240 



CONGRESS. (RECIPROCITY TREATIES.) 



ty years or a hundred. It appears to me, 

 therefore, that any treaty which encroaches 

 upon the power to regulate commerce or upon 

 that to originate revenue bills involves a plain, 

 open, and palpable violation of the Constitu- 

 tion. 



"It is an insidious method by which the 

 vastly important power of the House of Rep- 

 resentatives over all revenue bills may, with an 

 ambitious Executive, become obsolete and ut- 

 terly valueless. The whole field of regulating 

 trade and commerce by a tariff on imports 

 may thus be opened to secret invasion, patch 

 by patch, and twenty treaties may as properly 

 be concocted as one, leaving only tattered rem- 

 nants of tariff laws to be dealt with by Con- 

 gress. A reciprocity treaty necessarily aban- 

 dons protection by any tariff upon all the 

 articles enumerated, and equally abandons all 

 revenue and power to obtain revenue there- 

 from during the existence of the treaty. It is 

 a measure clearly as inconsistent with the idea 

 of * revenue only ' as with that of ' protection.' 

 It is hodge-po^ge free trade with special fa- 

 vorites only, and invidious restriction against 

 all others." 



In opposition to these views, Mr. Lapham, of 

 New York, said : 



"To us at home treaties have the force of 

 laws next in importance to the Constitution. 

 With the nations negotiating them they are 

 contracts only, but contracts of the highest 

 character, and imposing the most solemn obli- 

 gations. The language of the Constitution in 

 regard to their effect and operation is deserv- 

 ing of notice. It is in these words : 



This Constitution and the laws of the United States 

 which shall be made in pursuance thereof, and all 

 treaties made or which shall be made under the au- 

 thority of the United States, shall be the supreme law 

 of the land. 



" Whether the variance in describing laws 

 and treaties was made to cover existing trea- 

 ties, as some authors have stated, the fact re- 

 mains that it is laws made in ' pursuance of the 

 Constitution,' and treaties 'made under the au- 

 thority of the United States,' that become the 

 supreme law. 



" In the light of these general principles I 

 desire to call attention to some of the ques- 

 tions which may arise in the exercise of the 

 treaty-making power as thus provided in the 

 Constitution. By the eighth section of Article 

 I it is provided that Congress shall have power 

 to pay debts and provide for the general wel- 

 fare, etc. Can there be any doubt that a treaty 

 may deal with these subjects? 



" Congress has also power to regulate com- 

 merce with foreign nations and with the In- 

 dian tribes. Can there be any doubt about the 

 exercise of the treaty-making power on these 

 subjects ? Many of our treaties with foreign 

 powers contain regulations as to commerce, 

 and our most important dealings with the In- 

 dian tribes have been by treaties. 



"By the same article Congress has power to 



establish post-roads, and yet by treaty we have 

 postal conventions with many nations, and 

 could not have obtained them in any other 

 way. Congress has the power to give to au- 

 thors and inventors the exclusive right to their 

 discoveries; yet we have treaties on the sub- 

 ject of trade-marks with most of the nations 

 with whom we have other treaty relations. 

 Congress has power to declare war, but before 

 a gun is fired or any other hostile act per- 

 formed the treaty-making power may inter- 

 vene and stop the contest without bloodshed 

 by a treaty of peace. 



" Congress has power to dispose of and 

 make all needful rules and regulations respect- 

 ing the Territories of the United States. But 

 the treaty-making power may be exercised on 

 the subject, and territory be alienated or ac- 

 quired, as the best interests of the country may 

 demand. Congress has power to establish a 

 uniform rule of naturalization; still, foreigners 

 resident in the Territories, when acquired, have 

 been declared to be clothed with the rights of 

 citizens. In Alaska the treaty for its cession 

 admitted foreigners to all such rights. 



" When we recall the fact that ' all treaties 

 made, or which shall be made, under the au- 

 thority of the United States ' override all State 

 laws and acts of Congress, it would seem that 

 the treaty-making power is not so restricted 

 and circumscribed as the authors of the con- 

 struction under consideration claim. They as- 

 sert that the entire field of laying duties be- 

 longs to Congress, and that whenever the 

 treaty-making power makes a free list it usurps 

 a function that does not belong to it. Suppose 

 we should desire to open new commercial re- 

 lations with a foreign power, or should deem 

 it advantageous to establish a more free and 

 extended intercourse with such power, and to 

 that end it should become necessary to pro- 

 vide for the introduction of our products for a 

 limited time and of a specific character into the 

 dominions of such power, with the admission 

 of its products as an equivalent therefor ; Con- 

 gress could not do that. The treaty-making 

 power can alone accomplish the result. 



" Mr. President, another and conclusive an- 

 swer to the objection to such treaties is the 

 stipulation contained in them that they shall 

 not be operative until Congress shall have en- 

 acted the legislation necessary to carry them 

 into effect. There is a statement in the Presi- 

 dent's message as follows: 



All treaties in the line of this policy which have 

 been negotiated or are in process of negotiation con- 

 tain a provision deemed to be requisite under the 

 clause of the Constitution limiting to the House of 

 Representatives the- authority to originate bills for 

 raising revenue. 



"There has hitherto been no difficulty in 

 providing the necessary legislation of Con- 

 gress. 



" A treaty negotiated and ratified without 

 containing this provision would become the 

 supreme law, and Congress would be as much 



