others for an existing or supposed grievance." 37 The Senate amendment, however, suffered no change in the House, and the bill was finally sent to conference, from which the reciprocity clause emerged unaltered.38

37 Ibid., p. 10638.

38 The bill passed the Senate September 10, 1890; yeas 40, nays 29, absent 15. Conferees had been appointed by the Senate on September 10, by the House on September 16, (Ibid., p. 9943 and p. 10114); conference report made and debated in both Houses (pp. 10114-10727); agreed to by the Senate September 30, 1890, yeas 33, nays 27, absent 24 (p. 10740); agreed to by the House September 27, 1890, yeas 151, nays 81, not voting 94 (p. 10641).

CHAPTER VII.

OPERATION OF THE MCKINLEY ACT.

There were some persons who conceived their interests to be placed in jeopardy by the reciprocity sections of the McKinley Act. As we have seen, the claim that the constitution of the United States would not bear Congress out in conceding to the President authority to make and ratify treaties without further approval from the legislative body, had been raised in one or other of the two Houses at intervals, ever since reciprocity was first discussed as a policy. The McKinley Act, however, was the first definite attempt at the legal recognition of reciprocity, and hence it was not until it had been passed that an opportunity was afforded for bringing the relative powers of the President and of Congress to the test. Not long after the act had gone into operation, cases were brought before the Supreme Court in which its constitutionality was involved.

In Fields vs. Clark, which came to the Federal Supreme Court from the Circuit Court of the United States for the Northern District of Illinois, and in Boyd v. United States and Sternbach vs. the United States, which came from the Federal Circuit Court for the Southern District of New York, substantially similar points were raised. It was contended that section three of the McKinley Act violated the Constitution, because in effect it granted to the President both legislative and treaty powers.

The United States, on the other hand, contended that precedents supported the right of the President to exercise such

1 United States Reports, Vol. 143, pp. 649 et seq.

powers when authorized by Congress to do so. Speaking of the constitutional point at issue, the court held, as follows:

"Congress cannot delegate legislative power to the President. The act of October 1, 1890, in the particular under ‹-nsideration is not inconsistent with that principle. It does not in any real sense invest the President with the power of legislation. For the purpose of securing reciprocal trade with countries producing and exporting sugar, molasses, tea, coffee and hides, Congress itself determined that the provisions of the act of October 1, 1890, permitting the free introduction of such articles should be suspended as to any country producing and exporting them that imposed exactions and duties on the agricultural and other products of the United States which the President deemed-that is, which he found to be reciprocally unequal and unreasonable. Congress itself prescribed, in advance, the duties to be levied, collected, and paid on sugar, molasses, coffee, tea, and 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. *

He had no discretion in the premises except in respect to the duration of the suspension so ordered. * * He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect."

2

The Supreme Court also held that the constitutionality of the McKinley Act was entirely in harmony with many precedents to be drawn from our diplomatic and executive history. More particularly it referred to the proclamation issued by President Arthur, in 1884, concerning our tariff relations with Cuba and Porto Rico; and to the proclamation of President Cleveland of October 13, 1886, which revoked the orders of President Arthur given in the proclamation issued two years earlier. Altogether the decision was a complete victory for the contentions of the administration with regard to reciprocity.

The most important application of reciprocity which actually took place under the McKinley tariff was the treaty signed

Chief Justice Fuller and Justice Lamar dissented from this opinion, holding that no part of the legislative power can be delegated to any other department of the government and that the reciprocity section of the McKinley Act did delegate such authority.

with Brazil on February 5, 1891.3 In the amount of trade involved, this treaty was of much larger importance than that negotiated with any other of the South American countries with which we entered into relations. Both our imports and exports in the Brazilian trade were greater than those concerned in any other reciprocity agreement, except the one made with Germany. As has been seen, our negotiations with Brazil had been begun in 1889, and their continuance under the McKinley Act was nothing more than the carrying out of what had already been previously undertaken. The negotiations were in fact resumed immediately after the passage of the McKinley bill, and, as already stated, a treaty was signed February 5, 1891, which went into effect on April 1 of the same year. By the terms of this agreement, Brazil retained the advantage of the free admission of sugar, hides, molasses, coffee and tea to the United States as provided in the McKinley Act. On the other hand, we secured the admission to Brazil of a lengthy list of agricultural and manufactured goods. The former included fruits and vegetables, dairy products, lumber, flour and grain. The latter comprised agricultural implements and machinery, all machines for manufacturing and industrial purposes, and railway material and equipment. Brazil also added a schedule of articles upon which duties had been reduced twenty-five per cent. This list comprised certain hog products, manufactured cotton, wagons, cars, carriages, etc., and all manufactures of iron and steel not included in the free list.

The reciprocity provisions of the McKinley Act were carried further and an attempt was made to secure their accept

The agreement with Brazil was the first negotiated under section 3 of the McKinley Act. It was concluded on the 31st of January, proclaimed the 5th of February and went into effect on the 1st of April, 1891. As with certain other South American countries, commerce was injured by the panic of 1891, which had such disastrous effects in the countries affected by it. (Senate Executive Document, No. 119, 52d Congress, 1st session.) The overtures came from Secretary Blaine. "The government of the United States of America," he wrote, "being desirous of maintaining with the United States of Brazil such trade relations as shall be reciprocally equal, I should be glad to receive from you an assurance that the government of Brazil will meet the government of the United States in a spirit of sincere friendship."—Ibid., p. 30.

ance generally throughout South America. Mr. John W. Foster, representing the Secretary of State, succeeded in negotiating treaties with Spain for Cuba and Porto Rico, and with England for Jamaica, Trinidad, Barbadoes, Guiana, the Leeward and the Windward Islands." Treaties were also signed with Santo Domingo, Guatemala, Salvador, Costa Rica, Honduras and Nicaragua.10 These treaties, carrying into

9

The reciprocity agreement with Spain, acting on behalf of Cuba and Porto Rico, was concluded June 16, proclaimed August 1, and went partially into effect September 1, 1891. "Owing to existing treaties with other nations, it became necessary to adopt a provisional or transitory schedule," and the arrangement did not acquire its full force until July 1, 1892. (Ibid., 11-12.) The treaty itself was negotiated by Mr. Blaine through the Spanish Legation at Washington, the initiative being taken by Mr. Blaine. (Ibid., p. 39.)

The treaty for the British colonies was concluded, proclaimed and went into effect on February 1, 1892. The negotiations were conducted in Washington by Secretary Blaine and the British Minister, Sir Julian Pauncefote. It did not include Guiana, and its dependencies. (Ibid., pp. 86-88.)

The treaty with Santo Domingo was concluded June 4, proclaimed August 1, and went into effect September 1, 1891. It was negotiated by John W. Foster, Special Commissioner on behalf of the United States, Santo Domingo being represented by its Minister at Washington, Señor Galvan. The initiative was taken by Santo Domingo after that country had received official notification of the passage of the McKinley Act. By a decree of July 4, 1887, a Dominican government had placed agricultural implements and supplies for sugar estates, etc., upon the free list; musical instruments of all kinds, building materials, panama hats, revol vers, carts, shovels, etc., were charged a duty of ten per cent. In order to put into effect the idea of special reciprocal relations with the United States, the President of Santo Domingo by a decree dated August 5, 1891, placed agricultural implements and panama hats on the tariff list, fixed duties of $2 on revolvers and $2 per hundred on revolver caps, and ten per cent. on musical instruments.

The treaty with Guatemala was concluded December 30, 1891, proclaimed May 18, 1892, and went into effect May 30, 1892. The reciprocity provisions of the McKinley Act were brought to the attention of the Guatemalan government at the instance of Mr. Blaine on January 22, 1891, by Samuel Kimberly, chargé d'affaires of the United States at Guatemala City. The government responded favorably through its Minister at Washington, submitting a schedule for the consideration of the United States which was agreed to and made legal by the act of the legislature of Guatemala, April 30, 1891. (Ibid., pp. 98-102.)

8 The treaty with Salvador was concluded December 30, 1891, was proclaimed December 31, 1891, and went into effect February 1, 1892. The negotiations were made by Secretary Blaine and Señor Morales, Minister of Salvador at Washington. The treaty was at first provisional, and it was understood that "should the Congress of Salvador take no action on the subject before its adjournment, the government of the United States may terminate the provisional arrangement by giving the government of Salvador thirty days' notice and if no definite arrangement shall have been made before January 1, 1893," the government of the United States could likewise terminate the treaty. (Ibid., pp. 89-93.)

The treaty with Honduras was concluded April 29, 1892, proclaimed April 30, and went into operation May 25, 1892. The reciprocity provisions of the McKinley Act were brought to the attention of the government of Honduras by Mr. Kimberly. The government responded favorably through its Consul General at New York, Jacob Baiz, proposing a provisional treaty to take effect May 25, subject to the further action of the Congress of Honduras, the United States having the right, should the Congress take no action, to terminate the treaty on thirty days' notice, or, if no permanent treaty should be negotiated before January 1, 1893. (Ibid., pp. 104-6.)

10 The treaty with Nicaragua was concluded March 11, 1892, proclaimed March 12, and went into effect April 15, 1892. It was negotiated by Secretary Blaine and the Minister of Nicaragua at Washington, Señor Guzman. (Ibid., pp. 94-97.)