proper manner" to have the provisions of the treaty extended to it, and to allow the United States the full benefits of all its stipulations so far as they were applicable to Newfoundland (11 Stat. 790)..

It is important to bear in mind that, while in all these cases the President was authorized to suspend or to bring into operation provisions of the acts upon the ascertainment of certain facts, and to decrease, lower, or suspend altogether duties and restrictions under certain conditions, in none of them was he authorized to modify or change duties, restrictions, or prohibitions on the entry of vessels or merchandise, except upon conditions laid down by Congress. In other words, the President by finding that certain conditions existed and proclaiming their existence, suspended or brought into operation the provisions of law enacted by the Congress.

RECIPROCAL AGREEMENTS RELATING ALONE TO RATES OF DUTY— MCKINLEY ACT, OCTOBER 1, 1890 (26 Stat. 567, 612)

1890 MCKINLEY ACT RATES APPLICABLE WHEN PRESIDENT ASCERTAINED THAT THERE WAS A FAILURE RECIPROCALLY TO GRANT FREE INTRODUCTION OF ARTICLES

The tariff act of 1890 "to reduce the revenue and equalize duties on imports" made provision for the imposition of penalty duties upon imports from countries discriminating in their tariff treatment against goods from the United States. This was apparently the first act under which the President entered upon a comprehensive program of tariff bargaining by Executive agreements.

Section 3 of this act provided that, with a view to securing reciprocal trade with countries producing certain specified articles (sugar, molasses, coffee, tea, and hides), the President, when he was satisfied that the Government of any country producing and exporting these articles, or any of them, imposed duties or other exactions upon the agricultural or other products of the United States which, in view of the free introduction of such articles into the United States he might regard as reciprocally unequal and unreasonable, should have the power to suspend by proclamation the provisions of the act relating to the free introduction of the above-mentioned articles for such time as he should deem just, and that during such suspension duties should be levied upon the articles at rates specified in the section.

1891-92 RECIPROCITY AGREEMENTS FOR FREE INTRODUCTION OF ARTICLES NAMED IN 1890 ACT

Following the passage of the act, Secretary Blaine began the negotiation of a series of agreements, and between January 31, 1891, and May 26, 1892, 10 reciprocity agreements were concluded, all but two of which were with countries of the Western Hemisphere. In each of the agreements the United States undertook to admit free of duty when coming from the other country the five articles--sugar, molasses, coffee, tea, and hides enumerated in the penalizing provision of the act. In the majority of these agreements the other contracting parties undertook to admit free or at substantially reduced tariff rates the bulk of its imports from the United States. The pen

alty duties were imposed on Colombia, Venezuela, and Haiti after they had failed to respond to requests of this Government to negotiate agreements.

PENALTIES

Penalties were not imposed upon these articles coming from the Argentine and Mexico, although those countries failed to conclude agreements with the United States. This led to protests by Colombia and Venezuela on grounds of unfair discrimination.

1892 FIELD V. CLARK-1890 ACT DID NOT DELEGATE

OR TREATY-MAKING POWERS

LEGISLATIVE

The constitutionality of this provision of the Tariff Act was attacked in the case of Field v. Clark (1892) (143 U.S. 649, 681) on the ground that, in authorizing the President to suspend the free importation of certain products, the Congress had delegated to him both legislative and treaty-making powers. The claimants, therefore, sought to obtain the refund of certain duties claimed to have been illegally exacted on imported merchandise under this act. The Circuit Court for the Northern District of Illinois gave judgment against the importers, and the Supreme Court of the United States affirmed the judgment, Mr. Justice Harlan rendering the majority opinion, with Mr. Chief Justice Fuller and Mr. Justice Lamar dissenting from the opinion but concurring in the judgment of the court. Justice Harlan, speaking for the Court, stated:

That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, collected and paid, on sugar, molasses, coffee, tea, or hides, produced by or exported from such designated country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words "he may deem" in the third section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea, and hides, and form a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress.

* * *

What has been said is equally applicable to the objection that the third section of the act invests the President with treaty-making power.

The court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President. (Ibid. 692, 693, 694).

DINGLEY TARIFF ACT OF JULY 24, 1897 (30 STAT. 151, 203)

This appears to be the first act under which the President was specifically called upon to enter into commercial agreements with foreign governments.

1897-DINGLEY TARIFF ACT-PRESIDENT TO ENTER INTO COMMERCIAL *, °T

AGREEMENTS

Section 3 of this act 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" certain articles therein named, the President should enter into negotiations with the governments of such countries with a view to the conclusion of commercial agreements in which reciprocal and equivalent concessions might be secured in favor of the manufactures and products of the United States, and should suspend by proclamation the imposition and collection of the duties provided for in the act, and substitute therefor duties as specifically stated in said section.

Pursuant to this authority the President concluded agreements with France in 1898, 1902 and 1908; with Portugal in 1899 and 1902; with Germany in 1900, 1906, and 1907; with Italy in 1900 and 1909; with Switzerland in 1906; with Spain in 1906 and 1909; with Bulgaria in 1906; with the Netherlands in 1907; and with Great Britain in 1907. These agreements, which were not submitted to the Senate but were brought into force by proclamation by the President, were given full force and effect by various decisions of the courts of the United States.2

The act also contemplated other and more comprehensive agree-ments with foreign governments.

Section 4 authorized the President, by and with the advice and consent of the Senate, to negotiate treaties with foreign countries concerning the admission into such countries of goods, wares, and merchandise of the United States and to grant in consideration of the advantages accruing to the United States therefrom a reduction during the period of 5 years of the duties imposed by the act to the extent of not more than 20 percent thereof upon such goods, wares, or merchandise as might be designated therein of the countries with which such treaties were made. The section also authorized the inclusion in such treaties of undertakings to transfer from the dutiable list to the free list products of such foreign countries, and to retain upon the free list of the act during a specified period, not exceeding 5 years, such goods, wares, and merchandise then included in the free list as might be designated in the treaties. The section further provided that when the treaties should be ratified by the Senate and approved by Congress, and public proclamation made accordingly, then and thereafter the duties which should be collected by the United States upon any of the designated goods, wares, and merchandise should, during the period provided for, be the duties specified in the treaties.

THE KASSON TREATIES

Pursuant to this authorization this Government concluded a series of treaties, all of which made provision for tariff reductions of considerable importance. The first treaty was negotiated with France in 1899. The French conceded the rates of their minimum schedule on all but a few articles, in return for which the United States agreed

Nicholas v. United States (1900), 122 Fed. 892; United States v. Tarter Chemical Co. (1903), 127 Fed. 944; United States v. Julius Wite Bro. & Co. (1904), 130 Fed. 331; United States v. Luyties, et al. (1904), 130 Fed. 333; Migiiaracca Wine Co. v. United States (1905), 148 Fed. 142; La Manna, Azema & Farnan v. United States (1906), 144 Fed. 683; Mihalovitch, Fietcher & Co. v United States (1908), 160 Fed. 988.

to admit a long list of French products at reductions of from 5 to 20 percent below the rates of the Tariff Act of 1897. Other treaties negotiated were with or on behalf of American countries—the Argentine, Ecuador, Nicaragua, Dominican Republic, Denmark (for St. Croix), and Great Britain (for various American colonies). The concessions made to the United States were numerous and varied. The important items upon which the United States agreed to make concessions were sugar, molasses, hides, and wool. The treaties were presented to the Senate in 1899. Two groups of interests stood in opposition on the one hand the representatives of American exporters, such as the iron, steel, and agricultural implement trades, and on the other hand domestic producers who feared foreign competition and those who saw in the treaties an undesirable infringement of the principle of protection. Mr. Kasson, the negotiator of the treaties, and President McKinley both urged ratification, but no action was taken other than to extend the time during which ratification might be secured.

In 1901 the Manufacturers' Reciprocity Convention met in Washington and declared itelf for protection and favorable to reciprocity only when the latter could be secured without injury to any of the domestic interests of manufacturing, commerce, or farming. President Roosevelt adhered to the views of President McKinley but found it impossible to secure approval of the treaties by the Senate. The treaties were pigeonholed without further action (Reciprocity and Commercial Treaties, 1919, pp. 28-30).

PAYNE-ALDRICH ACT OF AUGUST 5, 1909 (36 STAT., 11, 82, 83).

1909 PAYNE-ALDRICH TARIFF- -PRESIDENT TO ASCERTAIN FACTS AND BY PROCLAMATION IMPOSE MINIMUM RATE

The act of August 5, 1909, provided two schedules of duties, a minimum and a maximum. The minimum tariff and the free list were provided for in section 1 of the act. The maximum tariff was provided for in section 2 by adding to the rates of section 1, 25 per centum ad valorem. This same section provided that 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 discrimintae against the United States or the products thereof, and that such foreign country pays no export bounty or imposes no export 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 * * * products of the United States treatment which is reciprocal and equivalent,

should so declare by proclamation and that thereafter all articles imported into the United States from such foreign country should be admitted under the terms of the minimum tariff as prescribed by section 1. Section 2 further provided that whenever the President should be satisfied that the conditions which led to the issuance of the proclamation no longer existed, he should issue a proclamation to that effect, and 90 days thereafter the provisions of the maximum tariff

should be applied to the importations from the foreign country. The President was authorized to employ such persons as might be required to secure information to assist him in the discharge of the duties imposed by the act.

It will be seen that the act gave the President not only the authority to determine the facts and to issue proclamations giving products from other countries the benefits of the minimum tariff but also the authority to supplant such proclamations by others subjecting such favored products to the maximum duty.

The maximum tariff imposed by the act became effective on April 1, 1910, but prior to that date 134 proclamations, which practically included the entire commercial world, had been issued by the President applying the minimum tariff. It appears that in no case was the maximum rate applied.

UNDERWOOD ACT OF OCTOBER 3, 1913 (38 STAT. 114, 192)

1913 UNDERWOOD TARIFF ACT-PRESIDENT TO NEGOTIATE
RECIPROCITY AGREEMENTS

Section 4 of the act, approved October 3, 1913, authorized and empowered the President to negotiate reciprocity agreements with foreign countries, such agreements to be submitted to the Congress for ratification or rejection. It does not appear that any agreements were entered into pursuant to this provision. This may be accounted for in large measure by the fact that shortly after the act became effective the conflagration in Europe broke out, and the export trade of the United States increased by leaps and bounds without the necessity of trade agreements of the character contemplated by the act.2

THE REVENUE ACT OF SEPTEMBER 8, 1916 (39 STAT. 756, 799, SECS. 804, 805)

The act, approved September 8, 1916, conferred very broad authority on the Executive by authorizing him to prohibit the importation of foreign articles when the same or other domestic articles were refused entry into foreign countries (sec. 804). Section 805 gave the President the power to prohibit by proclamation during the existence of any war to which the United States was not a party, articles coming from any country that placed restrictions on the importation of American products. The President was also authorized

to change, modify, revoke, or renew such proclamation in his discretion. FORDNER-MCCUMBER ACT OF SEPTEMBER 21, 1922, (42 Stat. 858, 941, 946)

1922 FORDNEY-M'CUMBER ACT-PRESIDENT EMPOWERED TO LOWER OR

RAISE DUTIES

Section 315 of the 1922 Tariff Act, which, together with other sections, contains the so-called "flexible provisions" of the act, pro"of vided for the lowering or raising of the duty by proclamations of the

There were, however, concluded with Ethiopia in 1914 a treaty of commerce granting reciprocal most favored-nation treatment with respect to customs duties, imposts, etc., which was approved by the Senate and a treaty with Siam in 1920 covering various subjects and providing, among other things, most-favored nation treatment for the United States with respect to tariff matters in Siam (3 Malloy, Treaties, Conven tions, etc., 2578, 2829).