the treaty.28 The formal transfer of the territory had already taken place.

§80. Views of Authorities.-It is conceded, and it has never been questioned, that the stipulations of a treaty which involve the payment of money can be carried into effect only by an act of Congress. That Congress is under no obligation to make the appropriation has not been seriously advanced by the House since 1868,20 although individual advocates of this view have not been wanting. Such a view was expressed by John Randolph Tucker in his able and elaborate report from the House Committee on the Judiciary, March 3, 1887.30 On the other hand, in a report from the House Committee on Foreign Affairs, submitted by George A. Bicknell, February 14, 1881, a resolution, which asserted that the treaty-making power did not extend to treaties affecting the revenues or requiring an appropriation but that in such cases the consent of the law making power was required, was declared to affirm a proposition which could not be sustained. The United States circuit court, McLean, C. J., in passing on an Indian treaty in 1852, said: "A treaty under the Federal Constitution is declared to be the supreme law of the land. This, unquestionably, applies to all treaties, where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be the supreme law of the land, where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as where the appropriation of money is required, the treaty is not perfect. It is not operative, in the sense of the Constitution, as money cannot be appropriated by the treaty-making power. This results from the limitations of our government. The action of no department of the government, can be regarded as a law, until it shall have all the sanctions required by the Constitution to make it such. As well might it be contended, that an ordinary act of Congress, without the signature of the President, was a law, as that a treaty which engages to pay a sum of money, is in itself a law. And in such a case, the representatives of the people and the States, exercise their own judgments in granting or withholding

28 Cong. Globe, 40th Cong., 2d Sess., 4392-4394, 4404; 15 Stats. at L. 198.

29 The resolution of April 20, 1871 was adopted under suspension of rules and without debate.

30 H. Rept. No. 4177, 49th Cong., 2d Sess. 31 H. Rept. No. 225, 46th Cong., 3d Sess.

the money. They act upon their own responsibility, and not upon the responsibility of the treaty-making power. It cannot bind or control the legislative action in this respect, and every foreign government may be presumed to know, that so far as the treaty stipulates to pay money, the legislative sanction is required."32 Other eminent jurists, of these, Kent and Duer, have expressed a different opinion. The Supreme Court has yet to pass on the question. Mr. Justice Brown in De Lima v. Bidwell, in referring to the treaty of peace with Spain, observed: "We express no opinion as to whether Congress is bound to appropriate the money it is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty." 1934

* * *

§81. Conclusion.-Under the Articles of Confederation the power over the purse-strings remained with the States, while that of making treaties was vested in the Congress. In March, 1787, immediately prior to the assembling of the delegates in the Federal Convention, the Congress unanimously resolved that treaties made in virtue of the Confederation were obligatory on the legislatures of the several States. The subjects embraced in the treaty stipulations referred to in these resolutions were otherwise within the legislative power of the States. The intention of those who framed the Constitution as disclosed in the records of the Convention was to vest the treaty-making power efficaciously in the President and Senate. That the treaty-making power under the Constitution extends to all the usual subjects of negotiation between nations, has often been declared by the Supreme Court. Stipulations that require, expressly or tacitly, immediately or ultimately, an expenditure, although the sums involved may not form a material item in the total expenditures of the government, enter into a large proportion of the treaties concluded.35 With reference to stipulations that have directly

32 Turner v. American Baptist Missionary Union, 5 McLean 344, 347. 33 See Wharton, Int. Law Digest, II, 23, et seq.

34 182 U. S. 1, 198.

35 For instance, the Jay treaty with reference to which the question was first raised in the House, although it did not expressly stipulate for a payment of money, required numerous appropriations to carry it into effect. Appropriations for this purpose were made in the acts approved May 6, 1796, June 30, 1797, January 15, 1798, March 19, 1798, March 2, 1799, May 7, 1800, March 3, 1801, May 1, 1802, March 2, 1803, November 16, 1803,

involved appropriations, note may be made of the acts of Congress approved as follows: May 3, 1802, appropriating $2,664,000, for carrying into effect the convention with Great Britain of January 8, 1802;36 November 10, 1803, authorizing the creation of stock to the amount of $11,250,000 in favor of the French Republic, for carrying into effect the convention of April 30, 1803;7 November 10, 1803, appropriating the sum of $3,750,000, to discharge the claims of citizens of the United States against France assumed by the convention of April 30, 1803;38 February 26, 1849, appropriating $7,260,000, September 26, 1850, appropriating $3,360,000, and February 10, 1852, appropriating $3,180,ooo, to fulfill the stipulations of Article XII of the treaty with Mexico of February 2, 1848;39 June 29, 1854, appropriating $10,000,000, to fulfill the stipulations of the treaty with Mexico of December 30, 1853; March 3, 1855, appropriating $277,102.88, in payment of awards against the United States under the convention with Great Britain of February 8, 1853;" March 4, 1858, appropriating $393,011, to carry into effect Article III, and $15,720.44, to carry into effect Article VI, of the treaty with Denmark of April 11, 1857, for the discontinuance of the Sound dues; June 1, 1864, appropriating $42,952.38, for the payment of claims of Peruvian citizens under the convention of January 12, 1863;** July 27, 1868, appropriating $7,200,000, to fulfill the stip

November 24, 1804, April 18, 1806, and February 20, 1811. (1 Stats. at L. 459, 523, 536, 545, 723; 2 Id. 66, 120, 188, 214, 248, 307, 389, 647). Appropriations to carry into effect the treaty concluded October 27, 1795, with Spain, were made by acts approved May 6, 1796, March 19, 1798, July 16, 1798, March 2, 1799, May 7, 1800, and March 3, 1801. (1 Stats. at L. 459, 545, 609, 723; 2 Id. 66, 120). Again to defray the expenses that arose in carrying into effect Articles IV, VI, and VII of the treaty of Ghent, appropriations were made in acts approved April 16, 1816, March 3, 1817, April 9, 1818, April 11, 1820, April 30, 1822, March 3, 1823, April 2, 1824, February 25, 1825, March 14, 1826, and March 2, 1827. (3 Id. 283, 358, 422, 561, 673, 762; 4 Id. 16, 91, 148, 214. See Am. St. Pap., For. Rel., V, 50. Stipulations incidentally involving an appropriation are very numerous. 36 2 Stats. at L. 192.

37 2 Id. 245.

38 2 Id. 247.

39 9 Id. 348, 473; 10 Id. 2.

40 10 Id. 301.

41 10 Id. 703.

42 11 Id. 261.

43 13 Id. 95, 141.

ulations of Article VI of the treaty with Russia of March 30, 1867;** July 11, 1870, and February 21, 1871, appropriating $650,ooo, in payment of the awards against the United States in favor of Hudson's Bay and Puget's Sound Agricultural Companies, under the convention with Great Britain of July 1, 1863;4 June 11, 1874, appropriating $1,929,819, for the payment of awards in favor of British subjects under Article XII of the treaty with Great Britain of May 8, 1871;4 June 18, 1878, for the payment of awards against the United States under the convention with Mexico of July 4, 1868;4 June 20, 1878, appropriating $5,500,000, for the payment of the award of the Halifax Commission under the treaty with Great Britain of May 8, 1871; March 3, 1885, appropriating $594,288.04, and August 4, 1886, appropriating $15,639.16, in payment of awards against the United States under the convention with France of January 15, 1880;18 June 15, 1898, appropriating $473,151.26, in payment of awards against the United States under the convention with Great Britain of February 8, 1896;49 March 2, 1899, appropriating $20,000,000, to carry out the obligations of the treaty with Spain of December 10, 1898;50 March 3, 1901, appropriating $100,000, to carry out the obligations of the treaty with Spain of November 7, 1900;51 and April 28, 1904, appropriating $10,000,000, in partial fulfillment of Article XIV of the treaty with Panama of November 18, 1903.52

If the assent of the House is essential to the validity of treaty stipulations of this character, it has an agency in the making of many of the treaties concluded. In the first case of a treaty that expressly provided for the payment of a large amount, a precedent was intentionally established by those, who in 1796 had led in asserting the rights of the House, of withholding the treaty from the House until it had been ratified. If the concurrence

44 15 Id. 198.

44a 16 Id. 386, 419.

45 18 Id. 71.

46 20 Id. 144.

47 20 Id. 240.

48 23 Id. 478; 24 Id. 256.

49 30 Id. 470.

50 30 Id. 993.

51 31 Id. 1010. 52 33 Id. 429.

of the House is necessary to the validity of the stipulation, its action should precede the final ratification; since the execution of a treaty cannot with safety be commenced on our part, or be requested of the other contracting party, if its validity is still dependent upon the action of an independent legislative body. The inter-relation of stipulations in a treaty often renders them inseverable, so that the failure to confirm one of them would operate as the rejection of the entire instrument. The House early declared, however, that it had no claim to an agency in the making of the treaty, but only to a free action in giving it effect. But if the House has no agency in the making of the treaty, its action is not essential to its validity. For the House to disclaim any agency in the making of the international compact, but at the same time to deny any obligation to give it effect, is to recognize another organ of the government as competent to bind the nation, but at the same time to except itself from the obligation. Important in this relation is the practice of more than a century. A preliminary appropriation by Congress has never been considered necessary to give validity to the proceedings under a convention by which disputed claims have been submitted to a tribunal of arbitration. During the negotiations of 1803, for the purchase of lands at the mouth of the Mississippi, and of 1806, for the purchase of Florida, provisional appropriations were made.

53

53 In a note to Sir Julian Pauncefote, August 21, 1894, Mr. Gresham, Secretary of State, proposed the payment by the United States of the sum of $425,000, in full satisfaction and direct settlement of the claims presented by the British government for the seizure of British vessels in the Bering Sea. The liability of the United States for the seizures had been determined by the award of the Paris Tribunal of August 15, 1893. This proposition was made "subject to the action of Congress on the question of appropriating the money." "The President," said Mr. Gresham, "can only undertake to submit the matter to Congress at the beginning of its session in December next, with a recommendation that the money be appropriated and made immediately available for the purpose." The British minister in a note of even date accepted the proposition. Such a recommendation was made in the annual mesage of December 3, 1894, but Congres failed to make the necessary appropriation during the ensuing session. Negotiations were reopened, and on February 8, 1896, a convention was signed providing for the submission of the claims to a mixed commission. This commission on December 17, 1897, rendered an award of $473,151.26 against the United States. By an act approved June 15, 1898, Congress made the appropriation to satisfy the award. For. Rel., 1894, p. X, Appendix I, 224, 225; For. Rel., 1898, p. 372; Moore, Int. Law Digest, I, 921.