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of Congress on March 1, 1796. On the one side it was maintained that the power of the President and Senate as to treaties was absolute, and that the House of Representatives was bound, under the Constitution, to make the appropriations necessary to carry the treaty into effect. On the other side it was contended that under the Constitution the consent of the House was requisite to pass appropriations to carry the treaty into effect, and that this was as much known to the other contracting party as was the consent of the Senate to the preliminary adoption of the treaty. On the latter assumption the House, on March 24, 1796, called on the President for the facts relative to the treaty. On March 30, 1796, the President declined to give such information, his reasons being stated in a message given above.
As to Jay's treaty, see also infra, $ 150a.
“The first impression (as to the treaty, when published after its ratification by the Senate) was universally and simultaneously against it. At length, however, doubts began to be thrown out in New York whether the treaty was as bad as was represented. The Chamber of Commerce proceeded to an address to the President, in which they hinted at waras the tendency of rejecting the treaty, but rested the decision with the constituted authorities. The Boston Chamber of Commerce followed the example, as did a few inland villages. As soon as it was known that the President had yielded his ratification, the British party were reinforced by those who bowed to the name of constituted authority and those who are implicitly devoted to the President. The principal merchants of Philadelphia, with others, amounting to about four hundred, took the lead in an address of approbation.
It is pretty certain that a majority of the House disapproves the treaty, but it is not yet possible to ascertain their ultimate object, as matters now lie.”
Mr. Madison to Mr. Monroe, Dec. 20, 1795. 2 Madison's Writings, 64. “The situation is truly perplexing. It is clear that a majority, if brought to the merits of the treaty, are against it. But as the treaty is not regularly before the House, and as application to the President brings him personally into the question, with some plausible objections to the measure, there is great danger that enough will fly off to leave the opponents of the treaty in a minority.”
Mr. Madison to Mr. Jefferson, Dec. 27, 1795 ; ibid.,
66 The business of the treaty with Great Britain remains as it stood. A copy of the British ratification has arrived, but the Executive waits, it seems, for the original, as alone proper for communication. In the mean time, although it is probable that the House, if brought to say yea or pay directly on the merits of the treaty, will vote against it, yet a majority cannot be trusted on a question applying to the President for the treaty."
Mr. Madison to Mr. Monroe, Jan. 26, 1796; ibid., 73. To same effect, Mr. Madi
son to Mr. Jefferson, Jan. 31, 1796; ibid., 75.
“ We are at length embarked in the discussion of the treaty, which was drawn in rather abruptly by a proposition calling on the President for papers. The point in debate is the constitutional right of Congress in relation to treaties. There seems at present strong reasons to conclude that a majority will be in favor of the doctrine that the House has S. Mis, 10-VOL. II
a constitutional right to refuse to pass laws for executing a treaty, and that the treaty power is limited by the enumerated powers. Whether the right ought, in the present case, to be executed, will be a distinct question on the merits of the treaty, which have not yet come into discussion. I understand that the treaty party expect success on this question, but despair on every other."
Mr. Madison to Mr. Jefferson, Mar. 13, 1796 ; ibid., 88. “ The newspapers will inform you that the call for the treaty papers was carried by 62 against 37. You will find the answer of the Presi. dent herewith inclosed. The absolute refusal was as unexpected as the tone and tenor of the message are improper and indelicate. I think there will be sufficient firmness to face it with resolutions declaring the constitutional powers of the House as to treaties, and that, in applying for papers, they are not obliged to state their reasons to the Executive.”
Same to same, Apr. 4, 1796 ; ibid., 89. “ This measure of the Executive produced two propositions, asserting the right of the House to judge of the expediency of treaties stipulating on legislative subjects, and declaring that it was not requisite in a call for papers to express the use to be made of them. It was expected that a long and obstinate discussion would have attended these defensive measures. Under that idea, I entered into a free but respectful review of the fallacy of the reasons contained in the message, and the day being nearly spent, the committee rose and an adjournment succeeded. The next morning, instead of a reply, the question was called for, and taken without a word of argument on the subject. The two resolutions were carried by 57 against 35; and six members, who, not foreseeing the early call for the question, had not taken their seats, soon appeared and desired to have their names added to the majority. This was not permitted by the rules of the House."
Same to same, Apr. 11, 1796 ; ibid., 94. “ The treaty question was brought to a vote on Friday in committee of the whole. Owing to the absence (certainly casual and momentary) of one member and the illness of another, the committee were divided, 49 and 49. The chairman (Muhlenberg) decided in the affirmative, saying that in the House it would be subject to modification, which he wished. In the House, yesterday, an enemy of the treaty moved a preamble reciting that although the treaty was highly objectionable, yet, considering all circumstances, particularly the duration for two years, &c., and confiding in the efficacy of measures that might be taken for stopping the spoliations and impressments, etc. For this ingredient, which you will perceive the scope of, all who meant to persevere against the treaty, with those who only yielded for the reasons expressed in it, ought to have united in voting, as making the pill a bitter one to the treaty party, as well as less poisonous to the public interests. A few wrongbeads, however, thought fit to separate, whereby the motion was lost by one vote. The main question was then carried in favor of tho treaty by 50 against 48. This revolution was foreseen, and might have been mitigated, though not prevented, if sooner provided for. But some, who were the first to give way to the crisis under its actual pressure, were not averse to prepare for it. The progress of this business through
ont has been to me the most worrying and vexatious I ever encountered."
Same to same, May 1, 1796; ibid., 99. See infra, ” 150 a.
The answer to the message, which had the sanction of Madison, is as follows:
" Resolved, That it being declared in the second section of the Constitution that the President shall bave power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur, the House of Representatives do not claim an agency in making treaties; but that when a treaty stipulates regula. tions 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 de. liberate 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.”
It was further resolved " that it is not necessary to the propriety of any application from this House to the Executive for information desired by them, and which may relate to any constitutional functions of the House, that the purpose for wbich such information may be wanted, or to which it may be applied, should be stated in the application."
Mr. Gallatin, in his speech in the House on March 10, 1796, on Jay's treaty, said, with great force, that “if the treaty-making power is not limited by existing laws, or if it repeals laws that clash with it; or if the Legislature is obliged to repeal the laws so clasbing, then the legis.' lative power in fact resides in the President and Senate, and they can, by employing an Indian tribe, pass any law under the color of treaty." "The argument,” says Mr. Adams in his life of Gallatin (161), "is irresistible; it has never been answered; and the mere statement is enough to leave only a sense of surprise that the Federalists should have hazarded themselves on such preposterous ground.”
The next treaty in which the question distinctively arose was that with France, on April 30, 1803, for the cession of Louisiana. Mr. Jefferson, who was then President, had maintained, as was well known, the position, as above stated, that whenever Congress, in its legislative action, is called upon to make appropriations to carry out a treaty, it had a full constitutional right to refuse its assent. He took care not to appear in any way, when asking for action on the Louisiana treaty, to invade the prerogatives he had so fully recognized in 17996. He sent in a special message, communicating the requisite papers for the purpose of the consideration of Congress in its legislative capacity” or “for the exercise of their functions as to those conditions which are within the power vested by the Constitution in Congress ;” and so from assuming that this power was to be exercised as a matter of course, he said, “ You will observe that some important conditions cannot be carried'into execution but with the aid of the legislature.” The measures proper for the execution of the treaty were voted without, however, any reassertions of the principle of independent responsibility laid down by the House of Representatives in 1796.
In 1816 the Senate passed a bill to carry into effect the commercial convention of 1815 with Great Britain, the bill so passed providing that
80 much of any existing act as might be contrary to the provisions of the convention should be deemed and taken to be of no effect. The House of Representatives, on the other hand, passed a bill enacting seriatim the provisions of the treaty. The Senate refused to concur, on the ground that the treaty was operative of itself, and therefore that the act should be declaratory only. On the other hand the House in. sisted that legislation was necessary to carry the treaty into effect. A committee of conference, of which Rufus King was chairman of the man. agers on the part of the Senate, and John Forsyth chairman of the managers on the part of the House, agreed on a bill, which was then adopted. The principle upon which this adjustment was made was thus explained by Mr. Forsyth : “ Your committee understood the committee of the Senate to admit the principle contended for by the House, that whilst some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question, how far such provision was necessary, must be founded upon the peculiar character of the treaty itself.”
The opinion of Mr. Wheaton, on the collision with France, in respect to the treaty with that country of July 4, 1831, has been already noticed (see supra, § 9), and in a future section will be discussed the action taken by the United States in relation to the action of the French Chamber of Deputies to carry that treaty into effect by appropriating the sum necessary to meet the indemnity to be paid by France to the United States (infra, $ 318). It must be remembered, however, that the case of the action of the French Chamber of Deputies in refusing the appropriation under the treaty of 1831 was not that of a mere refusal to approve a treaty relating exclusively to the future, as was the case with Jay's treaty. The debt which the French Chamber refused to pay was one which had been for many years claimed earnestly, almost to the point of a formal declaration of war, by the United States, and had been over and over again admitted to be due by France. When President Jackson, therefore, advised Congress to resort to reprisals to compel payment of this debt, this was not because the French Chamber of Deputies refused to approve a treaty which had been negotiated between the two Governments, but because the French Government had repudiated a debt which the United States had declared to be incontestable, and which the French executive had admitted. Reprisals for repudiation of a debt solemnly acknowledged are recognized by the law of nations, and this was a case of repudiation of a debt solemnly acknowledged. There was no discussion, on the part of President Jackson, of the question as to how far the consent of the French Chamber of Deputies was necessary, under the then French constitution, to the validity of a treaty. All that President Jackson did or said may be regarded as limited to the following position: “You owe this money; we have already pushed our claim to the verge of war, and you have admitted it to be due. You must pay; your admission you cannot dispute, since it was made by your executive, who is the only authority with whom, under the law of nations, we can negotiate.”
In 1843 Mr. Wheaton negotiated a commercial treaty with the Ger. man states. The Senate Committee of Foreign Relations reported adversely to this treaty, on the ground of the “ want of constitutional competency,” to make it; and the Senate laid the subject on the table indefinitely. Mr. Calhoun, then Secretary of State, comments thus on this act: If this be a true view of the treaty-making power, it may be
truly said that its exercise has been one coutinual series of habitual and uninterrupted infringements of the Constitution. From the beginning, and throughout the whole existence of the Federal Government, it has been exercised constantly on commerce, navigation, and other delegated powers."
Mr. Calhoun to Mr. Wheaton, June 28, 1844; MSS. Inst., Germ. The question of the prerogatives of the House, when the efficiency of a treaty depends upon its action, came again into prominence in relation to the treaty of 1868 with Russia for the cession of Alaska. (See infra, § 159.) In that treaty it was provided that the territory should be transferred on the exchange of ratifications (art. 4), and that Russia should be paid an indemnity of $7,200,000. The treaty was ratified by the Senate on May 28, 1867, there being but two voices in the negative. On June 20, 1867, President Johnson issued a proclamation in which, after reciting the treaty, he declared : “Now, therefore, be it known that I, Andrew Johnson, President of the United States, have caused the said treaty to be made public to the end that the same and every clause and article thereof may be observed and fulfilled with good faith by the United States and the citizens thereof." The territory was transferred by Russia to the United States on October 18, 1867. When, however, the question of appropriation came before Congress at the ensuing session, it was at once seen that there was a marked division of opinion. The majority of the Committee of Foreign Affairs in the House of Representatives reported as follows: “The committee reports to the House the following bin, making ari appropriation to carry the treaty into effect, with a recommendation that it be enacted into a law: "A bill to enable the President of the United States to fulfill the treaty between the United States and Russia of March 30, 1867. Be it enacted by the Senate and House of Representatives, that there be, and hereby is, appropriated $7,200,000 in coin to fulfill the stipulations contained in the sixth article of the treaty with Russia, concluded at Washington on the 30th day of March, 1867.?” A minority report was made in which the worthlessness of the territory ceded was asserted, and in which the rejection of the purchase was recommended.
The majority report, while conceding that there were cases in which the assent of the House to a treaty might be properly withheld, limited such right to cases plainly inconsistent "with the fundamental princi. ples, purposes, or interests of the Constitution.” It was further asserted that “where a treaty is limited to objects consistent with the interests of the Government, its first and highest duty is to enact such measures as are necessary to carry the treaty into effect.” It was urged that as the Alaska treaty had infringed no constitutional sanction, laws to carry it into execution should be passed. (As to prior negotiation, see infra, $159.) Protracted debate ensued, beginning on June 30 and proceeding through July, the discussion relating far more to the constitutional rights of the House in such issues than as to the expediency of the purchase of Alaska. The tendency of the majority of the House was evidently to sanction the Alaska purchase, but to couple the approval of the treaty with a reservation of the right of the House to approve or disapprove in all cases in which the sanction of the House is necessary to execute a treaty. The following amendment, adopting this view, passed the Committee of the Whole by a vote of 98 to 49, and the House, on July 14, 1867, by a vote of 113 to 43: " Whereas the President of the United States, on the 30th of March,