he had been a member of the Convention, which had framed it, and an observer of the proceedings of the State conventions, which had adopted it. He recalled that a proposition, that no treaty should be binding which was not ratified by a law, had been proposed and had received explicit rejection in the Convention. He had ever entertained but one opinion on this subject, which from the establishment of the government until that time had been acquiesced in by the House, namely, that the power of making treaties was exclusively vested in the President and Senate, and that every treaty so made and promulgated thenceforward became the law of the land. In reply to this message, the House passed a resolution on April 7, by a vote of 57 to 35, in which it disclaimed any agency in the making of treaties, but asserted that in case a treaty contained stipulations on any of the subjects entrusted by the Constitution to Congress, it must depend for its execution as to such stipulations on a law to be passed by Congress; and that it was "the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect." Much was said and written on the question at the time in and out of Congress. As expositions of the views entertained by those who defended 'the action of the House, a letter from Jefferson to Monroe, dated March 21, 1796, and the speech of Albert Gallatin in the House of Representatives, March 9, 1796, may be taken. In his letter to Monroe, Jefferson observed that

6 It appears from the manuscript Washington Papers that the reply was made after careful investigation. Extracts from the proceedings of the Federal Convention, relating to the making of treaties, are found. Mr. Pickering, Secretary of State, made an investigation of the previous practice of the administration and was convinced that the instances of the treaties with certain Indian tribes and the Barbary States, in which appropriations had been made before their conclusion, were not applicable, since the money had been a necessary antecedent to the negotiation of these treaties. A draft of the message in Pickering's handwriting, which appears, however, to have been prepared after consultation with the President, contains the concise expressions of the final message. MSS. Letters to Washington, CXVII, 312, 314. The same views as entertained in 1796 were expressed by Mr. Pickering in the House of Representatives in 1816 in the debate on the bill to carry into effect the treaty of July 3, 1815, with Great Britain. Annals, 14th Cong., 1st Sess., 612.

7 Annals, 4th Cong., 1st Sess., 771, 782. A resolution in similar language was adopted without debate by the House, April 20, 1871. Cong. Globe, 42d Cong., 1st Sess., 835.

the President and Senate had the general power of making treaties, but that whenever treaties included matters confided by the Constitution to the three branches of the legislature, a legislative act was necessary to "confirm" those articles, and the House of Representatives as one branch was perfectly free to refuse its assent, when in its judgment the good of the people would not be served by letting the treaty go into effect. Gallatin, in his speech in the House of Representatives, argued that if any specific power was given by the Constitution to a branch of the government it limited a general power, and so far as the powers clashed the branch holding the specific power must concur in order to give validity to the act; that the power to make treaties was a general power, while the power to make appropriations was specifically given to Congress; that if the power of making treaties as vested in the President and Senate were unlimited, the Executive with the Senate might, under color of a treaty, entirely eliminate the House of Representatives from legislation by substituting a foreign nation or some petty Indian tribe. If treaties, whatever their provisions might be, were laws, why not, he enquired, have inserted another article in the treaty itself appropriating the necessary sums, and thus have dispensed altogether with any action on it by the House? Unless, he contended, it were conceded either that the power of the House over the purse-strings was a check, or that existing laws could not be repealed by a treaty, or that the special powers granted to Congress limited the general power to make treaties granted to the President and Senate, there were no bounds to it."

As illustrative of the views of the administration, the opinions of Oliver Walcott, Secretary of the Treasury, and Alexander Hamilton may be taken. The written opinion of the former bears date of March 26. After a careful historical research, he reached the conclusion that the people of this country at the time of the adoption of the Constitution entertained the opinion, as expressed in the Federal letter of April, 1787, that the power of making treaties as vested in the Congress under the Articles of Confederation was capable of controlling the legislative powers, which then resided in the several State legislatures. Embar

8 Writings (Ford ed.), VII, 67. See also Id., 38, 40, 41. See for views of Marshall at this time, Id., VII, 37.

9 Annals, 4th Cong., 1st Sess., 464, 467.

rassment having been experienced in consequence of the nonexecution of the treaty of peace, the Convention which framed the Constitution must have intended such an organization and deposit of the power of making treaties as would render its exercise at once safe and efficacious. The great object of that part of the Constitution which defined the legislative power was to fix the limits between the central and State governments, rather than to distribute power between the departments of the central government. In the specification of the executive powers, found in Article II of the Constitution, that of making treaties, subject to the control or negative voice of the Senate, was expressly mentioned. Treaties were compacts between sovereign states, originating in free consent and deriving their obligations from the plighted faith. The Constitution expressly committed to the President and Senate the power to pledge the faith of the nation; and "the obligations arising from public faith when pledged by the representative organ of our nation in all foreign concerns, agreeably to the mode prescribed by the Constitution, are justly and properly declared to be laws-the legislative power is bound not to contravene them, on the contrary, it is bound to regard and give them effect." If to omit the exercise of the power committed to any branch of the government would be to annul a treaty, such an omission would be a violation of the Constitution by that branch which refused to act. With reference to the question whether a treaty could repeal an act of Congress, he observed that since the power to make peace could not be exercised by treaty without repealing the act declaring war, the power to make treaties of this most common form implied of necessity the power to repeal a pre-existing law. To the question, what, if treaties might repeal existing laws, were the limits which restrained the President and Senate from absorbing all the powers of the legislature, he replied that the power to make treaties must necessarily be indefinite. "It must be allowed to be competent to the adjustment of every dispute with a foreign nation under any circumstances." That the power was indefinite was no proof that it was not fully vested solely in the President and Senate. That it was capable of abuse was no argument that the House possessed a controlling authority. Many of the powers vested in Congress were likewise indefinite with no restraints except in the virtue and discretion of Congress. That Congress might raise and equip

armies and navies for purposes of ambition, or tax unwisely, was not proof that the powers were not vested in it. Statutes and treaties of the United States were alike supreme laws of the land, and the last act, of whichever description, would control. He added, however, as a qualification: "It is not intended to assert that treaties can extend to every object of legislation, there is no doubt that the forms of the Constitution and the powers of the different departments and organs of government are superior to the influence of a treaty; the limitation of the power of making treaties may in some respects be difficult, as the exigencies of society cannot be foreseen, but in respect to matters of mere internal concern, there appears to be nothing upon which the power of making treaties can operate, in derogation or extension of the power of legislation."10

The argument of Hamilton, as expressed in various letters written at the time and in his draft of a message, was that the Constitution empowered the President and Senate to make treaties; that to make a treaty as between nations meant to conclude a contract obligatory on their good faith; that a contract could not be obligatory to the validity of which the assent of another body was constitutionally necessary; that the Constitution declared a treaty made under the authority of the United States to be a supreme law, but that that could not be a supreme law to the validity of which the assent of another body in the state was constitutionally necessary; that a right of discretionary assent to a contract, under whatever color it might be claimed, was a right to participate in the making of it; and hence that a discretionary right in the House to assent to a treaty, or what was equivalent, to execute it, would negative two important provisions of the Constitution, namely, that the President and Senate have the power to make treaties, and that the treaties so made were laws. It was, he contended, one thing, that a treaty pledging the faith of the nation should by force of moral duty oblige the legislative will to carry it into effect, quite another that it should be itself a law. The latter was the case under the Constitution. There were no express limits to the treaty-making power, and it was a reasonable presumption that it was intended to extend to all treaties usual among nations and so to be commensurate with the variety of exigencies which might arise from intercourse with

10 MSS. Letters to Washington, CXVII, 293.

other nations. Treaties of peace, alliance and commerce were usual among nations. Treaties of peace frequently included indemnification, pecuniary or otherwise. Treaties of alliance necessarily stipulated for the union of forces, and the furnishing of pecuniary or other aid. Treaties of commerce regulated the external commerce of the nation. Unless the treaty power could embrace objects upon which the legislative power might also act, it would often be inadequate for mere treaties of peace, and always so for treaties of alliance and of commerce. The action of the House was not always deliberative in making appropriations— as, for instance, in making an appropriation to defray the expense of an office created by the Constitution or a prior act of Congress. It was discretionary only when the Constitution and laws placed it under no obligation or prohibition. There was, however, this difference between the obligation of the Constitution and the obligation of laws, the former enjoined obedience always, the latter, until annulled by the proper authority. While it was true that the Constitution provided no method of compelling the legislative body to act, it was, nevertheless, under a constitutional, legal, and moral obligation to act where action was prescribed. If the legislative power was competent to repeal this law by a subsequent law, it must be by the whole legislative power, not by the mere refusal of one branch to give effect to it. A legal discretion to refuse the execution of a pre-existing law was virtually a power to repeal it. "Hence," he said, "it follows that the House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution because it is a law-until at least it ceases to be a law by a regular act of revocation of the competent authority."11

On April 30, by the close vote of 51 to 48 the House resolved that provision ought to be made for carrying the treaty into effect; and on May 6, three acts were approved making appropriations for carrying into effect the treaties with Great Britain, Spain and Algiers, respectively.12

877. Treaties of 1802 and 1803.-The question has since been

II MSS. Letters to Washington, CXVII, 323; Works of Hamilton, (Lodge ed.), VII, 118; Works of Hamilton, (J. C. Hamilton ed.), VI, 92, 94; Id., VII, 556-570.

12 Annals; 4th Cong., 1st Sess., 1291; 1 Stats. at L. 459, 460.