THE CASE OF CUBA—
Revising the Tariff-By Treaty.

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Memoranda.
Cuban Recipro6ity — By Treaty. . _ ;
Obligation, to Observe the. D.ingley Law until Amended.
or Repealed.
Power of the House over- Treaties.
Foreign Nations Interested. -• -
Danger in Cuban Reciprocity.
Why West India Treaties are Objectionable.

THE CASE OF CUBA—
Revising the Tariff-By Treaty.

It having been found impossible to extend to Cuba, what
some would call " reciprocity," by bill without opening up
the whole tariff to discussion, the proposition now is to accom
plish Cuban reciprocity through a treaty, the theory being that
the latter method avoids the undesirable debate and possible
results. It is not proposed herein to consider the merits of reci
procity with that Island, nor the wisdom of the policy beyond
observing upon the danger of that legislation and lodging objec
tions to the ratification and approval of the proposed reciproc
ity treaties with the West Indies and British Guiana.
It is usual of course to refer all treaties to " Foreign Rela
tions " upon the probable theory that they contain State se
crets, and while there was no objection to that in the first
instance — in this case, more particularly because of precedent
than for any other reason, the fact that the House Cuban reci
procity b ill was referred to the Committee on the "Relations
of Cuba " — a Committee especially raised to deal with all
matters pertaining to our relations with that Island, why not
send the treaty to that committee ?
It would have been proper to refer the Cuban treaty to
"Finance" because it suggests a reduction of the revenues,
say six and a half millions on sugar, a million and a
quarter on tobacco, and about sixty thousand on iron
ore, say #7,800,000 on three products, increasing rapidly an
nually if the treaty is to run beyond one year. It is true that
eight millions or more per annum is not such a serious item,
but even if it extended over no more than five years, we would
remit in duties, in that time, more than the whole value of
Cuba's present import " trade " that we do not already control!

And who will contend that we can hope to get the entire trade
of Cuba! There are many and substantial reasons why we
would not. Our total exports to Cuba when we gave her ' 'free"
sugar — not merely a 20 per cent reduction, were, in the best
year of McKinley reciprocity, $24,000,000, while our present
exports to her amount to $28,000,000. We will not discuss
that further.
Revenue is Always a Matter for Serious Consideration.
We are liable to have a costly Isthmian Canal expenditure,
as we have already heavy taxation for our Navy and Army and
for an increasing pension list with at least one sugar baron
possession — Hawaii, already asking for over two millions, and
a heavy military expenditure for another coming sugar pos
session farther west in the Pacific. For these reasons — be
cause this Cuban treaty concerns revenue and because it con
templates a reduction of duties on certain foreign imports,
there would be no impropriety in sending the- treaty to
"Finance." It would not be improper to send the Cuban treaty to the
' ' Judiciary " to determine whether the several provisions, limi
tations and prohibitions contained in Sec. 4 of the Dingley
law — relating to reciprocity treaties, have been observed in
this case, and particularly whether the right to negotiate,
ratify and approve any "reciprocity " treaty after the lapse of
the two-year limit of the time therein specified, has not been
foreclosed by the lapse of time, necessitating an amendment
of that law by extending ,the time or a repeal of its prohibi
tive feature before action. That is of the very essence of
favorable action on the treaty ; so important that it will be
the subject of remark. The reasons which operate to send
treaties between foreign governments to "Foreign Rela
tions" do not necessarily govern reciprocity treaties. There
is nothing secret about them.
Open Sessions Desirable. — There is no good reason why
the Cuban treaty should be considered in secret sessions.
No more reason than there was in the case of the Hawaiian
treaty. The alleged reasons for negotiating the treaty are
well known'; the -press has been discussing the matter for

Hoiacnv m nosi3n aoivNas
JO AHVaSfl 3H1 WONd
xavaan aaxva

months. Foreign nations fully understand it. In fact, cables
from Havana, not only to this country, but to Europe, have
advised the world of the basis of this proposed treaty.
It is an open secret, although its provisions in extenso may not
have been yet fully published.
The treaty is little removed from the provisions of the
House bill of the. last session, openly discussed. The Cham
berlain-Bayard treaty of 1888 was something more than a
reciprocity treaty. There was a long debate over it, a
motion to remove the injunction of secrecy, pending which
the treaty was published in Canada and discussed there in
Parliament ! The treaty of Washington of 1871 was pub
lished here while the debate in Executive Session was in
progress ! The people are entitled to know before this treaty
is ratified what, if any, necessity exists for it and what,
if any, reciprocity there is in it. And since it must go to the
House for approval, where there is no injunction of secrecy,
no good can come of applying the Rule that may very prop
erly be enforced in treaties of a different character. The
commercial treaties pending with France, British Guiana,
British West Indies and Newfoundland, have been published
and are an open book, and this Cuban treaty has no higher
claim than the others.
Are Treaties Amendable ? — This proposition is, upon pre
cedent, too clear for argument. On more than one occasion
amendments to treaties have been suggested by the Senate
and have been returned to the negotiators for new nego
tiations, or else amendments have been prepared by the Senate
and ratification made conditional or "consent" given, subject
to an acceptance of the treaty in its amended form.
Senator Lodge in Scribner's Magazine for January, 1902,
refers to no less than sixty-eight cases in which the Senate
has amended treaties before ratifying them. They include the
famous Jay treaty of 1794 and our treaty with Mexico of 1848.
The amendment to the Jay treaty was, that Article 12 — relat
ing to the West India trade, should be suspended, another be
ing substituted. Treaties and Conventions (Haswell), p. 386-395.

In the Mexican treaty Article ten was suppressed and Article
3 of the Louisiana treaty was substituted for the gth sup
pressed arid another substituted by a protocol.
ib., pages 686-692.
ib., " 714-723.
Scribner's Magazine for January, 1902, p. 42-43.
In Haver vs. Taker, 9 Wallace 34-35, Mr. Justice Davis
said — " The Senate is not required to adopt or reject a treaty
as a whole, but may modify or amend it "
The extension of the Hawaiian treaty December 6, 1884,
contained a new article.
See Treaties and Conventions (Haswell), p. 1 187-8.
Then the question recurs, is there any limit on the power
of the Senate to amend ? It would seem not.
After a careful examination of this matter Senator Lodge
concludes that —
The Senate has the right to amend, and that it has always
exercised the right largely and freely. And says —
"It is also clear that any action taken by the Senate is a part
of the negotiation, just as much so as the action of the Presi
dent through the Secretary of State. In other words, the action
of the Senate upon a treaty, is not merely to give sanction to
the treaty, but is an integral part of the treaty making power
and may be taken at any stage of the negotiation."
See Scribner's Magazine Supra.
It becomes quite evident therefore that the Cuban treaty will
be subject to the "differential" sugar amendment, to an anti-
contract labor amendment, to a limit of time amendment, to
an amendment to amend Sec. 4 of the Dingley law extending
the time within which a reciprocity treaty may be negotiated,
or to almost any other amendment. So, too, will an amend
ment lie conditioning its taking effect upon and when the
French or the Newfoundland treaties shall have been ratified
and approved. Nor do we see why an amendment, providing
that the treaty shall not take effect until the duty on iron and
steel or other "trust" products shall be reduced 20 per cent
would not be in order.

5
Approval By The House Necessary. — This proposition
will hardly be denied. It is an express requirement of Sec.
4 of the Dingley law that reciprocity treaties shall be " ap
proved by Congress." Even without that requirement it
would be necessary for the House to enact the necessary legis
lation to give the treaty effective operation.
But the existing law requires that the treaty itself shall be—
"approved by Congress," and a Sub-Committee of the Sen
ate Judiciary Committee, in a printed report made on the sub
ject in 1901-2 conceded that the Senate was bound by the
requirements ; in other words, that the Senate was estopped
from denying that reciprocity treaties must be — " approved by
Congress," until of course that requirement is obliterated or
amended. It is so understood by leaders in the House. In his speech
on the Philippines, Dec. 17-18, 1901, General Grosvenor said —
"We read in the Constitution, first, that the President of
the United States must negotiate a treaty, and, second, that
the Senate, and — in this case, Congress shall ratify treaties."
Representative Payne so understands it. To a Post reporter
in Washington, Oct. 15, 1902, he said —
" Do you anticipate much important work before the Ways
and Means Committee this winter? "
"Probably not much," answered Chairman Payne, after a
moment's thought, "except the Cuban reciprocity measure.
It is my opinion that if the treaty for reciprocity with Cuba is
pressed before Congress, it must be agreed to by the House. It
would be a provision affecting revenue, and under the Con
stitution such measures must originate in the House. The
limitation of the Dingley law, regarding reciprocity treaties
modifying the provisions of that measure, has expired, but
nevertheless, I am convinced the Cuban treaty, if fully ratified,
must have the consent of a majority of the House."
The Moral Obligation. — We will not pretend to dis
cover what ground may be taken to overcome the two year
prohibition in Sec. 4, within which time that section provides
that all reciprocity treaties shall be negotiated. The prohibi
tion runs against all reciprocity treaties negotiated after July
24, 1899. It involves not only an observance of existing

law, but it raises a high moral "obligation"; an obligation
that is reached long before the one whichpretendedly exists in
favor of Cuba and on which reciprocity with that Island is
sought in part to be based. The obligation to our own
people — to our own industrial interests, is found in a statute,
the other is imaginary !
We are aware of Senator Cullom's views, expressed in the
Senate, January 29, 1902, to the effect that —
The fourth section of the Dingley Act should be taken by
Executive (if considered at all) as a mere expression of the
views of Congress in the adjustment of the specific terms of
each treaty, because under the Constitution he did not need
the authority to make these treaties which the fourth section
sought to confer upon him.
This is the first time that a carefully prepared provision of a
law has ever — to my knowledge, been construed to be a mere
suggestion. If his idea is to prevail it will become exceed
ingly difficult to determine when Congress is enacting a
statute and when it is indulging in mere views or opinions ;
when it is in earnest and when it is joking.
The Senator misapprehends what the real contention is. It
is not insisted that Sec. 4 was intended to confer treaty mak
ing power upon the Executive ; nor does that Section pretend
to do so. We all know that the treaty making power is found
in the Constitution.
The argument is that while the Constitution directs by whom
alone the treaty making power may be exercised, it does not
say when it shall be exercised, nor does it say how it shall be
exercised; nor yet does it say that those who possess the
power to exercise it may not agree in advance that if it is not
exercised — as to a certain class of treaties within a specified
time and in a certain way, that they will not exercise it at all ;
until at least the statutory provision expressing their agree
ment is either observed, or the time limit set is extended or
repealed! The Constitution does not prohibit the treaty mak
ing power from placing the power itself in abeyance. Having
the power over treaties, to ratify, modify or reject, why, pray,
may not the power itself say, in advance, that such and such
treaties shall be made within a certain time ; shall not reduce

duties more than 20 per cent ; shall not carry domestic pro
ducts to the "free list"; shall not extend beyond 5 years and
the House shall concur therein? The lesser powers are with
in the greater. May not the Senate hold up a treaty for any
time it thinks proper? May it not reject? And within these
powers lie — as in this case, a great many more of lesser degree.
The enactment of Sec. 4 was not an "interference" with the
treaty making power, much less was it an "unwarranted
interference" with that power, as Senator Cullom suggests.
The executive and the legislative branches of the government
simply fixed a time within which reciprocity treaties must be
negotiated, stating what they must and must not contain. It
was simply advance action on any and all reciprocity treaties;
notice to the country and to the world how far Congress
would go. -It was rejection or amendment in advance of any
such treaty as might be negotiated and sent up in violation of
the time limit or the limitations or prohibitions contained in
Sec. 4.
The two year limit in Sec. 4 expired July 24, 1899, before
which "reciprocity" treaties might be negotiated by the Ex
ecutive, and it was that expiration which at once gave opera
tive force to the implied prohibition not to negotiate such
treaties after that time — unless of course Congress extended
or repealed that time limit.
Prior to the expiration of the two years, the prohibition
was dormant or in abeyance and did not take effect. It
was awaiting the lapse of time to become actively operative
as a prohibitive legislative force.
There was neither delegation, nor surrender of power.
Congress may withdraw its legislation by amending or repeal
ing Sec. 4. At all times the treaty power has been within its
grasp and is now. But Sec. 4 — as to industrial interests, was
a contractural moral obligation to run until the Congress might
otherwise determine !
It is just as well to note that Sec. 4 of the Dingley law was
not in the bill when it passed the House. It was placed
there by the Senate— minus so much of it as requires that
reciprocity'' treaties should be "approved by Congress." The

8
latter requirement appears to have been insisted on by the
House Committee and inserted in Conference
Cong. Record, 55th, 1st, pp. 2227-2238-2251.
It is a statutory provision, and a very important one — in
several aspects.
It is a great deal more than an expression of " the views "
of Congress, to be trifled with or used to deceive industrial
interests that have invested millions on the faith of its ob
servance !
The treaty making power of the House in 1897 said — We
are enacting a law for the raising of revenue, the protection
of home industries and to secure trade, and as "reciprocity"
treaties invariably affect all these interests, we here and now say
and solemnly agree and promise in advance —
1. That the Executive will not negotiate a reciprocity treaty
after July 24, 1899, unless our agreement is set aside by an
amendment or a repeal of Section 4 ot the law containing our
promise. 2. The Senate said, we will not "ratify" a reciprocity
treaty if made after July 24, 1899, nor at any time unless cer
tain prescribed limitations on reductions (20 pr. c.) and cer
tain prohibitions are observed ; at least not until Congress
rids us by an amendment or a repeal of Sec. 4.
3. And the House said it would not "approve," unless, &c.
All this was said only a little over five years ago ! Congress
and the Executive solemnly assured the country that each
one and all of the provisions of Sec. 4 of the Dingley tariff
law should receive recognition when it became necesssary to
consider the negotiation, amendment or approval of reciprocity
treaties, and yet at a time when the country is prosperous,
our trade flourishing and "industrial peace" proclaimed as
our policy, it is proposed to ignore or evade a solemn provi
sion of law — from which would result violation of law and of
moral obligation, friction, commercial trouble and probable
loss of trade with European nations !
Promises, or agreements by the government — carried for
ward into law, have always been regarded as high moral obli-

gations of binding force, and not as a mere expression of the
views of Congress.
By the "compromise" tariff act of 1833, Congress told the
country in so many words that the rates then made should
continue until 1842 — 1. e. , for nine years, unless there was an
excess or a deficit in the revenue, and it was regarded as a
moral obligation, and was faithfully observed.
4 Stat, at Large, 629-630.
Mr. Wilson and his Democratic friends recognized the
equity and morality of a limit of time in the McKinley sugar
bounty law of 1890 that was to run 14 years, and his Commit
tee, in reporting his tariff bill to the House, provided for a-
gradual reduction of the bounty.
Mr. Buchanan alluded to and stood upon the morality, binding
forceand equity of a time limit when in 1836 it was proposed to
reduce the rate of duty on coal that had been fixed by the
"compromise" tariff act of 1833, which act was to run nine
years. In 1839 he opposed a reduction of the salt duty on
the same ground, saying — " It is not sufficient for me to know
that we possess the power to violate the ' compromise ' act.
The true question is, would it be wise, politic or just."
Mr. Calhoun in 1841 opposed a reduction of the duty on
salt on the same grounds, and Mr. Clay opposed reductions
in 1836 on like ground — the limit of time was an essential and
controlled, If it be said that the two year time limit having expired, it
is now as if blotted out and without force leaving no check,
and that Congress is thus remitted to its full power to exercise
the right to make reciprocity treaties at any time ; I answer,
true, the time has expired but that is jusj: the difficulty ; that
time limit carries, as has been said, an implied prohibition not
to act after its expiration, until Congress shall either repeal the
prohibition or extend the time by an amendment. If it be
said that the treaty itself is intended to operate and will oper
ate as an a?nendment if ratified and approved, my reply is that
such a confession is all sufficient to throw the whole tariff act open
to amendment, because if you can — directly or indirectly —
amend a certain clause of the Dingley tariff law by a recipro-

IO
city treaty, you can amend any other of its schedules when
such treaty is before Congress.
The. contention, however, is probably true, for to amend a
provision of the Dingley law is just what this treaty really pro
poses to do, to wit, amend Sec. 4 of that law by striking out
the time limit of " two years" and inserting the words " six
years," so that the treaty negotiated may fall within the time
limit when so amended !
If it is proposed to observe all the other limitations and pro
hibitions in Section 4, why not the time limit? Why not, for
instance, ignore the prohibition against carrying to the " free
list " articles that are the growth of this country? Why was
that put in the law? Was that a mere view of Congress? Why
was there a limit of reduction (20 per cent} fixed? And why
is it proposed to observe it?
It may seem to those who have been so strenuously urging
reciprocity with Cuba that Sec. 4 of the Dingley law — in view
of events, was unfortunate legislation ; that it would have
been better to have had as existing law, the Dingley bill as it
passed the House. Perhaps. B ut who will say that the two
years time limit — and some or all of the other provisions
of Sec. 4, were not sagaciously fortunate, in view of industrial
development, imperilled, if the provisions of the section are
not observed ! And suppose the Dingley law had been enacted
as it passed the House! That would have impliedly left
sugar to be dealt with by (reciprocity) agreement only and not
by t eaty, with the limit of reduction fixed at 8 instead of at
20 per cent!
If it be suggested that Cuba has been thrown to the surface
since the enactment of the Dingley law and that she is a factor
to be dealt with as something not foreseen in 1 897, the question
must still remain that if conditions, because of that, exist,
which renders it either prudent, wise or necessary to grant
reciprocity, it might justify Congress in proceeding to a?nend
Sec. 4 by extending the time limit, or repealing it in order to
let in the proposed treaty, but the conditions making the treaty
necessary or even politic — so far as Cuba is concerned — do not

1 1
exist, and if they did, it would neither warrant an open viola
tion nor an evasion of existing law.
Power of the House. — Suppose Sec. 4 of the Dingley
law had no existence, how then would the case stand?
Sugar — as has been said — would then have fallen under Sec
tion 3, assuming that the Senate had passed the House bill,
and in that event no more than an 8 per cent reduction would
be in order. But suppose neither Sections 3 nor 4 had been
enacted ; that would have left domestic products to be treated
at any time by treaty. In that event Senator Cullom — and
probably some others, concludes that the House would have
no power over reciprocity treaties ; that treaties operate of
their own force, no legislation being necessary to give them
vitality or operative effect. I differ with the Senator.
I have gone over the cases cited by him in January, 1902,
and the arguments made concerning the power of the House to
approve certain treaties which did not necessarily affect the
revenue nor our industries, and while the arguments appear
pretty evenly balanced, the trend of the voting was with the
House contention.
The Jay treaty of 1785-6 was not a reciprocity treaty and yet
the House insisted by a vote of 62 to 37 on Livingston's mo
tion calling for the papers in the case.
On Mr. Madison's resolution defining the power of the House
in the case of certain treaties, the vote was, ayes 57, noes 35 —
Resolved, That it being declared by the second section of the
second article of the Constitution that the President shall have
power, by and with the advice and consent of the Senate, to
make treaties, the House do not claim any agency in making
treaties, but that when a treaty stipulates regulations on any
of the subjects submitted by the Constitution to the power of
Congress, it must depend for its execution, as to such stipula
tions, on a law or laws to be passed hy Congress. And it is
the constitutional right and duty of the House, in all such
case?, to deliberate on the expediency or inexpediency of car
rying such treaty into effect, and to determine and act thereon,
as iii their judgment may be most conducive to the public
good. * * * *
That Resolution undoubtedly, expresses what the power of
the House is over treaties ; not that1 it would have— in this c&se

12
and independently of Sec. 4 of the Dingley law, power over
the negotiation or the ratification of all the provisions of a
treaty. Mr. Madison knew too well what the result of the
contest in the Convention was and knew that as to negotiation
and ratification the power had been committed to the Presi
dent and the Senate. But as to a certain class of treaties,
that might affect clauses and matters over which the House
had power, he very properly contended that before they
would take effect or would be enforced as municipal law, the
House must consent or pass the necessary legislation to make
them operative.
How else can certain grants of power in the Constitution be
reconciled with the treaty making power ? For instance
while — Paragraph 2 of Sec. 2 of Article 2 of the Constitution,
relating to the power of the President says —
•'He shall have power— by and with the advice and consent of the Senate, to
make treaties &c."—
Sec. 7 of Article 1 provides that —
"All bills for raising revenue shall originate in the House of
Representatives. "
Sec. 8 of the same Article provides that —
"The Congress shall have power — to lay and collect taxes,
duties, imposts and excises."
And paragraph 4 of the same Section and Article provides
that— "Congress shall have power to regulate commerce with foreign
nations, &c."
Paragraph 6 of Sec. 9 of Article 1 provides that —
"No money shall be drawn from the Treasury but in conse
quence of Appropriations made by law, &c. "
Paragraph 2 of Sec. 3 of Article 4 provides that —
« ' The Congress shall have power to dispose of * * *
the territory or other property belonging to the United States,
&c." Suppose a treaty should provide for the disposal ot some
of the territory of the United States to a foreign power, would

13
it not conflict — without the assent of the House, with para
graph 2, Sec. 3 of Article 4, which gives that power to Congress ?
In 1820 Mr. Clay introduced this resolution in the House —
That the Constitution of the United States vests in Con
gress the power to dispose of the territory belonging to them,
and that no treaty purporting to alienate any portion thereof
is valid without the concurrence of Congress.
It was claimed that the Spanish treaty of 1819 alienated a
part of the territory of the United States.
If it be said that the United States has by treaty disposed
of territory belonging to the United States, we deny it. The
United States have taken territory by treaty, but never "dis
posed by treaty of any territory belonging indisputably to the
United States. The Webster-Ashburton treaty of =Aug. 9,
1842, did not cede — " a part of Maine " as some may suppose.
The question was whether the "territory " or domain claimed
did or did not " belong " to us. It was always in dispute. In
fact so much of Maine as the boundary — after 42 years of
diplomatic strife, was extended by treaty in favor of Great
Britain, was spoken of and recognized in Article 6 of the
treaty as " disputed territory" and not as territory "belonging
to " either Maine or to the United States.
See Treaties and Conventions (Haswell), p. 435.
The domain which was apparently "ceded" by the Oregon
boundary treaty of 1846 falls in the same category of "disputed
territory." In neither case- was there any cession of territory
indisputably "belonging to" the United States.
Treaties and Coventions Supra, p. 438.
In both cases the treaties were compromises of claims
mutually asserted over disputed domain.
And the same is true of the Florida treaty of 181 9 alluded
to by Mr. Clay.
Treaties and Conventions Supra, p. 1016.
Would a treaty regulating commerce — entered into by the
Executive and ratified by the Senate — without the necessary
legislation to make the municipal provisions which it might

H
contain effective, become operative and enforcible by our
courts ?
And how may Congress hope to lay and collect duties and
imposts to support the government, if the Executive and Sen
ate could override its judgment by treaty ? It is no answer
to say that no patriotic Executive or Senate would embarrass
that power by treaty. The question is, does the power exist
to do it ?
It can readily be conceded that the treaty making power
is a broad one — not however unlimited ; but so are other
grants of power.
Paragraph 2 of Article 6 says that —
" This Constitution and laws of the United States, which
shall b© made in pursuance thereof, and all treaties made, or
which shall be made under the authority of the United States
shall be the supreme law of the land, &c."
Mr. Justice Daniel, referring to that clause of the Constitu
tion said — (5 How. 504, p. 613.)
" Laws of the United States in order to be binding, must
be within the legitimate powers vested by the Constitution.
Treaties, to be valid must be made within the scope of the
same powers for there can be no ' authority of the United
States ' save what is derived mediately or immediately and
regularly and legitimately from the Constitution."
Woolsey's Int. Law, 6th Ed., p. 161.
Tucker on the Constitution, Vol. 2, Sec. 354.
And why confer by paragraph 19 of Sec. 8 of Article I on
the Congress, the power —
"To make all laws, which shall be necessary and proper
for cariying into execution the foregoing powers, and all other
powers, vested by this Constitution in the government of the
United States, &c."
There may — in other words, be power to make a treaty, but
no power to carry provisions of it into execution. Legislation
may or may not be necessary.
The truth is that the treaty power in paragraph 2, Sec. 2 of
Article 2— is not unlike other powers ; it must be read in con
nection with other parts of the Const jtutipn granting powers
to Congress. Grants of power are not intended to conflict.
In many cases the treaty making power may well be absolute

!,5
and the treaty go into effect at once as to all its provisions,
but in other cases not. The power of the House of Repre
sentatives is no more to be lightly ignored than is the power
of the Senate or that of the Executive.
So far as reciprocity treaties are concerned, the views set
forth in the Report, cited by Senator Cullom, made by Mr.
Choate, June 14, 1844, from the Senate Committee on "For
eign Relations," will be pretty apt to convince those who are
not Cuba reciprocity mad. If not, the Conference Report on
the British treaty of 181 5 ought to.
See Annals of Cong, of 1815-1816, pp. 1018-1023,
2 Curtis C. C. Reports, 454.
The proposed treaty on which Mr. Choate made report and
which failed, was with Prussia, reducing certain duties on
enumerated articles coming from Prussia in return for similar
concessions on articles exported to Prussia.
The report showed conclusively that the treaty was very
inequitable to the United States, and that the United States
would concede much more than she would gain by it. This
report has been cited as a strong precedent against reciprocity
treaties. It was stated in the report that —
The committee are not prepared to sanction so large an
innovation upon the ancient and uniform practice in respect
of the department of government by which duties on imports
shall be imposed. The convention which has been submitted
to the Senate changes duties which have been laid by law.
It changes them either ex-directo and by its own force, or it
engages the faith of the nation and the faith of the legislature.
to make the change.
In the judgment of the committee the legislature is the de
partment of the government by which commerce should be
regulated and laws of revenue passed. The Constitution in
terms communicates the power to regulate commerce and to
impose duties to that department. It communicates it in
(terms to no other. Without, engaging at all in an examination
of the extent, limits, arid objects of the power to make
treaties, the committee believe that the general rule of our
system is indisputably that, the control of trade and the func
tions of taxation belong to Congress.
, Holding this to be the general rule upon the subject, the
committee discern nothing in the circumstances of this case,.

i6
nothing in the object to be attained, or in the difficulties in
the way of obtaining it, which should induce a departure from
this rule.
I think it will be found that the House has pretty generally
insisted on Mr. Choate's rule in such cases, although it may
have attempted to over-define its power in the Alaska case,
which was one of "appropriation" merely. But even there
the Constitution says that no money may be drawn from the
Treasury except in pursuance of an appropriation.
I am the more convinced of the correctness of these views
after an examination of ce rtain clauses in several treaties that
have been negotiated.
I think upon precedents and decisions that while the House
may not participate (except in this case, and that by virtue of
Sec. 4) in the ratification of a treaty, it must unite in legisla
tion to carry into effect clauses that are not self-operating. The
courts in fact have decided that treaties which require legisla
tion to carry them into effect remain inoperative until statutes
have been enacted for that purpose; that until that is done
officers of the government must follow the statutes or the
municipal law of the land, even if inconsistent with or in vio
lation of the stipulations in a treaty; until Congress shall
have so changed the law that the executive departments can
execute it in conformity with the provisions of the treaty.
That is what Chief Justice Marshall held in —
Elam vs. Neilson, 2 Peters, 253.
A treaty is the law of the land only when it is self-operative.
It remains ineffectual when legislation is required and can
only be enforced after laws are passed, repealing or modi
fying existing statutes. In recognition of this principle, the
reciprocity treaty with Mexico of January 20, 1883, in
Article 8 provided that —
" The present Convention shall take effect as soon as it has
been approved and ratified by both contracting parties, accord
ing to their respective constitutions ; but not until laws nec
essary to carry it into operation shall have been passed by both the
Congress of the United States of America and the Government of
the United Mexican States, &c. "
See Treaties and Convention (Haswell), pp. 714-718.

i7
And the Article concluded Feb. 25, 1885, extended the
time "for the approval of the laws" necessary to carry
that treaty into operation to May 20, 1886.
ib., pp. 723-1190.
In the reciprocity treaty between the United States and the
Hawaiian Islands of January 30, 1875, Article 5, provided
that— " The present Convention shall take effect as soon as it
shall have been approved and proclaimed by his majesty, the
King of the Hawaiian Islands, and shall have been ratified
and duly proclaimed on the part of the Government of the
United States, but not until a law t/> carry in into operation
shall have been passed by the Congress of the United States oj
America." See Treaties and Conventions (Haswell), p. 548.
And Congress passed such an act Aug. 15, 1876. See Vol.
19 Stat, at Large, pp. 200-666.
In the Fisheries and reciprocity treaty of June 5, 1854, be
tween the United States and Great Britain, Article 5 contained
the requirement that laws must f rst be passed to carry it into
operation. The same was true of the 33d Article of our
treaty of 1871 with Great Britain.
ib., pages 449-451 and 452-491.
The Article in that treaty provided as follows —
" It is agreed that the articles enumerated in the schedule
annexed, being the growth and produce of the aforesaid Brit
ish colonies, or of the U. S., shall be admitted into each coun
try respectively free of duty."
See Treaties and Conventions (Haswell), p. 451.
Congress passed an act to carry the duty Article into effect.
See 10 Stat, at Large, p. 587. And yet the language employed
in that treaty was as if the provision was self-executing ; as
if no legislation was necessary.
While the Jay treaty with Great Britain of 1795 was under
consideration by the Senate (supra), treaties with Algiers
(negotiated September 5, 1795), and with Spain (negotiated
October 27, 1795), were also considered.
See Treaties and Conventions (Haswell), pp. r and 1006.

Neither of them contained any provision requiring legisla
tion. They embraced, however, tariff, tonnage dues, &c; i. e ,
they related to commerce and revenue.
Mr. Fisher Ames' Resolution on the Jay treaty, that legis
lation was necessary, was adopted in the House in Committee
of the Whole and carried. 51 to 48.
See McMaster's History, Vol. 2, chap. 9, p. 277, &c.
And legislation was enacted May 6, 1796, giving effect to cer
tain provisions of those treaties.
See Vol. 1 U. S. Stat, at Large, 459-460
In fact it long ago was practically decided by Chief Justice
Marshall that although a treaty becomes the Supreme law of
the land as soon as it is ratified — as to every provision which
can be enforced without legislation — it remains ineffectual as to
those matters which do require legislation, or the appropriation
of money and as to them it can only.be enforced after both
branches of Congress enact new or modify or repeal such ex
isting laws as conflict with the treaty.
Foster vs. Neilson, 2 Peter, 253.
The proclamation of the President of July 1, 1873, shows
that the Executive Department of our government did not
consider that the treaty of Washington of 1871 went into effect
until nearly two years had elapsed after the treaty was to be
come "the supreme law of the land."
See Messages of the Presidents (Richardson), Vol, 7.
p. 228. 4 Blatchford's Reps. (U. S. D. C), 182.
4 Wallace, 404-408.
In the 47th Congress, 2d session, a Report was made from
the Senate Committee on Finance on a Joint Resolution (No.
122) providing for the termination of the Hawaiian reciprocity
treaty, which was shown to be unequal and financially detri
mental to the United States. The Report favored the termi
nation of that treaty on the ground that this country had
(given the Hawaiian sugar planters #14,600,00 of revenue in
five and a half years ! The Report proceeds to ask—
" Would it not have beejn wiser to have bestowed the wh^le
of this sum as a premium, on sugar produced at home ! Our
annual expenditure for this necessary article of life: i'j too great
to" be perpetuated forever. <5rv."

*9
But aside from that, a minority of the Committee, Senators
Aldrich, Merrill and Voorhees, supplemented the Report with
additional reasons why the Hawaiian treaty should be termi
nated, and it was therein concluded
That if a commercial or "reciprocity treaty" — could be
made with one nation, it would be possible to make like
treaties with all, and thus the power of the House of Repre
sentatives to originate revenue bills would be suspended and
frittered away.
Other reasons were advanced why the House should — at
least concur, if not originate commercial or reciprocity treaties.
See Senate Report 1013, 47th, 2d.
I wish, in this connection, to call attention to the very ex
tended arguments on the subject, advanced by Senators (es
pecially by the late Senator White, of California) during the
passage of the Dingley tariff bill.
See Cong. Record, 55th, 1st, p. 2227, &c.
Over the reciprocity treaty between the United States and
Great Britain of July 3, 18 15, there was a long debate in the
14th Congress. The question was as to the necessity of the
enactment of laws to carry it into execution, and they were
finally passed 'and the tariff regulated.
See Treaties and Conventions (Haswell), p 410.
See 3 Statutes at Large, p. 255
Our treaty with France of July 4, 1831, contained (Article
7) a cotton and wine reciprocity provision and France refused
it execution. President Jackson took the ground that a treat}'
containing commercial regulations must be submitted to the
Congress before it could be carried into execution.
See Treaties and Conventions (Haswell), p. 347.
" Annual Register 1834, Pub. Docs., p. 352.
This was no more than holding to the. doctrine enunciated
by Chief Justice Marshall.
The House has been quick to resent any encroachment on
its powers in this respect. In fact, Senator Cullom had no
sooner made his speech on this question in January, 1902,
than Mr. Dalzell offered from Rules Committee House Reso
lution No. 114.

20
" Whereas — It is seriously claimed that under the treaty mak
ing power of the government, and without any action whatever
on the part of the House of Representatives or by Congress,
reciprocal trade agreements may be negotiated with foreign
governments that will, of their own force, operate to supplant,
change, increase or entirely abrogate duties on imports col
lected under laws enacted by Congress and approved by the
Executive for the purpose of raising revenue to maintain the
government ; now therefore be it resolved by the House of Repre
sentatives, that the Committee on Ways and Means be directed
to fully investigate the question of whether or not the Pres
ident, by and with the advice and consent of the Senate, and
independent of any action on the part of the House of Repre
sentatives, can negotiate treaties with foreign governments by
which duties levied under an act of Congress for the purpose
of raising revenue, are modified or repealed, and report the
result of such investigation to the House."
This resolution was adopted by the House, but no report, I
believe, has yet been made.
Senator Cullom appears to infer that in some of the cases
cited, legislation was enacted simply because of the clause
placed in a treaty requiring it !
On the contrary the clause was placed there to make it clear
that without legislation the treaty — as to certain parts, would
not become the law of the land until a statute was enacted to
carry it into execution. The real question for the Senator
to answer is, why was the clause placed in the treaties if every
portion of a treaty becomes "the supreme law of the land "
immediately upon its ratification !
The proposed treaty with Cuba addresses itself to the com
mercial dangers which lurk behind the scheme As "trade"
has become the real pivot upon which Cuban "reciprocity"
swings — in spite of efforts to disguise it, we should be well as
sured that a commercial treaty with the Island would not lose
us more trade than we might gain — with"no benefit accruing
to Cuba !
To meet this suggestion it has been stated that as
"reciprocity" treaties are special and based upon mutual
concessions, they are not within the "most favored nation"
clause of treaties and hence that nations could not complain.
122 U. S. Rep., 116.

21
The claim we make seems not to be understood. What is
insisted upon is this ; that there are certain clauses in some of
our treaties with foreign countries —nations which are among
our best commercial customers, which amount to conditional
reciprocity contracts, and that those clauses go very far to pro
hibit our giving lower duties, even for compensation, to a
particular nation than we extend to those nations with which
we have treaties containing the conditional reciprocity clause,
unless the same favor extends to such other nations upon a
tender by them of the same compensation or "equivalent"
concessions. For instance, by the 12th Article of our treaty with Belgium
(1875) it is provided that —
"In all that relates to duties of customs and navigation, the
two high contracting parties promise, reciprocally, not to
grant any favor', privilege or immunity to any other State
which shall not instantly become common to the citizens and
subjects of both parties respectively ; gratuitously, if the con
cession or favor to such other State is gratuitous, and on allow
ing the same compensation, or its "equivalent," if the conces
sion is conditional."
Haswell's Treaties and Conventions, p. 78.
Substantially the same language is used in —
Article 9 of our treaty with Austria-Hungary.
Article 9 of our treaty (1828) with Prussia.
[Our Supreme Court has held that this treaty runs to the German Empire.]
Article 11 of our treaty with Russia.
Article 3 of our treaty with Argentina.
Article 3 of our treaty with Nicaragua.
See Haswell (Supra), pp. 25, 918, 936, 19, 780.
Examination will show that these clauses stand separately
and apart from the "most favored nation" clause, and are
in excess of and beyond the language used in the latter. In
some cases the clause forms an independent Article.
They are conditional reciprocity provisions ; nothing less.
In some treaties we find only the "most favored nation"
clause — nothing in the nature of conditional reciprocity on
tender of the same compensation or an equivalent. In such
cases it is true — as the Supreme Court has held (122 U. S.

22
Rep., 1 16) that one of two nations, between . which runs only
the "most favored nation " clause, may enter into a special
or compensation reciprocity treaty with a third nation, and
the benefits do not run to a nation having only the "favored
nation " clause.
The United States may assume or even strenuously insist
that in a lower duty Cuban reciprocity treaty, there would be
no violation of these conditional reciprocity clauses. Prob
ably not eo-instanti, but that does not meet the case. On
a tender to us — by the nations affected, of the same compen
sation or its "equivalent," the condition would be fulfilled !
Over the question whether the condition was fulfilled or not,
friction and trouble might ensue and a commercial war be precip
itated and at the very time, too, that we were preaching " in
dustrial peace." The United States would not be the sole
judge whether a nation had tendered the same compensation
or its "equivalent."
It may be suggested that nations having these conditional
reciprocity promises — dormant or in abeyance, so long as we
make no special reciprocity treaties, are not in an industrial
position to grant the same compensation that Cuba may grant
the United States. That we do not know — certainly not until
Cuba enacts her new and higher tariff, if the Cuban treaty is
to be based on that ; nor is it for us to even guess what foreign
nations might do or be able to do !
Then as to the tender of an "equivalent"; in this there
lies a very considerable element of danger? They might insist
that their tender was an" equivalent''1 and our denial could
only make an issue; bring about friction and commercial
trouble !
The nations above cited are all large sugar producing coun
ties with a surplus thereof and they are all very eager to find
a market for it that exists largely in the United States.
They might tender an "equivalent" in order to get their
sugar in. There is friction enough now.
In the case of Germany there is and has been very consid
erable.

23
But would not Germany under a regular reciprocity treaty
ask the same favor that we granted Cuba?
Very recently we had the following cable —
Berlin, Dec. 5. — Baron Heyl von Herrensheim, Count von
Kanitz and Baron von Wardorff, together with sixty-four con
servative, national- liberal and anti-Semite members of the
Reichstag, introduced a resolution to-day directly aimed at the
United States.
The resolution asks Chancellor von Bulow, before renew
ing the commercial treaties, to serve notice on any country
not giving German goods fair reciprocity treatment that the
existing most favored nation privileges will be discontinued in
its case when the general commercial treaties are renewed.
We know how extremely sensitive Germany is — and showed
herself to be, during.Mr. Cleveland's Administration, over our
countervailing duty on her sugar, and we feel to-day the force
of her meat regulations, and we know that she has about
$3,500,000 of trade going into Cuba of which she is tenacious,
' and she could point to the fact that Mr. McKinley's Cuban
policy — according to Robert P. Porter and according to the
fact, was " commercial freedom " and not discrimination through
reciprocity !
We know that Germany takes of the United
States  $173,000,000
of our exports, $70,000,000 of which is raw cotton, $2,775,000
of flour, the same amount of our corn, $15,000,000 .of our
wheat, and $20,000,000 of our cotton and flax seeds.
Does any man suppose that Germany would not ask us for
reciprocity and a 20 per cent reduction on her sugar if we gave
it to Cuba!
And if Germany was granted that favor does any man sup
pose that Belgium, Russia, Austria-Hungary — all conditional
reciprocity nations with us, would not ask the same? And
how could we refuse? A 12 per cent loss only on our trade
to these four nations would equal the whole of our present
trade with Cuba, and would far exceed any increase we could
reasonably hope for from the Island! There are commercial
idiots alive who pretend that we can gather in the entire trade
pf Cuba!

24
Our export trade for the fiscal year ending June 30, 1902,
was as follows :
To Germany  $173,000,000
' Belgium  46,000,000
" Russia (the largest we ever had)  10,800,000
" Austria-Hungary  6,400,000
$236,200,000
Twelve per cent loss  $27,344,000
Our total exports to Cuba  28,000,000
No, gentlemen, grant Cuba 20 per cent on her sugar, and
in one way or another the United States would be apt to find
themselves bound to grant — and would grant, like favor to the
sugar producing nations of Europe. And then how would
Cuba be benefited by reciprocity? Let us not delude our
selves. In this dog-in-the-manger policy that New York ex
porters wish us to pursue with Cuba to secure more " trade "
from her, there lies a whole crop of probable trouble for both
the United States, and for Cuba as well !
Cuba finds in Germany a market for $7,000,000 of her
tobacco in various forms. If Cuba discriminates — no matter
by what method, in our favor, what would Germany do? Can
any man doubt ! And are we, while pretending to want to aid
Cuba, going to be a party to a Cuban policy the resulting dis
asters from which to the Island no one can plainly see ! Would
that be a " plain duly?" And how could we — in justice, pre
vent Cuba from protecting her tobacco growers by a treaty with
Germany while aiding her sugar growers by a treaty with us?
" Commercial freedom "for Cuba was Mr. McKinley' s policy, and
he maintained it, and it was a wise one ! If he was prevailed
upon or importuned by Cuba's sugar planters — because sugar
was temporarily low, to promise at their earnest solicitation to
recommend reciprocity to aid them ; if he at their repeated re
quests yielded his idea of what was best for Cuba, so far as to
say that he would appoint commissioners on the subject to
meet like commissioners on the part of Cuba — when a
government was established, it was not without notice that
any reciprocity treaty on the basis of lower duty on Cuban
sugars, would surely meet with formidable opposition frDirj

25
our domestic sugar producers. That did not change the real
views entertained by Mr. McKinley as to what he really thought
Cuba's policy should be — no discrimination !
And finally if the policy of reciprocity is to become a part
of our tariff system, we must start aright with the world pow
ers or the vision of "industrial peace" will not only vanish,
but in its place will arise that of industrial warfare. Those
who live near the seaboard or in the interior through the
plate glass or other " trusts," or who as exporters want profits
from more trade, who have through "protection " been able to
build up an enormous internal commerce that — through the
same policy, has come to overlap the demands of a home con
sumption which has been self-satisfying and highly profitable
cannot hope to obtain more trade abroad through a reciprocity
that does not reciprocate. Nor can they hope through the
sacrifice of any home industry — much less one that is develop
ing and of quite as much importance as their own to gain
larger markets for themselves !
If Indiana or any other State refuses to accept this, they
only need to wait to become convinced that they must remain
loyal !
The West India Treaties. — A word or two on the pending
West India Treaties: —
Just why these (sugar) treaties were kept alive, and the
Argentina (wool) treaty was allowed to lapse or be withdrawn,
is a conundrum ! By the way, it is a noticeable fact that in
the proposed treaties (also withdrawn) with Ecuador and
Nicaragua, Mr. Kasson was careful to except hides of sheep
with the wool on from the products of those countries given a
reduction of duty here ! The only wonder is that the knit
goods, jewelry and pottery French treaty was not also allowed
to lapse !
So far as the West India treaties, the one with British
Guiana and the one with France are concerned, there would
not seem to be any desire for their ratification in Administra
tion circles! President Roosevelt passes them over lightly
with no direct recommendation. So far as the one with New
foundland is concerned, valuable statistics have been filed

26
in protest and there are Senators who will probably see to it
— that it does not get enough votes.
As to the West India and British Guiana or Sugar treaties,
there is an insuperable barrier to their ratification — aside from
their demerits, that did not exist when they were negotiated !
Great Britain has been granting a bounty to the sugar pro
ducers in those colonies for upwards of two years.
A dispatch from London August 18, 1902, says —
The West India Committee has published the reply of Jos
eph Chamberlain, the colonial secretary, to the deputation from
the Island of Trinidad, which recently interviewed him on the
subject of the inadequacy of the relief which the government
is giving the planter.
Mr. Chamberlain declared that any increase of the sum
($1,250,000) voted by Parliament was out of the question.
A dispatch from Kingston concerning Jamaica, says —
Kingston, Jamaica, Nov. 4, 1902. — A special session of
the Legislature convened to-day in order to give authority to
the Government to make loans to the sugar planters supplement
ary to the imperial grant, and thus insure the maintenance of
the industry pending the abolition of the bounties.
A dispatch from Demarara, British Guiana, August 14, 1902,
says —
"Imperial Grant-in-aid. — This has been given not to assist
owners of sugar estates to escape loss, but to insure the con
tinued distribution of wages amongst the laboring classes.
The actual wages paid on the sugar estates in the colony for
seven months ended July 31st amounted in round figures to a
sum equal to $25 per acre in cane cultivation, or a total of
$1,750,000, say $250,000 per month. The grant-in-aid covers
a period of 18 months."
Instead of reducing oui duty on sugar from the British West
Indies, we should have levied a countervailing duty on them.
We will offer one observation — going to the merits of these
treaties, to show that Mr. Kasson was over-reached. A clause
in these treaties reads as follows —
Article 4. In return for the "preferential" rates of duty
herein granted to the said colony by the United States, it is
agreed that the rates herein granted on the part of said colony
to the products of the United States, shall continue during the
term of this convention, " preferential " in respect to all like

27
imports from other countries, with the exception of Great Britain
and the British Possessions and of such countries as shall be
entitled by convention with Great Britain to the benefit of the
"most favored nation" treatment.
This "preferential" clause would naturally operate in this
way. As Great Britain sends the Barbadoes 43 per cent of
her imports and as the United States send an average of say
37 per cent, the Barbadoes take very little of other nations.
As Great Britain is to stand on a preferential basis equally
with us, there will be little or no chance for us to gain trade.
In the case of Jamaica, Great Britain and the United States
together, send that Island about 90 per cent of its total im
ports, each country sending about the same amount. Here
again there would be no chance to increase our trade. Be
cause of the preferential clause, we could not hope to gain
against Great Britain.
In the case of British Guiana, Great Britain furnishes about
56 per cent of that Island's imports, and the United States
about 28 per cent or 84 per cent together. Here again there
would be little chance for gain — because of the preferential
clause *
We would remit annually in duties under these treaties on
sugar alone about $675 000.

4436