that it was safer in all doubtful cases to provide by legislation for the execution of treaties than to "endanger the public faith by a failure to perform the provisions of a treaty" which had received a constitutional ratification.17 The convention seems to have met with general approval in Congress; and the debates were confined in large measure to the constitutional question involved. The Senate was composed of 24 Republicans and 12 Federalists, and the House, of 117 Republicans, and 65 Federalists. Of those who urged the necessity of legislative enactment were John Forsyth,18 Philip P. Barbour, 19 John Randolph,20 Cyrus King," and Henry St. George Tucker.22 Of those who held the opposite view were John C. Calhoun,23 Benjamin Hardin," William Pinkney,25 Alexander C. Hanson,26 Timothy Pickering," Asa Lyon,28 William Gaston," and Thomas R. Gold,30 It may be observed that John Forsyth, later Secretary of State, who led in the contention as to the rights of the House, said in his reply speech of January 13: "The basis of the bill is not the principle stated, that legislative aid is necessary to the validity of treaties. Gentlemen have exhausted their ingenuity, their time, and their eloquence, in the discussion of a doctrine utterly denied by the bill and those who advocate it. The doctrine contended for is, that in certain cases specified by the Constitution, legislative aid is necessary to the execution of treaties. Is there no difference between the two propositions? * The distinction between the validity of an instrument and the execution of its provisions, between the obligation of contract and the performance of that obligation? * We insist not that it is the figment or shadow of a treaty, but that it shall be neither more nor less than a

17 Id., 1020.

18 Id., 474, 652.

19 Id., 478.

20 Id., 533.

21 Id., 538. 22 Id., 557. 23 Id., 526. 24 Id., 543. 25 Id., 564. 26 Id., 605.

27 Id., 612.

28 Id., 884.

29 Id., 466, 489.

30 Id., 482.

treaty, valid and obligatory as such as a contract, but not having the force of law in its operation upon the municipal concerns of this people, without legislative enactment." He added: "Every treaty ratified imposes upon the government, in all its departments, the obligation to fulfill it. The extent of that obligation is a question not now necessary to be examined or discussed. So far as relates to the late convention with Great Britain, no disposition is felt in any part of the House to avoid the discharge of all the duties which are imposed by its ratification."31

§84. Convention with France of 1822.-The act of May 15, 1820 imposed a duty of eighteen dollars per ton on French vessels entering the United States.32 By the convention with France signed June 24, 1822, and proclaimed February 12, 1823, it was stipulated on the part of the United States that the products of France imported in French vessels should pay a duty not exceeding three dollars and seventy-five cents per ton, in excess of the duty collected on the same products when imported in American vessels. Copies of the convention were, on February 18, 1823, communicated to both houses of Congress to the end that "the necessary measures for carrying it into execution" might be adopted. In his annual message of December 3, 1822, President Monroe had said: "Should the constitutional sanction of the Senate be given to the ratification of the convention with France, legislative provisions will be necessary to carry it fully into effect." The act of March 3, 1823, for this purpose, repealed all acts incompatible with the execution of the convention, specifically mentioning the act of May 15, 1820; and enacted that French vessels should pay the additional duty of three dollars and seventyfive cents according to the tenor of the convention.35

$85. Convention with France of 1831.-Article VII of the convention with France, signed July 4, 1831, provided that the United States should, on and after the exchange of ratifications, impose duties on French wines not to exceed certain enumerated rates, which were less than those then imposed.36 On February 7, 1832, after the ratification of the convention, President Jackson

31 Id., 653, 654.

32 3 Stats. at L. 605.

33 Richardson, Messages and Papers of the Presidents, II, 203. 34 Id., 186.

35 3 Stats. at L. 747.

36 See act of May 24, 1828, 4 Stats. at L. 309.

communicated a copy of it to Congress in its legislative capacity, observing that some important conditions could be carried into execution only with the aid of Congress. The convention contained, besides the stipulation for the reduction of import duties, a provision for the payment of indemnities due the citizens of the respective parties, in which each party engaged to provide for the distribution to those entitled to share in the indemnity. Section 10 of the act approved July 13, 1832, expressly provided that French wines should, after February 2, 1832, be admitted into the United States upon the payment of duties not to exceed certain rates, which rates corresponded with those stipulated for in the convention. The ratifications had been exchanged February 2, 1832, but the convention was not proclaimed by the President until July 13, 1832, the date of the approval of this act.38 Attorney General Cushing in an opinion, dated February 16, 1854, declared that the wines became chargeable with the lower duty upon the exchange of ratifications of the convention on February 2, 1832, as provided for in the convention, regardless of the preexisting statutes.39 The article in question had met with opposition in the Senate. Mr. Clay, on February 8, 1832, after the ratification of the convention had been advised, offered a resolution in which it was declared that the Senate did not intend that the article should "be taken and held as a precedent in the future exercise of the treaty-making power." The resolution was tabled.40

§86. Convention of 1844 with the States of the German Zollverein. In submitting to the Senate, April 29, 1844, a convention for commercial reciprocity concluded with the States of the German Zollverein, March 25, 1844, President Tyler observed that, inasmuch as the convention conflicted to some extent with existing laws, it was his intention, should the Senate consent to its ratification, to communicate a copy of it to the House of Representatives in order that such action might be taken as deemed necessary to

37 Richardson, Messages and Papers of the Presidents, II, 564. 38 4 Stats. at L. 576.

39 6 Op. 295. See the view expressed by Attorney General Miller, April 5, 1889, as to the Hawaiian reciprocity convention, 19 Op. 277.

40 Ex. Journal, IV, 209. See acts of March 16, 1866, and June 1, 1866, to secure to American citizens certain privileges under Article III of the treaty with Great Britain of August 9, 1842, for the admission, free of duty, of certain forest products. 14 Stats. at L. 9, 56.

give effect to the provisions." On June 14, 1844, Rufus Choate, from the Senate Committee on Foreign Relations, reported against the ratification. Without reference to the particular merits of the convention, 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 the 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." This view was reaffirmed in a later report from the same committee, February 26, 1845, submitted by William S. Archer, formerly chairman of the House Committee on Foreign Affairs, occasioned by a message from the President urging action on the convention. In the course of the report, Mr. Archer said: "The question has been debated, how far Congress would be bound to give effect, in cases requiring its co-operation, to regulations by treaty on subjects put within its express province by the Constitution. Whichever may be the better opinion, the doubt supplies reason enough against putting the question to trial in other circumstances than those in which the concurrence of Congress may be safely assumed. And the reason is the stronger for this forbearance from the fact that, in the contingency of conflict, it would be not the interests only, but the faith, too, of the nation which might be compromised, as this would have been committed by the adoption of the treaty regulations." The Senate failed to advise ratification.

$87. Convention with Great Britain of 1854.-President Fillmore, in his annual message of December 6, 1852, in referring to

41 Richardson, Messages and Papers of the Presidents, IV, 314. A treaty of amity and commerce with Texas, signed at Washington, July 30, 1842, in which it was stipulated that for a period of five years raw cotton might be imported free of duty, was submitted to the Senate by President Tyler, August 18, 1842. In advising ratification, March 3, 1843, the Senate as one of the amendments struck out the article which contained this stipulation. Ex. Journal, VI, 189.

42 Reports of Sen. Com. on For. Rel., VIII, 36. 43 Id., 38.

proposed negotiations with Great Britain in respect of the fisheries and commercial intercourse between the United States and the British Provinces, said: "The control of Congress over all the provisions of such an arrangement affecting the revenue will of course be reserved." The convention as finally signed, under direction of his successor, June 5, 1854, in which the free introduction into the United States of certain products of the British possessions in North America was stipulated for, contained, in Article V, an express reservation that it should take effect as soon as the "laws required to carry it into operation" should have been passed by the Imperial Parliament of Great Britain 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 convention, specifically enumerated the products, corresponding with those named in the convention, to be exempted from duties. To a proposal of the British government to extend the period of the convention, Mr. Seward, Secretary of State, in a note to Sir Frederick W. A. Bruce, British minister, February 17, 1866, replied that the subjects embraced in the convention were expressly confided by the Constitution to Congress, and that any proposal to extend the system of reciprocal trade with the British Provinces would await the decision of the proper committees of Congress.1

§88. Subsequent Conventions for Commercial Reciprocity.— In the conventions for commercial reciprocity involving special concessions in tariff duties, concluded and ratified since the convention of 1854, a clause has been inserted, either by the Executive, or as an amendment by the Senate, expressly making their operation contingent upon action by Congress. The reservation in Article XXXIII of the treaty of May 8, 1871, with Great Britain, as to the operation of Articles XVIII to XXV, and Article XXX, which stipulated for certain concessions in tariff rates, was in terms similar to those found in Article V of the convention of 1854. An act was approved March 1, 1873, to carry these articles into effect." Section 3 of this act likewise made provi

44 Richardson, Messages and Papers of the Presidents, V, 164. See also annual message of December 2, 1851, Id., V, 119.