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in the total expenditures of the government, are most common. For instance, the recent treaty referring to a joint commission the Alaskan boundary dispute, while not expressly stipulating for an expenditure, required an immediate special appropriation of $100,000. To admit the necessity of the concurrence of the House in all such treaties is to admit that body to an agency in the making of a large proportion of treaties concluded, and deny the efficacy of the treaty-making power as organized in the Constitution.
It may be further observed that in the first instance in which a stipulation expressly required an appropriation of a considerable amount, a precedent was intentionally established by the first defenders of the rights of the House in this respect, of withholding the treaty until it had been fully ratified and the ratifications exchanged. If the concurrence of the House is necessary to the validity of the stipulation, its action should precede the final ratification; for the execution of a treaty cannot be with safety begun on our part, or requested of the other contracting power, if its validity is still dependent upon the action of an independent legislative body. The inter-relation of stipulations usually prevents their separation, so that the failure to confirm one of them would operate as the rejection of the entire instrument. The House early conceded, however, that it had no claim to an agency in the making of the treaty, but only a free action as to the execution of it. Yet, if the House has no agency in the making of the treaty, its action is not essential to the validity of the treaty. For the House to disclaim any agency in the making of the international compact, but at the same time to deny any obligation to execute it, is to recognize another organ of government as competent to
bind the nation, but at the same time to except itself from the obligation. More important than its own disclaimer, is the practice of the government. The approval by Congress of a preliminary appropriation has never been considered necessary to give validity to the proceedings under a convention by which disputed claims have been submitted to a tribunal of arbitration. President Jefferson before opening the negotiations of 1803 for the purchase of Louisiana, and of 1806 for the purchase of Florida, and President Polk before opening the Mexican negotiations, obtained provisional appropriations. The act of Congress of June 28, 1902, made a provisional appropriation for the acquisition by treaty of the right to construct an inter-oceanic canal. In the treaty with Denmark of April 11, 1857, for the abolition of the Sound Dues, it was provided that the treaty should take effect as soon as the stipulated sum had been tendered by the United States, or received by Denmark. These are exceptions. The practice has been to proceed to the ratification on the authority of the Senate alone, and the treaty thus ratified has been recognized both by this and foreign governments as valid and definitively concluded, and Congress has never failed to vote the required appropriation.
Modifications of the Revenue Laus.—Of the treaty stipulations relative to commerce and navigation, that preceded the treaty with Great Britain of July 3, 1815, two provisions require notice in an examination of Congressional action, Art. III of the Jay treaty, proclaimed February 29, 1796, and Art. VII of the treaty with France, proclaimed October 21, 1803. The former provided reciprocally on the part of the United States that British subjects might freely pass by land or inland navigation the boundary line between the territories of the
two nations; that all goods and merchandise, the importation of which should not be wholly prohibited, might be brought in this manner by British subjects into the United States; and that articles thus imported should be subject to no higher or other duties than would be payable by the citizens of the United States on the same articles if imported in American vessels into the Atlantic ports of the United States. The existing tonnage and revenue laws imposed a discriminating duty of ten per cent. on goods imported in other than American vessels, and no such exemptions as were contained in the treaty were provided for.' Section 104 of the revenue act of March 2, 1799, "for the purpose of conforming this act to certain stipulations contained in treaties made and ratified under the authority of the United States," recited in substance this provision of the treaty and enacted it as a part of the law. It does not appear whether the article was considered as self-operative prior to this act and the section inserted simply to exempt it from repeal, or whether the section was designed to give it effect.3 In Article VII of the treaty of 1803, it was stipulated that for a period of twelve years French ships coming directly from France or her colonies, and Spanish ships from Spain or her colonies, should be admitted
See i Stat. at L., 411.
? 1 Stat, at L., 701. * Jefferson, in a cabinet meeting, July 29, 1790, took the position with respect to a proposed Indian treaty, that a treaty made by the President, with the concurrence of two-thirds of the Senate, would repeal past laws and legally control the duty acts, but could not itself be repealed by future laws. This was, liowever, he later wrote, a first impression which subsequent investigation proved to be erroneous. Writings (Ford ed.), vol. v, pp. 215, 216. Edmund Randolph expressed the opinion in cabinet, November 21, 1793, that an act of the legislature would be necessary to confirm treaties affecting the tariff duties. Ibid., vol. i, p. 268.
into all the legal ports of entry in the ceded territory on the same terms of duty and tonnage as American ships coming from the same ports. The act of February 24, 1804, extending certain of the revenue laws of the United States to the new territory, specifically enacted in section 8 this provision of the treaty.'
In the treaty with Great Britain signed July 3, and proclaimed December 22, 1815, it is stipulated on the part of the United States, that no higher duties shall be imposed in ports of the United States on British vessels and articles imported therein, produced or manufactured in His Britannic Majesty's territories in Europe, than are payable by American vessels. President Madison in his message of December 23, notifying Congress of the proclamation of the treaty, recommended “such legislative provisions” as the convention might call for on the part of the United States. Although the treaty provision came in direct conflict with the general revenue and tonnage laws, a special act of March 3, 1815,3 had repealed discriminating duties so far as they affected any foreign nation which, to the satisfaction of the President, had abolished its laws that operated to the disadvantage of the United States. Mr. Calhoun, in the debates following the recommendation of the President, observed that whatever might be the ipso facto effect of the treaty on existing legislation, this act made quite unnecessary any further legislation to execute the treaty, since no better evidence could be furnished the Executive than a treaty
'2 Stat. at L., 253. See similar provision in act of March 3, 1821, extending “ subject to the modification stipulated" in Article XV of the treaty of February 22, 1819, revenue laws to Florida. 3 Stat. at L., 639. 'Annals, 14th Cong., ist sess., p. 29.
'3 Stal. at L., 224.
guarantee. This view, which is sanctioned by subsequent practice, seems obviously sound, but it was not acted upon at the time. Bills were introduced in each house agreeably to the President's recommendation, but differing radically. The bill “concerning the convention,” as adopted without opposition by the Senate, January 10, 1816, simply declared that so much of any acts as might be contrary to the provisions of the convention should "be deemed and taken to be of no effect." It assumed the repeal by the treaty itself, the declaration being made to remove doubts in this respect should any arise. On the other hand, the bill as passed by the House, January 13, by a vote of 86 to 71, entitled “ An act to regulate the commerce between the United States and the territories of His Britannic Majesty according to the convention,” assumed the incompatible laws to be in full force, and enacted in detail the necessary modifications. The debates and divisions in the House are of unusual interest since they were confined to the constitutional question involved and were quite free from party and sectional influences. As neither body would agree to the bill as passed by the other, a conference committee was resorted to. The conferrees of the Senate, Rufus King, James Barbour and W. W. Bibb, admitted the doctrine that some treaties made in pursuance of the Constitution might “call for legislative provisions to secure their execution, which provision Congress, in all such cases, is bound to make;" but contended that in the present case no such legislation was necessary, and that
Annals, 14th Cong., ist sess., p. 526. ' Ibid., pp. 36, 40, 46. 'Ibid., pp. 419, 674.
*The Senate of the fourteenth Congress was composed of 24 Republicans and 12 Federalists; the House, of 117 Republicans and 65 Federalists.