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amendment to each, that it shall not take effect until approved by Congress, has been proposed by the Senate Committee on Foreign Relations. To the recent treaty with Cuba, which, as negotiated, likewise contained no such specific clause, the Senate attached such amendment. In order to make the legislative approval as broad as the convention, a clause was inserted in the act declaring that during the continuance of the convention no sugar of any other foreign country should “be admitted by treaty or convention into the United States” at a lower rate of duty than that specified in the tariff act of July 24, 1897. To prevent the implication from this clause, that the duties might be modified by treaty or convention, a saving clause was inserted, declaring that nothing in the act should be construed as an admission on the part of the House that customs duties could be changed otherwise than by an act of Congress originating in the House.
Section 4 of the tariff act of July 24, 1897, to which the Senate as a branch of the legislature has agreed, provides that whenever within the period of two years treaties modifying within defined limits, the rates fixed by the act shall be negotiated, and “shall have been duly ratified by the Senate and approved by Congress, and
The President, in his message of November 10, in which he urged the enactment by Congress of the legislation “ which by the terms of the treaty” was necessary to render it operative, after having pointed out clearly the moral obligation of the United States to make to Cuba the concessions of the treaty (resulting especially from the latter's acceptance of the limitations, financial and otherwise, contained in the Platt amendments, and from the granting to the United States of naval stations), and after having observed that in view of these considerations the treaty had been made and its ratification advised by the Senate, said, "A failure to enact such legislation would come perilously near a repudiation of the pledged faith of the nation."
public proclamation made accordingly,” duties shall be collected as provided and specified in the treaty.'
From this historical review it appears that whatever may be the ipso facto effect of treaty stipulations, entered into by the President and Senate, upon prior inconsistent revenue laws, not only has the House uniformly insisted upon, but the Senate has acquiesced in, their execution by Congress; that in case of proposed extensive modifications a clause has been inserted in the treaty by which its operation is expressly made dependent upon the action of Congress; and that in the recent Cuban treaty such a clause was inserted on the initiative of the Senate. The contention, that, because a treaty may repeal prior acts of Congress, this legislative execution by Congress is mere surplusage, must start with the hypothesis that the President and Senate would not in such cases be acting ultra vires. On January 26, 1880, the House passed a resolution which declared that the negotiation by the executive department of the government of commercial treaties whereby the rates of duty to be imposed on foreign goods entering the United States for consumption should be fixed, “would, in view of the provision of section 7 of Article I of the Constitution of the United States, be an infraction of the Constitution and an invasion of one of the highest prerogatives of the House of Representatives.". It cannot be overlooked that the exclusive power of originating bills for raising revenue was given to the House by the framers of the Constitution in lieu of an exclusive power of originating all bills for raising or appropriating money, as proposed in the draft of the
'30 Stat, at L., 204.
Constitution reported August 6 by the Committee of Detail.'
In a dissenting opinion in the case of Dooley vs. United States, as also in a concurring opinion in the case of Downes vs. Bidwell,3 Mr. Justice White took occasion to object to the decision of the Court in De Lima vs. Bidwell—that Porto Rico ceased with the exchange of the ratifications of the treaty with Spain, independently of any legislative action, to be foreign territory as that word was used in the revenue laws-on the ground that, if it were carried out to its logical result the President and Senate might by treaty materially affect the revenue laws, as, for instance, by the acquisition and incorporation of a country producing in large quantities articles from the importation of which, under the existing tariff, the revenues of the government were chiefly derived. Mr. Justice Field, in the case of Bartram vs. Robertson, in construing the most-favored nation stipulations in Articles I and IV of the treaty of April 26, 1826, with Denmark, in connection with the special concessions in the Hawaiian treaty of January 30, 1875, observed : “Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the general law imposing duties, do not cover concessions like those made to the Hawaiian Islands for a valuable consideration." + In the following year, 1888, Article IX of the treaty of February 8, 1867, with the Dominican Republic, granting most-favored nation treatment, came before the Court. Mr. Justice Field, in again delivering the opinion of the Court, not only held that the construction of the most-favored nation provision in the treaty with Den
Doc. Hist. of Const., vol. iii, p. 445. * 182 U. S., 313.
2 182 U. S., 241. * 122 U. S., 116 (1887).
mark was entirely applicable to Article IX of the Dominican treaty, the case before the Court therefore being covered by the decision in Bartram vs. Robertson, but he also found "another and complete answer" in the fact that the act of Congress under which the duties were collected was of general application and made no exception in favor of goods coming from any particular country, and being of later date than the treaty, if there was any conflict between the two, the law must control. It is true that the law under which the duties were collected was approved July 14, 1870 (amended December 22, 1870)," while the treaty with the Dominican Republic was concluded February 8, 1867. Yet the treaty with the Hawaiian Islands, the benefit of whose concessions was claimed, was not signed until January 30, 1875, and did not become operative until September 9, 1876, in virtue of an act of Congress. Prior to this date no obligation to extend to Santo Domingo the tariff modifications stipulated in the Hawaiian treaty could under any construction arise; nor before that time could the stipulations of the Dominican treaty, so far as concerns those modifications, operate as municipal law and consequently be subject to legislative repeal. Assuming that the construction of Article IX admitted such an obligation (and this may be assumed if this second answer is to be taken as “complete"), it would be difficult to reconcile the contention, that treaty stipulations are so far self-executing as to effect a repeal of inconsistent revenue laws, with the statement of the learned justice in this case, that he found no exception in the revenue law in favor of the Dominican Republic.
Extradition and Other Conventions. The only treaty
'Whitney vs. Robertson, 124 U. S., 190. '16 Stat, at L., 212, 397.
provision for the extradition of fugitives from justice that preceded the Webster-Ashburton treaty of 1842 is found in Article XXVII of the Jay treaty. Requisition for the delivery of a refugee in virtue of this article was 'made by the British government in 1799. This was complied with by President Adams, although no legislation had been passed by Congress for its execution. In the attempt in the House to censure the President for his action, while the interference of the Executive in the duties of the judicial branch of the government was the principal ground of accusation, the power of the President to act under the article of the treaty without legislative direction was questioned. To Mr. Gallatin's request to be informed "on what rule or law the President had acted,” John Marshall, in his famous speech of March 7, 1800, replied, “The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declarations." ; On the final vote on the resoHlutions of censure, the action of the President was sustained. The extradition provisions of the treaty of August 9, 1842, with Great Britain, and of the treaty and additional article with France signed November 9, 1843, and February 24, 1845, respectively, were, prior to Congressional action, recognized as laws by different justices in the lower courts. In dismissing for 'want of jurisdiction a case that came before the Supreme Court under the treaty with France, Mr. Justice McLean declared the treaty provision to have the force of a law of the land. The act of August 12, 1848, which is em
'Annals, 6th Cong., pp. 587, 614.
* Ibid., p. 619. "In re Metzger, 5 How., 188; Moore, Extradition, vol. I, p. 100. Butler, Treaty-Making Power of the United States, vol. ii, pp. 81, 256.