frequently raised, but little has been added to the arguments advanced in 1796. Jefferson had in Washington's administration advised consulting the House in the matter of an appropriation before entering into the negotiations with the Dey of Algiers, on the ground that, whenever the agency of either or both houses would be requisite to carry a treaty into effect, it would be prudent to consult them previously, if the occasion permitted.13 By the convention signed at London, January 8, 1802, the United States agreed to pay Great Britain in discharge of certain claims the sum of six hundred thousand pounds in three annual installments. On April 27, 1802, after the ratification by the President with the advice and consent of the Senate had taken place, but prior to the exchange of ratifications at London, July 15, 1802, President Jefferson communicated copies of the convention to both houses of Congress, trusting that in the free exercise of the authority which the Constitution had given them on the subject of public expenditures they would deem it for the public interest to appropriate the sum necessary for carrying the convention into effect.1 An appropriation for this purpose was duly made by an act approved May 3, 1802.15 During the negotiations with France in 1803, for the purchase of lands at the mouth of the Mississippi, Congress made a provisional appropriation of two million dollars to be applied under the direction of the President. Jefferson considered the act making the appropriation as conveying the sanction of Congress to the acquisition proposed.16 Quite unexpectedly and without instructions the commissioners at Paris signed a treaty for the purchase of the entire Louisiana territory for which the provisional appropriation was entirely inadequate. The President drafted a message with a view of submitting the treaty to both houses of Congress, but Madison, the Secretary of State, and Gallatin, the Secretary of the Treasury, who in 1796 had been leaders in the House, advised against this procedure. Madison doubted that the theory of our Constitution admitted "the influence of deliberations and anticipations of the House of Representatives on a treaty depending in the Senate." Gallatin observed that the House of Representatives neither could 13 MSS. Jefferson Papers, Series 4, Vol. II, Nos. 18, 36. 15 2 Stats. at L. 192. 16 Act approved February 26, 1803. 2 Stats. at L. 202. Annals, 8th Cong., 1st Sess., 12. nor "ought to act on the treaty until after it is a treaty"; that, although at times it might be necessary to obtain a grant of money before opening negotiations, in the case under consideration, since the negotiations had been closed, there was no necessity of consulting or communicating with the House until the instrument had been completed by the President's ratification, and that there was no apparent object, unless it was supposed that the House might act, or in other words express its opinion and give its advice, on the inchoate instrument which would, at the same time, be constitutionally before the Senate." In accordance with these suggestions the treaty was communicated October 17, to the Senate only; but the House was advised by the annual message of even date that a treaty had been signed which would, as soon as the sanction of the Senate had been received, be communicated to it for the exercise of its function as to those conditions which were within the powers vested by the Constitution in Congress.18 On October 21, the ratifications having been exchanged, the President communicated the treaty to Congress for consideration in its legislative capacity, observing at the same time that some important conditions could be carried into effect only with the aid of the Congress.19 The Federalists were now in the opposition. By those, who in 1796 had opposed the call for the papers, a resolution was now supported, requesting the President to communicate certain papers which might tend to prove the validity of the French title to the ceded territory. When charged with inconsistency, Roger Griswold, of Connecticut, replied that the papers were needed to aid Congress in proceeding intelligently with the legislation, and that he still entertained the opinion that when a treaty was once duly ratified it was the duty of every department of the government to carry it into effect. The Republicans, who opposed the motion, found a less plausible defense to a similar charge. By a vote of 59 to 57 the resolution was defeated.20 The appropriations necessary to give effect to the treaty were duly made. 17 MSS. Jefferson Papers, Series 3, Vol. VIII, No. 83; and Vol. IV, No. 128. See also Writings of Jefferson (Ford ed.), VIII, 266; Writings of Gallatin (Adams ed.), I, 156. 18 Annals, 8th Cong., 1st Sess., II. 19 Id., 17, 18. 20 Id., 385, 403, 419. 21 $78. Convention with France of 1831.-By the convention concluded July 4, 1831, the French government engaged to pay to the United States in six annual installments the sum of 25,000,000 francs in full discharge of certain claims of American citizens against France. Upon the failure of the French Chamber of Deputies to vote the appropriation for the payment of these installments, the House of Representatives, on March 2, 1835, after debate, unanimously adopted a resolution declaring that in the opinion of the House the convention should be maintained and its execution insisted on, and that preparation ought to be made to meet any emergency growing out of our relations with France.2 The convention had been concluded on the part of the French government under the authority of the King, although appropriations could be made only by a vote of the Chamber of Deputies. In the course of the debate in the House of Representatives, John Quincy Adams said: "The indemnity was stipulated by that department of the French government, which was authorized to pledge the faith of the nation to its payment. The question is no longer whether indemnity is due, or to what amount; but the question is, whether we will suffer a nation to violate its engagements to us, entered into under a solemn treaty." "22 The argument of Samuel McDowell Moore, of Virginia, is reported as follows: "It had been contended here as well as in the French Chamber of Deputies that the treaty of the 4th of July, 1831, was not to be regarded as complete, until sanctioned by the French Chambers, inasmuch as the Chambers have an undoubted right to make or withhold the appropriations necessary to carry the treaty into effect. He admitted the right of the Chambers to grant or refuse the appropriations in its fullest extent; but denied that the treaty was, for that reason, to be regarded as incomplete, until the appropriations were made. The Chambers might refuse the appropriations, but they must do so on the responsibility of the nation. *** If the treaty was not complete until the appropriations were made, would its validity be considered as determined by the passage of an act by the Chambers appropriating a sufficient sum pay the amount due to us, at the time when the several installments should become due? Gentlemen would say, yes. But suppose before the second installment becomes due, a new election to 21 Debates, 23d Cong., 2d Sess., 1531-1634. 22 Id., 1533. takes place; the Chambers convene, and repeal the law making the appropriations (as they have clearly a right to do), what then becomes of the treaty? Is the treaty, which was valid and binding on all parties, to be thus annulled and destroyed by one party, after it is partly executed? Suppose a treaty to stipulate that a certain sum shall be paid in ten annual installments, and the legislative branch of the government, which is to pay, passes a law appropriating the money and at the end of nine years, the law is repealed; is the treaty, which has been in full force for nine years, to cease to be binding the moment the law is repealed? Or suppose what may possibly be regarded as an extreme case, that the people should refuse to pay the taxes necessary to enable the government to meet its engagements with another power, and should dismiss all their agents in the legislative and executive branch of their government, and continue the government itself, as they have a right to do, will they be thereby released from obligations binding on them as a nation? Surely not; and yet such is the legitimate conclusion to which this principle leads us. When the treaty was ratified by the executive branch of the French government, it was ratified by, and binding on, the French nation; and they could no longer fail or refuse to comply with its engagements without a breach of national faith."23 879. Treaty with Russia of 1867.-The treaty with Russia for the acquisition of Alaska, after being duly ratified, was proclaimed by President Johnson, June 20, 1867. On July 6, 1867, the President communicated a copy of it to Congress, and invited attention to the subject of an appropriation for the payment of the $7,200,ooo stipulated for in the treaty, as also to the subject of proper legislation for the occupation and government of the new territory.24 In reporting a bill making the appropriation, the majority of the House Committee on Foreign Affairs took the view, as expressed in the report submitted by the chairman, Nathaniel P. Banks, that "it is now conceded that the House is entitled to consider the merits of a treaty; that it may determine whether its object is within the scope of the treaty power; but, if it be not inconsistent with the spirit and purpose of the government, Congress 23 Id., 1590. Diplomatic relations between the two countries were broken off, but were restored through the mediation of the British government. The several installments due under the convention were subsequently paid in full. Moore, Int. Arb., V, 4463-4468. 24 Richardson, Messages and Papers of the Presidents, VI, 524. 1126 is bound to give it effect, by necessary legislation, as a contract between the government and a foreign nation."25 In considering the bill as reported, the House, on July 14, 1868, inserted, by a vote of 98 to 49 (53 not voting), an amendment in part, as follows: "Whereas the subjects thus embraced in the stipulations [for the payment to Russia of $7,200,000, and for the admission of certain of the inhabitants of the ceded territory to the enjoyment of the privileges and immunities of citizens of the United States] of said treaty are among the subjects which by the Constitution of the United States are submitted to the power of Congress, and over which Congress has jurisdiction; and it being for such reason necessary that the consent of Congress should be given to said stipulation before the same can have full force and effect; having taken into consideration the said treaty, and approving of the stipulations therein, to the end that the same may be carried into effect. * * * Be it enacted, That the assent of Congress is hereby given to the stipulations of said treaty.' Another amendment was proposed in which it was declared that thereafter no territory should be purchased until provision for its payment had been made by law, and that the powers vested by the Constitution in the President and Senate to enter into treaties with foreign governments did not include the power to complete the purchase of foreign territory before the necessary appropriation had been made by an act of Congress; but this amendment was defeated by a vote of 80 to 78 (42 not voting). On the refusal of the Senate to agree to the bill as passed by the House, a committee of conference was appointed. As agreed to in conference, and finally passed by the two houses," the bill, after reciting that the treaty had been entered into by the President and its ratification advised and consented to by the Senate, and that the stipulations for the payment of the money and the admission of certain of the inhabitants could not be "carried into full force and effect except by legislation to which the consent" of both houses of Congress was necessary, simply appropriated the sum of $7,200,000 "to fulfill stipulations" in the sixth article of 25 H. Rept. No. 37, 40th Cong., 2d Sess., 5. A minority report was subsubmitted by C. C. Washburn. 26 H. Journal, 40th Cong., 2d Sess., 1064. See for the debate on the resolution, Cong. Globe, 3621, 3658, 3661, 3804, 3809, 3883, 4052, 4392; Appendix, 305, 377, 382, 385, 400, 406, 421, 429, 452, 466, 473, 485. 27 The vote in the House was 91 to 48 (77 not voting). |