TREATY-MAKING POWER OF THE UNITED STATES. 



7C3 



dent and Senate to make a treaty of any kind 

 or for any purpose within the scope of the 

 treaty-making power is as independent and 

 absolute as is the power of Congress to legis- 

 late within its sphere. A treaty when made 

 is a supreme law of the land, and supersedes 

 any prior act, of Congress in conflict with it. 

 An act of Congress is a supreme law of the 

 land, and abrogates any earlier treaty incon- 

 sistent with it. Supremacy turns wholly on 

 the question of date. The later does not 

 necessarily supersede the earlier as a whole, 

 but only to the extent of conflict. The courts 

 deal with the question as one of purely mu- 

 nicipal law. It is their duty to determine 

 whether a treaty and an act of Congress are 

 inconsistent, and, if so, to declare which is 

 the supreme law. It is a recognized rule that 

 a treaty stipulation should not be annulled by 

 the courts unless a later act of Congress clear- 

 ly overrides it. " It must appear that the 

 later provision is certainly and clearly in hos- 

 tility to the former. If by any reasonable con- 

 struction the two can stand together they must 

 so stand. If harmony is impossible, and only 

 in that event, the former is repealed in part, 

 or wholly, as the case may be." This rule 

 was applied by the United States Supreme 

 Court as recently as December, 1884, when on 

 the point in question it construed the Chinese 

 Exclusion Act in harmony, rather than con- 

 flict, with the Chinese treaty. But when it is 

 clear that a later act of Congress is contrary 

 to a treaty stipulation, the courts do not hesi- 

 tate to declare the former the law of the land. 

 In such case the responsibility for abrogation 

 of the treaty or breach of the national faith 

 rests not upon the judiciary, but the political 

 department of the Government. 



A treaty, just as an act of Congress, must 

 conform with the Constitution of the United 

 States. "It need hardly be said," remarked 

 Justice Swayne, of the United States Supreme 

 Court, in the Cherokee Tobacco case (11 Wal- 

 lace's Reports, 620), " that a treaty can not 

 change the Constitution or be held valid, if it 

 he in violation of that instrument." The sub- 

 ject matter of a treaty must he within the juris- 

 diction or proper scope of the treaty-making 

 power, just as an act of Congress must be 

 within the constitutional powers of that body. 

 The courts have held, as will be seen by refer- 

 ence to the above review of cases, that a treaty 

 may supersede a Srate law as well as an act of 

 of Congress. But it does not follow from such 

 decisions that a treaty will supersede a State 

 law in a matter that is left by the Constitution 

 to the exclusive jurisdiction of the States. 

 Treaties and acts of Congress are put by the 

 courts on the same footing. Acts of Congress 

 have repeatedly been set aside on the ground 

 of invading State sovereignty. Does not the 

 same principle apply to treaties? 



A treaty may be an executed or an executory 

 contract, a completed compact or one requiring 

 legislation to complete it. Some treaties are 



completed by the action of the treaty-making 

 power, the President and Senate, alone. Such 

 a treaty is a law without the concurring action 

 of Congress or the House of Representatives. 

 It may at any time be nullified by an act of 

 Congress approved by the President or passed 

 over his veto ; or it may be abrogated by an- 

 other treaty made by the President and Senate. 

 But while it remains a law it is like every other 

 supreme law binding upon the general Govern- 

 ment, the States, the courts, and the people. 

 Other treaties are dependent for their comple- 

 tion on legislation. Of this kind are treaties 

 requiring an appropriation of money which can 

 be made only by Congress, and, in short, all 

 treaties which by their express terms and con- 

 ditions are concluded subject to legislative acts 

 to be passed. Such treaties are not recognized 

 as laws by the courts until they are completed 

 by the needed legislation (Foster vs. Neilson, 

 2 Peters' Reports, 314). 



It has long been contended by some public 

 men that the treaty-making power does not 

 extend to matters involving revenue, and that 

 the making of commercial or reciprocity treat- 

 ies is not within the constitutional scope of the 

 power. This claim is based on the theory that 

 every revenue measure must originate in the 

 House, and that absolute control over commerce 

 is vested by the Constitution in Congress. As 

 recently as January, 1885, Senator Justin S. 

 Morrill, of Vermont, argued in the Senate that 

 "any treaty which encroaches upon the power 

 to regulate commerce, or upon that to originate 

 revenue bills involves a plain, open, and palp- 

 able violation of the Constitution." Like ob- 

 jections were raised by certain members of 

 Congress against the Spanish and other com- 

 mercial treaties negotiated by President Arthur, 

 and laid before Congress at the session begin- 

 ning in December, 1884. To these objections 

 Secretary Frelinghuysen, in a communication 

 to Hon. John F. Miller, of California, chairman 

 of the Senate Committee on Foreign Relations, 

 dated December, 26, 1884, replied as follows: 



Another line of adverse argument remains to be 

 considered. It is said that this class of treaties is an 

 infringement upon the constitutional rights of Con- 

 gress, in that they change duties prescribed by law. 

 This argument is advanced against all, including the 

 convention with Mexico, which, having been already 

 ratified, awaits legislation to carry it into effect. The 

 claim that the Mexican treaty is unconstitutional be- 

 cause it affects the revenue and did not originate in 

 the House of Representatives is singularly untenable. 

 It did so originate. The first action of this Govern- 

 ment toward its negotiation was the appropriation by 

 Congress " tor the salaries and expenses of a com- 

 mission to negotiate a commercial treaty with Mexico, 

 a sum not exceeding $20,000 to be expended under 

 the direction of the President of the United States," 

 [Sundry Civil Appropriation Act, Aug. 7. 1882,] and 

 under this authority Gen. Grant and Mr. 'I 

 were appointed Commissioners and negotiated the 

 treaty. The Senate introduced an amendment that 

 the legislation of Congress should be necessary t<> 

 pivo it force. This rule, the precedent for which is 

 found in previous treaties of tins character, 1ms l>ceu 

 followed in the subsequent treaty Denotations, ami 

 the steps taken thereto have been conducted undor 



