pressly stipulated that, for greater security, it should be published, verified and registered in the court of the parlement of Paris, and in all other parlements of France, as also in the chamber of accounts of Paris. Similar provisions are found in the treaties concluded at Aix la Chapelle, May 2, 1668, with Spain; at Nimeguen, September 17, 1678, with Spain; and at Ryswick, September 20, 1697, with the United Provinces and with Spain.”

§127. The Constituent Assembly.-The principal discussion as to treaty making in the Constituent Assembly, which framed the constitution of 1791, took place May 16-23, 1790 on the question whether the nation ought to delegate to the King the exercise of the power of peace and war.10 The lamentable treaties of Louis XV, by which France had been stripped of her colonial possessions, were attributed by some to the unrestrained power of the King in treaty making."1 Numerous propositions, differing much in their nature, were introduced. On May 16 a project was submitted which provided that the King should not enter into negotiations for peace or alliance without the consent of the assembly.12 A project submitted the following day gave to the King the power of proposing conditions of peace and projects of treaties, but always subject to the modification and approval of the legislative body.18 It was contended in the course of debate that the King should be given the power to conclude treaties of peace-by le comte Sérent, without restriction;14 by le comte Galissonnière, on the authority of a responsible minister;15 by various others, with the qualification that treaties providing for furnishing subsidies or for the cession of territory or property of the nation should require legislative sanction. With the treaty clause as with many other sections of the constitution of 1791, it was Mirabeau's project that was finally adopted as the basis of the constitutional

6 Art. CXXIV.

7 Art. IX.

8 Art. XXXI.

9 Arts. XXII and XLV of the treaties with the United Provinces, and Art. XXXVII of the treaty with Spain. Collection of Treatys, (2 ed.), I, 97, 160, 232, 316, 331, 345.

10 Le Moniteur, 554, et seq.

II Id., 557, col. 2.

12 Id., 555, col. 2.

13 Id., 558, col. I. 14 Id., 554, col. 2. 15 Id., 570, col. I.

provision. According to his project, as introduced May 20, and later adopted by the Assembly, it appertained to the King to arrange and sign with foreign powers all conventions which he should deem necessary for the welfare of the state, but treaties of peace, of alliance, and of commerce were to be ratified by the legislative body.16 On May 24, subsequently to the adoption of this project, the wording was, at the suggestion of Mirabeau and with the unanimous consent of the Assembly, so changed as to require legislative approval for all treaties."7

§128. Constitutional Provisions, 1793-1871.-By the constitution of 1793, treaties were to be negotiated by the Executive Council, and ratified by the national legislature. The Executive Council was composed of twenty-four members chosen by the national legislature from the candidates nominated by department electoral assemblies.18 The constitution of 1795 committed to the Directory the negotiating and signing of treaties, but all treaties before they could become valid were to be examined and ratified by the legislative body. Secret articles might be arranged, and might receive a provisional execution independently of the legislature, but such articles could not be destructive of the open stipulations, or provide for an alienation of territory.19 In the constitution of 1799, it was provided that the Government, i. e., the three Consuls, should conduct negotiations, make the preliminary stipulations, sign, have signed, and conclude all treaties. of peace, alliance, neutrality and commerce, and other treaties. Treaties of peace, alliance and commerce should be proposed, discussed, decreed, and promulgated as laws. The Government could, however, demand secrecy.20 The natural inference from the specific enumeration in the two articles, the one immediately following the other, is that treaties other than those of peace, alliance and commerce, were to be consummated on executive authority. The constitution in the form of a sénatus-consulte of August 4, 1802, gave to the First Consul the power to ratify treaties of peace and alliance, after having taken the advice of the

16 Id., 572, col. 3.

17 Id., 589, col. 2. Title III, ch. 4, sec. 3, Art. III, and title III, ch. 3, sec. I, Arts. II and III of the Constitution. See for text, Dalloz's Répertoire de Jurisprudence, XVIII, 291, 293.

18 Arts. LXX and LV. Id., 299.

19 Arts. CCCXXX, CCCXXXI, CCCXXXIII. Id., 310.

- Arts. XLIX and L. Id., 313.

privy council. Before promulgation he was to inform the Senate.21 No reference was made to treaties other than those of peace and alliance. From the organic law of May 18, 1804, accompanying the declaration of the Empire,22 until the constitution of 1848, the power to make treaties was vested solely in the Executive, or King.23 The charters of 1814 and 1830 both provided, however, for a responsible ministry.

During this period the question as to the duty of the legislature to give effect to treaties that stipulated for changes in the revenue laws or for the payment of money was the subject of discussion. The charters specifically provided that no impost should be levied or collected unless consented to by the two chambers and sanctioned by the King," and that all propositions for imposts were first to be considered in the Chamber of Deputies.25 On February 8, 1826, an ordinance was issued to give full effect to a convention with Great Britain, for the abolition of discriminating duties, concluded January 26, 1826.26 In April, following, while the general tariff law was undergoing revision in the Chamber of Deputies, an amendment was introduced giving to the ordinance of February 8 the sanction of a law.27 It seemed to have been conceded that the treaty was advantageous to France; indeed, M. Casimir Périer, who proposed the amendment, expressly stated that he entirely approved of its stipulations. The discussion was confined to the constitutional question, whether the King could by means of a treaty modify the revenue laws. The Deputies, by a vote of 183 to 145, insisted upon legislative action.28

The convention with the United States of July 4, 1831 provided for the payment by France of 25,000,000 francs, in six annual installments, in settlement of claims of American citizens. The first installment fell due February 2, 1833, but no provision had on that date been made for its payment, nor had the administration requested of the chambers an appropriation for this purpose.

21 Art. LVIII. Id., 318.

22 Id., 318.

23 Art. XIV of the constitutional charter of 1814; Art. XIII of the constitutional charter of 1830. Id., 326, 333.

24 Arts. XLVIII and XL.

25 Arts. XVII and XV.

26 Hertslet's Commercial Treaties, III, 123, 134.

27 Le Moniteur, 548, col. 3.

28 Id., p. 558, col. 3.

In April, following, a bill was introduced in the Chamber of Deputies to authorize the Minister of Finance to take measures for the execution of the convention, but it was not pressed to a vote until a year later, and was then rejected by a vote of 176 to 168.29 In defense of the action of the Chamber of Deputies, the argument was diplomatically urged by the French government that the financial responsibility of the nation could be pledged only by a vote of the legislature; but in the discussion before the Deputies, the administration, the Duc de Broglie being Minister of Foreign Affairs, gave fair support to the bill, and in the course of the debate the contention was made that the honor of the nation had been pledged by the convention.30 Moreover, the action of the chambers in ultimately providing for the fulfillment of the terms of the convention may be considered as a further recognition of its obligatory force. In considering the attitude of the American government, the fact is not to be overlooked that the action of the Deputies appeared to be a repudiation of a debt of long standing of which the convention was merely an acknowledgment. It was this circumstance, as well as the fact that Congress had already passed the legislation required on the part of the United States to give effect to the stipulations in respect of concessions in customs duties made to France, which prompted President Jackson to recommend reprisals, and the House of Representatives unanimously to resolve that the execution of the convention on the part of France should be insisted upon.32

31

Under the constitution of 1848, the President of the republic negotiated and ratified treaties; but no treaty was to be definitive until approved by the National Assembly. While the project of a law to authorize the ratification of a treaty with Sardinia, signed November 5, 1850, was being considered in the Assembly, objections were raised to particular articles of the treaty; and a proposal was made to amend them. This was opposed by the presi

29 Le Moniteur, 770, col. 1; Moore, Int. Arb., V, 4463.

30 H. Ex. Doc. No. 40, 23d Cong., 2d Sess., 80. See Le Moniteur, 764, col. 2.

31 See messages of President Jackson, December 1, 1834, (Richardson, Messages and Papers of the Presidents, III, 100); December 7, 1835, (Id., 152); January 15, 1836, (Id., 188); February 22, 1836, (Id., 215).

32 Resolution adopted March 2, 1835. Cong. Debates, XI, pt. II, 1633, 1634.

33 Art. LIII. Brit. and For. State Papers, XXXVI, 1078.

dent of the Assembly, who maintained that the function of that body was to accept or reject the treaty as signed; that it could not modify a treaty with a party who was not present and with whom it could not negotiate. A member observed that the amendment was made, not to the treaty, but to the law approving it, for the purpose of indicating to the Executive the basis on which the treaty must be concluded in order to meet the approval of the Assembly. To this, the president replied that the wishes of the Assembly would be indicated by the debates, and that action on the question of approval might be postponed until the Executive had negotiated for the desired changes. He made the objection that the vote of the Assembly in advance would be in effect an ultimatum. The motion to authorize the ratification of the treaty with modifications was rejected by the Assembly,35 and, on March 20, 1851, resolutions were adopted to regulate the procedure of the Assembly in considering treaties. These provided among other things that the Assembly might not present amendments to the text of a treaty; that its function was confined to the adoption or rejection of, or to the suspension of action on, the project of law authorizing the ratification; and that, in case of such suspension, it might call the attention of the Government to the objectionable clauses.36

Article VI of the constitution, proclaimed by Louis Napoleon January 14, 1852, gave to the President of the Republic power to make treaties.37 Article III of the sénatus-consulte of December 25, 1852, modifying the constitution, specifically provided that treaties of commerce made in virtue of Article VI of the constitution should have the force of laws in the modification of tariff rates.38 Although the treaty-making power was thus vested absolutely in the Executive, the treaty of Turin of March 24, 1860, by which Savoy and the arrondissement of Nice were to be united as an integral part of France, was confirmed by a sénatus-consulte -an act of the sovereign or amending power under the constitution of June 12, 1860, subsequently to the exchange of the ratifications. The sénatus-consulte of September 8, 1869, amend34 Le Moniteur, 3769, col. 2. 35 Le Moniteur, 3771, col. 1.

36 Le Moniteur, 820, col. 3.

37 Brit. and For. State Papers, XLI, 1086.

38 Id., XLI, 1338.

39 De Clercq's Recueil des Traités de la France, VIII, 32, 48.