CHAPTER VII.

OF THE TREATY MAKING POWER.

WE will now proceed to consider the legislative powers vested in these bodies.

Treaties being, next to the Constitution, the supreme law of the land, properly fall into this class. They are laws, in making which the house of representatives has no original share; whether their subsequent concurrence in any shape is necessary will hereafter be examined.

The language of the Constitution is, that he [the president,] shall have power by and with the advice and consent of the senate to make treaties, provided two-thirds of the senators present concur.

This, at first view, would imply that a treaty, like an act of congress, should in its progress be the subject of joint deliberation, but the practice has necessarily been otherwise.

Treaties, if made abroad, are effected through the medium of our ministers to foreign courts under instructions from the president. If made here, the business is transacted by the secretary of state, under like instructions, with the ministers from foreign courts. The senate is not consulted in the first process: when the treaty is agreed on, the president submits it to the senate, in whose deliberations he takes no part, but he renders to them, from time to time, such information relative to it as they may require. The senate may wholly reject it, or they may ratify it in part, or recommend additional or explanatory articles, which, if the president approves of them, again become the subject of negotiation between him and the foreign power; and finally, when the whole receives the consent of the senate, and the ratifications are exchanged between the respective governments, the treaty becomes obligatory on both nations.

The proceedings of the senate during this process are with closed doors, and the contents of the treaty and the information connected with it ought in good policy to be kept secret. But the Constitution does not in express terms require it, and, in one particular instance, when the public mind was greatly agitated, disclosures, not only of the contents of the treaty itself, but of some of the proceedings of the senate in regard to it took place, the propriety of doing which was admitted or denied according to the opposing opinions of the day. 1

The nature and extent of this constitutional power underwent full examinations 2 in the state conventions. The most general terms are used in the Constitution. The powers of congress in respect to making laws we shall find are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less immediately delegated by the people than the house of representatives; the president constitutionally and the senate both constitutionally and practically, two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may eventually affect important interests at home. To define them in the Constitution would have been impossible, and therefore a general term could alone be made use of, which is, however, to be scrupulously confined to its legitimate interpretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the Constitution from which alone the power proceeds.

In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those matters which are generally the subjects of compact between independent nations. Such subjects are peace, alliance, commerce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which disabled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude itself from the international equality which its own interests require it to preserve, and thus in many respects commit an injury on itself. In modern times and among civilized nations, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confederation it was given with some restrictions, proceeding from the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present Constitution no limitations were held necessary. The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president conjunctly with them or one of them, or in the president alone.

The formation of a treaty often requires secrecy and dispatch, neither of which could be found in the first or second mode, and a contrary plan would be inconsistent with the usages of most nations. It remained then either to vest it in the president singly, or to unite one of the other bodies with him. The latter was obviously preferable, and all that remained was to select that one whose conformation appeared most congenial to the task. The senate is a smaller body, and therefore whenever celerity was necessary, the most likely to, promote it โ€” it was a permanent body; its members, elected for a longer time, were most likely to be conversant in the great political interests which would be agitated, and perhaps it was supposed, that as representatives in one point of view, rather of the states than of the people, a federative quality appertained to them not wholly unconnected with the nature of a foreign compact.

From these and other considerations, the power was vested where we find it; and whenever objections are raised against the extensive operations of a treaty, on account of the source from which it springs, we must remember that it was the will of the whole body of the people to place it there.

The legal effect of a treaty constitutionally made is, that next to the Constitution itself, it prevails over all state laws, state constitutions, and acts of congress.

This is expressed in the following words โ€”

This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

There is a variance in the words descriptive of laws and those of treaties โ€” in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.

The explanation is, that at the time of adopting the Constitution, certain treaties existed, which had been made by congress under the confederation, 3 the continuing obligations of which it was proper to declare. The words "under the authority of the United States," were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be "under the authority of the United States," unless they are conformable to its Constitution.

It has been observed, that it is not distinctly declared whether treaties are to be held superior to acts of congress, or whether the latter are to be co-equal with or superior to the former. The mere collocation of the words would tend to give the superiority to the laws, but higher ground must be taken for the decision of the question.

Having felt the necessity of the treaty making power, and having fixed on the department in witch it shall be vested, the people of course excluded from all interference with it, those parts of the government which are not described as partaking of it. The representation held out by our Constitution to foreign powers, was, that the president with the advice and consent of the senate, could bind the nation in all legitimate compacts: but if pre-existent acts, contrary to the treaty, could only be removed by Congress, this representation would be fallacious; it would be a just subject of reproach, and would destroy all future confidence in our public stipulations. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions.

But this is not inconsistent with a power to pass subsequent laws, qualifying, altering, or even wholly annulling a treaty. Such a power may be supported on another ground. Congress alone possesses the right to declare war; and the right to qualify, alter, or annul a treaty being of a tendency to produce war is an incident to the right of declaring war. Such measures may be essential to the interests of the nation, and it is impossible to find them in any other part of the Constitution than in the general powers held by Congress. But in these procedures, the senate must necessarily, and the president may eventually be parties, and they are essentially different from laws to carry a treaty into effect, which suppose the treaty imperfect, till they are passed. The former laws on the contrary, consider the treaty as complete and effective, and are passed as the only means of counteracting it under a change of circumstances, at the hazard indeed of exciting the complaints, resentment, or hostilities of the foreign power.

In the years 1795 and 1796, the house of representatives was much agitated on account of the treaty of November 19th, 1794, between the United States and Great Britain. A resolution was passed requesting the president to lay before them a copy of his instructions to the minister who negotiated the treaty, with the correspondence and other documents relative to that treaty, excepting such papers as any existing negotiations may render it improper to disclose.

The illustrious individual who then held the office, answered, that he had never had but one opinion on the subject, and that his conduct had always conformed to it. His opinion was, that the power of making treaties is exclusively vested in the president, by and with the advice and consent of the senate, provided two-thirds of the senators present concur, and that any treaty so made and promulgated. thenceforward becomes the law of the land.

It is thus, he added, that the treaty making power has been understood by foreign nations; and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the president, with the advice and consent of the senate, they become obligatory. In this construction of the Constitution every house of representatives had acquiesced, and until the present time, not a doubt or suspicion had appeared, to his knowledge, that this construction was not the true one.

With some further remarks, be concluded by observing, that as it was perfectly clear to his understanding that the consent of the house of representatives is not necessary to the validity of a treaty, as the treaty with Great Britain exhibited in itself all the objects requiring legislative provision, and on these the papers called for could throw no light; and as it is essential to the due administration of a government, that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duties of his office forbade a compliance with their request. 4

The principles thus laid down were so far acquiesced in by the house, that they passed a resolution disclaiming a power to interfere in making treaties, but asserting the right of the house of representatives, whenever stipulations are made on subjects committed by the Constitution to congress, to deliberate on the expediency of carrying them into effect. And subsequently, though not without much acrimonious debate, and by a small majority, it was declared to be expedient to pass the laws necessary to carry the treaty into effect.

From that time, the question remained undisturbed, until the session of 1815-16, when in relation to another treaty with Great Britain, the house of representatives, after much debate, passed a bill particularly enacting the same stipulations on one subject as those which were contained in the treaty. This, as a dangerous innovation on the treaty making power, was warmly opposed by the minority, and disagreed to by the senate. But after conferences between the two houses, it terminated in a sort of compromise, which it is difficult to reconcile with a sound construction of the Constitution. The act, (which was passed on the 1st of March, 1816,) shortly declares, that so much of any act as imposes a duty on tonnage, contrary to the provisions of a convention between the United States and his Britannic Majesty, shall from and after the date of that instrument, and during its continuance, be of no force or effect.

Thus a precedent was set, which a dissatisfied house of representatives may hereafter resort to; and although the judicial tribunals would probably consider the law as being wholly unnecessary, and a nullity in itself, it may be the cause of future legislative attempts producing more difficulty.

Yet however manifest these principles may appear, it must be confessed that another part of the Constitution presents an apparent difficulty which requires examination.

By the 9th sect. of the 1st article, it is expressly declared, that no money shall be drawn from the treasury but in consequence of appropriations made by law.

A treaty may be made, by which a sum of money is engaged to be paid to a foreign power, on considerations beneficial to the Union; can such a contract be fulfilled without an act of congress? Three eventual cases may be stated:

  1. Where there is a sufficient sum of money in the treasury, not under any specific appropriation.
  2. Where there is a sufficient sum, but actually appropriated to different objects.
  3. Where there is no money in the treasury, but a sufficient sum must be raised in some manner to fulfil the contract.

In the second and third of these supposed cases, it would seem that the treaty could not be carried into effect by its own power. Taxation, direct or indirect, can only be the work of congress.

By Art. 1. ยง viii. the congress shall have power to lay and collect taxes, duties, imposts, and excises.

No such power is given to the president and senate in direct terms.

By another section, (the 7th,) of the same article, All bills for raising revenue shall originate in the house of representatives. A nice disquisition might here be introduced, whether the fulfilment of a contract with a foreign power, was to be considered as raising revenue. The term ought to be interpreted in its broad and general sense, and in reference to the spirit and meaning of the whole Constitution. By revenue we must understand whatever is produced by taxes, duties, imposts, and excises, for public use. The moneys so raised may be applied to defray the expenses of government, to pay the principal or interest of the public debt, to maintain an army and navy, to pay for acquisitions of territory, (as in the recent instance of the purchase of Florida from Spain, when by treaty we assumed the payment of the money to which our own citizens were justly entitled, by reason of the injuries inflicted on them by that country,) to preserve peace and harmony with foreign powers, as the barbarous states of Africa, and a variety of other cases. It is still revenue, and congress alone can raise it. and the bill can only originate in the house of representatives. If, therefore, a new tax must be laid, or a specific appropriation already made by congress superseded, it seems obvious that it cannot be done by the president and senate.

The first of the three cases supposed will seldom happen, but should it ever take place, and a sum, which by treaty the United States were bound to pay to a foreign power, could be discharged out of moneys lying in the treasury, unfettered by appropriation, the difficulty would not yet be subdued. If the surplus in the treasury arose from a tax, laid with a view to the fulfilment of treaties which were thereafter to be concluded, great doubts might be entertained whether such a law would be constitutional. To extract money from the people for a purpose so indefinite, and to place those moneys at the disposal of the treaty making power, might possibly be supported by the authority given to congress to provide for the common defence and general welfare. But even this, as it would amount to a concurrence of congress in effectuating the treaty, would leave the question unresolved. The original difficulty remains, if the moneys thus found in the treasury, consisted of a surplus unappropriated by congress in any manner, or to any object whatever. Now we must keep in view, that a treaty with a foreign power, is not of itself an appropriation of moneys in the treasury of the United States, any more than it would be an appropriation of moneys in the treasury of the foreign power. It is evidently not an appropriation in a constitutional sense, for it can only be made (so far as relates to other subjects) as the act of both houses, and in the solemn form of a law. However strong, therefore, the obligation of good faith may be on the nation to fulfil the treaty, it does not seem that it has invested in the president and senate a full effectuating power. And if the president alone, or conjunctly with the senate, were to draw on the treasury for the sum necessary to fulfil it, such draught would not appear to be within the direction of the Constitution. 5

On the whole, the conclusion seems to be, that in this single instance, the payment of money, the concurrence of the house of representatives is necessary to give effect to the treaty. But an engagement to pay a sum of money would not be, like the engagement to cede a part of the territory of the United States, unconstitutional and void. When it should receive the sanction of congress, and the means are provided, the treaty may be effected. It is reserved for congress alone "to dispose of the territory of the United States," if by this general expression we are to understand the alienation of any part of the territory, which we shall hereafter consider.

In another shape the same question was agitated in the year 1798. Parties at that time ran high; the house of representatives was much divided. It was conceived or alleged, that the expenses incurred by the multitude of our foreign ministers, were greater than necessary. The practice always had been, and still continues, to make an annual appropriation of a gross sum for the expenses of foreign intercourse, without further interference than to limit the compensation to ministers of different grades, but leaving it implicitly to the president, with the concurrence of the senate, to send ministers to such courts as they, who were best acquainted with the subject, should deem expedient. An effort was made to confine the higher rate of compensation to the ministers of three specified courts, and to allow all the others only half the same amount. It was warmly contended that congress, by having the exclusive power to raise and appropriate, was authorized to grant only so much money as they should think necessary. Happily for the interests and character of our country, the effort failed, and it is hoped will never be renewed.

There can be no doubt of the spirit and true intent of the Constitution, in respect to all pecuniary supplies required to support the exercise of the treaty making power. It is incumbent on congress to furnish those supplies. The Constitution has vested exclusively in the president and senate the duty of foreign intercourse. The interference of congress in any shape is not warranted further than to afford the means of carrying on that intercourse to the extent which the president and senate hold to be requisite for the national interest, and of furnishing the means of effectuating treaties constitutionally made, when, as has been seen, their intervention is absolutely necessary. It is true that there is no express direction to this effect, neither is there as to many other applications of the public revenue. But wherever there is a duty pointed out in general terms, and adequate powers given to any department of government for performing it, common sense indicates the course to be pursued, and those who are thus authorized, must be considered as bound to perform the duty. If it be refused, the general operations of government will be affected with greater or less injury according to circumstances; and the remedies can only be subsequently and perhaps tardily applied. These remedies must be a constitutional change of the public agents. But this is not peculiar to the American Constitution. Short of actual violence, it never is effected but by the mild, yet firm, exhibition of the sovereign power, if, as with us, it still remains in the people, by the substitution of others for those whose conduct has occasioned a diminution of public confidence.

The effect of a treaty on state constitutions and state laws cannot be questioned. Without considering whether it operates directly as a repeal of them, we are warranted in saying that an act done under a state law, in opposition to a treaty, cannot be set up as a legal bar to a proceeding founded on a treaty.

The inability of the Confederation to enforce the treaties made by them was severely felt. Many state laws which had been passed, during, or shortly after the war of the revolution, were inconsistent with some of the articles of the treaty of peace with Great Britain, and that power, complaining of injuries sustained in consequence thereof, postponed the fulfilment of the treaty in some points on their part. The inadequacy of the powers of congress to enforce it were then sensibly felt, and a serious declaration that a treaty, in virtue of the confederation, was part of the law of the land and obligatory on the several legislatures, was transmitted to all the states, with an urgent recommendation that the states themselves would repeal all those acts and parts of acts that were repugnant to the treaty. 6 In this respect the want of a judicial power was strongly perceived.

After the adoption of the Constitution, its retrospective effect upon the opposing laws of a state, passed even before the treaty, was speedily and fully established by the Supreme Court of the United States. 7

As a law, the president enforces a treaty by his executive power when necessary. This took place in several instances during the war between France and Great Britain, after the president, in a legitimate execution of the duties of his high office, had issued a proclamation of neutrality. Some of the belligerent captures and other acts, so far as they occasionally interfered with the obligations of our treaties with either nation, were ratified by his interventions. 8

The wisdom, impartiality, and firmness manifested on the part of our government, during the whole of that difficult period, entitled it to the highest applause, and there could be no better proof of its merits, than the dissatisfaction alternately expressed by each of the great contending powers. It is also due to the executives of the several states to declare that although there were at the time strong popular impressions in favour of one, and to the prejudice of the other nation, all considerations of that kind were suppressed in a prompt and efficient compliance with the directions emanating from the president. An accurate and comprehensive collection of the acts of our government during the whole of that war would be an useful addition to the stock of public information, and would afford precedents which no foreign cabinet could justly disdain to follow.


1. Relative to the British treaty of 1794.

2. See particularly the debates of the Virginia convention.

3. With France, the United Netherlands, and particularly the treaty of peace with Great Britain.

4. Message, Match 30, 1796, and see Marshall's Life of Washington, vol 5.

5. When lands are purchased of the Indian tribes through treaties made with them, the money is always paid under appropriations by acts of congress.

6. See the journal of congress, March 21, and April 13, 1787. The letter from congress prepared by Mr. Jay, then secretary for foreign affairs, is admirable in style and reasoning. See the Appendix.

7. Calder v. Bull, 3d Dallas, 386, and Brailsford v. Meade, ib. 1. The Supreme Court of Pennsylvania, in the case of Gordon, affirmed the same principles 1 Dall. 233.

8. See Sergeant on Constitutional Law, p. 216. 397.


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