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even a declaratory act added nothing to the efficacy of the treaty but served simply to remove any possible doubt. The report does not indicate what class of treaties, in the opinion of the Senate conferrees, required Congressional legislation to secure their execution. Mr. Forsyth, however, in his report for the House conferrees -William Lowndes, Henry St. George Tucker and himself-observed that it was believed that the Senate acknowledged that legislative enactments were necessary to carry into execution all treaties which contained “stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory; if indeed this power exists in the government at all.”: The bill as agreed to reads, “Be it enacted and declared by the Senate and House of Representatives of the United States in Congress assembled, That so much of any act as imposes a higher duty of tonnage, or of impost on vessels and articles imported in vessels of Great Britain, than on vessels and articles imported in vessels of the United States, contrary" to the convention of July 3, 1815, “be from and after the date of the ratification of said convention and during the continuance thereof deemed and taken to be of no force and effect.", The act is clearly a compromise. The insertion of the words "and declared " alter "enacted" seemed to the Senate conferrees most essential, as it indicated the effective force of the treaty itself in the repeal. To this the conferrees of the House yielded, believing that these words were “mere surplusage not changing the character, or impairing the force of the legislative act." The latter insisted on a law enacting a repeal of any law not
"Annals, 14th Cong., ist sess., p. 1019.
23 Stat. at L., 255.
in accord with the treaty. To this the former agreed provided no precedent should be established which should bind them thereafter to assist in passing laws in cases on which “such doubts might not exist.”. It may be observed that in his report, Mr. Forsyth, who was the leader in the contention of the House, declared it safer in all doubtful cases to provide by legislation for the execution than to “endanger the public faith by a failure to perform the provisions of a treaty” which had received a constitutional ratification, thus admitting by implication that the faith of the nation was pledged in such cases regardless of the action of Congress.”
The act of May 15, 1820, imposed a duty of eighteen dollars per ton on French vessels entering the United States. By the convention with France signed June 24, 1822, and proclaimed February 12, 1823, it was stipulated on the part of the United States that a duty not exceeding three dollars and seventy-five cents per ton, in excess of the duty paid by American vessels importing French products, should be imposed on such products imported in French vessels. The treaty was on February 20, 1823, communicated to the House to the end, that “the necessary measures for carrying it into execution ” might be adopted. The act of March 3, 1823, for this purpose, repealed all acts incompatible with the execution of the treaty, specifically mentioning the act of May 15, 1820; and enacted that French vessels should pay the additional duty of three dollars and seventy-five cents according to the tenor of the convention. Article VII of the treaty with France signed July 4, 1831, and
Annals, 14th Cong., ist sess., p. 1022. * Ibid., p. 1020. :3 Stat. at L., 605. * Am. State Papers, For. Rel., vol. v, p. 222. 53 Stat. at L., 747.
proclaimed July 13, 1832, provided that the United States should, on and after the exchange of ratifications, impose duties upon French wines not to exceed the rates enumerated therein, which were less than those then existing.' Section 10 of the act of July 13, 1832, expressly enacted that the rates specified in the treaty should be charged on French wines, the law to have a retroactive effect on importations made since February 2, the date of the exchange of ratifications. The article in question had met with opposition in the Senate. Mr. Clay, on February 8, 1832, subsequently to the vote advising ratification, introduced a resolution declaring that the Senate did not intend that the article should " be taken and held as a precedent in the future exercise of the treaty-making power.” The resolution was tabled.3
In submitting to the Senate on April 29, 1844, the reciprocity treaty with the German Zollverein, negotiated by Mr. Wheaton, President Tyler observed that, inasmuch as the treaty conflicted to some extent with existing laws, it was his intention, should the Senate consent to its ratification, to communicate a copy of it to the House of Representatives in order that such action might be taken by that body as should be deemed necessary to give effect to its provisions. On June 14, Rufus Choate, from the Committee on Foreign Relations reported against the ratification. Without refer
See act of May 24, 1828. 4 Stat. at L., 309.
*4 Stat. at L., 576. Attorney-General Cushing, in an opinion given February 16, 1854, says that these wines became chargeable with the lower duty with the exchange of ratifications on February 2, 1832, as provided in the treaty, regardless of the pre-existing acts. 6 Op., 295. See the view expressed by Attorney-General Miller, April 5, 1889, as to Hawaiian reciprocity treaty, 19 Op., 277.
*Ex. Journal, vol. iv, p. 209. *Ex. Journal, vol. vi, p. 262.
ence to the particular merits of the treaty, the committee was not prepared, he said, “to sanction so large an innovation upon ancient and uniform practice in respect of the department of government by which duties on imports shall be imposed. The convention which has been submitted to the Senate changes duties which have been laid by law. It changes them either ex directo and by its own vigor, or it engages the faith of the nation and the faith of the legislature through which this nation acts to make the change.” “In the judgment of the committee the legislature is the department of government by which commerce should be regulated and laws of revenue be passed.”: The report of Mr. Archer, from the same committee, February 26, 1845, occasioned by a message from the President urging action on the treaty, reaffirmed this position, and the treaty remained unratified.
A decade later, June 5, 1854, a treaty of similar character was signed with Great Britain relative to Canada, stipulating for the free introduction into the United States of certain products. Article V specifically provided that the treaty should take effect as soon as the laws required to carry it into effect should be passed by the Imperial Parliament of Great Britian and the local parliaments of the British colonies affected on the one hand, and by the Congress of the United States on the other. The act of Congress of August 5, 1854, to give effect to the treaty, went into a specific enumeration of the products, corresponding with those named in the treaty, to be exempt from the existing tariff rates.3 Likewise, in each of the two treaties of similar character
Ibid., p. 38.
Reports of Senate Com. on For. Rel., vol. viii, p. 36. '10 Stat, at L., 587.
which have been subsequently concluded (excluding the recent treaty with Cuba), the treaty with Great Britain of May 8, 1871, Articles XVIII, XXV, and Article XXX, and the convention with Hawaii of January 30, 1875, a clause was inserted making the operation of the treaty contingent upon the action of Congress in passing laws to carry it into effect. The respective acts for this purpose, approved March 1, 1873, and August 15, 1876, enacted rather than declared the stipulated modification of the laws. In the reciprocity convention with Mexico signed January 20, 1883, and the ratifications of which were exchanged May 20, 1884, a provision was inserted that it should not take effect until the “laws necessary to carry it into operation” had been passed by the Congress of the United States, and by the government of Mexico, but it was also stipulated that such legislation should take place within twelve months from the date of the exchange of ratifications. Although the time was extended by subsequent agreements, Congress failed to enact the necessary legislation, and the convention remained ineffective. In the unratified reciprocity treaties signed July 20, 1855, and May 21, 1867, with the Hawaiian Islands ;* November 18, 1884, with Spain, relative to Cuba and Porto Rico;s and December 4, 1884, with the Dominican Republic, provisions were inserted making their operation
operation contingent upon action of Congress. Although
Although no such reservation is found in the Kasson treaties as negotiated, an
"Art. XXXIII and Art. V, respectively.
• Art. IV.
5 Art. XXVI. Art. XVI. See also Art. XVI of the unratified convention of February 15, 1888, with Great Britain.