PRIVILEGES OF THE HOUSE.

It has been faintly argued that such reciprocal treaties would still leave to the House of Representatives the privilege of originating revenue bills at its pleasure, but this does not rise to the dignity of a respectable sophism. It does not even wear the appearance of candor. It is a mockery. Whatever prior or subsequent legislative enactments there may be, a treaty, being according to Executive interpretation always the supreme law of the land, overrides them, and wherever such enactments come in conflict with a treaty they are practical aullities, as has been proved, and will be so long as the Executive is the sole arbiter of the question. The House may fling its net for revenue and toil all aight, but they will catch nothing. When the revenue has been sequestered by force of treaty stipulations for the benefit of foreigners the House will find itself in the old attitude of being forced to make brick without straw. The pretense that such a treaty is not an invasion of the rights of the House, it seems to me, adds to the injury a contempt for the intelligence and sensibility of that body. To say that all this may be done even with the joint action and assent of the House does not relieve the matter-only complicates it. It is not in the power of the House, either alone or conjointly with the President and the Senate, to change or dispense with any portion of the Constitution. The powers given to the House are given for all time, as much for one Congress as another, and can not be lawfully suspended by them nor by the treaty-making power, whether directly or indirectly. One House of Representatives has the same powers as any other, and no one can properly or lawfully intercept or hold them in abeyance for any length of time. The House of 1870 must be as free to act as the House of 1868. One House, indeed, may have so little spirit as to refuse to exercise its constitutional powers, but one or both Houses can not exhaust their vigor, nor abdicate nor forfeit them for a moment, nor can any circumstances lift any law to such high sanctity that a new Congress, fresh from the people, can not constitutionally repeal it, whatever of misfortune might attend such a repeal.

Revenue laws require adjusting annually, and for years to come the subject will be one of paramount importance. Taxation as a whole may steadily be diminished, but a careful consideration of the whole subject may require that burdens resting in one place may be removed to another better able to bear them or where they will be more widely and equally distributed. In spite of all inclinations for honorable peace, the just claims of the United States may be so long delayed that the only remedy for a high-spirited people will be war. In such an untoward event the whole resources of the country should be kept untrammeled, ready to be unleashed for instant use, and no part of them should be placed beyond our reach. The power to originate revenue bills, then, becomes imperative and indispensable to the preservation of national life. A war with one nation abrogates no treaties with any other. A compact of this reciprocity character, however inopportune or galling, must be fulfilled. To disregard it gives just cause for war. The executive branch of the Government, with the Senate in its executive capacity, having pledged the faith of the Nation, no explanation of the framework of our Constitution will prevent any foreign nation from seeking a redemption of the pledge.

In the first article, section 8, of the Constitution it will be found that Congress not the President and Senate alone-was to have the power "to reguate commerce with foreign nations." If Congress was to have the power to do this, it is clear that it can not be done by either the judicial or executive authority, nor was it the purpose to lodge the power in any body less responsible than the whole of Congress.

If to Congress belongs the power to regulate commerce with foreign nations, and the House has the exclusive right to originate revenue bills, it follows that the powers thus delegated should not be curtailed or frittered away by any treaty. If laws become weak and worthless in the face of the assumed supremacy of even illegitimate treaties, or such as can not properly be considered as made "under the authority of the United States." the Constitution whenever appealed to retains its full vigor, and when its agents transcend its authority et them be disowned and not the Constitution.

How greatly is it to be preferred that our Government should be left at all times unfettered and free to make such laws and regulations as the interest of our people from time to time demands, and that we should be at liberty to extend favors or withdraw them, as our own sense of propriety may require, without any infringement of a compact, and especially of a compact made in

conflict with a provision in the Constitution deemed most essential to the framework of a free Government?

LATITUDE OF THE POWER CLAIMED.

If such an innovation of the rights of the House or of the rights of Congress be allowed to go unchallenged, there is little else in the way of legislation that may not be done by treaty. Why may not the right of suffrage be regulated by reciprocal treaties? Why not so fix the price of our public lands? Why may not internal improvements, canals, and railroads be secured on the international reciprocity plan? Why not have reciprocity in fortification treaties? Why not thus regulate the rates of postage? Why not reestablish slavery by a reciprocal treaty with Brazil or the King of Dahomey? Why not have recip rocal naturalization treaties? Why may not New England be thus put out in the cold or the State of Michigan be alienated by treaty with the Canadian Dominions? Why not borrow money or resume specie payment by virtue of a reciprocity treaty?

These interrogatories give some indication of the possible scope of the powers claimed and the easy manner in which power may slide into the hands of the few, and, without changing the form of our Government, wholly subvert its popular character; nor can it be pretended that the exercise of the power in any one of the examples here, used to illustrate its extent would not be equally justifiable with its exercise upon the subject of tariffs, and all are equally dangerous. It is a power subject to the winds and waves of party, and liable to ingulf and absorb all legislative power.

Since the decision in the case of the Jay treaty and the recent treaty for the purchase of Alaska it may, perhaps, be considered the settled doctrine that a treaty made by the President, with the consent of two-thirds of the Senate, involving an appropriation, binds the House, or at least overwhelmingly urges it, to make the appropriation without stopping to consider its justice or expediency, or whether the treaty is good or bad. Is not that enough? Foreign nations, it is argued, can neither interfere with our internal machinery nor know whether our agents exceed their authority or not, and they deal only with the sovereign authority, regarding the mouthpiece of that authority as the authority itself, whether so in point of fact or not. Such considerations should inspire great caution about amplifying or enlarging the jurisdiction of the Senate in the formation of treaties. It is enough that we confine the Senate to its legitimate and unquestioned functions, but when we step beyond and remove subjects of ordinary legislation by Congress within the control of the treaty-making power, we justly arouse a suspicion that if we are not aiming at consolidation we are removing step by step from the popular control of the people. Among the admirable checks and balances of our system of government there is none more reverenced than that of the Senate, but if it attempts to magnify its office by engrossing doubtful powers, from that moment its prestige will begin to wane and its usefulness will be seriously contested.

I regret that this question has not been handled by some Senator better able to present the argument, but a simple statement of the question would almost seem to be enough without argument. In its whole length and breadth it is this: Can the President with two-thirds of a quorum of the Senate repeal laws passed by both branches of Congress and approved by the President, and at the same time fasten upon the people an irrepealable law? If this can not be lawfully done, there is an end of reciprocity treaties.

I shall next briefly consider the history and character of these treaties.

TREATY WITH FRANCE.

It has sometimes been pretended that there are numerous precedents on record for making reciprocity treaties, but in point of fact there has never been one deserving that title, nor but one claiming it, and that was the late illadvised treaty concerning trade with the British Provinces. By the treaty with the First Consul of France, in 1803, for the cession of Louisiana we agreed to permit French and Spanish vessels to trade in all the ceded ports of this territory for 12 years, in the same manner as our own vessels, and also agreed that no other nation should have the same privileges. It must be remembered that at that time we were few in numbers, and the acquisition of so vast a territory, with the port of New Orleans and the mouths of the Mississippi, offered temptations not to be resisted by any nation dreaming of maritime im

portance, and the terms demanded by Napoleon were no doubt very moderate. But subsequently France made large reclamations on the ground that we had failed to fulfill the part of the treaty already alluded to, and in 1831 we made a new treaty with France, by which she paid us in money for her spoliations of our commerce, and we healed the breach in the treaty of 1803 by allowing French wines to be imported at fixed and specific rates of duty for 11 years. There was no reciprocity whatever, as no concessions were made by France in her revenue laws but to cancel large claims against the United States difficult to compute in money, and to avoid a vexed question Congress granted for a limited time a special favor to French wines. This is the slender prop upon which precedents are claimed to build up a system of reciprocity treaties. We are older now; and however proper the terms may have been at the time, they were not reciprocal, and whether they were or not no American statesman will hereafter venture upon a similar compensation, whatever may be the demand made by any foreign nation.

THE ZOLLVEREIN TREATY.

The first real negotiation in the way of a treaty of reciprocity was made by Mr. Wheaton, at Berlin. He had been instructed by Mr. Forsyth in 1837, then Secretary of State, to obtain a relaxation of the duties on tobacco-that was alland after seven years of effort, or at least a lapse of seven years, he concluded what is known as the Zollverein treaty. Prussia and her German associates would consent to nothing without an equivalent. If Prussian duties on tobacco were to be relaxed, then the United States must tender a relaxation of the duties on certain other articles of the growth or produce of the Zollverein, and these articles seem to have become coextensive with the number of the principalities embraced in that associated crowd. Each appears to have rushed in with some pet to be favored, and all would seem to have been gratified. The workers in hardware and in wool, worsted, silk, cotton, and linen were no sooner appeased than the fabricants of fishhooks, snuffboxes, and toys presented their budgets, and at last the proposed treaty contained an assortment of staples and bijouterie. such as, I venture to say, were never before assembled together by Jew or Christian.

This proposed treaty was the work of a man whose historical and legal productions have contributed largely to the solid reputation of our country. His fame is part of the glory of our people; and if a treaty of this kind could ever be expected to find favor in the American Senate or with the American people this was brought forth by a man entitled, even though he labored under specific instructions, to a respectful hearing. It received the highest commendations of Mr. Calhoun, and yet, notwithstanding the wholly unexceptionable character of the negotiator, after being elaborately considered, it was reported against by the Senate Committee of Foreign Affairs, and upon being again urgently pressed by President Tyler, a second adverse report having been made, it was rejected by a large majority, and rejected, not by a party vote, upon the ground of deference to the constitutional privileges of the House of Representatives, with which the treaty conflicted. The eloquent words of the first report, penned by a distinguished statesman of Massachusetts [Mr. Choate], and reiterated and amplified in the second report by Mr. Archer of Virginia, declared that

The committee, then, are not prepared to sanction so large an innovation on the ancient and uniform practice in respect of the department of Government by which duties on imports shall be imposed; that the Constitution in express terms delegates the power to Congress to regulate commerce and impose duties, and to no other; and that the control of trade and the functions of taxing belong, without abridgment or participation, to Congress.

It is somewhat remarkable, in stating the advantages of this treaty, that Mr. Lawrence, the biographer of Mr. Wheaton, should enumerate, among the benefits to accrue to the United States, but three American articles of export touched by the treaty, and of these no actual change of the rates of duty was to be made by the Zollverein except with regard to one. He speaks of the treaty as one which "would effect the long-cherished object of procuring the reduction of the present duty on tobacco, secure the continued admission of our cotton free from all duty, and prevent the imposition of any higher duty on rice"; and he continues, "For these advantages"-that is to say, stripped of all rhetorical verbiage, for a reduction of the duty on leaf tobacco amounting to about 1 cent per pound and of 14 cents on stems, and with no change on cotton and rice (and lard), we were to reduce, or not increase, the duty upon

at least 500 articles, embracing (though wholly unmentioned by Mr. Lawrence) whole classes and many varieties, some of which, singly, were scarcely less, when compared in commercial magnitude, than the sum total of our Prussian tobacco trade. "For these advantages," practically confined solely to tobacco and tobacco stems, we were to dwarf and hamper our tariff to proportions satisfactory to the great nullifier of South Carolina. Had this clever scheme proved successful the direct benefit to the tobacco-growing States would have been inconsiderable, but it is hardly too much to say that the direct injury to the industry of the North would have been so serious that in their retarded growth it would have left the slave power of the country to-day in the undis puted ascendancy. Never was John C. Calhoun so nearly victorious.

It is singular that a man of such eminent patriotism, ability, and culture as Mr. Wheaton should have been dazzled by gems of such inconsiderable value, while throwing away such costly treasures, and even more singular that he should have overlooked such plain landmarks of the Constitution as were pre sented by the Committee on Foreign Affairs in their reports to the Senate in 1844 and 1845, then as now composed of Senators thoroughly versed in consti tutional learning, but it is even marvelous that Mr. Wheaton should have felt that a treaty with such limited advantages, accompanied by such onerous bur. dens, offered any contribution to his already well-earned fame as a scholar and jurist, and can only be accounted for by supposing that his partiality for his offspring arose not on account of any merits, but from the length of the period of its gestation, or by that fatuity of genius which remains indifferent to fame fairly won and pines after that to be found in some bypath wholly aside from its reach.

The success of these reciprocity treaties requires secrecy while they are in progress. It will not do to let the whole substantive matter contained therein leak out in advance. A few nuggets may be unveiled, and then the imagination is left free to gild all the rest. If the whole should be at once exposed to the public gaze, short work might follow such diplomatic achievements. The proposed Zollverein treaty of 1844 was supposed to relate chiefly to a reduction of the Prussian duty on tobacco and tobacco stems. I doubt not that was the understanding of most of our people. It stipulated for so much, and that the duties upon rice, cotton, and lard should not be advanced. The duties on tobacco were not to exceed 4 thalers per centner (or $2.88 per 110 pounds), and not over 3 thalers per centner on stems. We, through our minister, loudly protested then against the injustice of any higher duties, and yet we ourselves now impose upon unmanufactured tobacco imported into the United States a duty of 35 cents per pound, equal to about 54 thalers per centner, or more than 13 times as much as then appeared reasonable to us that the Prussian should levy upon our tobacco. Yet to-day very few pretend that we can do with less. Beside, it will be seen by the tariff promulgated years since by the Zollverein that they have, without requiring any equivalent from us, continued cotton on the free list, as it was plain from enlightened self-interest they must, and have reduced the duty upon tobacco to the identical and magical figure of 4 thalers per centner. Without any treaty or so-called equivalents we now have all the advantages sought for by President Tyler.

The statesmanship of the State Department seems to have been unequal to the task of forecasting for 20 years or even for 15. But this blindness will be much more apparent if we examine the equivalents, so called, which we were to have given for the distinguished consideration to tobacco. The catalogue of reductions to occur in our tariff are too long to be fully repeated, and embraces to a great extent the luxuries and toys of commerce the very sources from which, since 1861, we have most largely increased customhouse supplies.

No higher duty than 20 per cent ad valorem was to be placed on woolen, worsted, or cotton hosiery, mitts, caps, bindings, drawers, shirts, and all similar manufactures made on frames, nor upon musical instruments, except piano. fortes.

No higher duty than 15 per cent ad valorem on any manufactures of silk, or of which silk should be a component material of chief value, nor upon Thibet, merinos, merino shawls, and all manufactures of combed wool or of worsted and silk combined, nor upon polished plate glass, silvered or unsilvered, toys, wooden clocks, cologne water, scissors, files, saws, planes, scythes, needles, copper wire, bronze ware of all kinds, fishhooks, leather pocketbooks, and all sorts of similar fine leather manufactures, pocket looking-glasses, snuffboxes of papier. mâché, lead pencils, etc.

No more than 10 per cent ad valorem on all thread laces, insertings, lace, tresses, tassels, knots, stars of gold and silver, mineral water, spelter, etc.

And, finally, we were to agree not to increase the then existing rates of duty upon wines, and the duties upon wines in 1844 were as follows: On Madeira and sherry, in casks or bottles, 60 cents; champagne, 40 cents; claret, 6 cents per gallon; and on white wines, 73 cents in casks or 20 cents in bottles per gallon.

It is quite apparent that the American negotiator of the proposed treaty, however learned and accomplished in other respects, was sadly deficient in practical knowledge of revenue laws or of the industrial interests of the United States, and without any apprehension of the strides these interests were destined to make in the immediate future. Whatever of budding promise there might be in the efforts then being made or subsequently made to establish manufactures of worsted, of silk, of linen and hemp, of woolen and cotton goods made on frames, of scythes, saws, files, planes, fishhooks, lead pencils, and so on to the end, or whatever were the prospects of American wines, it is quite certain that if this treaty had been accepted all these varied interests, now counted by millions upon millions, would have received their death knell, or if not their advent would have been postponed for a generation, and if the treaty had been in force at the outset of the late rebellion the Government of the United States would have been almost paralyzed, and without the power to mend its financial condition so far as that then depended upon receipts for duties upon foreign merchandise. It was found necessary, for revenue purposes, to place three or four times the amount of duties upon many of these articles which could not have been done had the Zollverein treaty been in force, and under such rates of duty the protection to home manufactures has been so great that we have largely diminished our dependence upon foreign supplies for silks, worsteds, and whole classes of other manufactures included in the treaty. This only illustrates the extreme inexpediency, not to say folly, of reciprocity treaties. A great and growing nation must be left free to act in any and all emergencies as its honor and interest may demand.

NATIONAL COMPLICATIONS.

But beyond the general impolicy of such treaties and their lack of constitutional authority there is another, and it would seem insuperable, difficulty. Before the Zollverein treaty had reached us Lord Aberdeen appears to have got possession of its terms, and at once notified Mr. Everett, our minister at St. James, that his Government would claim, under our treaty of 1815, an equal relaxation of duties in their favor. Upon the admission on the part of Mr. Everett of the propriety of the claim, provided it was accompanied by the same equivalents, Lord Aberdeen replied that "he conceived that by the convention of July, 1815, we should be bound to admit British fabrics, on paying the same duties as the German, without any such conditions on their part." Upon referring to article 2 of the treaty of July 3, 1815, it can not be said that the position of Lord Aberdeen was untenable. The stipulation found there is the very common one in most modern treaties, and reads thus:

No higher or other duties shall be imposed on the importation into the United States of any articles the growth, produce, or manufacture of His Britannic Majesty's territories in Europe than are or shall be payable on like articles, being the growth, produce, or manufacture of any other foreign country.

Our treaty of 1829 with Austria is the same, but with an additional article, as follows:

If either party shall hereafter grant to any other nation any particular favor in navigation or commerce it shall immediately become common to the other party freely, when it is freely granted to such other nation, or in yielding the same compensation when the grant is conditional.

The same provisions will be found in our treaty with Russia in 1832, and with Belgium in 1845, with this variation, "on allowing the same compensation or its equivalent if the concession is conditional."

It will be found that nearly all of our treaties bind us to extend to all nations with whom we have commercial treaties the same terms granted to the most favored nation, either with or without compensation. Therefore a reciprocity treaty is neither more nor less than an extraordinary mode of amending the tariff so that it can not be again amended in the ordinary way by Congress for a term of years, and for the consideration that some other nation will shackle itself in the same manner.