capacity; a master of men as well as books, practical as well as theoretical.

"During his long service here he has more than done every duty, growing constantly in his work and in the regard of his fellows and of the nation, until, in the fullness of age, rounded and softened by years of judicial duty, gentle scholarship and labor for the people, he has passed away lamented by the bar, the bench, and the country that he served; a life complete, with a large place in history among the creators and moulders of our national jurisprudence.

"Resolved, That a copy of these resolutions be presented by the president and secretary of this meeting to the family of Mr. Justice Bradley, with the sincere sympathy of the profession in their bereavement, and that the Attorney General be requested to present to the Supreme Court, in session, the proceedings of this meeting."

These occasions are recurring with painful frequency. In each of the years 1887, 1888, 1889, 1890, and now again at the threshold of 1892, an honored member of this court has been summoned into