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
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 — 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 —
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 — 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
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
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
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.
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
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
- Where there is a sufficient sum of money in the treasury, not under
any specific appropriation.
- Where there is a sufficient sum, but actually appropriated to
- 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. § 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.
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.
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
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
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.
8. See Sergeant on Constitutional
Law, p. 216. 397.
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