436 WRIGHT— UNDERSTANDINGS CONCERNING 



tinction between those treaty provisions which become ex propria 

 z'igore the supreme law of the land and those which require legis- 

 lative action is not clear. In Foster v. Neilson (1829), Chief 

 Justice Marshall thought the provision of the Florida cession treaty 

 that grants of land made in Florida prior to January 24, 1818 " shall 

 be ratified and confirmed " was not self-executing and that the 

 courts could not recognize such titles until Congress had acted. 

 Subsequently an examination of the Spanish text of the treaty 

 showed that the phrase should have read " shall remain ratified and 

 affirmed" and in United States v. Perchem.an (1833) Chief Justice 

 Marshall held that this rendered the clause self-executing, support- 

 ing his decision also on principles of general international law.*" 

 However, there are many acts which the treaty power cannot itself 

 perform or the performance of which it cannot authorize by any 

 organ other than Congress, yet Congress is under a certain obliga- 

 tion to perform them itself when necessary for carrying out a 

 treaty. The obligation may seem absolute in view of the statement 

 of Article VI that treaties are the supreme law of the land, but 

 in practice, and in view of the equal constitutional power of 

 Congress itself to make supreme law superseding treaties, the 

 constitutional duty of Congress must be considered as an under- 

 standing of the Constitution, rather than a law.^^ 



Practice indicates that treaty provisions dealing with matters 

 which for historical and practical reasons have been placed by the 

 Constitution peculiarly within legislative competence,^^ require 



*o Foster v. Neilson, 2 Pet. 253 (1829); U. S. v. Percheman, 7 Pet. 51 

 (1833) ; see also supra, sec. 137. 



41 Hamilton, however, wrote in a draft for Washington's message to the 

 House of Representatives on the Jay treaty : " The House of Representatives 

 have no moral power to refuse the execution of a treaty which is not con- 

 trary to the Constitution, because it pledges the public faith; and have no 

 legal power to refuse its execution, because it is a law, until at least it ceases 

 to be a law by a regular act of revocation of the competent authority." 

 Works, Hamilton ed., 7: 566. 



*2 The Constitution not only gives the financial powers to Congress, but 

 it gives them especially to the House of Representatives. The terminology 

 of Art. I, sec. 7, cl. i, and sec. 9, cl. 7, is a different sort of delegation from 

 the powers given by Art. i, sec. 8. This is a recognition of the historical 

 connection between control of the purse and the rise of the House of Com- 

 mons in England. See the Federalist No. 58; Magoon, Reports, p. 151. 



