WRIGHT— LIMITATIONS UPON NATIONAL POWERS. 197 



appropriate to their nature. There does not appear to have ever 

 been a treaty attempting to deprive Congress of a delegated power 

 or to confer upon it power of a non-legislative nature. It is 

 believed that a treaty declaring that war should automatically exist 

 in certain circumstances would be an unconstitutional deprivation 

 of Congress's power to declare war,-" and that a treaty giving 

 Congress power to appoint an officer of the United States, as 

 for instance a representative in an international body, would be 

 an unconstitutional delegation to Congress of power not of a legis- 

 lative character.^" 



Jefferson stated among " exeptions " from the treaty-making 

 power: "those subjects of legislation in which it gave a participa- 

 tion to the House of Representatives." He noticed, however, that 

 this exception " would leave very little matter for the treaty power 

 to work on." ^^ Practice does not sustain Jefferson's contention. 

 Most treaties have dealt with subjects within the delegated powers 

 of Congress and have been held valid. ^^ Congress has questioned 

 the validity of treaties requiring an appropriation, notably the Jay 



29 See Taft, address before League to Enforce Peace, May 26, 1916, 

 Enforced Peace, p. 64, and Hughes address, May 28, 1917, Proc. Acad. Pol. 

 ScL, vol. 7, No. 2, p. 14, quoted in Am. Jl. Int. Law, 12: 75-76. 



30 The exclusive mode of making appointments described in the Con- 

 stitution, II, sec. 2, does not include appointments by Congress. See also 

 Goodnow, op. cit., p. 39; Willoughby, op. cit., p. 1180. 



31 Jefferson, Manual of Pari. Prac, sec. 52, printed in Senate rules, 1913; 

 H. of R. Rules, 1914; and Moore, Digest, 5: 162. 



32 Crandall, op. cit., p. 182; Wright, Am. Jl. Int. Law, 12: 93. "The 

 principle of interpretation on which the doubt is suggested appears to be 

 radically unsound and to belong in the category of notions which tend to 

 bring constitutional law into disrepute. That the United States cannot in- 

 ternationally agree to forego the exercise of any power which the Constitu- 

 tion has conferred on Congress, or other department of government, is a 

 supposition contradicted by every exercise of the treaty-making power since 

 the government came into existence. When we reflect upon the number and 

 extent of the powers conferred upon the national govrnment, and upon their 

 distribution and the methods prescribed for their exercise, it is obvious that 

 the attempt to act upon such a supposition would exclude the United 

 States from any part in the progress of the world through the amelioration 

 of law and practice by international action." Moore, Principles of American 

 Diplomacy, 1918, p. 65. 



