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cultural 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 reciprocally 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 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."

This section had been put in the McKinley Act with a view to securing reciprocal commercial agreements with foreign powers, and ten such tariff arrangements were effected by the President by means of an exchange of diplomatic notes simply. These agreements remained in force until the enactment in 1894 of the Wilson-Gorman Act.

The constitutionality of this action under the act of 1890 was contested on the ground that it amounted to a delegation by Congress to the President of a portion of its legislative power; but the Supreme Court in Field v. Clark" held the provision valid.18

By the third section of the Tariff Act of 1897 (the Dingley Act), the President was authorized to enter into reciprocity agreements with foreign countries with respect to certain enumerated articles, whereby in return for concessions obtained from other countries, equivalent concessions were to be granted by the United States. Under the authority thus granted a number of reciprocity agreements were negotiated and promulgated by the President.

Section 4 of this act of 1897 also provided for reciprocity treaties which should be approved by Congress. This section will receive consideration in the next section.19

17 143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

18 See Chapter LXV in which the delegation of legislative power is discussed. 19 There have been some instances of international agreements entered into by the President without the advice and consent of the Senate, and without authorization by some previous treaty or statute, which cannot be grouped under any one of the preceding heads mentioned in this chapter. Thus,

§ 205. Extradition.

The greatly preponderant weight of opinion is that, in the absence of authority expressly given him by treaty or statute, the President has not the constitutional right to extradite to a foreign country a fugitive to this country.20 The single instance in which the President has extradited without such authority expressly conferred upon him is the surrender to Spain by Lincoln in 1864 of one Arguelles.

Whether or not Congress has the power by statute to authorize the President to extradite fugitives to countries with which the United States has no subsisting treaty upon the subject is not certain, as there has been no instance of the exercise of such power. Reasoning upon general principles, however, there would seem to be no constitutional objection to such legislation.21

for example, in 1850 Great Britain ceded to the United States a reef in Lake Erie upon condition that the United States would engage to erect thereupon a lighthouse and maintain it, and agree to erect no fortifications thereupen. This engagement the President made without consulting the Senate, and the cession was made, and later, Congress having appropriated the funds, a lighthouse was constructed.

20 Cf. Moore, Extradition.

21 Cf. Butler, § 435.

CHAPTER XXIV.

CONGRESSIONAL LEGISLATION FOR THE ENFORCEMENT OF

TREATIES.

$206. Treaties Cannot Appropriate Money.

Though all treaties, as declared by the Constitution, are parts of the supreme law of the land, they are not always, in whole or in part, self-executory; but require, in order to be put into full force and effect, ancillary legislative action. Especially is this legislative assistance required when an expenditure of money is called for. The treaty-making power is able to obligate the United States internationally to the payment of sums of money, but is not able itself to appropriate from the United States treasury the amounts called for, or compel the legislature to provide for their payment.

The question as to the obligation of Congress, morally or legally, to appropriate moneys, the payment of which by the United States is called for by agreement entered into with foreign countries by the treaty-making power, arose in 1796 in connection with Jay's treaty, which had been negotiated in 1794 and ratified in 1795. The treaty having been communicated to the House of Representatives in order that the moneys called for by it might be appropriated, Gallatin and other members urged that the House, before passing the appropriation asked for, was entitled to see all the papers in the executive department relating to the treaty in order that it might then pass upon the question of its merits, and refuse or consent to the appropriation as should to the House seem fit. A resolution calling upon the President for the papers was adopted, but Washington, not wishing to create a precedent, refused obedience to it, claiming that the House, being no part of the treaty-making power, was not entitled, of right, to see the documents in question.

Jefferson, in a letter to Monroe, stated' the position as follows: 1 Works, IV, 134.

"We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate, and House of Representatives, to the President and Senate, and Piamingo, or any other Indian, Algerine or other chief."

Washington, in his special message refusing compliance with the request of the House's resolution, said: "Having been a member of the general convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government to this moment my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they become obligatory. As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just

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regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request."

After some discussion, the House receded from its position and passed the laws and appropriations necessary for carrying the treaty into effect.

When the question of purchasing Louisiana came up, Jefferson, in conformity with his views stated in the letter, to Monroe, at first proposed to submit the treaty to both Houses of Congress. He later decided, however, to submit it to the Senate only, but informed the House that as soon as the treaty should be approved by the Senate, it would be submitted to Congress "for the exercise of their functions as to those conditions which are within the powers vested by the Constitution in Congress." And, after the treaty had been approved and ratified, he sent it to Congress saying: "You will observe that certain important conditions cannot be carried into execution but with the aid of the legislature." These legislative measures were enacted, but without any explicit statement of the principle which the House had urged in 1796.2

The question was again discussed in connection with the appropriation called for in the treaty of 1867 purchasing Alaska from Russia. After some debate, the House appropriated the money, but prefaced the act with the assertion that "the subjects embraced in the treaty are among those which by the Constitution are submitted to Congress and over which Congress has jurisdiction; and for these reasons it is necessary that the consent of Congress should be given to the said stipulations, before the same can have full force and effect."

The Senate objected to this statement, and, after having referred the matter to a conference committee, the following compromise declaration was agreed upon: "Whereas, the President of the United States has entered into a treaty with the Emperor of Russia, and whereas said stipulations cannot be carried into full force and effect, except by legislation to which the

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2 Cf. Moore, International Law Digest, V, § 759.

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