Treaties of peace, alliance and commerce were usual among nations. Treaties of peace frequently included indemnification, pecuniary or otherwise. Treaties of alliance necessarily stipulated for the union of forces, and the furnishing of pecuniary and other aids. Treaties of commerce regulated the "external commerce" of the nation. Unless the treaty power could embrace objects upon which the legislative power might also act it was often inadequate for mere treaties of peace, and always so for treaties of alliance and of commerce. The action of the House was not always deliberative in making appropriations; as, for instance, in making an appropriation to defray the expense of an office created by the Constitution or a prior act of Congress. It was discretionary only when the Constitution and laws placed it under no command or prohibition. There was, however, this difference between the obligation of the Constitution and of laws, the former enjoined obedience always, the latter, till annulled by the proper authority. While it was true. the Constitution provided no method of compelling the legislative body to act, it was, nevertheless, under a constitutional legal and moral obligation to act where action was prescribed. If the legislative power was competent to repeal this law by a subsequent law, it must be by the whole legislative power, not by the mere refusal of one branch to give effect to it. A legal discretion to refuse the execution of a pre-existing law was virtually a power to repeal it. "Hence," he said, "it follows that the House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution because it is a law-until at least it ceases to be a law

by a regular act of revocation of the competent authority."

On April 30 by the close vote of 51 to 48 the House resolved that provision ought to be made by law for carrying the treaty into effect, and on May 6 three acts were approved making appropriations for the execution of the treaties with Great Britain, Spain and Algiers respectively.2

The question has since been raised, but little has been added to the arguments of 1796. Jefferson had in Washington's administration advised consulting the House in the matter of the appropriation before entering into the Algerian negotiations, on the ground that whenever the agency of either or both houses would be requisite to carry a treaty into effect, it would be prudent to consult them previously if the occasion admitted. Consistently with this opinion, before opening the negotiations of 1803 for the purchase of lands at the mouth of the Mississippi, he asked Congress for a provisional appropriation of two millions for the purpose; and he considered the act making the appropriation as conveying the sanction of Congress to the acquisition proposed. Quite unexpectedly and without instructions the commissioners entered into a treaty for the purchase of the entire Louisiana territory, for which the provisional appropriation was entirely inadequate. In the treaty of 1803 a large expenditure was expressly promised, while in the treaty of 1794 it was incidental.

1 MSS. Letters to Washington, vol. cxvii, p. 323. Works of Hamilton (Lodge ed.), vol. vii, p. 118; (J. C. Hamilton ed.), vol. vi, pp. 92, 94; vol. vii, pp. 556–570.

'Annals, p. 1291. I Stat. at L., 459, 460.

3

3 MSS. Jefferson Papers, Series 4, vol. ii, nos. 18, 36.

Annals, 8th Cong., 1st sess., p. 12.

President Jefferson thought of submiting the treaty to both houses of Congress, and drafted his message accordingly. In their written suggestions on the draft, both Madison, the Secretary of the State, and Gallatin, the Secretary of the Treasury, who in 1796 had been leaders of the opposition in the House, advised against this procedure-the former observing that "the theory of our Constitution does not seem to admit the influence of deliberations and anticipations of the House of Representatives on a treaty depending in the Senate;" the latter, that the House of Representatives "neither can nor ought to act on the treaty until after it is a treaty." Mr. Gallatin argued further that at times it might be necessary to obtain a grant of money before opening negotiations, but that in the present case, as the negotiations had been closed, no necessity existed to consult or communicate with the House until the instrument had been completed by the President's ratification, and that there was no apparent object in this instance for the communication, unless it was supposed that the House might act, or in other words express its opinion and give its advice, on the inchoate instrument which would, at the same time, be constitutionally before the Senate.' Conformably to these suggestions the treaty was communicated October 17 to the Senate only, but the House was informed by the annual message of the same date that the treaty would, as soon as the sanction of the Senate. had been received, be communicated to it for the exercise of its "function as to those conditions" which were within the powers vested by the Constitution in Con

1MSS. Jefferson Papers, series 3, vol. viii, no. 83; and vol. iv, no. 129. See also Writings of Jefferson (Ford ed.), vol. viii, p. 266; Writings of Gallatin (Adams ed.), vol. i, p. 156.

gra The treaty having been raided and the ratifications exchanged Cober 21, was communicated to Congreu for consideration in its legislative capacity, the Prendent observing in his message that some important conditions could be carried into execution, but with the aid of the Legislature.

To claim that the House has a free and discretionary right to grant or refuse an appropriation for the execution of a treaty, and at the same time deny the Executive the right to submit for its approval the treaty until fully ratified, produces a situation which in a government devoid of parliamentary responsibility may easily prove embarrassing. The Federalists were now in the opposition. By those who in 1796 had opposed the call for the papers, a resolution was now supported requesting the President to communicate such parts of the correspondence and papers as would tend to prove the validity of the French title to the ceded territory. When charged with inconsistency, Roger Griswold of Connecticut replied that the papers were wished for the purpose of legislating correctly, and that he still held that when a treaty was once ratified it was the duty of every department of the government to carry it into effect. The Republicans found less plausible defense against a similar charge. By a not strictly party vote of 59 to 57 the resolution was defeated.3

A position, which differed in some respects from that taken in 1796, was taken by the House in 1868, on the Alaskan treaty. President Johnson communicated the treaty to Congress July 6, 1867, subsequently to its pro

'Ibid,, pp. 17, 18.

1 Annals, 8th Cong., 1st sess., p. II. 'Ibid., pp. 385, 403, 419. The House was composed of 102 Republicans and 39 Federalists. Adams, History of the United States, vol. ii, p. 95.

clamation June 20, calling the attention of Congress to the required appropriation. In considering the bill reported by the House Committee on Foreign Affairs to fulfill the stipulation of the treaty, the House, on July 14, inserted, by a vote of 98 to 49 (53 not voting), an amendment which read in part: "Whereas the subjects thus embraced in the stipulations [for the payment to Russia of $7,200,000, and for the admission of certain of the inhabitants of the ceded territory to the enjoyment of the privileges and immunities of citizens of the United States] of said treaty are among the subjects which by the Constitution of the United States are submitted to the power of Congress, and over which Congress has jurisdiction; and it being for such reason necessary that the consent of Congress should be given to said stipulation before the same can have full force and effect; having taken into consideration the said treaty, and approving of the stipulations therein, to the end that the same may be carried into effect * Be it enacted, That the assent of Congress is hereby given to the stipulations of said treaty." At the same time that this amendment was inserted, another which declared that thereafter no territory should be purchased until provision for its payment had been made by law, and that the powers vested by the Constitution in the President and Senate to enter into treaties with foreign governments did not "include the power to complete the purchase of foreign territory before the necessary appropriation" had been made by an act of Congress, was defeated by a vote of 80 to 78 (42 not voting). On the persistent refusal of the Senate to accept the bill as passed by the House,

'Richardson's Messages, vol. vi, p. 524.

'House Journal, 40th Cong., 2d sess., p. 1064.