334. WRIGHT— POWER TO MAKE AGREEMENTS. 



Though in theory the President's independent power is confined to 

 making agreements of temporary effect, confined to particular cases 

 or binding the Executive alone, yet in practice and by the operation 

 of precedents he may, by such agreements, bind other departments 

 and through interpretations of treaties and international law bind 

 the state as a whole. 



B. The Power to Make Treaties. 



173. TJic Subject Matter of Treaties. 



The framers of the American Constitution did not anticipate or 

 desire the conclusion of many treaties.^*' For this reason they made 

 the process of treaty conclusion difficult, requiring that the President 

 act only with the advice and consent of two-thirds of the Senators 

 present,^" some even wishing to require adhesion of the House of 

 Representatives®^ or two-thirds majority of the entire Senate. ^^ 

 This hope, however, has scarcely been realized. With a total of 

 595 treaties from its foundation to August, 191 4, the United States 



^6 In the Federal Convention, Gonverneur Morris " was not solicitous 

 to multiply and facilitate treaties," and Madison " observed that it had been 

 too easy in the present Congress to make treaties, although nine States were 

 required for that purpose." Farrand, Records of the Federal Convention, 2 : 

 393; 54§- See also Jefiferson, Manual of Congressional Practice, sec. 52, and 

 letter to Madison, March 23, 1815, Moore, Int. Law Digest, 5 : 162, 310. 



s'' Under the Articles of Confederation, the treaty-making power was 

 vested in nine States in Congress (Art. IX), and in some of the early 

 drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later 

 in the Senate (ibid., 2: 169, 183"), and the President was finally added on 

 the argument that treaty-making was properly an executive function (ibid., 

 2: 297), and that a national agency was necessary as an offset to the special 

 State interest of the Senate. (Ibid., 2: 392.) 



58 Pennsylvania especially desired this. G. Morris, of that State, wanted 

 to add " but no treaty shall be binding on the United States which is not 

 ratified by a law" (Farrand, 2: 297, 392). Later, Wilson, of Pennsylvania, 

 proposed to add " and Llouse of Representatives," saying that " as treaties 

 are to have the operation of laws they ought to have the sanction of laws 

 also." On vote, Pennsylvania alone supported the motion. (Ibid., 2: 538.) 

 This is the vote referred to by Washington in his celebrated message on 

 the Jay Treaty where he refused to recognize the claim of the House of 

 Representatives to participate in treaty-making. (Ibid., 3 : 371 ; Annals of 

 Congress, 4th Cong., ist Sess., p. 761, Richardson, Messages, i: 195.) 



59 Farrand, 2 : 549. 



