minor and isolated cases of discrimination and dealt with them without endangering important interests by firing a broadside at the commerce of another country. The political complexion of the House of Representatives had, however, changed and nothing resulted from Secretary Knox's letter. The general tariff act which in 1913 succeeded the PayneAldrich law omitted the maximum and minimum schedule provisions. Aside from a very indefinite authorization to the President to negotiate reciprocal arrangements,1 the new act was silent on the subject of general international commercial policy and no conventions were concluded under it. Under the soothing influence of the moderate rates of the 1913 tariff, however, some of the arrangements entered into on the basis of the Payne-Aldrich law continued to exist, so far as the treatment received by the United States was concerned; and a few vestiges still remain in operation. 14. DISCUSSION OF COMMERCIAL POLICY, 1921-1922 When the question of a new general revision of the tariff came before the Congress in 1921, the subject of the commercial policy to be authorized was given earnest consideration by the United States Tariff Commission and by officials of the Departments of State and Commerce. The Tariff Commission's exhaustive study of the question, entitled Reciprocity and Commercial Treaties, had pointed to the conclusion that the reciprocity agreements of the past, based on special concessions, were of little practical advantage to American commerce; and had emphatically recommended a policy having for its object, on the one hand, the prevention of discrimination and the securing of equality of treatment for American 1 1Act of Oct. 3, 1913, sec. iv, A. Text, infra, subdivision 18 (d). The authorization added nothing to the powers already possessed by the President. commerce and for American citizens, and, on the other hand, the frank offer of the same equality of treatment to all countries that reciprocate in the same spirit and to the same effect." The bill which in July passed the House of Representatives followed, however, the lines of the Dingley Act; it was characterized by the authorization of special reciprocity agreements. A short time before the President delivered his address at the beginning of the regular session of the Congress in December, 1921, he received from Dr. W. S. Culbertson 2 a comprehensive memorandum suggesting that the President should be authorized, upon facts found by the Tariff Commission, to proclaim additional or penalty duties on the whole or any part of the imports into the United States from any country which treats its imports from the United States less favorably than its imports from any third country.3 Upon this and upon accompanying suggestions that foreshadowed the future Sections 315 and 316 of the Tariff Act of 1922, Mr. Harding based his celebrated request for a flexible tariff: Doubtless we are justified in seeking a more flexible policy than we have provided heretofore. I hope a way will be found to make for flexibility and elasticity, so that rates may be adjusted to meet unusual and changing conditions which can not be accurately anticipated. There are problems incident to unfair practices, and to exchanges which madness in money has made almost unsolvable. I know of no manner in which to effect this flexibility other than the extension of the powers 1P. 15 (1010). "Vice Chairman of the Tariff Commission. 'By courtesy of Dr. Culbertson. of the Tariff Commission, so that it can adapt itself to a scientific and wholly just administration of the law.1 The President did not specifically refer to the problem of defending against discrimination, and the fact is noteworthy that, in the printed Hearings upon the tariff bill, there apparently occurs no mention of the policy that is embodied in Section 317. Overshadowed by the conflict of opinion in regard to such subjects as "American Valuation", the proper tariff policy for a creditor nation and the protection of the dyestuffs industry, and also, perhaps, in regard to the general question of the "Flexible Tariff ", the specific matter of Section 317 appears to have received little attention from either Congress or the public. The final discussion of the section in the Senate, when it was called up late one evening for adoption or rejection, did not reveal an adequate appreciation, on the part of most of the Senators, of its actual potentialities and purpose. An interesting sidelight is thrown upon this situation by a remark made by Senator Smoot during the course of the debate: I want to say to the Senator that this is a discriminatory section written by the Tariff Commission and explained to the committee by the Tariff Commission, who requested that it be made a part of this tariff bill.* 'Address of the President of the United States to the Congress, Dec. 6, 1921, as officially printed, p. 7. This language shows the influence of Dr. Culbertson's memorandum, especially his recommendation "To introduce flexibility and elasticity into the new tariff law so that rates can be adjusted to meet unusual and changing conditions which can not now be accurately anticipated." 2 Congressional Record, vol. 62, pt. xi, p. 11246, 67th Congress, 2d Session (Aug. 11, 1922). It would doubtless be more accurate to say that the section was written and explained by individual members of the Tariff Commission and its staff. 1 15. THE FIRST APPEARANCE OF SECTION 317 Section 317 began its legislative career on January 12 (legislative day January 10), 1922, as Section 41 of a comprehensive amendment introduced by Senator Smoot to the tariff bill as it had been passed by the House and then stood in the hands of the Finance Committee of the Senate. The Finance Committee accepted this section with one important change: instead of making its operation optional at the discretion of the President, as in the original draft of the amendment, the Committee made the additional duties mandatory when a country should be found as a fact to be discriminating against the United States. The reservation that the additional duties are to be imposed only when the President finds "that the public interest will be served thereby" was not inserted until Section 317 was reached by the Conference Committee.2 The tariff bill, with proposed amendments, was reported to the Senate on April 11, 1922. 16. DISCUSSION AND ADOPTION OF SECTION 317 BY THE UNITED STATES SENATE Just four months after the tariff bill was reported out of committee, that is on August 11, 1922, the Senate, sitting as committee of the whole for the consideration of amendments, after having amended and adopted the other flexibletariff sections, reached Section 317. These three sections had been carefully explained and had received both endorsement and adverse comment in the course of the early discussions of the bill. The final discussion, including the complete text of Section 317 as adopted, is spread over about five pages of the Congressional Record. The remarks of 1 For text, see Appendix 1. "The reservation is, however, used in other connections in the bill as reported to the Senate. the Senators may be classified roughly under five headings: (a) the object of the section; (b) its constitutionality; (c) its relation to reciprocity treaties and the most-favorednation clause; (d) its meaning with respect to intraimperial preferences, and (e) the amendments proposed and adopted.1 1 The following text is Section 317 as reported to the Senate by the Finance Committee, printed here with lines and pages indicated as in the copies of the bill prepared to facilitate discussion in Congress: (Page 10 SEC. 317. (a) That from and after the passage of this 280) II Act, subject to the provisions of this section, all products, 12 when imported into the United States from any foreign 13 country, shall be admitted under the provisions of Titles I 14 and II and sections 315 and 316 of this Act. 15 (b) That the President shall by proclamation specify 16 and declare new or additional duties as hereinafter provided 17 upon the products of any foreign country whenever he shall 18 find as a fact that such country 24 19 Imposes, directly or indirectly, upon the disposition in or (Page 1 281) 2 5 Imposes upon any product upon its exportation to the 6 United States any duty, charge, restriction, or prohibition 7 whatever which is not equally enforced upon the exportation 8 of such products to every foreign country; 9 Discriminates against the commerce of the United States, 10 directly or indirectly, by law or administrative regulation or II practice, by or in respect to any duty, fee, charge, exaction, 12 classification, regulation, condition, restriction, or prohibition, 13 in such manner as to place the commerce of the United States 14 at a disadvantage compared with the commerce of any foreign 15 country; or fails to accord to the commerce of the United |