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ment in the form most suitable for quotation. Mr. Cullom said (App., p. 473):
Is the treaty perfect and complete, or is it unfinished and inchoate and dependent upon the very question we are considering, namely, whether we shall make the appropriation?
I fully understand the fact that Congress can, by mere force of its own will, refuse to make the appropriation; but the question is can it do so consistent with the honor of the nation and its constitutional prerogatives? If the treaty is perfect and complete, so that the nation is bound and may be held responsible by the Russian Gorernment in case of failure to make the appropriation and payment, then I should vote the appropriation. But it seems to me that it is not. The Russian Government knew that the power to raise revenue rested with Congress. There can be no pretense that that Government was ignorant of the provisions of our Constitution. It was well known that Congress would have to be invoked, and that that branch of the Government was free to act as its members might choose. It has been the settled doctrine of this country ever since 1794 that Congress has the right to deliberate and carry out or refuse to carry out a treaty as in their judgment might be for the public good, when such treaty contained stipulations which depended upon Congress for their execution. The resolution adopted by the House of Representatives of the Fourth Congress asserted that doctrine, and it has been adhered to ever since. I give the resolution:
“Resolved, That it being declared by the second section of the second article of the Constitution that “the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two-thirds of the Senators present concur,' the House of Representatives do not claim any agency in making treaties, but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good."
This resolution is explicit and clear in its declaration that when a treaty stipulates regulations on any subject which by the Constitution is submitted to the power of Congress, in such cases Congress has the right to deliberate on the expediency or inexpediency of carrying such treaty into effect.
Now, Mr. Speaker, I submit that if Congress has the right to deliberate and vote and pass whatever ‘law may be necessary to carry out a treaty, where by its terms legislation is necessary, as in this case, an appropriation being necessary before the terms of the contract can be complied with in paying the money for the land, or to refuse to enact such legislation, is it not the inevitable conclusion to which you must come that such a treaty does not become the supreme law of the land until such legislation is had, and that it is a contract entered into between the parties, but not binding upon the Government because it remains in an inchoate condition? Of what consequence is the right to deliberate if after all we are bound at last to come to but one conclusion, and that to do whatever may be necessary to carry out the treaty? The resolution of 1794 is nonsense if it simply means the House may consider and then vote as the President and Senate desire, or even if it means that we may deliberate and then violate a contract which is claimed to be the supreme law of the land, and to be such a contract as to give the other party the right to demand reparation for a violation. The doctrine of the Constitution and of the resolution of 1794 amounts to more than a declaration of arbitrary power; it amounts to a declaration, in my judgment, that a treaty which requires the action of Congress to carry it into effect does not become the supreme law of the land until such action by Congress is had.
Justice MeLean, in my judgment, took the correct view of the matter in his opinion found in 5 McLean's Reports, page 344. He say that
“A treaty is the supreme law of the land only when the treaty-making power can carry it into effect. A treaty which stipulates for the payment of money undertakes to do that which the treaty-making power can not do; therefore the treaty is not the supreme law of the land. To give it the effect the action of Congress is necessary. And in this action the Representatives and Senators act on their own judgment and responsibility, and not on the judgment and responsibility of the treaty-making power. A foreign government may be presumed to know the power of appropriating money belongs to Congress. No act of any part of the Government can be held to be a law which has not all the sanctions to make it law.”
So, according to this decision, the treaty with Russia for the purchase of Alaska is not the supreme law of the land because it undertakes to do that which it can not do Justice Marshall also entertained the same opinion. In 2 Peters, page 258, he says:
"Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and the Legislature must execute the contract before it can become a rule for the court."
Then, if the treaty has not yet become the supreme law of the land, and if we have the right to deliberate and are left perfectly free to make the appropriation or refuse it, then the question recurs, What ought we do in reference to this appropriation? In other words, ought we to purchase, pay for, and own this territory now? I do not agree to the declaration that the territory is worthless. My opinion is that some day the territory will be valuable. But do we want it now, and are we in a condition now to begin a policy of acquisition?
The House adopted the substitute; the bill was passed and sent to the Senate. That body amended the bill by striking out the substitute and returned it to the House. The House refused to concur in the amendment, and a conference was ordered. The outcome of the controversy was that the Senate receded, the position of the House was sustained, the bill passed both Houses, and was signed by the President, as follows:
Whereas the President of the United States, on the thirtieth of March, eighteen hundred and sixty-seven, entered into a treaty with the Emperor of Russia, and the Senate thereafter gave its advice and consent to said treaty, by the terms of which it was stipulated that, in consideration of the cession by the Emperor of Russia to the United States of certain territory therein described, the United States should pay to the Emperor of Russia the sum of seven million two hundred thousand dollars in coin; and
Whereas it was further stipulated in said treaty that the United States shall accept of such cession, and that certain inhabitants of said territory shall be admitted to the enjoyment of all the rights and immunities of citizens of the United States; and
Whereas said stipulations can not be carried into full force and effect except by legislation to which the consent of both Houses of Congress is necessary: Therefore,
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and hereby is, appropriated, from any money in the Treasury not otherwise appropriated, seven million and two hundred thousand dollars in coin, to fulfil stipulations contained in the sixth article of the treaty with Russia, concluded at Washington on the thirtieth day of March, eighteen hundred and sixty-seven. (15 U. S. Stat., 198.)
THE POSITION TAKEN BY THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THIS
GOVERNMENT RESPECTING TERRITORY SUBJECT TO THE JURISDICTION OF THE UNITED STATES BUT OUTSIDE OF THE STATES OF THE UNION, AND THE RELATION SUSTAINED BY SUCH TERRITORY TO THE TARIFF LAWS AND STATUTES OF SIMILAR CHARACTER.
The original law for the collection of customs, passed July 31, 1789, divided the States into collection districts, but entirely neglected the territory outside of the original States. The only collector in the Western territory was at Louisville, “whose authority shall extend over all waters, shores, and inlets included between the rapids and the mouth of the Ohio River, on the southeast side thereof.” (Act of July 31, 1789, 1 U. S. Stats., p. 34.)
The northwest or territorial bank of the Ohio was left unprovided for. Vermont was left without a customs house until it was admitted as a State, as was also Tennessee; but as soon as either was admitted a port was established therein, evidently out of regard for the equality of commercial privileges guaranteed the States by the Constitution. It was not until 1799 that the customs laws of the United States were put in force in any part of the Northwest Territory. (Act of March 2, 1799, sec. 17; see 1 U. S. Stats., pp. 637, 638.)
If the result of this omission was to make unlawful all and any importations from Canada into the Northwest Territory, then certainly the territory was not considered as benefited by the Constitution, for one of the benefits most jealously guarded by the several States was equal privileges in foreign commerce.
Historically we know that Vermont and the Northwest Territory carried on extensive trade with Canada, and it is seemingly incontestable that the idea prevailed in those days that prior to admission as a State, or the extension of the customs laws in 1799, said territory was no more bound by the tariff requirements of the Constitution than it was benefited thereby.
Attention is also directed to the action taken by the First Congress in the instances of North Carolina and Rhode Island. The President informed Congress on the 28th of January, 1790, that North Carolina had ratified the Constitution on November 21, 1789; and, again, he informed Congress on the 1st day of June, 1790, that Rhode Island had ratified the Constitution on May 29, 1789. Prior to receiving these notifications Congress had enacted two revenue measures, to wit, “an act for laying duties on goods, wares, and merchandises imported into the United States," also, “an act imposing duties on tonnage.” Although by such act of ratification both North Carolina and Rhode Island became incorporated in the Union of States, Congress saw fit to pass acts extending the provisions of the previous revenue measures over the territory included in North Carolina and Rhode Island. (See 1 Stat., pp. 99, 126.)
THE TARIFF IN LOUISIANA.
The treaty for the purchase of Louisiana was formulated April 30, 1803; approved by the Senate in October, 1803; ratified by the President and exchanged October 21, 1803.
On October 25, 1803, Gallatin, as Secretary of the Treasury, submitted a “Report on the Finances.” Therein he said:
The existing surplus revenue of the United States will, as has been stated, be sufficient to discharge $600,000 of that sum, and it is expected that the net revenue collected at New Orleans will be equal to the remaining $200,000. That opinion rests on the supposition that Congress shall place that port on the same footing as those of the United States, so that the same duties shall be collected there on the importation of foreign merchandise as are now by law levied in the United States, and that no duties shall be collected, either on the exportation of produce or merchandise, from New Orleans to any other place, nor on any articles imported in the United States from the ceded territories or into those territories from the United States. (Vol. 1, Reports on Finances, p. 265, U. S. Treasury.)
It is manifest that Gallatin considered that Congress must legislate in order that “no duties shall be collected * * * on any articles imported in the United States from the ceded territories or into those territories from the United States."
Gallatin wrote to W.C. Claiborne, governor of Mississippi Territory, as follows:
WASHINGTON, 31st October, 1803. Dear Sir: You will receive by this mail instructions from the proper department for taking possession of Louisiana and for the temporary government of the province. It is understood that the existing duties on imports and exports, which by the Spanish laws are now levied within the province, will continue until Congress shall have otherwise provided. By next mail I expect to be able to write you an official letter on that subject which will probably reach you before you can act upon it. (Writings of Gallatin, vol. 1, p. 167.)
Thereafter H. R. Trist, United States collector at Fort Adams, was designated as collector of the port of New Orleans. On November 14, 1803, Gallatin, as Secretary of the Treasury, issued an order directed to Mr. Trist, wherein, after informing him of his new appointment, he instructed hini as follows:
You will also be pleased to observe
First. That the taxes and the duties to be collected under your direction are precisely the same which by the existing laws or regulations of Louisiana were demandable under the Spanish Government at the time of taking possession.
Second. That in those taxes and duties are included specially those on imports, exports, transfer of shipping, etc., which were collected under those officers whose powers are vested in you, and generally all other taxes and duties which made part of the general revenue of the province.
Fourth. That you are only to secure or collect duties accruing after possession of same by the United States.
Tenth. That until otherwise provided for, the same duties are to be collected on the importation of goods in the Mississippi district from New Orleans and vice versa as heretofore. (Gallatin to Trist, November 14, 1803. See Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of the Treasury.)
On February 24, 1804, Congress passed an act putting in force in the Territory of Louisiana the laws of the United States regulating duties on imports and tonnage. (2 U. S. Stats., 251.)
Congress accepted the doctrine acted upon by the Jefferson Administration, and included in said act the following:
Sec. 3. And be it further enacted, That so much of any law or laws laying any duties on the importation into the United States of goods, wares, and merchandise from the said territories (or allowing drawbacks on the importation of the same from the United States to the said territories), or respecting the commercial intercourse between the United States and the said territories, or between the several parts of the United States through the said territories, which is inconsistent with the provisions of the preceding section, be, and the same hereby is, repealed; and all duties on the exportation of goods, wares, and merchandise from the said territories, as well as all duties on the importation of goods, wares, and merchandise into the said territories, on the transfer of ships or vessels, and on the tonnage of vessels, other than those laid by virtue of the laws of the United States, shall, from the time when this act shall commence to be in force, cease and determine: Provided, howerer, That nothing herein contained shall be construed to affect the fees and other charges usually paid in the said territories on account of pilotage, wharfage, or the right of anchorage by the levy of the city of New Orleans, which several fees and charges shall, until otherwise directed, continue to be paid and applied to the same purposes as heretofore. (2 U. S. Stats., sec. 3, p. 255.)
Section 12 of said act provided “that this act shall commence thirty days after the passing thereof.” (Id., p. 254.)
Thereupon Gallatin, Secretary of the Treasury, issued the following:
TREASURY DEPARTMENT, February 28, 1804. Sir: As it may be some time before you can be furnished with a printed copy of an act entitled “An act for laying and collecting duties on imports and tonnage within the territories ceded to the United States by the treaty of the thirtieth of April, one thousand eight hundred and three, between the United States and the French Republic, and for other purposes," passed on the 24th of the present month, I have deemed it proper, for your government therein, to inform you that by the third section of the said act so much of any law or laws imposing duties on the importations into the United States of goods, wares, and merchandise from New Orleans, which is the only port of entry in the said territories, has been repealed. But as the act in question does not commence to be in force until thirty days after its date, articles which have been or may be thus imported before the 25th of March ensuing must pay the same duties as heretofore. I am, very respectfully, sir, your obedient servant,
A. GALLATIN. (Book G, January 1, 1803, to December 31, 1808, Collectors of Small Ports, Office Secretary of Treasury.)
Regarding the construction of this repealing act Gallatin determined as follows:
TREASURY DEPARTMENT, March 31, 1804. ROBERT PURVEANCE, Esq.,
Collector, Baltimore. Sir: In answer to your letter of the 29th instant I will only observe that, without wishing to establish a principle applicable to other places, it seems proper that the