The act of April 18, 1806, c. 29, 2 Stat. 379, prohibited the importation from Great Britain or Ireland of certain articles of merchandise therein enumerated from and after the 10th day of November 1806. The act of December 19, 1806, c. 1, 2 Stat. 411, suspended the operation of the former act until July 1, 1807, and section 3 of the later act provided:

"That the President of the United States be, and he is hereby, authorized further to suspend the operation of the aforesaid act, if in his judgment the public interest should require it: Provided, That such suspension shall not extend beyond the second Monday in December next."

The act of March 1, 1809 (C. 24, 2 Stat. 528), again prohibited all commercial intercourse between the United States and Great Britain and France and their dependencies. Section 11 of that act provided:

"That the President of the United States be, and he hereby is authorized, in case either France or Great Britain shall so revoke or modify her edits, in that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation; after which the trade of the United States, suspended by this act, and by the act laying embargo on all ships and vessels in the ports and harbors of the United States, and the several acts supplementary thereto, may be renewed with the nation so doing."

The provisions of the foregoing act were terminated by the act of June 28, 1809 (C. 9, 2 Stat. 550), as of the end of the next session of Congress, but section 4 of the act of May 1, 1810 (C. 39, 2 Stat. 605), provided that in case either Great Britain or France should before the 3d day of March thereafter so revoké or modify her edicts as to cease to violate the neutral commerce of the United States, the President should declare such fact by proclamation, and if the other nations should not within 3 months thereafter so revoke or modify her edicts in like manner then the provisions of the act of June 28, 1809, should be revived and have full force and effect against the nation thus refusing or neglecting to revoke or modify her edicts. To like effect, insofar as it related to Great Britain, was the act of March 2, 1811 (C. 29, 2 Stat. 651). The validity of this act was sustained by the Supreme Court in The Brig Aurora (7 Craneh. 382).

The act of April 27, 1816 (c. 107, 3 Stat. 310), provided a schedule of duties upon certain goods imported into the United States. Section 3 of the act provided that an additional 10 percent should be added to the rate of duties specified and imposed in respect to all goods imported in foreign vessels other than such as are entitled by treaty or by any act or acts of Congress to be entered in the ports of the United States on the payment of the same duties as are paid on goods, wares, merchandise imported in ships or vessels of the United States. The act of April 18, 1818 (c. 70, 3 Stat. 432), closed all ports of the United States to vessels of Great Britain coming or arriving from ports closed to American vessels. The act of March 1, 1823 (c. 22, 3 Stat. 740), suspended the provisions of the act of April 18, 1818, as to certain British ports therein enumerated, but provided that until proof shall have been given the President satisfactory to him that vessels of the United States admitted into the enumerated British ports were required to pay no higher tonnage or imposts duties than those exacted from British vessels on like goods, British vessels coming from the ports enumerated should pay the additional 10 percent tonnage duties provided by the act of April 27, 1816.

The act of January 7, 1824 (c. 4, 4 Stat. 2), provided that—

66* * * upon satisfactory evidence being given to the President of the United States, by the government of any foreign nation, that no discriminating duties of tonnage or imposts are imposed or levied within the ports of the said nation, upon vessels wholly belonging to citizens of the United States, or upon merchandise, the produce or manufacture thereof, imported in the same, the President is hereby authorized to issue his proclamation, declaring that the foreign discriminating duties of tonnage and imposts within the United States, are, and shall be, suspended and discontinued, so far as respect the vessels of the said nation, and the merchandise of its produce or manufacture, imported into the United States in the same: the said suspension to take effect from the time of such notification being given to the President of the United States, and to continue so long as the reciprocal exemption of vessels belonging to citizens of the United States, and merchandise as aforesaid, thereon laden, shall be continued, and no longer."

The provisions of section 4 of the act of January 7, 1824, were reenacted in substantially the same language in section 1 of the act of May 24, 1828 (c. 3, 4 Stat. 308), and were later preserved in section 4228 of the Revised Statutes.

Of similar import was the act of May 29, 1830 (c. 207, 4 Stat. 419), as relating to commerce with the British ports in the West Indies on the continent of South America, the Bahama Islands, and other islands named.

The act of May 31, 1930 (c. 219, 4 Stat. 425), repealed all acts imposing tonnage duties upon vessels of foreign nations, provided the President should be satisfied that the discriminating or countervailing duties of such foreign nation, so far as they operate to the disadvantage of the United States, had been abolished. The provisions of this act were preserved in section 4219 of the Revised Statutes. Other acts of similar character to those above enumerated are the act of May 25, 1832 (c. 104, 4 Stat. 517), the act of July 13, 1832 (c. 207, 4 Stat. 578), the act of June 30, 1834 (c. 170, 4 Stat. 741), the act of March 2, 1837 (c. 19, 4 Stat. 152), the act of June 1, 1842 (c. 32, 5 Stat. 489), and the act of March 3, 1845 (c. 63, 5 Stat. 748).

Unquestionably the Congress, in passing the above-mentioned acts, intended that the President should endeavor through negotiations and agreements with foreign governments to effect a discontinuance of the discriminations against the commerce of the United States. The Congress faced a difficult situation. The discriminating practices against our commerce being engaged in by foreign nations, ruinous to the country, were becoming more and more burdensome. Something had to be done. To induce foreign nations to discontinue these discriminatory practices, however, required meticulous negotiations, and the Congress as a legislative body could not carry on such negotiations. It did the only thing it could do. It entrusted the conduct of these negotiations to the President. But the President, as Congress realized, could not carry on such negotiations to a successful conclusion without some basis for bargaining—some power or authority to offer to the foreign nations a quid pro quo for their agreement to discontinue the discriminations.

The Congress met the situation by passing the acts referred to, placing heavy burdens and restrictions on the commerce of foreign nations with power in the Executive to suspend or continue them. It thereby gave to the Executive the means with which to trade and barter. The Executive had something to offer

a foreign nation in exchange for its agreement to discontinue its discriminatory practices.

Negotiations naturally and necessarily followed the passage of these acts, and as these negotiations led from time to time to the conclusion of an agreement under which a foreign nation discontinued its discriminating practices this fact was announced by proclamation of the President.

The value and effectiveness of this method of dealing with foreign nations in connection with commercial relations was forcibly expressed by President Jackson in his Annual Message to the Congress December 6, 1830. In this connection he said:

"An arrangement has been effected with Great Britain in relation to the trade between the United States and her West India and North American colonies which has settled a question that has for years afforded matter for contention and almost uninterrupted discussion. and has been ↑ e subj, e os no less inas X negotiations, in a manner which promises results highly favorable to the parties.

"This arrangement secures to the United States every advantage asked by them, and which the state of the negotiation allowed us to insist upon. The trade will be placed upon a footing decidedly more favorable to this country than any on which it ever stood, and our commerce and navigation will enjoy in the colonial ports of Great Britain every privilege allowed to other nations."

The message in question contains a somewhat extensive discussion of the questions involved in the negotiation with Great Britain. That arrangement, which was regarded by both Jackson and his Secretary of State, Martin Van Buren, as a real achievement of diplomacy, did not rest on any treaty. It was effected by unilateral legislative and executive acts on each part, namely, the British statute of July 5, 1825, the order in Council of July 17, 1826, the United States act of May 29, 1830, the Presidential proclamation of October 5, 1830, and the British order in Council of November 5, 1830. The printed diplomatic correspondence and other papers regarding this arrangement are quite voluminous.

Mr. Van Buren's comments on these acts were:

"The effect of these various enactments has been to vest in the President of the United States the power of granting to any foreign nation willing to reciprocate the same benefit to us, the privilege of importing into, or exporting from, our ports, in its own vessels, the produce of its own soil or manufacture, or of the soil or

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manufacture of any other country, upon equal terms with those imported or exported in vessels of the United States."

Following the long-established practice of dealing with matters pertaining to commercial intercourse with foreign nations through executive agreements, this Government on November 23, 1863, concluded an "informal convention" with France relating to the exportation of tobacco. A similar agreement was concluded with Austria-Hungary December 24, 1863. (Malloy, vol. 1, p. 38.)

Under section 4228 of the Revised Statutes an agreement was entered into with Spain February 13, 1884, providing for reciprocal abolition of certain discriminating duties on goods imported into the United States from Cuba and Puerto Rico and on American goods imported into those islands. The agreement was brought into force by a proclamation of President Arthur dated February 14, 1884 (22 Stat. 835). This proclamation was revoked by proclamation of President Cleveland dated October 13, 1886 (24 Stat. 1028), upon the finding by the President that the agreement was being persistently violated by the Spanish Government. Further agreements with Spain under section 4228 of the Revised Statutes were entered into on October 27, 1886, September 21, 1887, December 21, 1887, and May 26, 1888.

The Tariff Act of 1890 (ch. 1244, 26 Stat. 567), entitled “An act to reduce the revenue and equalize duties on imports, and for other purposes" provided for the imposition of penalty duties upon imports from countries discriminating in their tariff treatment against goods from the United States. Section 3 of the act provided:

"That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January eighteen hundred and ninety-two, whenever, and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agrciultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea, and hides into the United States he may deem to be recíprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the product of or exported from such designated country as follows, namely:

"Here follows a schedule of duties upon certain enumerated articles to be imposed under the conditions named in lieu of the duties on such articles prescribed in the tariff schedules of the act.)"

Under this act a comprehensive program of tariff bargaining by and through Executive trade agreement was inaugurated and trade agreements with foreign nations were concluded as follows: Brazil, June 4, 1891 (proclaimed, Feb. 5, 1892, 26 Stat. 1563); Dominican Republic, June 4, 1891 (proclaimed, Aug. 1, 1891, 27 Stat. 966); Spain, June 16, 1891 (proclaimed, July 31, 1891, 27 Stat. 982); Salva. dor, December 30, 1891 (proclaimed, Dec. 31, 1891, 27 Stat. 996); Germany, January 30, 1891 (proclaimed, Feb. 1, 1831, 27 Stat. 1004); Great Britain, February 1, 1892 (proclaimed, Feb. 1, 1892, 27 Stat. 999); Nicaragua, March 11, 1892 (proclaimed, Mar. 12, 1892, 27 Stat. 1009); France, April 12, 1892 (informal); Honduras, April 29, 1892 (proclaimed, Apr. 30, 1892, 27 Stat. 1023); AustriaHungary, May 25, 1892 (proclaimed, May 26, 1892, 27 Stat. 1026); Guatemala, December 30, 1891 (proclaimed, May 18, 1892, 27 Stat. 1025); a second agreement with Salvador (proclaimed, Dec. 27, 1892, 27 Stat. 1056).

Under these agreements the contracting governments agree to admit certain imports free or at substantially reduced tariff rates fixed therein.

During the time these agreements were being entered into penalty duties were imposed under the act on imports from Colombia, Haiti, and Venezuela, after those countries had failed to respond to requests of this country to negotiate agreements. (See proclamations, Nos. 18, 19, 20, 27 Stat. 1010, 1012, and 1013.) Section 3 of the Tariff Act of 1897 (ch. 11, 30 Stat 151, 203), provided: "That for the purpose of equalizing the trade of the United States with foreign countries, and their colonies, producing and exporting to this country the following articles: Argols, or crude tartar, or wine lees, crude; brandies, or other spirits manufactured or distilled from grain or other materials; champagne and all other sparkling wines, still wines, and vermouth; paintings and statuary; or any of them, the President be, and he is hereby, authorized, as soon as may be after the passage of this act, and from time to time thereafter, to enter into negotiations

with the governments of those countries exporting to the United States the abovementioned articles, or any of them, with a view to the arrangement of commercial agreements in which reciprocal and equivalent concessions may be secured in favor of the products and manufactures of the United States; and whenever the government of any country, or colony, producing and exporting to the United States the above-mentioned articles, or any of them, shall enter into a commercial agreement with the United States, or make concessions in favor of the products, or manufactures thereof, which, in the judgment of the President, shall be reciprocal and equivalent, he shall be, and he is hereby, authorized and empowered to suspend, during the time of such agreement or concession, by proclamation to that effect, the imposition and collection of the duties mentioned in this Act, on such article or articles so exported to the United States from such country or colony, and thereupon and thereafter the duties levied, collected, and paid upon such article or articles shall be as follows, namely;

"'Argols, or crude tartar, or wine lees, crude, five per centum ad valorem. "Brandies, or other spirits manufactured or distilled from grain or other materials, one dollar and seventy-five cents per proof-gallon.'”

Under this act the President concluded executive trade agreements with France, Portugal, Germany, Italy, Switzerland, Bulgaria, the Netherlands, Austria-Hungary, and Great Britain. These agreements were all brought into force by proclamation of the President.

The Tariff Act of 1909 (ch. 6, 36 Stat. 11) provided two schedules of duties, a minimum and a maximum, and authorized the President, when he should be satisfied "in view of the character of the concessions granted by the minimum tariff of the United States, that the government of any foreign country imposes no terms or restrictions, either in the way of tariff rates or provisions, trade or other regulations, charges, exactions, or in any other manner, directly or indirectly, upon the importation into or the sale in such foreign country of any agricultural, manufactured, or other product of the United States, which unduly discriminate against the United States or the product thereof, and that such foreign country pays no export bounty or imposes no import duty or prohibition upon the exportation of any article to the United States which unduly discriminates against the United States or the products thereof, and that such foreign country accords to the agricultural, manufactured, or other products of the United States treatment which is reciprocal and equivalent," to so declare by proclamation, and thereafter articles imported into the United States from such foreign country should be admitted under the term of the minimum tarif prescribed. The act further provided that when the President was satisfied that the conditions which lead to the issuance of the proclamation no longer existed he should by proclamation declare that 90 days thereafter the provisions of the maximum tariff should be applied to importations from the foreign country invoived. One hundred and thirty-four proclamations were issued under this act and these proclamations practically included the entire commercial world, making applicable the minimum tariff prescribed.

Section IV of the Tariff Act of 1913 (ch. 16, 38 Stat. 114, 192) authorized and empowered the President to negotiate reciprocity agreements with foreign countries, such agreements to be submitted to the Congress for ratification or rejection. The Revenue Act of 1916 (ch. 463, 39 Stat. 756) authorized the President to prohibit the importation of foreign articles when the same or other domestic articles were refused entry into foreign countries. The act also authorized the President to change, modify, revoke, or renew such proclamation in his discretion.

The Tariff Act of 1922 (42 Stat. 858) contained a flexible-tariff provision in all respects similar in principle to the flexible tariff provisions of the Foreign Trade Agreements Act. Section 315 (a) of the 1922 act provides, in part:

"That in order to regulate the foreign commerce of the United States and to put into force and effect the policy of the Congress by this Act intended, whenever the President, upon investigation of the differences in costs of production of articles wholly or in part the growth or product of the United States and of like or similar articles wholly or in part the growth or product of competing foreign countries, shall find it thereby shown that the duties fixed in this Act do not equalize the said differences in costs of production in the United States and the principal competing country he shall, by such investigation, ascertain said differences and determine and proclaim the changes in classifications or increases or decreases in any rate of duty provided in this Act shown by said ascertained differences in such costs of production necessary to equalize the same. Thirty days after the date of such proclamation or proclamations such changes in classifica

tion shall take effect, and such increased or decreased duties shall be levied, collected, and paid on such articles when imported from any foreign country into the United States or into any of its possessions (except the Philippine Islands, the Virgin Islands, and the islands of Guam and Tutuila): Provided, That the total increase or decrease of such rates of duty shall not exceed 50 per centum of the rates specified in Title I of this Act, or in any amendatory Act.”

The act also provided that in extreme cases the President could exclude articles of commerce from coming into the United States. Under this act President Coolidge issued 30 proclamations, of which 26 increased and 4 decreased duties on certain classes of articles imported into the United States, and President Hoover issued 32 proclamations of which 16 increased duties and 16 decreased duties.

The provisions of section 315 of the Tariff Act of 1922 were substantially reenacted as section 336 of the Tariff Act of 1930, (c. 497, 46 Stat. 590, 591 (of which act the Foreign Trade Agreements Act is an amendment), and Executive adjustment of tariff rates thereunder have continued.

The two principles combined in the Foreign Trade Agreements Act have been long and effectively used in connection with the regulation of foreign commerce. Also both have been fully sanctioned by the Supreme Court.

In Field v. Clark, 143 U. S. 649, the constitutionality of the Tariff Act of 1890 was before the Court. Section 3 of that act granted to the President the power to engage in tariff bargaining and in connection therewith to enter into Executive trade agreements with foreign nations-a power similar in all respects to the first power granted to the President in the Foreign Trade Agreements Act. The constitutionality of the act was attacked upon two grounds-(1) that it contained an unconstitutional delegation of legislative power to the President, and (2) that it delegated to the President the power to make treaties in violation of the treaty-making power of the Constitution. After an extensive review of the history of congressional delegations of power to the President in connection with the regulation of commerce, the Court said (pp. 690–693):

It would seem to be unnecessary to make further reference to acts of Congress to show that the authority conferred upon the President by the third section of the act of October 1, 1890, is not an entirely new feature in the legislation of Congress, but has the sanction of many precedents in legislation. While some of these precedents are stronger than others, in their application to the case before us, they all show that, in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, in the interests of their people, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations. If the decision in the case of The Brig Aurora had never been rendered, the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter, 1 Wheat. 304, 351; Cooley v. Port Wardens, 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416

"The authority given to the President by the act of June 4, 1794, to lay an embargo on all ships and vessels in the ports of the United States, 'whenever, in his opinion the public safety shall so require,' and under regulations, to be continued or revoked 'whenever he shall think proper;' by the act of February 9, 1799, to remit and discontinue, for the time being, the restraints and prohibitions which Congress had prescribed with respect to commercial intercourse with the French Republic, ‘if he shall deem it expedient and consistent with the interest of the United States,' and 'to revoke such order, whenever, in his opinion, the interest of the United States shall require:' by the act of December 19, 1806, to suspend, for a named time, the operation of the non-importation act of the same year, if in his judgment the public interest should require it;' by the act of May 1, 1810, to revive a former act, as to Great Britain or France, if either country had not, by a named day, so revoked or modified its edicts as not to violate the neutral commerce of the United States;' by the act of March 3, 1815, and May 31, 1830, to declare the repeal, as to any foreign nation, of the several acts imposing duties on the tonnage.of ships and vessels, and on goods,