laws to carry the treaty into effect; and there is no limit to the extent of this power. It may extend to the purchase of the whole continent, British America, Mexico, West India Islands, and thus insure the destruction of our Government.

Sir, as one of the Representatives of the people upon this floor I here enter my earnest and solemn protest against this monstrous assumption-this fatal political heresy. If this doctrine is to prevail, then, sir, this House is but a useless appendage to the Government, and for all practical purposes might as well be abolished. Can any gentleman upon this floor go home to his constituents and tell them that he has agreed to the surrender of his rights, his power, and his dignity as a member of this House, and the surrender of the constitutional rights of the people through their Representatives upon this floor to be heard upon as important questions as are involved in the unlimited extension of the jurisdiction of our Government and the unlimited increase of our already crushing debt?

*

I hold the true doctrine and the law in relation to the treaty-making power to be that which the House declared in 1795; that while the treaty-making power is vested in the President, by and with the advice and consent of the Senate, and while the House has no agency in making treaties, yet when a treaty contains stipulations in relation to subjects which by the Constitution are submitted to Congress, the treaty must depend for its execution upon laws to be passed by Congress, and that in all such cases it is the prerogative and the duty of Congress to deliberate, to take into view all of the considerations bearing upon the question, and to act upon it according to their judgment of the interests of the Government and the wishes of the people, and either pass the necessary laws, and thus give the treaty vitality and effect, or refuse to pass them, as in their opinion the public good requires.

Take the case now before the House: The President, with the advice and consent of the Senate, made a treaty of purchase with Russia whereby that power agreed to transfer to the United States certain territory, in consideration of which territory the United States agrees to pay Russia $7,200,000 in gold. This treaty was ratified by both powers and ratifications exchanged. And Congress is now asked to enact a law for the appropriation of the necessary money and to carry the treaty into effect. Now, if the doctrine I have referred to, and to which I object, is correct, and if without any legislation by Congress the treaty is effective, clothed with vitality and the law of the land, then no laws of Congress are necessary, and the treaty itself is a sufficient law for the appropriation of the money. Sir, the application to Congress for the passage of a law for the appropriation of the money and to carry the treaty into effect is a clear and conclusive demonstration of the error and the unsoundness of the doctrine claimed by those who regard this negotiation as perfected and binding without the action of Congress.

I trust, sir, that but few will be found upon this floor willing to consent to a doctrine so dangerous, willing to yield up the authority and prerogatives of this House vested in it by the Constitution of the country, and which it has always heretofore persistently maintained. But there is another question involved in this case in addition to that of the appropriation of the money, and one of equal importance and interest, and that is as to the power of the President, with the advice and consent of the Senate, and without the consent of Congress, or of the people of the United States, by treaty, to extend the area of our Government and bring into its jurisdiction foreign countries and foreign peoples. This power I deny. I do not claim that the Constitution has vested this power in Congress in express terms. As I read that instrument it is silent on the subject. Such power is not by that instrument given to any department of the Government in express terms. I do not wish to be understood as denying this power to the Government. By the laws of nations all governments have the right to add to their domain by purchase and by conquest, and I

suppose that our Government has this right, by the laws of nature, the same as the right of self-defense-the right to do what is necessary for its own existence.

Jefferson, I believe, placed the power to purchase Louisiana upon the law of necessity, of self-preservation. Many of our greatest statesmen have placed it upon the clause in the Constitution giving Congress the power to admit new States into the Union. But from whatever source the power is derived, I deny that it belongs to or is vested in the treaty-making department, but that it belongs strictly to Congress. (Congressional Globe, second session, Fortieth Congress, part 4, pp. 3621, 3622, 3623.)

Mr. Meyers, of Pennsylvania, said:

I will not for a moment admit that the action of the President and Senate binds us to complete any purchase of territory whatever. If the treaty-making power extended thus far we should be required to accept a country although inhabited by millions of slaves, or thousands of miles distant, though its religion were inclosed in the Koran, or its people dwelt at the feet of polygamy and barbarism. If Alaska could be thus acquired, why not China or Japan? To state the proposition that the House of Representatives need not be consulted in such an event is its own best refutation. It is unnecessary to trouble the committee with precedents. The House of Representatives asserted its right in this regard, even against the protest of Washington, as early as 1794, in relation to the British treaty, and has in no instances that I am aware of surrendered this right. Nor is the objection solely that a grant of money must be made by law before the treaty can be carried to its perfect consummation. It is for the people, through their Representatives, to say whether from locality or for any cause an acquisition of territory is subversive, in their opinion, of the interests or principles of the Government. (Ib., p. 3661.)

Mr. Ferriss, of New York, called attention to the fact that the House of Representatives had always theretofore insisted upon the necessity of concurrent action by both Houses of Congress in the acquisition of territory by the United States, and carefully reviewed the history of each acquisition. (Ib., p. 3663 et seq.)

The further debate in the House on the propositions contained in the substitute offered by Mr. Loughridge is to be found in the appendix to the Congressional Globe, second session Fortieth Congress, part 5. Arguments in support of the substitute were delivered by Paine, of Wisconsin (p. 305); Shellabarger, of Ohio (p. 377); Price, of Iowa (p. 380); Washburn, of Wisconsin (p. 392); Butler, of Massachusetts (p. 400); Delano, of Ohio (p. 452); Cullom, of Illinois (p. 473), and Williams, of Pennsylvania (p. 485). Arguments in opposition to the substitute were offered by Pouyn, of New York (p. 382); Banks, of Massachusetts (p. 385); Maynard, of Tennessee (p. 403); Stevens, of Pennsylvania (p. 421), and Orth, of Indiana (p. 420).

The addresses in support of the substitute are largely historical reviews of the instances and attendant circumstances wherein the House of Representatives has insisted upon the recognition of the rights asserted in the substitute. It is therefore impossible to abridge them or adequately present the arguments advanced in abbreviated. form. The address of Mr. Cullom, then a Representative from Illinois and now a Senator from that State, sets forth the general argu

ment in the form most suitable for quotation. Mr. Cullom said (App., p. 473):

Is the treaty perfect and complete, or is it unfinished and inchoate and dependent upon the very question we are considering, namely, whether we shall make the appropriation?

I fully understand the fact that Congress can, by mere force of its own will, refuse to make the appropriation; but the question is can it do so consistent with the honor of the nation and its constitutional prerogatives? If the treaty is perfect and complete, so that the nation is bound and may be held responsible by the Russian Government in case of failure to make the appropriation and payment, then I should vote the appropriation. But it seems to me that it is not. The Russian Government knew that the power to raise revenue rested with Congress. There can be no pretense that that Government was ignorant of the provisions of our Constitution. It was well known that Congress would have to be invoked, and that that branch of the Government was free to act as its members might choose. It has been the settled doctrine of this country ever since 1794 that Congress has the right to deliberate and carry out or refuse to carry out a treaty as in their judgment might be for the public good, when such treaty contained stipulations which depended upon Congress for their execution. The resolution adopted by the House of Representatives of the Fourth Congress asserted that doctrine, and it has been adhered to ever since. I give the resolution:

"Resolved, That it being declared by the second section of the second article of the Constitution that 'the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided that two-thirds of the Senators present concur,' the House of Representatives do not claim any agency in making treaties, but that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon as in their judgment may be most conducive to the public good."

This resolution is explicit and clear in its declaration that when a treaty stipulates regulations on any subject which by the Constitution is submitted to the power of Congress, in such cases Congress has the right to deliberate on the expediency or inexpediency of carrying such treaty into effect.

Now, Mr. Speaker, I submit that if Congress has the right to deliberate and vote and pass whatever law may be necessary to carry out a treaty, where by its terms legislation is necessary, as in this case, an appropriation being necessary before the terms of the contract can be complied with in paying the money for the land, or to refuse to enact such legislation, is it not the inevitable conclusion to which you must come that such a treaty does not become the supreme law of the land until such legislation is had, and that it is a contract entered into between the parties, but not binding upon the Government because it remains in an inchoate condition? Of what consequence is the right to deliberate if after all we are bound at last to come to but one conclusion, and that to do whatever may be necessary to carry out the treaty? The resolution of 1794 is nonsense if it simply means the House may consider and then vote as the President and Senate desire, or even if it means that we may deliberate and then violate a contract which is claimed to be the supreme law of the land, and to be such a contract as to give the other party the right to demand reparation for a violation. The doctrine of the Constitution and of the resolution of 1794 amounts to more than a declaration of arbitrary power; it amounts to a declaration, in my judgment, that a treaty which requires the action of Congress to carry it into effect does not become the supreme law of the land until such action by Congress is had.

Justice McLean, in my judgment, took the correct view of the matter in his opinion found in 5 McLean's Reports, page 344. He say that-

"A treaty is the supreme law of the land only when the treaty-making power can carry it into effect. A treaty which stipulates for the payment of money undertakes to do that which the treaty-making power can not do; therefore the treaty is not the supreme law of the land. To give it the effect the action of Congress is necessary. And in this action the Representatives and Senators act on their own judgment and responsibility, and not on the judgment and responsibility of the treaty-making power. A foreign government may be presumed to know the power of appropriating money belongs to Congress. No act of any part of the Government can be held to be a law which has not all the sanctions to make it law."

So, according to this decision, the treaty with Russia for the purchase of Alaska is not the supreme law of the land because it undertakes to do that which it can not do. Justice Marshall also entertained the same opinion. In 2 Peters, page 258, he

says:

"Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial, department, and the Legislature must execute the contract before it can become a rule for the court."

Then, if the treaty has not yet become the supreme law of the land, and if we have the right to deliberate and are left perfectly free to make the appropriation or refuse it, then the question recurs, What ought we do in reference to this appropriation? In other words, ought we to purchase, pay for, and own this territory now? I do not agree to the declaration that the territory is worthless. My opinion is that some day the territory will be valuable. But do we want it now, and are we in a condition now to begin a policy of acquisition?

The House adopted the substitute; the bill was passed and sent to the Senate. That body amended the bill by striking out the substitute and returned it to the House. The House refused to concur in the amendment, and a conference was ordered. The outcome of the controversy was that the Senate receded, the position of the House was sustained, the bill passed both Houses, and was signed by the President, as follows:

Whereas the President of the United States, on the thirtieth of March, eighteen hundred and sixty-seven, entered into a treaty with the Emperor of Russia, and the Senate thereafter gave its advice and consent to said treaty, by the terms of which it was stipulated that, in consideration of the cession by the Emperor of Russia to the United States of certain territory therein described, the United States should pay to the Emperor of Russia the sum of seven million two hundred thousand dollars in coin; and

Whereas it was further stipulated in said treaty that the United States shall accept of such cession, and that certain inhabitants of said territory shall be admitted to the enjoyment of all the rights and immunities of citizens of the United States; and Whereas said stipulations can not be carried into full force and effect except by legislation to which the consent of both Houses of Congress is necessary: Therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and hereby is, appropriated, from any money in the Treasury not otherwise appropriated, seven million and two hundred thousand dollars in coin, to fulfil stipulations contained in the sixth article of the treaty with Russia, concluded at Washington on the thirtieth day of March, eighteen hundred and sixty-seven. (15 U. S. Stat., 198.)

THE POSITION TAKEN BY THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THIS GOVERNMENT RESPECTING TERRITORY SUBJECT TO THE JURISDICTION OF THE UNITED STATES BUT OUTSIDE OF THE STATES OF THE UNION, AND THE RELATION SUSTAINED BY SUCH TERRITORY TO THE TARIFF LAWS AND STATUTES OF SIMILAR CHARACTER.

The original law for the collection of customs, passed July 31, 1789. divided the States into collection districts, but entirely neglected the territory outside of the original States. The only collector in the Western territory was at Louisville, "whose authority shall extend over all waters, shores, and inlets included between the rapids and the mouth of the Ohio River, on the southeast side thereof." (Act of July 31, 1789, 1 U. S. Stats., p. 34.)

The northwest or territorial bank of the Ohio was left unprovided for. Vermont was left without a customs-house until it was admitted as a State, as was also Tennessee; but as soon as either was admitted a port was established therein, evidently out of regard for the equality of commercial privileges guaranteed the States by the Constitution. It was not until 1799 that the customs laws of the United States were put in force in any part of the Northwest Territory. (Act of March 2, 1799, sec. 17; see 1 U. S. Stats., pp. 637, 638.)

If the result of this omission was to make unlawful all and any importations from Canada into the Northwest Territory, then certainly the territory was not considered as benefited by the Constitution, for one of the benefits most jealously guarded by the several States was equal privileges in foreign commerce.

Historically we know that Vermont and the Northwest Territory carried on extensive trade with Canada, and it is seemingly incontestable that the idea prevailed in those days that prior to admission as a State, or the extension of the customs laws in 1799, said territory was no more bound by the tariff requirements of the Constitution than it was benefited thereby.

Attention is also directed to the action taken by the First Congress in the instances of North Carolina and Rhode Island. The President informed Congress on the 28th of January, 1790, that North Carolina had ratified the Constitution on November 21, 1789; and, again, he informed Congress on the 1st day of June, 1790, that Rhode Island had ratified the Constitution on May 29, 1789. Prior to receiving these notifications Congress had enacted two revenue measures, to wit, "an act for laying duties on goods, wares, and merchandises imported into the United States," also, "an act imposing duties on tonnage." Although by such act of ratification both North Carolina and Rhode Island became incorporated in the Union of States, Congress saw fit to pass acts extending the provisions of the previous revenue measures over the territory included in North Carolina and Rhode Island. 1 Stat., pp. 99, 126.)