764 



TREATY-MAKING POWER OF THE UNITED STATES. 



the sanction given by Congress to the general policy 

 of .fostering intimate trade with the neighboring 

 countries. 



I observe that a constitutional amendment has been 

 introduced in Congress that the Senate and House of 

 Representatives shall be joined to the Executive as 

 the treaty-making power. Such amendment would 

 not avoid the necessity of the Executive conducting 

 the negotiatiations for a treaty, subject, of course, to 

 the ratification of the co-ordinate branch. The pre- 

 rogative of the House of Representatives has in all 

 these treaties been abundantly secured by a provision 

 that they should not take effect until a bill originat- 

 ing in the House had made the laws affecting the 

 revenue conform thereto. The precedents are against 

 the position that negotiations of this class are uncon- 

 stitutional. From the foundation of the Government, 

 beginning with the time when the administration was 

 in the hands of the men who framed the Constitution 

 itself, and may, therefore, be assumed to have best 

 understood its import and scope, public treaties affect- 

 ing the revenues have been concluded by the Presi- 

 dent and carried into effect by the legislation of 

 Congress without admission of a doubt as to the en- 

 tire constitutionality of the proceeding. A few ex- 

 amples among many may be cited. First in order 

 comes the treaty of 1794*with Great Britain, which 

 stipulated for commercial privileges and exemptions 

 from duty, and set limitations upon the imposition of 

 tonnage dues on British vessels by Congress. The 

 treaty of 1803 with France for the acquisition of 

 Louisiana stipulated for special favors to French and 

 Spanish goods and vessels in the ceded territory dur- 

 ing a term of twelve years, notwithstanding any gen- 

 eral regulations as to trade and navigation which 

 Congress might make. The treaty of 1815 with (Jrc-at 

 Britain, changed existing legislation as to discriminat- 

 ing duties. The treaty of 1831 with France contains 

 special tariff provisions. The Canadian reciprocity 

 treaty with Great Britain of 1854, and the reciprocity 

 treaty of 1875 with the Hawaian Islands both con- 

 tained the provision that they should not become 

 operative until the necessary laws to carry them into 

 effect should have been enacted by Congress. In re- 

 sponse to all these treaties the required legislation 

 was passed. In short, the precedents are in favor of 

 the constitutional negotiation of treaties affecting the 

 revenues by the President, subject to approval by the 

 Senate and to the legislative co-operation ol Congress 

 iu carrying out their^ provision. 



These questions do not appear to have been ex- 

 pressly decided by the Supreme or any lower 

 Federal court. The practice has been in fram- 

 ing commercial treaties as explained by Secre- 

 tary Frelinghuysen in the passage above quoted, 

 to insert in them a stipulation that they were 

 not to take effect until sanctioned by Congress, 

 anil hence that they were concluded subject to 

 this condition. Thus the reciprocity conven- 

 tion negotiated with Spain in 1884 contains the 

 following provision in Article XXVI : 



This treaty shall be ratified by the President of the 

 United States, by and with the advice and consent of 

 the Senate thereof, and by Spain, in accordance with 

 the law which authorizes 'its Government to celebrate 

 it ; and it shall go into effect thirty days after having 

 been officially published by the two governments by 

 mutual agreement on the same day. The publication 

 shall not be made, however, until after the Congress 

 of the United States shall have passed the laws neces- 

 sary to carry it into effect, and both governments shall 

 have adopted regulations accordingly, which shall take 

 place within six months from the date of signature. 



This sanction has usually been given by Con- 

 gress to treaties that have become laws, and 

 so the constitutional objection, if any existed, 



may be deemed to have been removed. But 

 on the other hand it is maintained that the 

 President and the Senate alone have the power 

 to make a commercial treaty, and that while it 

 may be desirable or expedient to have the con- 

 current action of Congress, such action is not 

 constitutionally essential when no appropria- 

 tion of money is needed to carry out the pro- 

 visions of the treaty. 



The treaty-making power, it is maintained, 

 is granted in the most general terms. It is not 

 expressly limited to any class ot subjects. It 

 extends to all relations between this and foreign 

 nations, to all matters that usually fall within 

 the province of treaties. In his commentaries 

 on the Constitution Story says : " The power to 

 make treaties is, by the Constitution, general, 

 and of course it embraces all sorts of treaties, 

 for peace or war ; for commerce or territory ; 

 for alliance or succors; for indemnity for in- 

 juries or payment of debts; for the recognition 

 and enforcement of principles of public law ; 

 and for any other purposes which the policy or 

 interests of independent sovereigns ma}' dictate 

 in their intercourse with each other " (fourth 

 edition, vol. ii, sec. 1508, p. 325). The same au- 

 thority further says : "It is difficult to circum- 

 scribe the power within any definite limits, ap- 

 plicable to all times and exigencies, without 

 impairing its efficacy or defeating its purposes. 

 The Constitution has therefore made it general 

 and unqualified." (Id., sec. 1,509). When the 

 Constitution was framed, commercial treaties 

 were, and long had been, one of the commonest 

 kinds of international agreements. From this it 

 is argued that if the makers of that instrument 

 had intended not to embrace such treaties 

 within the scope of the power they would have 

 made an express proviso or exception to that 

 effect. The argument that the power is im- 

 pliedly limited by the grant to Congress of 

 power to regulate commerce was thus met in 

 the Senate by Senator Lapham, of New York, 

 in his reply to Mr. Morrill in January, 1885: 



By the same article Congress has power to establish 

 post-roads, and yet by treaty we have postal conven- 

 tions with many nations, and could not have obtained 

 them in any other way. Congress has the power to give 

 to authors and inventors the exclusive right to their 

 discoveries; yet we have treaties on the subject of 

 trade-marks with most of the nations with whom we 

 have other treaty relations. Congress has power to 

 declare war, but before a gun is fired or any other 

 hostile act performed the treaty-making power may- 

 intervene and stop the contest, without bloodshed, 

 by a treaty of peace. 



Congress has power to dispose of and make all need- 

 ful rules and regulations respecting the Territories of 

 the United States. But the treaty-making power may 

 be exercised on the subject, and territory be alienated 

 or acquired, as the best interests of the country may 

 demand. Congress has nower to establish a uniform 

 rule of naturalization ; still, foreigners resident in the 

 Territories, when acquired, have been declared to be 

 clothed with the rights of citizens. In Alaska the 

 treaty for its cession admitted foreigners to all such 

 rights. 



Commercial and reciprocity treaties have 

 been before the Federal courts in numerous 

 cases, and though the question under consid- 



