reserved to the States, as subjects of legislation. Two forces then enter the same field. Shall either dominate wholly? Shall each prevail in part? Is compromise possible?

It will therefore be the main purpose of this essay to examine inductively the data available for the solution of these two problems: the power of President and Senate, first, as opposed to Congress; and, second, as opposed to the several States. Finally, when the true relationships shall have been realized, an understanding of the methods of enforcing rights recognized or granted by treaty should naturally follow. But before an examination of the fundamental problems relating to the exercise of the treaty-making power be attempted, one must pause for a preliminary observation, even though it be a priori in its nature. The subject of treaties is rarely touched upon by essayists or text-book writers without a statement being made to the effect that a treaty may not be made to change the nature of our government, alter its departmental structure, or operate to deprive one department of a delegated power. A treaty could not, it is repeatedly said, provide that hereafter a particular State should have three senators. The reason for this position set forth in one form or another is always substantially to the effect that a power granted under an instrument must not be so construed as to change the instrument, or, in a more exaggerated instance, to destroy it. That argument—although not without the appearance and perhaps some reality of validity-misses the mark.

On altogether simple lines the Constitution of the United States was evolved. Certain fundamental principles were adopted and formulated; applications of those principles, details of organization were left to time and the nation that was to come. There was established the executive department, the judicial, the legislative. To this last were committed certain subjects of legislation-all others being reserved to the States. The power of this new government to treat with other sovereignties remained. It was confided to the President and Senate acting by a two-thirds majority of those present. Then, by express provision, the power to enter into any treaty was prohibited to the States. Why was not the treaty-making power expressly inhibited from nullifying the other provisions of the

Constitution? The answer is because neither its framers nor its numerous contemporary critics ever imagined the possibility of such an event. It is urged that they were right. A treaty-making power is a power to make treaties. And provisions looking to the accomplishment of an internal change in the government of one sovereign party to a treaty, are not and could not be subjects, properly speaking, of a treaty. To the minds which framed the Constitution and within the intendment of that instrument, treaties must only contain provisions which in the usual and normal intercourse of nations should properly become the subjects of treaties. It would seem to be unnecessary, if not misleading, to seek any further reason why a treaty may not make the President the presiding officer of the Supreme Court, or deprive the State of Nevada of its Senators. A colorable exercise of a power-and the word assumes too much is not a valid exercise of the power. There is no judicial decision to such effect; but the a priori assertion may be ventured, that a treaty must be a treaty within the meaning of that word in international usage..

I.

In

The first problem respecting the treaty-making power of the United States having a wholly political character arose early in its history. In 1794, the British treaty was signed. France was at war with Great Britain, and the general sentimental affection of the American people for France was conceived by many to be outraged. The treaty was, inter alia, a treaty of commerce, and it was considered to operate unequally. A storm of protest burst forth which reëchoed over the country in resolutions denouncing the treaty. a meeting held at Richmond it was declared that the treaty was "insulting to the dignity, injurious to the interests, dangerous to the security, and repugnant to the Constitution of the United States."42 The resolutions adopted by the legislature of Virginia were couched in more parliamentary language, but were to the same effect. Nevertheless, on February 29th, 1796, Washington proclaimed the treaty as being the supreme law of the land. And on March 1st, he 42112 U. S., p. 753.

Proc. Amer. PHIL. SOC., II. 206 p, printed SEPT. 10, 1912.

transmitted a copy thereof to Congress. The House was dominated by the party opposed to Washington and the Federalists. John Marshall was then a member of the House, and in his "Life of Washington" has summarized the positions taken.

"By the friends of the administration, it was maintained," he writes, "that a treaty was a contract between two nations, which, under the constitution, the President, by and with the advice and consent of the Senate, had a right to make, and that it was made when, by and with such advice and consent, it had received his final act. Its obligations then became complete on the United States, and to refuse to comply with its stipulations, was to break the treaty, and to violate the faith of the nation.

"By the opposition it was contended, that the power to make treaties, if applicable to every object, conflicted with powers which were vested exclusively in Congress. That either the treaty-making power must be limited in its operation so as not to touch objects committed by the constitution to Congress, or the assent and co-operation of the House of Representatives must be required to give validity to any compact so far as it might comprehend those objects. A treaty, therefore, which required an appropriation of money, or any act of Congress to carry it into effect, had not acquired its obligatory force until the House of Representatives had exercised its powers in the case. They were at full liberty to make or to withhold such appropriation, or other law, without incurring the imputation of violating any existing obligation, or of breaking the faith of the nation."

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A resolution passed requesting the President to lay before the House the papers relating to the treaty.

"It was," says Marshall, "a subject for serious reflection, that in a debate unusually elaborate, the House of Representatives had claimed a right of interference in the formation of treaties, which, in the judgment of the President, the Constitution had denied them."

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Washington's reply is of the greatest importance and is appended in full in the notes.45

"Having been," he said, “a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion upon this subject; and from the first establishment of the Government to this moment, my conduct has exemplified that opinion. 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 43 Marshall's "Life of Washington," 1st ed., Vol. V., Chap. VIII., pp. 651-2.

**Id., p. 654.

45 See note 4.

senators present concur; and that every treaty so made and promulgated, thenceforward becomes the law of the land."

Washington further pointed out that this had been the construction which had obtained in the State conventions; and that the proposition 'that no treaty should be binding on the United States which was not ratified by a law" had been explicitly rejected in the Federal Convention.

"A just regard to the Constitution and to the duty of my office," he concluded, "forbid a compliance with your request."

One month after the receipt of this message, the House passed an appropriation for carrying the treaty into effect.46 Previously, however, they had answered the President in resolutions disclaiming the power to interfere in making treaties, but asserting their right to determine on the expediency of carrying into effect whatever treaty stipulations be made on subjects committed to Congress. The language of the resolution is appended in note 5.

The position taken by the House in 1796, accurately summarized by Marshall, has been persistently maintained. The treaty of 1815 with Great Britain was a commercial treaty providing also that no tariff discrimination should obtain. The existing laws embodied such discrimination and the Senate adopted a declaratory act in which they provided that such laws should be "taken to be of no force and effect." The declaratory nature of this act was distasteful to the House, and that body passed a new bill reënacting the treaty provisions. In the course of the debate, Mr. King of Massachusetts said:

"Whenever a treaty or convention does, by any of its provisions, encroach upon any of the enumerated powers vested in the Constitution in the Congress of the United States, or any of the laws by them enacted in execution of those powers, such treaty or convention, after being ratified, must be laid before Congress, and such provisions cannot be carried into effect without an act of Congress."

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And he added as an instance a treaty which would affect "duties on imports, enlarging or diminishing them." A conference committee

46 Annals of Congress, 4th Congress, First Session, p. 1291.

47

Annals of Congress, 14th Congress, Ist Sess., p. 538.

was appointed. In the report to the House of its conferees they say:

"[The Committee] are persuaded that the House of Representatives does not assert the pretension that no treaty can be made without their assent; nor do they contend that in all cases legislative aid is indispensably necessary, either to give validity to a treaty, or to carry it into execution. On the contrary, they are believed to admit, that to some, nay many treaties, no legislative sanction is required, no legislative aid is necessary.

"On the other hand the committee are not less satisfied that it is by no means the intention of the Senate to assert the treaty-making power to be in all cases independent of the legislative authority. So far from it, that they are believed to acknowledge the necessity of legislative enactment to carry into execution all treaties which contain stipulations requiring appropriations, or which might bind the nation to lay taxes, raise armies to support navies, to grant subsidies, to create States, or to cede territory; if indeed this power exists in the government at all. In some or all of these cases, and probably in many others, it is conceived to be admitted, that the legislative body must act, in order to give effect and operation to a treaty; and if in any case it be necessary, it may confidently be asserted that there is no difference in principle between the Houses; the difference is only in the application of the principle. For if, as has been stated, the House of Representatives contend that their aid is only in some cases necessary, and if the Senate admit that in some cases it is necessary, the inference is irresistible, that the only question in each case that presents itself is, whether it be one of the cases in which legislative provision is requisite for preserving the national faith or not." And they added relative to the point in dispute:

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"The Senate believe legislation unnecessary. The House regard it as indispensable."

The Senate conferees reported:

"Even a declaratory law. . . is a matter of mere expediency, adding nothing to the effect of the treaty, and serving only to remove doubts hereafter that existed."49

Finally an amended declaratory act passed both houses of Congress.

In 1844, a proposed reciprocity treaty with Prussia was rejected by the Senate, after a report by a committee antagonistic to PresiIdent Tyler, in which the constitutionality of the treaty was denied. This action of the Senate finds its explanation, it is believed, in the extraordinary political conditions created by the accession to the