other times the question was raised in Congress, particularly when the House was called upon to vote the appropriation for the cession of Alaska as required by the treaty of 1867 with Russia.1

Another phase of the same question arose under the treaty of 1831 between the United States and France, which illustrates the embarrassment which might be caused by a refusal of the House of Representatives to pass the legislation necessary to carry a treaty into effect. That treaty called for a reduction of duties on French wines imported into the United States, and the payment by France of 25,000,000 francs as indemnity to American shipping during the Napoleonic wars. Congress promptly passed the law for the reduction of duties on French wines, but the French Chambers neglected to make the appropriation necessary to pay the indemnity, and three years after the treaty was signed absolutely refused to do so by a direct vote.

1 As to action of House on Jay treaty, 1794, Annals of Congress, 4th Cong., 1st Sess. 464 (Gallatin's speech), 759, 760, 771, 772 (Madison's speech), 782, 1239 (Fisher Ames' speech), 1291; 1 Presidents' Messages, 194; 7 Hamilton's Works, 118; 8 ib. 386, 389; 6 ib. (J. C. Hamilton's ed.) 92; 7 Jefferson's Writings, 38, 40, 67; 8 ib. 266; 13 Washington's Writings, 181; 2 Madison's Works (ed. 1865), 69, 73, 75, 89, 94, 99; 1 Adams' Gallatin, 156. For decisions of courts as to treaties in force, 2 Peters' U. S. Rep. 313; 7 ib. 51, 89; 14 ib. 415; 124 U. S. Rep. 194. For action of House on commercial treaty with Great Britain of 1815, Annals of Congress, 14th Cong., 1816; 2 Wharton's Digest, 19, 20. For action on Alaska treaty of 1867, 6 Presidents' Messages, 524; House Journal, 40th Cong., 2d Sess. 1064; House Report 4177, 49th Cong., 2d Sess.; Congressional Globe, 1867, 4031, 4059, 4092; 2 Wharton's Digest, 21, 22. For views of jurists, 1 Kent's Commentaries (Lacy's ed. 1889) 284, etc.; Davis' Outlines of Constitutional Jurisp., Lecture 8; 1 Calhoun's Works (Cralle's ed.), 201, etc.; Dr. E. Meier, Leipsic, quoted in 2 Wheaton, 24.

This led to the breaking off of diplomatic relations, but through the intervention of the British government the appropriation was finally made, the money was paid, and diplomatic relations were resumed.1

In organizing a new government unlike any of the systems of the past, and in shaping the new system by a carefully drawn written constitution, wherein the duties and functions of the three coördinate branches of government were sought to be precisely defined and marked out, it would not have been strange if the system had been found unworkable in some of its features. True, the Constitution has been put to severe tests, but it is a high testimony to the wisdom and patriotism of our formative statesmen that it has passed successfully through all its trials.

The division of powers respecting the conduct of the delicate matter of foreign relations was sought to be carefully marked out. In the next chapter we shall see that the line of demarkation between the Executive and the Senate is not so distinctly drawn as to settle all doubts. So also, as shown above, the powers and duties of the House of Representatives as to treaties are not so clearly set forth as to avoid heated controversy, but it is to the credit of the people's direct representatives to be able to say that in this respect they have never failed to maintain the good faith and honor of our country.

1 3 Presidents' Messages, 100, 188; S. Doc. 40, 23d Cong., 2d Sess. ; S. Doc. 1, 24th Cong., 1st Sess.; S. Doc. 62, 24th Cong., 1st Sess.; House Ex. Doc. 111, 24th Cong., 1st Sess. ; 3 Wharton's Digest, 88-96.

CHAPTER XVI

COMPACTS OTHER THAN TREATIES

THERE are various ways in which the government of the United States may enter into compacts or agreements of a binding character, other than by means of the formal treaties I have described. Most of these, however, are of a temporary character, and in large part they are based upon the legislative authorization of Congress or have received its approval.

A question which has been much discussed in recent years is how far the Senate of the United States can delegate to the Executive its functions as a part of the treaty-making power, and to what extent Congress can confer upon the President legislative duties. Repeated instances can be cited where legislation has conferred large powers upon the President in connection with our foreign relations, but it is contended that in none of those instances can it be said that Congress has transferred to him legislative powers, or that the Senate has parted from or delegated to the Executive its functions as a branch of the treaty-making power.

In the early days of the republic when many of the makers of the Constitution were participating in legislation, Congress passed laws giving to the President large powers respecting foreign commerce and tariff regulations. In 1794 he was empowered to "levy an embargo

whenever, in his opinion, the public safety shall so require on all ships of the United States or of foreign nations in the ports of the United States;" and in 1799 he was empowered to break off and renew commercial intercourse with France, "whenever, in his opinion, the interests of the United States shall require." 2 Many acts of a like nature have been passed by Congress, the Canadian retaliatory act of 1887 3 being still in force, which confers power upon the President, under contingencies specified, to suspend, in his discretion, all commercial intercourse with the Dominion.

By the act of June 8, 1872, the postmaster-general is vested with power to make postal conventions, with the approval of the President, and they are not required to be submitted to the Senate for ratification. The United States has more than forty such conventions. By similar authorizations of Congress binding agreements are made by the exchange of diplomatic notes as to trade-marks, copyrights, wrecking privileges, commercial reciprocity, and other matters.

Of this class of legislation Chief Justice Marshall said: "The difference between the departments undoubtedly is that the legislative makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the decision of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily." Of the same nature as the acts cited was the provision in the tariff act of

11 Statutes at Large, 373.

3 24 St. at L.,

475.

2 Ib., 615.

* 10 Wheaton, 46.

October 1, 1890,1 known as the McKinley law, which gave the President power to impose certain specified duties upon articles named, admitted free under the law, whenever the President should be satisfied that any for eign nation was imposing duties on American products, which he should deem reciprocally unequal and unreasonable. Under that law the President, through the secretary of state, entered into negotiations with nearly a score of foreign governments, and made with several of them what are termed "reciprocity arrangements," which were duly proclaimed in the same manner as treaties; " and in the cases of other countries where the negotiations failed to bring about an agreement, proclamations were issued imposing duties on the articles named imported from those countries.3 The life of these arrangements was dependent upon the maintenance of the law, and as the law of 1890 was repealed by that of 1894, they came to an end. Similar legislation was enacted in the revenue law of 1897.4

The act upon which these diplomatic agreements were based is probably the nearest approach to a delegation of legislative or treaty-making power, and its constitutionality has been upheld by the Supreme Court of the United States. The act was attacked on the ground that it "delegated to the President both legislative and treatymaking powers." In its decision the Court said: "That Congress cannot delegate legislative powers to the Pre

1 26 Stat. at L. 612.

For agreement with Spain for Cuba and Porto Rico, see 27 St. at L. 982.

* For Proclamation as to Venezuela, see 27 St. at L. 1013.

U. S. Supl. II, 702; H. Doc. 15, 57th Cong., 1st Sess. pt. 3, 958 ff.