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 AGREEMENTS OF THE UNITED STATES

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AGREEMENTS OF THE UNITED STATES OTHER THAN TREATIES Bv CHARLES CHENEY HYDE Associate Professor of Law in Northwestern Univtrsity

TT^REEDOM from any violation of a re1. quirement of the Constitution is a con dition essential to the validity of every international contract to which the United States may be a party. The Constitution provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur." * It is the purpose of the writer to show under what circumstances our government has deemed it not unconstitutional, and there fore lawful, to enter into international com pacts which have not been submitted to the Senate for approval, and to ascertain •what has been the actual scope of the ex ercise of the agreement-making power of the President as distinct from the treatymaking power which is shared by the Senate. The Tariff Act of 1890* authorized the President to remit certain duties on articles hrought from such foreign countries as gave certain privileges to American products. In sustaining the constitutionality of the law, Mr. Justice Harlan, in delivering the opinion of the United States Supreme Court,3 said: "What the President was required to do was simply in execution of the Act of Con gress. . . . He was the mere agent of the law-making department to ascertain and de clare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Con gress, that the provisions, full and complete in themselves, permitting the free introduc tion of sugars, molasses, coffee, tea, and hides, from particular countries, should be 1 Sec. 1 1

Constitution of the United States, Article II, 2. Par. 2. 26 U. S. Stat. at L. p. 567, p. 612 143 U. S. 649.

suspended in a given contingency, and that in case of such suspension, certain duties should be imposed." By virtue of that Act, reciprocity agree ments were entered into by the President with certain states.1 By the Tariff Act of 1894 these agreements were terminated.2 Again, in 1897, the Tariff Act of July 24 authorized the President to enter into com mercial agreements with countries produc ing and exporting specified articles, in order to secure concessions in favor of American products and manufactures, and empower ing the President, during the period of such concessions, to suspend the duties named in the Act according to a given schedule of rates.3 In pursuance of this authority the President entered into a reciprocity agree ment with France, signed by the Hon. John A. Kasson and the French Ambassador, May 28, 1898.* In 1902 an amendatory and additional agreement was entered into extending the arrangement to Porto Rico and Algeria.5 It is to be observed that these reciprocity arrangements, although expressed in the form of contract, imposed no restriction on the United States or other parties thereto to alter their tariff schedules and thus terminate their obligations to exact reduced or limited duties on articles brought into their territory. By an act of Congress of 1872 the Post1 U. S. For. Rel. 1891. p. 47 contains text of arrangement with Brazil. 1 U. S. For. Rel. 1894, p. 619. » XXX, U. S. Stat. at L. Sec. 3, p. 203. 4 U. S. For. Rel. 1898, p. 292. Proclamations as to the reduction of duties on certain articles imported from Germany and Italy, under the Act of 1897, are contained in XXXI, U. S. Stat. at L. pp. 1978 and 1979. 8 U. S. For. Rel. 1902, p. 418.