presidency of the Vice-President, a southern Democrat, after the death of President Harrison, a Whig.50

Again in 1868, the House of Representatives raised the question as to its duties and rights respecting an appropriation for the payment to Russia of the purchase price of Alaska under the treaty of 1867. At first the House, in the Bill passed by that body, recited the alleged necessity of assent by them, and then assumed to give such assent. The Senate rejected the Bill and threw it into conference. One of the House conferees in explanation of his report said:

"The Committee on the part of the Senate stated freely and frankly that they could in no event consent to the preamble and that the Senate would not consent, and that they held that the House was bound to carry out the stipulations of all treaties, and that when a treaty provided for the payment of money for any purpose, that such stipulation created a debt, and that the House has no discretion in relation to the payment of the same, a doctrine of course utterly at variance with the law and with the principles asserted in the preamble as it passed the House; and it is manifestly impossible to reconcile opinions so utterly at variance upon so important a question. A majority of the Committee on the part of the House could in no event consent to any such doctrine so utterly subversive of the rights and constitutional prerogatives of the House."51

The Bill was finally passed containing the following recital:

“Whereas said stipulations cannot be carried into full force and effect except by legislation to which the consent of both Houses of Congress is necessary.

1952

In 1887, a proposed extension of the Hawaiian treaty had been negotiated, and ratified by the Senate. The original treaty of 1875 had provided that it should not become effective "until a law to carry it into operation shall have been passed by the Congress of the United States of America." The question of the prerogatives of the House in the matter was raised in that body and referred to the judiciary committee. In its report that committee said:

66

The President, by and with the advice and consent of the Senate, cannot negotiate a treaty which shall be binding on the United States, whereby

50 See Senator Cullom's analysis: Congressional Record, Vol. 35, Part II., p. 1081.

51

52

Congressional Globe, 40th Cong., 2nd Sess., Part V., p. 4393.

Congressional Globe, 40th Cong., 2nd Sess., Part V., p. 4394.

duties on imports are to be regulated, either by imposing or remitting, increasing or decreasing them, without the sanction of an act of Congress; and that the extension of the term for the operation of the original treaty or convention with the government of the Hawaiian Islands, proposed by the supplementary convention of December 6, 1884, will not be binding on the United States without like sanction, which was provided for in the original treaty and convention, and was given by act of Congress.'

1953

The report does not seem to have been adopted by the House, and no Act of Congress extending the provisions of the treaty of 1875 was passed.54

In 1897, the tariff act known as the Dingley Act was passed. By the third section thereof the act purported to "authorize" the president to negotiate commercial reciprocity agreements on certain articles therein enumerated, and provided that he might suspend after the making of such agreement the operation of the tariff act. The fourth section purported to prescribe the method and effect of such agreements. It provided that whenever the president "by and with the advice and consent of the Senate . . ., shall enter into commercial treaty or treaties" concerning duties "and when any such treaty shall have been duly ratified by the Senate and approved by Congress, and proper proclamation made accordingly, then and thereafter the duties" shall be accordingly collected.

In 1902, Senator Cullom reviewed in the Senate the history of the exercise of the treaty-making power His speech is marked by its accurate fulness and persuasive logic, and thus concludes:

"The authority of the House [of Representatives] in reference to treaties has been argued and discussed for more than a century, and has never been settled in Congress and perhaps never will be. The House, each time the question was considered, insisted upon its powers, but nevertheless has never declined to make an appropriation to carry out the stipulation of a treaty, and I contend that it was bound to do this, at least as much as Congress can be bound to do anything when the faith of the nation had been pledged. And this appears to me to be the only case in which any action by the House is necessary, unless the treaty itself stipulates, expressly or by implication, for such Congressional action."'55

53

'Congressional Record, Vol. 18, Part III., p. 2721. Language given Vol. 35, Part II., p. 1182.

54U. S. Stat. at Large, Vol. 30, pp. 203-4.

The House responded with the following resolution:

66

Whereas, it is seriously claimed that under the treaty-making power of the government, and without any action whatever on the part of the House of Representatives, or by Congress, reciprocal trade agreements may be negotiated with foreign governments that will of their own force operate to supplant, change, increase, or entirely abrogate duties on imports collected under laws enacted by Congress and approved by the executive for the purpose of raising revenue to maintain the government: Now, therefore, be it

"Resolved by the House of Representatives that the Committee on Ways and Means be directed to fully investigate the question of whether or not the President, by and with the advice and consent of the Senate, and independent of any action on the part of the House of Representatives, can negotiate treaties with foreign governments for the purpose of raising revenue are modified or repealed, and report the result of such investigation to the House."

1956

This resolution was allowed to die in Committee.

In 1902, a treaty was signed with Cuba under which a preferential duty on imports into the United States was granted. The treaty provided that it should "not take effect until the same shall have been approved by Congress."57 An act was then passed by Congress entitled "An Act to carry into effect a Convention between the United States and the Republic of Cuba," which concluded with the following proviso:

"That nothing herein contained shall be held or construed as an admission on the part of the House of Representatives, that customs duties can be changed otherwise, than by an act of Congress, originating in said House."

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In 1911, a Canadian reciprocity tariff was negotiated, and it is significant that on the part of the United States, no treaty was signed, but that an act of Congress was passed of which the third section is as follows:

[Be it enacted] “That for the purpose of further readjusting the duties on importations into the United States of article or articles the growth, product, or manufacture of the Dominion of Canada, and of the exportation into the Dominion of Canada of article or articles the growth, product, or manufacture of the United States, the President of the United States is authorized and requested to negotiate trade agreements with the Dominion of Canada wherein mutual concessions are made looking toward freer trade

56 Congressional Record, Vol. 35, Part II., p. 1178.

Compilation of Treaties in force, 1904, p. 225.

57

relations and the further reciprocal expansion of trade and commerce: Provided, however, that said trade agreements before becoming operative shall be submitted to the Congress of the United States for ratification or rejection."

The Presidents of the United States have uniformly supported the view of Washington. In addition to maintaining this attitude in the instances above set forth, we may cite the following examples. In 1835, President Jackson vetoed a bill for the compromise of claims allowed by the commissioners under a treaty. He said:

9959

"The Act is, in my judgment, inconsistent with the division of powers in the Constitution of the United States, as it is obviously founded on the assumption that an act of Congress can give power to the Executive or to the head of one of the Departments to negotiate with a foreign government." In 1877, President Grant vetoed congressional resolutions directing the Secretary of State to convey to certain republics the good wishes of Congress on the ground that in the executive alone was vested the right to conduct all correspondence with other sovereignties."0

It would seem to be idle to enter into a long discussion of the constitutional problem presented if the House of Representatives should refuse to pass an appropriation necessary to carry a treaty into effect. It is a problem political and national in its character and not one for judicial arbitrament or determination. The question presented, however, is simple enough and readily yields to analysis. A treaty agreeing to pay money is none the less a treaty, whether or no the money be paid. It constitutes an executory contract and raises an obligation on the part of the United States to perform its contract. Congress could repudiate this obligation, just as a corporation by its board of directors could refuse to honor its duly executed obligation. But the power to make a valid treaty would be untouched by such repudiation: the United States would remain bound in international law. Congress, however, has never yet in its history refused to recognize the obligation resting upon it, and it is unlikely it ever will. If it should, the offended nation would have whatever redress would be open to it under the principles of international law. The courts of the United States could not determine such a controversy of purely national and political import.

59 Richardson's Messages of the Presidents, Vol. III., p. 146.

So far as the question is raised by the quotations above made as to the power of the President and Senate to enter into commercial treaties and so affect the tariff laws, it will be seen that this question. is one which may involve individual rights and so become the subject of judicial determination. Its further consideration will therefore be postponed till the inductive study of the decisions of the Supreme Court of the United States be had."1

The acquisition or cession of territory, however, by the United States, involves problems of wholly national and political import. The power of the United States to acquire territory by the exercise of the treaty-making power is firmly established and has been exercised in a series of treaties. In 1803 Louisiana was ceded by France; in 1819 Florida by Spain; in 1848 California and New Mexico by Mexico; in 1867 Alaska by Russia; and in 1899 Porto Rico and the Philippine Islands by Spain.

The exercise of the treaty-making power relative to the acquisition of Florida came before the Supreme Court in American Insurance Company vs. Canter,62 and was judicially sanctioned.

"The Constitution," said Mr. Chief Justice Marshall, in delivering the opinion of the Court, "confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty.'

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A long series of cases recognizes without question and discusses this power to acquire territory by treaty. The extent and operation of this power receives the most thorough criticism in the Insular Cases.64 In those cases there was not directly in issue the extent of the treaty-making power with reference to the acquisition of

64

1 Peters, p. 542.

These are: De Lima vs. Bidwell, 182 U. S., I (1901), Downes vs. Bidwell, 182 U. S., 244 (1901). Directly connected with these cases, but establishing no additional principles are: Dooley vs. United States, 182 U. S., 222 (1901), Dooley vs. United States, 183 U. S., 151 (1901), Fourteen Diamond Rings, 183 U. S., 176 (1901). More recently the same principles have been reënunciated in Lincoln vs. United States, 197 U. S., 419 (1905), 202 U. S., 484 (1906), Pearcy vs. Stranahan, 205 U. S., 257 (1907), United States vs. Heinszen, 206 U. S., 370 (1907).