66

and used, the antiquated system of 1783, and have agreed to urge legislation upon the various States," to carry out treaty stipulations, instead of making the stipulations absolutely, as the United States has the right to do, as well as to enforce them when made, and in regard to which the States have no power or voice whatever. It remains to be seen whether that policy will be continued, or whether, resting on its complete nationality, as well as upon its delegated power under the Constitution, the Central Government of the United States shall finally and forever relegate that policy to the past, where it belongs, and shall exercise those powers which necessarily and properly belong to it, and which cannot be called in question by any foreign State with which it contracts, or be disputed by any of the States for whom the Central Government is the only medium of communication with foreign powers, with full power in this respect, to bind them, jointly and separately, federally and nationally.

278. This chapter confined to extent of treaty-making power. The opinions quoted in this chapter refer only to the extent of the treaty-making power, and not in any way to the construction of treaties, the relative effect of treaties and legislation, or the right of the House of Representatives to participate in the treaty-making power. Some opinions which have been expressed in those respects will be referred to, and to some extent quoted from, in subsequent chapters which will be devoted to the consideration of those branches of the subject-matter.

§ 277.

1 See Article XXVII, Treaty of 1871 (Washington) with Great Britain, in which this Government "engages to urge upon the State Governments to secure to the subjects of Her Britannic Majesty the use of the several State canals connected with the navigation of the lakes or rivers traversed by or contiguous to the boundary line between the possessions of the high contracting parties, on terms of equality with the inhabitants of the United States." U. S. Treaties,

edition, 1889, p. 489; Compilation of Treaties in Force, edition, 1899, p. 253. "Urging" compliance upon the States apparently consisted of the Secretary of State writing to the respective Governors of New York, Indiana, Illinois, Michigan, Ohio, Pennsylvania and Wisconsin an identic letter advising them of the treaty, inclosing a copy, with special reference to Article XXVII, and requesting compli ance therewith. See Foreign Relations of U. S. for 1871, p. 531.

CHAPTER X.

THE TREATY-MAKING POWER AND THE RELATIONS OF BOTH HOUSES OF CONGRESS THERETO, AS THE SAME HAS BEEN THE SUBJECT OF CONGRESSIONAL DEBATE AND ACTION.

$279. First Congress under Constitution meets; earliest tariff statutes.-The first Congress, under the new Constitution, met in the City of New York on March 4, 1789. No act was passed until June 1st, when the first statute of the United States Government was enacted, regulating the time and manner of administering oaths of office; on July 4, 1789, Congress exercised its power to protect by tariff the manufactures of the United States, by the second statute placed upon the statute books of the United States, the first section of which is as follows: "Whereas, it is necessary for the support of government, for the discharge of debts of the United States, and the encouragement and protection of manufactures that duties be laid on goods, wares and merchandise imported: Be it enacted by the Senate and House of Representatives in Congress assembled, That from and after the first day of August next ensuing, the several duties hereinafter mentioned shall be laid on the following goods, wares and merchandise imported into the United States from any foreign power or place, that is to say: " and then follow the schedules.2

§ 280. Power of United States to protect manufactures discussed.--In the debate on this statute many questions were raised as to the power of the United States to "protect" manufactures: while it was conceded that the right existed

$279.

11 U. S. Stat. at L. p. 23.

21 U. S. Stat. at L. p. 24.

to raise revenue, "protection " to many seemed beyond the power of the Central Government, because it was not specifically named or enumerated in the Constitution as having been delegated by the States. Under the leadership of James Madison, however, the bills became statutes, and the Central Government, at the first opportunity, thus exerted on behalf of the industries of the States, the protecting power which the States themselves could not have done under any circumstances or conditions.1

"Plainer, simpler, or more expressive language could not be found. It is not equivocal in the least, and every common-sense man, with ordinary intelligence, can understand its meaning. It asserts three distinct propositions: first, that duties interpretation by which its true

§ 281. Department of Foreign Affairs established; the State Department. The third statute imposed a duty on tonnage, and the fourth was "An Act for establishing an Executive Department to be denominated the Department of Foreign Affairs," passed July 27, 1789, which is the foundation of the present State Department of the United States through which all negotiations of treaties, and all relations with foreign powers ever since that date have been, and at present are, conducted. The Department of State as it now exists was organized under subsequent acts of Congress, and is now conducted under the provisions of the Revised Statutes in relation thereto.

§ 282. No treaties negotiated until 1794.—Although immediately after the adoption of the Constitution, the courts were called upon to construe the effects of the treaties which had been negotiated under the Confederation,' and to determine the rights, duties and liabilities which had been created thereby, no new treaty was concluded by the United States, under the power vested in the Executive and Senate, until more than five years after the adoption of the Constitution; in fact, it was not until Washington's second term of office

meaning is to be ascertained-it is, | tion without any adventitious aid, in other words, an index to point while others, for want of the fosterout the legislative intention. The ing hand of the Government, will be history of this law is, consequently unable to go on at all.' In this apt most instructive, not only on ac- language Mr. Madison embraced count of its great general import- the whole question of constituance, but because it identifies Mr. tional power. Although it had not Madison, by his direct agency in been insisted that the protection of the House of Representatives, and manufactures would violate the Washington, by his approval of it Constitution, yet, with the motive as President, and nearly all the already indicated, he probably demembers of the first Congress, with sired to place the question of conthe first distinctive measure of pro- stitutionality beyond all cavil, by tection which the exigencies of the asserting, at once and unqualifipublic service and the common in- edly, that the power existed as a terests of the country demanded necessary part of the machinery of at the very beginning of the Gov- the new Government." ernment. § 281.

"In supporting the measure, Mr. Madison said: 'There may be some manufactures which, being once formed, can advance toward perfec

11 U. S. Stat. at L. p. 28.
§ 282.

1 Ware vs. Hylton, U. S. Sup. Ct. 1796, 3 Dallas, 199 and see § 324, et