ment. In 1798 the conduct towards this country of the government of France was of such a character that Congress declared that the United States were freed and exonerated from the stipulations of previous treaties with that country." § 318. This same subject treated at length in a subsequent chapter.It is, however, rather anticipating the regular order to refer to decisions of the courts, at this point; the legal principles established in the Chinese exclusion cases will be discussed as to the relative effects of treaty stipulations, and State laws in the next chapter,1 and as to United States statutes in the next chapter but one.2 The specific instances in which treaties have been held to operate without legislation, whereby they have annulled State legislation or prior congressional legislation and where they have been affected or abrogated by subsequent legislation of Congress, also form the subject of a subsequent chapter, and no further reference will be made now to them in this chapter which should have been confined to the Congressional debates and action in regard thereto; in concluding this chapter on the participation of both houses in the treaty-making power, however, attention is called to the fact that while congressional action,—that is action by a majority of both houses,-may, contrary to the expectations of the framers of the Constitution, seriously affect treaty stipu lations made with foreign powers, there is nothing in any of the cases decided, or in any congressional action already taken, which places any limitations upon the treaty-making power as it exists in the Central Government. The possibility of a majority of both houses of Congress being able, with the President's consent, to override, or of a majority of one branch being able to frustrate, the Executive and twothirds of the Senate, is not to be regarded a limitation upon the power, proceeding from any external or superior force, but only a difficulty in exercising it, owing to disagreement between themselves of the various elements of the Central 4 The quotation is on pages 599601, 130 U. S. Rep. § 318. Chapter XI, and see especially §§ 336, et seq., Vol. II, pp. 24, et seq. 2 Chapter XII, and see especially $$ 379, et seq., Vol. II, pp. 87, et seq. 3 Chapter XII, and see especially §§ 379, et seq., Vol. II, pp. 87, et seq. Government itself. The power, as lodged in the Central Government in all of its breadth and scope, in all of its farreaching effects over the Union and all of the constituent parts thereof, in all of its varied phases and aspects, has never been diminished by any of the decisions of the court or positions taken in Congress, and which relate only to the method of exercising the power, or of modifying the effects thereof, by the National Government itself, or of the various Departments of the National Government.2 2 CONGRESSIONAL DISCUSSION OF 1902 AS TO CONTROL OF HOUSE OF REPRESENTATIVES OVER TARIFF LAWS AND TREATY STIPULATIONS AFFECTING TARIFF. The discussion as to the power of the House of Representatives to control tariff legislation and the necessity of Congressional action to make treaty stipulations affecting tariff provisions effectual, has been renewed in the 57th Congress just as this volume is going to press. On January 29th, 1902, Senator Cullom of Illinois, Chairman of the Committee on Foreign Relations, delivered an address in the Senate of the United States on the extent of the treaty-making power (Cong. Rec. January 29, 1902, pp. 1104-1111), in which he declared (p. 1111) that the "authority of the House of Representatives in reference to treaties has been argued and discussed for more than a century, and has never been settled in Congress, and perhaps never will be. The House, each time the question was considered, insisted upon its powers, but nevertheless has never declined to make an appropriation to carry out the stipulations of a treaty, and I contend that it was bound to do this, at least as much as Congress can be bound to do anything when the faith of the nation had been pledged. And this appears to me to be the only case in which any action by the House is necessary, unless the treaty itself stipulates, expressly or by implication, for such Congressional action." Senator Cullom cited the instances on which this subject has been discussed in Congress. He referred to the Hawaiian, Canadian and Mexican reciprocity treaties, and declared that they did not go into effect without legislation because the treaty expressly provided that legislation must first be enacted; he said (p. 1110): "In the reciprocity treaty with Mexico, negotiated by General Grant, Congress failed to enact the necessary laws and the treaty never went into practical effect. "Had the provision for Congressional action been omitted in the Hawaiian, Canadian and Mexican reciprocity treaties, they would have become effective at once upon the exchange of ratifications." The House of Representatives took up the gage thrown down by Senator Cullom, and on January 31st, 1902 (Cong. Rec., p. 1193), the following Resolution (House No. 114), was offered by Mr. Dalzell of Pennsylvania, from the Committee on Rules, and was agreed to: "Whereas, it is seriously claimed that under the treaty-making power of the Government, and without any action whatever on the part of the House of Representatives, or by Congress, reciprocal trade agreements may be negotiated with foreign governments that will of their own force operate to supplant, change, increase, or entirely abrogate duties on imports collected under laws enacted by Congress and approved by the Executive for the purpose of raising revenue to maintain the Government: Now, therefore, be it 66 Resolved by the House of Representatives, that the Committee on Ways and Means be directed to fully investigate the question of whether or not the President, by and with the advice and consent of the Senate, and independent of any action on the part of the House of Representatives, can negotiate treaties with foreign governments by which duties levied under an act of Congress for the purpose of raising revenue are modified or repealed, and report the result of such investigation to the House." The resolution was adopted without debate, but Mr. Moody (Massachusetts) asked "if there is any instance in our history where there has been a change in the tariff laws through the operation of a treaty without the concurrence of the House of Representatives ?" To which Mr. Dalzell replied: "I will say to the gentleman from Massachusetts that I know of none." RIGHT TO MAKE TREATY STIPULATIONS EFFECTUAL BY EXECUTIVE PROCLAMATION. The real question involved in the present Congressional debate is whether treaty stipulations as to tariff can be made effectual by Executive proclamation instead of by legislation. This involves the same question that was raised, but never finally decided, in regard to extradition treaties. See British Prisoners and other cases cited in § 374, pp. 79, et seq., ante. The general extradition statute relates to all treaties then or thereafter made regardless of time and extent of privileges. No such provisions exist in the tariff laws. The act of 1897 (30 U. S. St. at L., p. 151, see pp. 203–205) provides that certain specified treaty stipulations made as to reciprocal trade relations may, within a specified time, be enforced by proclamation, but no general law exists giving the Executive general power outside of those limitations. The positions maintained by the two Houses of Congress must stand or fall according to such construction of the provisions of the Constitution as to treaty-making, as the Supreme Court shall finally determine. See the cases cited in §§ 365, et seq., of chap. XII, pp. 67, et seq., of Vol. II. B. Note 1 to § 298, p. 431, ante. The treaties made with Mexico in 1883 (U. S. Tr. and Con., ed. 1889, 714), contained reciprocal trade provisions as to duties. They were not to go into effect until Congress passed the necessary legislation. It does not appear that this legislation was ever enacted. |