TREATY-MAKING POWER. 



TREE-PLANTING. 



765 



eration has never been expressly decided, or 

 raised, the courts do not appear to have doubt- 

 ed the constitutionality of such treaties. A 

 more doubtful question is the one whether the 

 making of a commercial treaty by the Presi- 

 dent and Senate is an infringement of the con- 

 stitutional right of the House to originate 

 revenue bill?. It may be argued on the one 

 hand that this clause of the Constitution is in 

 the nature of a proviso or limitation to the 

 the treaty-making power. It may be main- 

 tained on the other that the grant of the 

 treaty-making power is absolute, and not sub- 

 ject to such proviso. It may be further con- 

 tended that a commercial treaty which does 

 not materially increase customs duties, or one 

 which lowers or abolishes them, or one which 

 does not seriously affect them, is not, within 

 the meaning of the Constitution, such a "bill 

 for raising revenue " as must originate in the 

 House ; that the making of such a treaty does 

 not impose any limitation or check upon the 

 power of the House to raise revenue. This 

 question has not been expressly decided by 

 any Federal court. If the making of a treaty 

 which touches the revenue is a violation of the 

 constitutional right of the House, then legisla- 

 tion is necessary to complete and give effect to 

 the treaty, and the legislation must originate 

 in the House. If such legislation is not con- 

 stitutionally essential, the President and Sen- 

 ate alone, independently of Congress or the 

 House, may conclude a commercial treaty 

 removing or imposing customs duties, and 

 make the treaty a law which will take effect 

 by its own operation. It will supersede, by 

 its own force, any existing revenue law in con- 

 flict with it. Congress may not prevent the 

 making of the treaty nor its going into effect 

 as a law ; but it may nullify it by only passing 

 a law overriding it. 



It is the opinion of some writers on law that 

 Congress is bound to pass the laws necessary 

 to carry a treaty into effect. (See Kent's 

 " Commentaries," twelfth edition, vol. i, p. 

 236, and Wheaton's " International Law," 

 266, and authorities there cited.) In a note 

 to Wheaton's text, Mr. Dana says: "In the 

 United States, it is settled that Congress is 

 under an obligation to execute all treaties. A 

 refusal by Congress to pass the necessary legis- 

 lative acts, is a national breach of the treaties. 

 and may be so regarded by the other party." 

 Similar views were held by Washington in his 

 message to the House of Representatives in 

 March, 1796. (See Kent's Commentaries, as 

 cited above ; also Story, on the Constitution, 

 vol. ii, g 1841, 1842.) Jefferson and Randolph 

 seem to have been of a different opinion. In a 

 letter to William B. Giles under date of De- 

 cember, 1795, Jefferson wrote: 



Randolph seems to have hit upon the true theory 

 of our Constitution that when a treaty is made, in- 

 volving matters confided by the Constitution to tho 

 three brandies of the Legislature conjointly, the Re- 

 presentatives are as tree as the President and'the Senate 

 were to consider whether the national interest requires 



or forbids their giving the forms and force of law to 

 the articles over which they have the power. 



The doctrine that Congress or the House is 

 bound to give its consent to a treaty has not 

 been sanctioned or favored by the courts. On 

 the contrary, it does not appear to be consist- 

 ent with the principles they have affirmed and 

 the views they have expressed. While the 

 question has not been directly decided the 

 opinion given below is on this point an obiter 

 dictum the decisions of the courts on other 

 points have proceeded on the theory that the 

 treaty -making and the legislative powers are 

 coequal and independent within their respect- 

 ive spheres; that it is discretionary with Con- 

 gress or the House, being a deliberative body, 

 whether it will co-operate with the President 

 and Senate to complete a treaty by providing 

 the legislation necessary to give the treaty 

 effect; and that this is a condition of munici- 

 pal law of which every foreign nation which 

 makes a treaty, with the United States must be 

 presumed to have knowledge. On this point, 

 Justice McLean, in the case of Turner vs. the 

 American Baptist Missionary Union, decided 

 in the Michigan Circuit (United States Court) 

 in 1852 and reported in 5 McLean's Reports, 

 said: 



A treaty under the Federal Constitution is declared 

 to be the supreme law of the land. This unquestion- 

 ably applies to all treaties where the treaty-making 

 power, without the aid of Congress, can carry it into 

 effect. It is not, however, and can not be, the supreme 

 law of the land, where the concurrence of Congress is 

 necessary to give it effect. Until this power is exer- 

 cised, as where the appropriation of money is required, 

 the treaty is not perfect. It is not operative, in the 

 sense of the Constitution, as money can not be appro- 



Eriated by the treaty-making power. This results 

 pm the limitations of our Government. The action 

 of no department of the Government can be regarded 

 as a law until it shall have all the sanctions required 

 by the Constitution to make it such. As well might 

 it be contended that an ordinary act of Congress, 

 without the signature of the President, was a law, as 

 that a treaty which engages to pay a sum of money, 

 is in itself a law. And in such a case the Representa- 

 tives of the people and the States exercise their own 

 judgments in granting or withholding the money. 

 They act upon their own responsibility, and not upon 

 the responsibility of the treaty-mak'ing power. It 

 can not bind or control the legislative action in this 

 respect, and every foreign Government may be pre- 

 sumed to know that so far as the treaty stipulated to 

 pay money the legislative sanction is required. 



TREE-PLANTING. The planting of trees has 

 become so general that there are now seven- 

 teen States in which a particular day, at the 

 season of the year when trees are just start- 

 ing into life, is celebrated as Arbor Day. The 

 credit of inventing this day is due to Governor 

 Morton, of Nebraska, who contrived it as a 

 means of raising up a barrier of trees against 

 the fierce blizzards of the West and the scorch- 

 ing blasts of the South. States where trees 

 were once so abundant as to be considered by 

 the agriculturist as worthy only to be cut down 

 and burned that being the quickest method of 

 getting rid of them are now welcoming Ar- 

 bor Day as a promise that they may be restored 

 to that condition which they lost by the de- 



