Albert Gallatin letter to John Forsyth, 31 January 1816

New York, 31st January, 1816.

Sir, - I do not know whether the debates of Congress on the bill for carrying into effect the convention with Great Britain have been correctly reported. If they have, it seems that some important facts concerning the former practice under our government have not been noticed. I see it asserted in the course of debate that the provisions in the treaty of 1794, which affected our revenue laws, were considered as law and not requiring legislative sanction to carry them into effect, and that the bill lately before the House was the first attempt of that kind and would therefore be a dangerous precedent.

Both assertions are utterly destitute of foundation. The provisions in the treaty of 1794, alluded to,, were carried into effect by Act of Congress ; and so far from it being true that the bill was an attempt for the first time made, that there is no instance of a treaty made since the adoption of the present form of government, and containing provisions inconsistent with the present revenue laws, in which it has not been thought necessary to give effect to such provisions by a legislative act.

Three treaties only have contained provisions of that nature, viz., the treaty of 1794 with Great Britain, the treaty with Spain of 1795, and the treaty with France of 1803 respecting the cession of Louisiana.

It was agreed by the 3d Article of the treaty of 1794 that merchandise imported into the United States from the British territories in North America, by land or inland navigation, should be subject to no higher duties than would be payable if imported in American vessels into the Atlantic ports of the said States, - a provision perfectly similar, so far as respected the intercourse by land with Canada, to that introduced in the late convention with respect to the intercourse with the European British territories, and which was equally inconsistent with the existing revenue laws, which then, as now, imposed an additional duty of ten per cent, on the duty imposed on merchandise imported in American vessels, when the importation was made in foreign vessels. The same 3d Article contained also several other provisions, either inconsistent with existing laws or embracing objects within the sphere of the legislative powers of Congress, such as the exemption of duty on peltries, on goods belonging to Indians, and on merchandise carried over the portages ; the regulations of rates of ferriage ; the general permission to import all goods not altogether prohibited, &c. The Western posts were not delivered to us till the year 1797; and it was only in 1799 that revenue districts and custom-houses were established by law on Lakes Ontario, Erie, and Huron. The same Act which established those, - the "Act to regulate the collection of duties on imports and tonnage," - passed on the 2d March, 1799, contains also several sections enacted for the purpose of conforming the Act to the stipulations of the treaty of 1794, above mentioned. Those sections are the 104th and 105th of the Act (4th vol., pages 440-1), and embrace all the provisions of the 3d Article of the treaty to which I have alluded.

It was agreed by the 7th Article of the treaty of 30th April, 1803, with France that French and Spanish produce respectively imported in Louisiana in French or Spanish vessels should pay no higher duty during twelve years than merchandise imported in American vessels. That provision, also inconsistent with the revenue laws and similar to that in the late convention with Great Britain, was carried into effect by the 8th Section of the Act for laying and collecting duties on imports and tonnage in Louisiana, passed 24th February, 1804 (7th vol., page 33). It was agreed by the 10th Article of the treaty with Spain of

1795 that if any vessel of either party should be wrecked or damaged on the coasts of the other party, no duties should be paid on such part of the cargo as should be reladen and carried away. This provision was inconsistent with the revenue laws, which imposed duties on such goods unless reladen in the same vessel in which they had been brought in and in the manner provided by the 38th Section of the Act of 4th August, 1790 (reenacted verbatim in the Act of 2d March, 1799, of which it is the 60th Section). This inconsistency was not perceived at the time, and no legislative provision was supposed necessary. But a case of that kind having occurred at Norfolk in the year 1804, the Act for carrying into more complete effect the 10th Article of the treaty with Spain was passed on the 14th February, 1805 (7th vol., page 259), and made special provision for the case which had occurred, as well as general provision for carrying the article of the treaty into effect.

The first of the Acts which I have quoted, that of 2d March, 1799, was the spontaneous act of a Federal Administration, was introduced and passed by the highest-toned Federal Congress that has existed under the present form of government. The two others were passed under a Republican Administration and by a Republican Congress, but without any opposition whatever, so far as related to any constitutional question, on the part either of the Federal members or of the Senate, although the title of the last Act was sufficient to alarm, if any constitutional objection had existed. But the fact is that none did exist, and that now is the first time that an attempt is made to prevent the passage of a law intended to carry into effect, or, if you please, to execute, a treaty, on the ground that the treaty itself becomes a law, any[thing] in the statute to the contrary notwithstanding. The uniform practice and the doctrines heretofore held are equally in contradiction with that novel and unprecedented attempt. In the long debates on the constitutional question which arose in

1796 respecting the treaty-making power, it was contended by the Federal minority of the House of Representatives, 1st, that the treaty once ratified was binding on the nation, and that Congress was as much bound to pass the laws necessary to carry

such treaty into effect as the President and courts were to execute its provisions ; 2dly, that if there was any discretion in Congress it was limited to the special Act required of them, to the propriety of making an appropriation or of regulating duties ; and that they had no right to take into consideration, as a motive of dissent, other parts of the treaty which avowedly required no legislative sanction. That that minority did not contend for the principle now advanced is evident from their subsequent conduct in passing or assenting to the Acts above quoted.

I perceive no other effect likely to result from the rejection of any bill to carry the convention into effect but to defeat the convention itself, and to prevent treaties of a similar nature being hereafter made with foreign nations. The practice having uniformly been as I have stated, how can the President assume the responsibility and the right to execute the convention ? How can he construe the rejection of the bill otherwise than as an evidence that Congress intends to prevent the execution of that compact? Permit me at the same time to add that I do not see any substantial objection to the expression declared adopted by the Senate in their bill. You will find a precedent for it in the 104th Section of the Act of 2d March, 1790; and provided a law be allowed to be necessary, the formula does not seem essentially material.

It is very possible that what I have written had been already fully stated, but the uniformity of the practice, if stated in debate, not having been noticed by the reporter, I thought it might have happened that provisions contained in revenue laws familiar to me were not sought for in those Acts, and might have escaped the research of gentlemen who had rarely occasion to recur to those laws. You will be pleased to accept this apology for this long letter; and I request you to believe me, with sincere respect, your obedient servant.