of the Fourteenth Congress, 1815-1816; the necessary acts were finally passed by which the tariff was regulated and the treaty carried into effect."

§ 301. Views of Mr. King of Massachusetts. In the course of the debate Mr. Cyrus King of Massachusetts stated that he had made an investigation of the question with the following result:

"The result of my investigation on this subject is that whenever a treaty or convention does, by any of its provisions, encroach upon any of the enumerated powers vested by the Constitution in the Congress of the United States, or any of the laws by them enacted in execution of those powers, such treaty or convention, after being ratified, must be laid before Congress, and such provisions cannot be carried into effect without an act of Congress. For instance, whenever a treaty affected duties on imposts, enlarging or diminishing them, as the present one did to diminish; whenever a treaty went to regulate commerce with foreign nations, as that expressly did with one, as the power to lay duties and the power to regulate commerce are expressly given to Congress, such provisions of such treaty must receive the sanction of Congress before they can be considered as obligatory and as part of the municipal law of this country. And this construction is strengthened by a part of the general power given to Congress, following the enumerated powers, 'to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or office thereof.' In other words, for carrying into execution the treaty-making power (that being among the other powers) in all cases where it has been exercised on subjects, placed by the Constitution within the control of the legislative department. This construction is further strengthened by the concession of honorable gentlemen, in one case, that where appropriations of money are necessary for carrying the provisions of any treaty into effect, there legislative provision is necessary. Now, sir, to concede that the sanction of Congress is necessary in one case of

43 U. S. Stat. at L. p. 255.

enumerated and specified power, is to concede it in all such cases. Nor, sir, can any serious inconvenience arise from this construction. As to negotiations with foreign Powers, our Ministers will always know the peculiar structure of our Government; nor can foreign Ministers, who may ever be sent to treat with us, be ignorant thereof. Besides, the distinction, as to the several kinds of treaties, is well known; some, respecting solely our external relations, or the intercourse between our Government and that of a foreign Power, will execute themselves, or are perfect without any legisla tive aid; and it can instantly be determined, from the nature of the provisions, when legislative aid is necessary. Further, sir, your Government has well understood this distinction. Some treaties they, by their proclamations, merely ratify and confirm, where legislative aid is necessary, as in the present case; others, they not only ratify and confirm, but enjoin an observance thereof upon all our citizens, as will be seen by turning to the ratification, by Mr. Jefferson, of sev eral treaties published in the seventh volume United States laws. The fear that the President and Senate (they must both, or two-thirds of the latter, concur) will agree with the House in passing an improper law on the subject of a treaty which they had before ratified, cannot be well founded. There is much more reason to fear that they may be induced to ratify a treaty requiring legislative provision, which the House ought to refuse. Should a case of that kind occur, while I have the honor to be one of the Representatives of the people, I shall have no hesitation, with my brethren, to interpose ourselves between the Executive and the people, in the defence of their rights, or the freedom of our country. Far, then, from shrinking from what my honorable friend is pleased to call an awful responsibility, I should think it a sacred duty to meet the crisis, resist the encroachment, and leave the consequences with God. I never will consent that the House of Representatives of the people shall become a mere Parliament of Paris, to register the edicts of the President. I shall vote for the bill."1

§ 302. Presentation of other side by Mr. Hardin.—The § 301.

1 Annals of Congress, 1815-1816, pp. 538–539.

other side of the question was presented by Mr. Hardin as follows:

"Gentlemen had said, that, on a commercial subject, no treaty could be obligatory, because the Constitution had assigned to Congress the regulation of commerce. Where, then, said he, will gentlemen stop? To Congress, they say, is delegated the exclusive jurisdiction over everything. According to their construction, therefore, the treaty-making power was impotent, a nullity, it could do nothing; it could not make peace, because peace repeals war, the right of making which is delegated to Congress and it could not form alliances, for the same reason. But gentlemen, he observed, seemed not to recollect the old logical maxim, that he who proves too much, proves nothing. The President, say they, cannot repeal the excise!-no; but the President can make a peace without the concurrence of that House, and fortunate it was, that he could do so. We now, said Mr. H., feel the happy effects of that power, and conceive that a treaty of peace has been accomplished without any encroachments, or pretended encroachments on our Congressional acts. The power to treat generally, he said, was vested in the President by the Constitution-but to the law of nations it was left, to determine the limitations of that power. If it be true, said Mr. H., that by the terms of the Constitution. of the United States, this treaty is already the law of the land, then is the treaty guaranteed by that Constitution; and yet gentlemen insist that it is not valid, and that this House ought to be consulted.) By the Constitution we are forbidden to be heard in the subject, yet they will have it otherwise, and by this species of indirection, this left-handed course, bring the treaty under our legislative cognizance. Sir, I say we cannot do indirectly that which we are forbidden to do directly. Treaties might be made, no doubt, he said, for the execution of which it might be necessary to call upon the House to make laws; offensive and defensive treaties for instance, which could not otherwise be carried into effect; but when, as in the present case, the treaty was complete, and capable of executing itself, nothing of the kind was necessary.

"As to the instance which had been adduced of Congress

being called upon to enact laws for carrying treaties into effect, he believed that there was not one of them similar to this. The case of Jay's Treaty was not. The Federalists supported that on two grounds: one that it was a good treaty; the other that, whether good or bad, it would not be consistent with the honor of the country to reject it; but it never was brought forward as this is, a re-echo of itself in the shape of a bill. And as to the cases taken from the proceedings of the British records, the organization of that government was in all respects so different from that of ours, that it was impossible to argue fairly or conclusively from the one, to the other." 1

§ 303. Result of conference; extract from report.―The Conference Committee between the House and the Senate made a report in which this point was discussed at length, and should be examined by any one studying this subject; it contains the following statement of principles:

"Without entering upon an extensive inquiry in relation to the treaty-making power, the committee will venture to define, as accurately as they can, the real line which at present divides the contending parties. It is of less importance to ascertain how far they have heretofore disagreed, or may hereafter differ, than to discover what it is precisely that now divides them.

"In the performance of this duty the committee of the House of Representatives are inclined to hope that it will sufficiently appear, that there is no irreconcilable difference between the two branches of the Legislature.

66

They are persuaded that the House of Representatives does not assert the pretension that no treaty can be made without their assent; nor do they contend that in all cases legislative aid is indispensably necessary, either to give validity to a treaty, or to carry it into execution. On the contrary, they are believed to admit, that to some, nay many treaties, no legislative sanction is required, no legislative aid is necessary.

"On the other hand the committee are not less satisfied that it is by no means the intention of the Senate to assert the § 302.

1 Annals of Congress, 1815-1816, pp. 544–545.

treaty-making power to be in all cases independent of the legislative authority. So far from it, that they are believed to acknowledge the necessity of legislative enactment to carry into execution all treaties which contain stipulations requir ing appropriations, or which might bind the nation to lay taxes, raise armies, to support navies, to grant subsidies, to create States, or to cede territory; if indeed this power exists in the Government at all. In some or all of these cases, and probably in many others, it is conceived to be admitted, that the legislative body must act, in order to give effect and operation to a treaty; and if in any case it be necessary, it may confidently be asserted that there is no difference in principle between the Houses; the difference is only in the application of the principle. For if, as has been stated, the House of Representatives contend that their aid is only in some cases necessary, and if the Senate admit that in some cases it is necessary, the inference is irresistible, that the only question in each case that presents itself is, whether it be one of the cases in which legislative provision is requisite for preserving the national faith, or not."1

$304. President Jackson's views in 1834 in regard to French treaty of 1831.-In 1834 the question was again raised in connection with the refusal of France to carry out the reciprocal provisions contained in the treaty of 1831. President Jackson took the position that a treaty involving commercial regulations had to be submitted to Congress in order to be carried into full execution.1

§ 303.

1 Annals of Congress, 1815-1816, pp. 1018-1023, see p. 1019. § 304.

Annual Register, 1834, Public Documents, p. 352, and cited by Mr. Tucker in his Report on Treaty with Hawaiian Islands, referred to in § 307, p. 439, post. Mr. Tucker states that the propositions asserted by President Jackson were (page 16 of the Report): "1. That the treaty involved commercial regulations and rates of duties, which had to be submitted to Congress

to be carried into full execution. 2. That France, having by the treaty (1831) recognized a precedent obligation for depredations on our commerce, though her legislative department refused to comply with its provisions, should be forced to comply by acts of retaliation." In commenting on these propositions

Mr. Tucker says:

"This is assumed to be a concession by the President in respect to the effect of the treaty on the national faith of France, without the concurrence of her legislative de