President Polk, before opening the Mexican negotiations, asked for a provisional appropriation."4 President Buchanan, in his annual message of December 6, 1858, suggested a provisional appropriation for the purchase of Cuba.55 By an act approved June 28, 1902, Congress made a provisional appropriation for the acquisition by treaty of certain territorial rights of Colombia to facilitate the construction of an interoceanic canal.56 In the convention with Denmark of April 11, 1857, for the abolition of the Sound dues, it was provided that the convention should take effect as soon as the stipulated sum had been tendered by the United States, or received by Denmark." The unratified treaty of November 29, 1869, for the annexation of the Dominican Republic, likewise contained the reservation that the payment by the United States of the $1,500,000, as provided therein, should not be made until an appropriation for the purpose had been voted by Congress.58 These instances are however exceptions. Stipulations involving the payment of money have regularly been made without qualification or reservation as to any action thereon by Congress, and have been ratified by the President upon the advice and consent of the Senate only. When so ratified they have been considered by this government as also by the other contracting parties as valid and definitively concluded, and Congress has never failed to vote the necessary appropriation.

54 Richardson, Messages and Papers of the Presidents, IV, 456, 459, 538.

55 Id., V, 511.

56 32 Stats. at L. 481.

57 See also Article V of the convention of November 6, 1861, with Hanover, for the abolition of the Stade and Brunshausen dues, and Article IV of the convention of May 20, 1863, with Belgium, for the capitalization of the Scheldt dues.

58 The Senate, in its resolution of March 2, 1892, advising ratification of the supplementary industrial property convention signed at Madrid, April 15, 1891, incorporated the reservation made by the United States plenipotentiary to the conference, to the effect that the share to be contributed by the United States should not be augmented until Congress had approved the augmentation.

CHAPTER XIII.

TREATIES INVOLVING A MODIFICATION OF THE REVENUE LAWS.

§82. Early Precedents.-The Constitution expressly provides that all bills for raising revenue shall originate in the House of Representatives, but that the Senate may propose or concur with amendments as on other bills.1

Article III of the treaty with Great Britain, proclaimed February 29, 1796, provided reciprocally on the part of the United States that British subjects might freely pass and repass by land or inland navigation the boundary line between the territories of the two nations; that all goods and merchandise, the importation of which should not be wholly prohibited, might be brought in this manner by British subjects into the United States; and that articles so imported should be subject to no higher or other duties than were payable on the same articles when imported in American vessels into the Atlantic ports. The tonnage and revenue laws then in force imposed a discriminating duty of ten per cent. on goods imported in other than American vessels, and appear to have contained no such exemptions as stipulated for in the treaty. Section 104 of the revenue act of March 2, 1799, "for the purpose of conforming this act to certain stipulations contained in treaties made and ratified under the authority of the United States," incorporated the provisions of Article III of the treaty with Great Britain, as a part of the law. It does not appear whether the article was considered as self-operative prior to this act, and that the section was inserted to exempt the article from repeal, or whether the section was designed to give it effect.*

I Art. I, Sec. 7. For precedents as to the prerogatives of the House in revenue legislation, see Hinds, Precedents, II, §§1480-1501. See as to the nature of a revenue law, United States v. Norton, 91 U. S. 566.

2 See I Stats. at L. 411.

31 Stats. at L. 701.

4 See 1 Op. Atty. Gen. 155. Jefferson, at a meeting of the heads of the departments, July 29, 1790, expressed the view, with respect to a proposed Indian treaty, that a treaty made by the President with the concurrence of two-thirds of the Senate would repeal past laws and legally control the duty acts, but could not itself be repealed by future laws. This was, how

Article X of the treaty with Spain of October 27, 1795 provided that cargoes of Spanish vessels arriving in distress in ports of the United States might be re-shipped to the port of destination without the payment of any duties or charges. Provision for giving effect to this article was made in section 60 of the general act of March 2, 1799, to regulate the collection of duties, and in the special act for this purpose of February 14, 1805. In Article VII of the treaty with France of April 30, 1803, it was stipulated that, for a period of twelve years, French ships coming directly from France or her colonies, and Spanish ships coming directly from Spain or her colonies, loaded with native products and manufactures, should be admitted into all the legal ports of entry in the ceded territory of Louisiana on the same terms of duty and tonnage as American ships coming from the same ports. The act of February 24, 1804, extending certain of the revenue laws of the United States to the new territory, specifically enacted, in section 8, this provision of the treaty.®

§83. Convention with Great Britain of 1815.-In the convention with Great Britain, signed July 3, and proclaimed December 22, 1815, it is stipulated reciprocally on the part of the United States, that no higher charges or duties shall be imposed in the ports of the United States on British vessels than payable by American vessels, and that the duties on articles, the growth, produce or manufacture of His Britannic Majesty's territories in Europe, shall be the same whether imported in British or in American vessels. President Madison, in a message of December 23, 1815, notified Congress of the due ratification and proclamation of the convention, and recommended such legislative provisions as the convention might call for on the part of the United States. Although the stipulations of the convention were in di

ever, he later wrote, a first impression which subsequent investigation proved to be erroneous. Writings (Ford ed.), V, 215, 216, 237. Edmund Randolph, at a meeting of the heads of the departments, November 21, 1793, asserted that an act of the legislature would be necessary to confirm treaties affecting the tariff duties. Id., I, 268.

51 Stats. at L. 672; 2 Id. 314. See also Repts. of Senate Com, on For. Rel., VIII, 17.

6 2 Stats. at L. 253. See similar provision in the act of March 3, 1821, extending, "subject to the modification stipulated" by Article XV of the treaty of February 22, 1819, the revenue laws to Florida. 3 Id. 639. 7 Annals, 14th Cong., 1st Sess., 29.

rect conflict with the general revenue and tonnage laws, a special act approved March 3, 1815,8 had repealed discriminating duties on tonnage so far as they affected any foreign nation which, to the satisfaction of the President, had abolished its laws which operated to discriminate against the United States. Mr. Calhoun, in the debates on the convention in the House of Representatives, observed that whatever might be the ipso facto effect of the convention on existing legislation, the act of March 3, 1815 made quite unnecessary any further legislation to give it effect, since no better evidence could be furnished the Executive of the removal of the discriminating duties by Great Britain than the treaty stipulation. Bills were, however, introduced in each house, agreeably to the President's recommendation. As adopted by the Senate, January 10, 1816, the bill simply declared that so much of any acts as might be contrary to the provisions of the convention should be deemed and taken to be of no effect. It was assumed that the convention of itself effected the repeal of any inconsistent laws, and that the only purpose of any action by Congress was, by a declaratory act, to remove any doubts in this respect should any arise.10 On the other hand, in the bill as passed by the House, January 13, by a vote of 86 to 71, entitled "an act to regulate the commerce between the United States and the territories of His Britannic Majesty according to the convention," it was assumed that the prior acts of Congress with which the convention conflicted were in full force, and that a specific legislative enactment was necessary to effect the modifications." The two houses being unable to agree, a conference committee was appointed.12 The conferees on the part of the Senate (Rufus King, James Barbour and W. W. Bibb), in their report to the Senate admitted the doctrine that some treaties made in pursuance of the Constitution might call for legislative provisions to secure their execution, which provision Congress, in all such cases, was bound to make. They contended, however, that in the case before them no such legislation was necessary, because the convention did no more than to suspend the alien disability of British subjects in com

8 3 Stats. at L. 224.

9 Annals, 14th Cong., 1st Sess., 526.

10 Id., 36, 40, 46.

II Id., 419, 674.

12 Id., 130, 134, 136, 960, 1018.

mercial matters in return for a like suspension in favor of American citizens, a subject within the peculiar province of the treaty power to adjust, and which could be adjusted in no other way; that a treaty duly made to adjust the matter was conclusive and by its own force suspended antecedent laws in conflict with it, and that even a declaratory act added nothing to the efficacy of the treaty but served merely to remove any possible doubt that might arise. The report does not indicate what class of treaties the Senate conferees considered as requiring Congressional legislation to secure their execution.13 Mr. Forsyth, however, in his report for the House conferees, observed that it was believed that the Senate acknowledged that legislative enactments were necessary to carry into execution all treaties which contained "stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory; if indeed this power exists in the government at all." The bill as finally agreed to in conference and passed by both branches reads: "Be it enacted and declared by the Senate and House of Representatives of the United States of America, in Congress, assembled, That so much of any act as imposes a higher duty of tonnage, or of impost on vessels and articles imported in vessels of Great Britain, than on vessels and articles imported in vessels of the United States, contrary" to the convention, "be, from and after the date of the ratification of the said convention, and during the continuance thereof, deemed and taken to be of no force or effect."15 The act was clearly a compromise. The insertion of the words "and declared" after the word "enacted" seemed to the Senate conferees most essential as indicating the effective force of the treaty itself in the repeal. To this the conferees of the House yielded, in the belief that these words were "mere surplusage not changing the character, or impairing the force of the legislative act." The House conferees insisted on a law enacting a repeal of any law not in accord with the treaty. To this the Senate conferees agreed, provided no precedent should be established which should bind them thereafter to assist in passing laws in cases in which "such doubts might not exist."16 The House conferees observed 13 Id., 160.

14 Id., 1019.

15 3 Stats. at L. 255.

16 Annals, 14th Cong., 1st Sess., 1022.