into all the legal ports of entry in the ceded territory 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.'

In the treaty with Great Britain signed July 3, and proclaimed December 22, 1815, it is stipulated on the part of the United States, that no higher duties shall be imposed in ports of the United States on British vessels and articles imported therein, produced or manufactured in His Britannic Majesty's territories in Europe, than are payable by American vessels. President Madison in his message of December 23, notifying Congress of the proclamation of the treaty, recommended "such legislative provisions" as the convention might call for on the part of the United States. Although the treaty provision came in direct conflict with the general revenue and tonnage laws, a special act of March 3, 1815,3 had repealed discriminating duties so far as they affected any foreign nation which, to the satisfaction of the President, had abolished its laws that operated to the disadvantage of the United States. Mr. Calhoun, in the debates following the recommendation of the President, observed that whatever might be the ipso facto effect of the treaty on existing legislation, this act made quite unnecessary any further legislation to execute the treaty, since no better evidence could be furnished the Executive than a treaty

12 Stat. at L., 253. See similar provision in act of March 3, 1821, extending subject to the modification stipulated" in Article XV of the treaty of February 22, 1819, revenue laws to Florida. 3 Stat. at L., 639.

'Annals, 14th Cong., 1st sess., p. 29.

'3 Stat. at L., 224.

It

guarantee.1 This view, which is sanctioned by subsequent practice, seems obviously sound, but it was not acted upon at the time. Bills were introduced in each house agreeably to the President's recommendation, but differing radically. The bill "concerning the convention," as adopted without opposition by the Senate, January 10, 1816, 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." assumed the repeal by the treaty itself, the declaration being made to remove doubts in this respect should any arise. On the other hand, 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," assumed the incompatible laws to be in full force, and enacted in detail the necessary modifications. The debates and divisions in the House are of unusual interest since they were confined to the constitutional question involved and were quite free from party and sectional influences. As neither body would agree to the bill as passed by the other, a conference committee was resorted to. The conferrees of the Senate, Rufus King, James Barbour and W. W. Bibb, 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, is bound to make;" but contended that in the present case no such legislation was necessary, and that

1 Annals, 14th Cong., 1st sess., p. 526.

'Ibid., pp. 36, 40, 46.

3

Ibid., pp. 419, 674.

'The Senate of the fourteenth Congress was composed of 24 Republicans and 12 Federalists; the House, of 117 Republicans and 65 Federalists.

even a declaratory act added nothing to the efficacy of the treaty but served simply to remove any possible doubt. The report does not indicate what class of treaties, in the opinion of the Senate conferrees, required Congressional legislation to secure their execution. Mr. Forsyth, however, in his report for the House conferrees -William Lowndes, Henry St. George Tucker and himself-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 agreed to reads, "Be it enacted and declared by the Senate and House of Representatives of the United States 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 of July 3, 1815, "be from and after the date of the ratification of said convention and during the continuance thereof deemed and taken to be of no force and effect." The act is clearly a compromise. The insertion of the words "and declared" after "enacted" seemed to the Senate conferrees most essential, as it indicated the effective force of the treaty itself in the repeal. To this the conferrees of the House yielded, believing that these words were "mere surplusage not changing the character, or impairing the force of the legislative act." The latter insisted on a law enacting a repeal of any law not 23 Stat. at L., 255.

Annals, 14th Cong., 1st sess., p. 1019.

in accord with the treaty. To this the former agreed provided no precedent should be established which should bind them thereafter to assist in passing laws in cases on which "such doubts might not exist." It may be observed that in his report, Mr. Forsyth, who was the leader in the contention of the House, declared it safer in all doubtful cases to provide by legislation for the execution than to "endanger the public faith by a failure to perform the provisions of a treaty" which had received a constitutional ratification, thus admitting by implication that the faith of the nation was pledged in such cases regardless of the action of Congress.2

The act of May 15, 1820, imposed a duty of eighteen dollars per ton on French vessels entering the United States. 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 a duty not exceeding three dollars and seventy-five cents per ton, in excess of the duty paid by American vessels importing French products, should be imposed on such products imported in French vessels. The treaty was on February 20, 1823, communicated to the House to the end, that "the necessary measures for carrying it into execution" might be adopted. The act of March 3, 1823, for this purpose, repealed all acts incompatible with the execution of the treaty, specifically mentioning the act of May 15, 1820; and enacted that French vessels should pay the additional duty of three dollars and seventy-five cents according to the tenor of the convention.5 Article VII of the treaty with France signed July 4, 1831, and

proclaimed July 13, 1832, provided that the United States should, on and after the exchange of ratifications, impose duties upon French wines not to exceed the rates enumerated therein, which were less than those then existing. Section 10 of the act of July 13, 1832, expressly enacted that the rates specified in the treaty should be charged on French wines, the law to have a retroactive effect on importations made since February 2, the date of the exchange of ratifications. The article in question had met with opposition in the Senate. Mr. Clay, on February 8, 1832, subsequently to the vote advising ratification, introduced a resolution declaring 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.3

In submitting to the Senate on April 29, 1844, the reciprocity treaty with the German Zollverein, negotiated by Mr. Wheaton, President Tyler observed that, inasmuch as the treaty 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 by that body as should be deemed necessary to give effect to its provisions. On June 14. Rufus Choate, from the Committee on Foreign Relations reported against the ratification. Without refer

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

'4 Stat. at L., 576. Attorney-General Cushing, in an opinion given February 16, 1854, says that these wines became chargeable with the lower duty with the exchange of ratifications on February 2, 1832, as provided in the treaty, regardless of the pre-existing acts. 6 Op., 295. See the view expressed by Attorney-General Miller, April 5, 1889, as to Hawaiian reciprocity treaty, 19 Op., 277.

'Ex. Journal, vol. iv, p. 209.

Ex. Journal, vol. vi, p. 262.