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.2

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

1 Reports of Senate Com. on For. Rel., vol. viii, p. 36. '10 Stat. at L., 587.

Ibid., p. 38.

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.3 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; and December 4, 1884, with the Dominican Republic, provisions were inserted making their operation contingent upon action of Congress. Although no such reservation is found in the Kasson treaties as negotiated, an

'Art. XXXIII and Art. V, respectively.

'17 Stat. at L., 482, and 19 Stat. at L., 200.

'Art. VIII.

'Art. IV.

'Art. XXVI.

'Art. XVI. See also Art. XVI of the unratified convention of February 15, 1888, with Great Britain.

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 an 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." a 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

1 30 Stat. at L., 204.

"House Journal, 46th Cong., 2d sess., p. 323.

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 Den182 U. S., 241. 122 U. S., 116 (1887).

'Doc. Hist. of Const., vol. iii, p. 445.

182 U. S., 313.