ventions of this class have been concluded by the Executive without submission to the Senate. Among these are the Universal Postal Conventions, signed at Vienna, July 4, 1891, and at Washington, June 15, 1897." 40

§ 73. Suspension of tariff act by President.-A section of a tariff act which authorizes the President to suspend the provisions of the act relating to the introduction, free of duty, of certain articles is not unconstitutional. It cannot be said to be liable to the objection that it transfers legislative and treaty-making power to the President.4

41

"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 1st, 1890, in the particular under consideration, is not inconsistent with the 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, coffee, tea, and hides, Congress itself determined that the provisions of the Act of October 1st, 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 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.

42

2 Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495, 36 L. ed. 294.

"Ten commercial arrangements were concluded and made effective

§ 74. No discretion in the President.-The view taken of the powers of the President in such a case is that while he may, and must, exercise his discretion in determining whether, as a fact, a certain event has or has not occurred, still when he has determined as a fact that an event has happened authorizing him to issue a proclamation, it becomes his duty to issue such proclamation. In the language of Mr. Justice Harlan, speaking for the court, "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. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What

by means of this section-January 31, 1891, with Brazil; June 4, the Dominican Republic; June 16, Spain; December 30, Guatemala; January 30, 1892, Germany; February 1, Great Britain; March 11, Nicaragua; April 29, Honduras; May 25, Austria-Hungary; and November 29, Salvador. These were all terminated by section 71 of the tariff act of August 27, 1894. . . . . Section 3 of the act of July 24, 1897, not only provides, as did section 3 of the act of 1890, for the imposition by proclamation of certain differential rates, but also for the conclusion by the President of commercial agreements, with countries producing certain enumerated articles, in which concessions may be

secured in favor of the products of the United States; and it further authorizes the President, when such concessions are, in his judgment, reciprocal and equivalent, to suspend, by proclamation, the collection on those articles of the regular duties imposed by the Act, and subject them to special rates as provided in the section. On the authority of this section the President has concluded and made effective the commercial agreements of May 28, 1898, with France; May 22, 1899, with Portugal (protocol making corrections signed January 11, 1900); July 10, 1900, with Germany; and February 8, 1900, with Italy." Crandall's Treaties, Their Making and Enforcement, 88-90.

the President was required to do was simply in execution of the Act of Congress. It was not the making of law. 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. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea, and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspension certain duties should be imposed." 43

§ 75. Nonintercourse act. The nonintercourse act of 1809 forbade the importation, after a certain date, of goods, wares, or merchandise from any port or place in Great Britain or France, with the proviso that the President of the United States should be authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation, and that after the making of the proclamation, the trade suspended by that act, and the act imposing an embargo, could "be renewed with the nation so doing." This act expired on May 1, 1810, and on that day another act was passed by Congress in which it was declared that in case either Great Britain, before a certain day, should so revoke or modify her edicts "as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation," and if the other nation shall not, within a specified time, revoke or modify her edicts in like manner, then certain sections of the act of 1809 "shall from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to the dominions, colonies, and dependencies, and to the articles, the growth, produce or manufacture of the dominions, colonies, and dependencies of the nation thus refusing or neglecting to revoke or modify her edicts in the manner aforesaid." It was further provided that "the restrictions imposed by this Act shall, from the date of such proclamation, cease

43 Field v. Clark, 143 U. S. 49, 12 Sup. Ct. Rep. 495, 36 L. ed. 294.

42 Stats. at Large, 528.

and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid.” 45

President Madison, in 1810, issued a proclamation to the effect that France had either revoked or modified her edicts in such a manner that they ceased to violate the neutral commerce of the United States. It was contended that it was incompetent for Congress to transfer legislative power to the President, and that the making of a law dependent upon the proclamation of the President was to give to that proclamation the effect of a law. The answer made to this contention was that the legislature did not transfer any power of legislation to the President, but only prescribed the evidence which should be admitted of a fact, upon the occurrence of which the law should go into effect. The court held that the legislature might make the revival of an act dependent upon a future event, and might also provide that event to be made known by proclamation. A subsequent act of Congress reviving a prior act revives it precisely in the same form and with the same effect that it had at the moment of its expiration.1 46

§ 76. Suspension and operation of acts dependent upon President. An act approved June 4, 1794, during the administration of Washington, authorized the President, when Congress was not in session and for a specified period, "whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances may require, and to continue or revoke the same, whenever he shall think proper."47 In 1798, by an act approved on the 13th of June of that year, commercial intercourse between the United States and France and its dependencies was suspended. But the act provided that if the government of France, and all persons acting by or under its authority, before the next session of Congress should "clearly disavow," and should "be found to refrain from the aggressions, depredations, and hostilities which have been and are by them encouraged and maintained against the vessels and other property of the citizens of the United States,

and against their natural rights and sovereignty, in violation of the faith of treaties and the laws of nations," and should "thereby acknowledge the just claims of the United States to be considered as in all respects neutral, and unconnected in the present European war, if the same shall be continued, then and thereupon, it shall be lawful for the President of the United States, being well ascertained of the premises, to remit and discontinue the prohibitions and restraints hereby enacted and declared; and he shall be and is hereby authorized to make proclamation thereof accordingly." By a subsequent act approved February 9, 1799, commercial intercourse with France and its dependencies was further suspended, and it was provided by this act that at any time after its passage, "it shall be lawful for the President of the United States, if he shall deem it expedient and consistent with the interest of the United States, by his order, to remit and discontinue, for the time being, the restraints and prohibitions aforesaid, either with respect to the French Republic, or to any island, port, or place belonging to the said republic, with which a commercial intercourse may safely be renewed; and also to revoke such order whenever, in his opinion, the interest of the United States shall require; and he shall be, and hereby is, authorized to make proclamation thereof accordingly." 49 Under this act, on June 26, 1799, and May 21, 1800, proclamations were issued by the President declaring it lawful for vessels departing from the United States to enter certain ports of San Domingo.50

§ 77. Suspension of act prohibiting imports.-Congress passed an act, approved April 18, 1806, making it unlawful to import into the United States from any port or place in Great Britain or Ireland, or in any of the colonies or dependencies of Great Britain, articles of which leather, silk, hemp, flax, tin, or brass was the material of chief value, woolen cloths whose invoice prices exceeded five shillings sterling per square yard, woolen hosiery, manufactures of glass, silver and plated wares, hats, nails, spikes, ready-made clothing, millinery, beer, ale, porter, pictures and prints.51 By the subsequent act of December 19, 1806, the operation of the act above mentioned was suspended, with a section

48 1 Stats. at Large, 565.

49 1 Stats. at Large, 613.

50 9 Life and Works of John

Adams, 176, 177.

51 2 Stats. at Large, 379.