and Senate, and that every treaty so made and promulgated, thenceforward became the law of the land.' With reference to this message, the House, by a resolution passed April 7, by a vote of 57 to 35, disclaimed any agency in the making of treaties, but asserted that in case a treaty contained stipulations on any of the subjects submitted by the Constitution to Congress, it must depend for its execution as to such stipulations on a law to be passed by Congress; and that it was "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." As expositions of this view, the opinions of Jefferson and Gallatin may be taken. That of the former as expressed in a letter to Monroe, March 21, 1796, was, in effect, that although the President and Senate had the general power of making treaties, yet whenever they included matters confided by the Constitution to the three branches of the legislature, a legislative act was necessary to "confirm" those articles, and the House of 2 'As appears by the Washington Papers, the reply was made after careful investigation. Extracts from the proceedings of the Federal Convention, relating to the making of treaties, are found. Mr. Pickering made an investigation of the previous practice of the administration and was convinced that the instances in which appropriations, relative to the treaties with certain Indian tribes and the Barbary States, had been made before their conclusion, were not applicable, since the money in these cases had been a necessary antecedent to their negotiation. Although few if any thoughts in the message are not found in the drafts submitted by the cabinet officers, the sagacity with which the selections were made bears witness none the less to the ability of him with whose authority the message was stamped. A draft in Pickering's handwriting, which appears, however, to have been prepared after full consultation with the President, contains practically the concise expressions of the final message. MSS. Letters to Washington, vol. cxvii, pp. 312, 314. *Annals, 4th Cong., 1st Sess., pp. 771, 782. Representatives as one branch was perfectly free to refuse, when in its judgment the good of the people would not be served by letting the treaty go into effect.' Gallatin in his speech before the House on March 9, argued that if any specific power was given by the Constitution to a branch of the government, it limited the general power, and so far as the powers clashed the branch holding the specific power must concur in order to give validity to the act; that the power to make treaties was a general power, while the power to make appropriations, together with other legislative powers, was specifically given to Congress. If this power of making treaties as vested in the President and Senate were unlimited, then the Executive might, under color of a treaty, entirely eliminate the House from legislation by substituting a foreign nation or some petty Indian tribe. If treaties, whatever their provisions, were laws, why not have inserted another article in the treaty itself appropriating the necessary sums and thus have dispensed altogether with the action of the House on it? Unless, he contended, it were allowed that either the power of the House over the purse-strings was a check, or that the existing laws could not be repealed by a treaty, or that the special powers granted to Congress limited the general power of treaty-making, there were no bounds. to it.' In support of the action of the administration the opinions of Oliver Wolcott, Secretary of the Treasury, and Alexander Hamilton, are the most interesting, excepting always the message itself. The written opinion of the former bears date of March 26. By a historical review See also ibid., pp. 38, 40, 41. 'Writings (Ford ed.), vol. vii, p. 67. he reached the conclusion that the people of this country at the time of the adoption of the Constitution entertained the opinion, as expressed in the Federal Letter, that the power of making treaties vested in Congress under the Articles of Confederation was capable of controlling the legislative powers, which then existed in the United States, i. e., in the several States. That embarrassments having been experienced in consequence of the non-execution of the treaty of peace, the convention which framed the Constitution must have intended such an organization and deposit of the power of making treaties as would render its exercise at once safe and efficacious. The great object of that part of the Constitution which defined the legislative power was to fix the limits of jurisdiction between the general and State governments, rather than to distribute power between the departments of the central government. In the specification of the executive powers, found in Article II of the Constitution, that of making treaties, subject to the control or negative voice of the Senate, was expressly mentioned. Treaties were compacts between sovereign states, originating in free consent and deriving their obligations from the plighted faith. The Constitution expressly committed to the President and Senate the power to pledge the faith of the nation; and said Wolcott, "the obligations arising from public faith when pledged by the representative organ of our nation in all foreign concerns, agreeably to the mode prescribed by the Constitution, are justly and properly declared to be laws-the legislative power is bound not to contravene them, on the contrary, it is bound to regard and give them effect." If to omit the exercise of the power committed to any branch of the government would be to annul a treaty, such an omission would be a violation of the Constitution in that branch which refused to act. On the question whether a treaty could repeal an act of Congress, he observed that, since the power of making peace could not be exercised by treaty without repealing the act declaring war, the power of making treaties of this most simple form implied of necessity the power of repealing a pre-existing law. To the question, if treaties possessed the power of repealing laws, what were the limits which restrained the President and Senate from absorbing all the powers of the legislature, he answered that the power of making treaties must necessarily be indefinite, "it must be allowed to be competent to the adjustment of every dispute with a foreign nation under any circumstances." That the power was indefinite was no proof that it was not fully vested solely in the President and Senate. That it was capable of abuse was no argument that the House possessed a controlling authority. Many of the powers vested in Congress were likewise indefinite with no restraints except the virtue and discretion of Congress. That Congress might raise and equip armies and navies for purposes of ambition, or tax unwisely, was no proof that the power was not vested in it. Statutes and treaties of the United States were alike supreme laws of the land, and the last act of whichever description would control. He, however, added as a qualification, "It is not intended to assert that treaties can extend to every object of legislation, there is no doubt that the forms of the Constitution and the powers of the different departments and organs of government are superior to the influence of a treaty; the limitation of the power of making treaties may in some respects be difficult, as the exigencies of society cannot be foreseen, but in respect to matters of mere internal concern, there appears to be nothing upon which the power of making treaties can operate, in derogation or extension of the power of legislation." The reasoning of Hamilton, as expressed in letters written at the time and in his draft of a message, was that the Constitution empowered the President and Senate to make treaties; that to make a treaty as between nations meant to conclude a contract obligatory on their good faith; that a contract could not be obligatory to the validity or obligation of which the assent of another power in the state was constitutionally necessary; that the Constitution declared a treaty made under the authority of the United States to be a supreme law, but that that could not be a supreme law to the validity or obligation of which the assent of another power in the state was constitutionally necessary; that whatever coloring might be given a right of discretionary assent to a contract, it was a right to participate in the making of it; and hence that a discretionary right in the House to assent to a treaty or, what was equivalent, to execute it, would negative two important provisions of the Constitution that the President and Senate should have the power to make treaties and that the treaties so made should be laws. It was, he contended, one thing, that a treaty pledging the faith of the nation should by force of moral duty oblige the legislative will to carry it into effect, quite another that it should be itself a law. The latter was the case under the Constitution. There were no express limits to the treaty-making power, and it was a reasonable presumption that it was meant to extend to all treaties usual among nations and so to be commensurate with the variety of exegencies and objects of intercourse which might occur between nation and nation. 1MSS. Letters to Washington, vol. cxvii, p. 293. |