TREATY. 



697 



executive in its nature, and therefore of the same 

 quality as that exercised under the governments of 

 Europe. It follows that our engagements with foreign 

 powers are not under the legislative control of Con- 



fress but are the products of executive action alone. 

 t is true that as to the domestic effect of a treaty it 

 may be entirely controlled by Congress, so that obliga- 

 tions imposed upon the citizens and officers of this 

 country by treaties may be remitted by Congress, and 

 rights secured thereby may before such treaties have 

 passed into actual execution be denied by Congress, 

 nut where the national faith has been pledged to a for- 

 eign power by a treaty duly made and ratified by the 

 proper executive authority Congress cannot undo the 

 obligation thus imposed without the consent of the 

 power with which the engagement has been made. 

 In this respect a treaty made by the national execu- 

 tive stands on the same footing with one made by an 

 absolute sovereign, and that it should have that char- 

 acter is essential to the maintenance of international 

 intercourse. 



The Constitution of the United States gives to the 

 domestic operation of treaties made under its authority 

 the quality of law, declaring that they should consti- 

 tute part of the supreme law of the land, but does not 

 place the disposition made by treaties beyond the 

 power of Congress as it regards their domestic oper- 

 ation. The existence of an obligation implies the pos- 

 sibility that the obliged party may not conform to its 

 requirements, in which ease compensations or punitive 

 consequences appropriately follow, and such power of 

 conforming to or declining what is demanded under an 

 obligation must in' the nature of things reside some- 

 where, and under our system it resides in Congress. 



If there is any instance in which Congress can con- 

 trol the relations of the nation with foreign powers it 

 would be found in the instance of treaties of pacifica- 

 tion where war has been formally declared by its au- 

 thority, but the current of opinion seems to flow in 

 the direction of allowing to the treaty-making power 

 authority to change the status of war, although en a ted 

 by a legislative act, into that of peace. Where, how- 

 ever, the conditions of peace called for the payment 

 of money, as in the instance of the war with Mexico, 

 under which a large portion of the present territory of 

 the United States was acquired, an appeal to the 

 legislature is a practical if not a legal necessity. No 

 case has arisen to test the ability of the treaty-making 

 power to alienate the territory of the United States 

 except as a mere incident of the ascertainment or per- 

 fecting of uncertain or disputed boundaries. It is a 

 singular fact that, while the legislative power of the 

 nation is placed under constitutional limitation to keep 

 it in proper channels, no such care has been exhibited 

 in the case of the diplomatic powers of the govern- 

 ment, and the existence of limitations of that which 

 properly falls within the nature of that power must 

 depend on inferences from rather than direct expres- 

 sions of the Constitution. 



The earliest stage of pur national diplomacy was oc- 

 cupied with the establishment of relations of amity 

 and commercial reciprocity with the various powers of 

 Kurope. A broad and liberal policy of international 

 relationship had been mapped out while the govern- 

 ment was still under the Articles of Confederation that 

 was continued under the Constitution. The political 

 policy of the diplomacy of the country was placed in 

 a condition in which it has remained until the present 

 day. The geographical position of the United States 

 rendered unnecessary the diplomatic complications 

 that are rendered necessary in Europe by the number 

 and proximity of the competing powers, and the avoid- 

 ance of foreign alliances for political purposes was 

 early accepted as a principle of our diplomacy. Nor 

 have the conditions tending to allow simplicity to our 

 relations with other powers looking to political objects 

 materially changed. Neither the security nor the in- 

 fluence of the United States depend upcn alliances, 

 VOL. IV. 2 T 



but have been found to be best secured by an impar- 

 tial treatment of all other powers. 



The development of an impartial system of inter- 

 national commercial intercourse engaged the attention 

 of the early diplomats of the country and especially 

 interested Pres. Jefferson. It was sought to place the 

 interests of navigation and commerce upon the se- 

 curity afforded by a generous scheme of reciprocity 

 broad enough to include all the powers with which the 

 United States desired commercial relations, conferring 

 special favors on none and withholding from none 

 that which impartiality would confer upon them. To 

 accomplish this it was necessary that the practice of 

 European diplomacy by which commercial favors were 

 balanced against political favors should be avoided and 

 that the interests of commerce should be entirely sep- 

 arated from those of a political nature. The conse- 

 quence of this policy was that rights of commerce and 

 navigation were in the United States fixed by general 

 laws equally applicable to all nations, rather than by 

 special treaty engagements with the several powers. 

 For many years duties upon foreign importations of 

 merchandise and dues to which the right of navigation 

 was subjected were established by general laws allow- 

 ing no exclusion of any power that was willing to 

 reciprocate like advantages. 



This impartial policy was to a limited degree in- 

 fringed by an event that marked the second stage o_f 

 the diplomatic policy of the United States. The immi- 

 gration into Kentucky brought an enterprising popu- 

 lation into contact with the problem of the free navi- 

 gation of the Missis.sippi River, the western bank of 

 which was within the jurisdiction of France. The 

 purchase of the right of France to the territory west 

 of the Mississippi and which was known as Louisiana, 

 was pressed upon Jefferson upon his accession to I lie 

 Presidency. lie hesitated to take a step that seemed 

 inconsistent with the views that he entertained as to 

 the limited powers of Congress. To acquire that ter- 

 ritory would require that Congress should expend the 

 public money for that purpose, and such an object was 

 not found among the enumerated powers of Congress 

 and could by no means be regarded as a necessity of 

 the execution of such enumerated powers. Jcffer- 

 son's hesitation was overcome by the pressure of 

 political interests, and the purchase was consummated 

 through a treaty made with Napoleon, then First 

 Consul of France. By this treaty certain commercial 

 advantages within the ceded territory were allowed to 

 France and Spain for a limited period of time, from 

 which other nations were to be excluded, and thus Pres. 

 Jefferson in addition to inflicting a wound upon (lie 

 doctrine of States rights contradicted to a limited 

 extent the impartial commercial system to which he 

 had devoted his thought and effort. 



The diplomacy of the United States had now en- 

 tered upon the career of territorial aggrandizement 

 which was not likely to be ended while any portion of 

 the continent of North America lay outside of its juris- 

 diction. This precedent, set in 1803, was followed in 

 1819 by the purchase of the Floridas from Spain, and 

 at the conclusion of the war with Mexico by a treaty 

 purchase that can'ied the jurisdiction of the United 

 States to the Pacific Ocean. In 1867 the purchase of 

 Alaska from Russia marked the last step taken in the 

 direction of the diplomatic policy of the extension of 

 the territory of the United States. 



The acquisition of territory by these various treaties 

 did not encroach upon the principle of keeping apart 

 jn international intercourse political and commercial 

 interests, so that the acquisition of advantages in refer- 

 ence to one of these classes should not entail disadvan- 

 tages upon the other, except in the case of the Louis- 

 iana purchase, where certain exclusive privileges were 

 granted that were not to be common to all other 

 powers. It is true that that exclusive advantage was 

 given as part of the price of the territory acquired, and 

 thus something was taken from the interests of.com- 



