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"We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, yet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate, and House of Representatives, to the President and Senate, and Piamingo, or any other Indian, Algerine or other chief."

Washington, in his special message refusing compliance with the request of the House's resolution, said: "Having been a member of the general convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government to this moment my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they become obligatory. As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just

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regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request."

After some discussion, the House receded from its position and passed the laws and appropriations necessary for carrying the treaty into effect.

When the question of purchasing Louisiana came up, Jefferson, in conformity with his views stated in the letter to Monroe, at first proposed to submit the treaty to both Houses of Congress. He later decided, however, to submit it to the Senate only, but informed the House that as soon as the treaty should be approved by the Senate, it would be submitted to Congress "for the exercise of their functions as to those conditions which are within the powers vested by the Constitution in Congress." And, after the treaty had been approved and ratified, he sent it to Congress saying: "You will observe that certain important conditions cannot be carried into execution but with the aid of the legislature." These legislative measures were enacted, but without any explicit statement of the principle which the House had urged in 1796.2

The question was again discussed in connection with the appropriation called for in the treaty of 1867 purchasing Alaska from Russia. After some debate, the House appropriated the money, but prefaced the act with the assertion that "the subjects embraced in the treaty are among those which by the Constitution are submitted to Congress and over which Congress has jurisdiction; and for these reasons it is necessary that the consent of Congress should be given to the said stipulations, before the same can have full force and effect."

The Senate objected to this statement, and, after having referred the matter to a conference committee, the following compromise declaration was agreed upon: "Whereas, the President of the United States has entered into a treaty with the Emperor of Russia, . . and whereas said stipulations cannot be carried into full force and effect, except by legislation to which the

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2 Cf. Moore, International Law Digest, V, § 759.

consent of both Houses of Congress is necessary; therefore be it resolved, etc."3

What has been said regarding the power of Congress to refuse to appropriate moneys for the payment of which the United States has been obligated by the treaty-making power applies with equal force to whatever other legislation may be required. in order to put a treaty into full force and effect.

Though, as is seen from the foregoing, it cannot be said that precedent has established the doctrine one way or the other, it is quite clear that whatever moral obligation, as a matter of good faith, or principle of expediency, may urge Congress to pass appropriation or other laws required for putting into full force and effect agreements entered into by the treaty-making power, there is no constitutional means by which, in case of refusal, such legislation may be compelled; nor is there any constitutional right on the part of the executive or judicial branches of the Federal Government to supply the lacking legislation. A treaty is by the Constitution declared to be a law of the land, and where its provisions operate directly upon a subject, it may be enforced as such without further legislative sanction. But where the treaty is not thus directly executory, the executive and judicial departments must wait until Congress has enacted the necessary legislation. Justice McLean declares: "A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign government may be presumed to know that so far as the treaty stipulates to pay money the legislative sanction is required."4

In Foster v. Neilson Chief Justice Marshall with reference to the legal character of a treaty, as fixed by United States Constitutional Law, says: "Our Constitution declares a treaty to

3 For other discussions in Congress upon this subject, see Butler, Chapter X. 4 McLean, Constitutional Law, p. 347. As to whether the last statement of McLean is correct or not, see post, Section 221.

52 Pet. 253; 7 L. ed. 415.

be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without aid of any legislative provision. But when the terms of the stipulation import a contract when either of the parties engages to perform a particular act - the treaty addresses itself to the political, not to the judicial department; and the legislature must execute the contract before it can become a rule for the court."6

§ 207. Congress May by Statute Abrogate Treaties.

As has been said, treaties, so far as they are self-executory, are the supreme law of the land, and in this respect rest upon a plane of equality with acts of Congress. But upon no higher plane. Resulting from this, it has been held in a number of well considered cases that an act of Congress operates to repeal or annul prior treaty provisions inconsistent with it.

In Edye v. Robertson, after reviewing various cases, the court say: "A treaty, then, is a law of the land as an act of Congress is, whenever its provisions present a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute. But even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect which may be repealed or modified by an act of a later date. Nor is there anything in its essential character or in the branches of the govern

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6 See also United States v. Percheman, 7 Pet. 51; 8 L. ed. 604, and Garcia v. Lee, 12 Pet. 511; 9 L. ed. 1176. "If Congress . . does not choose to carry out a treaty or if it prefers to violate one, citizens of the United States, or even subjects of foreign powers, seeking relief in our courts, may not, in that manner, be able to obtain redress for evils arising from the failure of the gov ernment of the United States to comply with treaty stipulations. The courts are bound by the laws enacted by Congress, and cannot declare them either unconstitutional or inoperative because they violate national contracts or national good faith and honor." Butler, I, §§ 451, 315.

7 Headmoney Cases, 112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798.

ment by which the treaty is made, which gives it this superior sanctity. In short we are of the opinion that, so far as

a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts of Congress as Congress may pass for its enforcement, modification or repeal."

8

The doctrine thus unqualifiedly stated has been repeatedly followed in later cases. Especially strong is the Chinese Exclusion Case, Chae Chan Ping v. United States.

9

§ 208. Whether the Treaty-Making Power may Modify or Repeal Laws Enacted by Congress.10

To Congress is given the power by the Constitution to legislate with reference to certain matters. We have already learned that by statute the President has been authorized in a number of instances to enter into international agreements for the regulation of certain matters within the legislative control of Congress. We have now to examine whether, without congressional direction or permission, it is competent for the treaty-making power to regulate a matter which it is within the legislative power of Congress to control; or, by international agreements, to alter arrangements which Congress has by statute already established.

That the treaty-making power extends to subjects within the ordinary legislative powers of Congress there can be no doubt.

8 Butler, op. cit. II, 86, cites the following cases in which acts superseding prior treaties in conflict with them have been sustained by the Supreme Court: United States v. McBratney, 104 U. S. 621; 26 L. ed. 869; Chew Heong v. United States, 112 U. S. 536; 5 Sup. Ct. Rep. 255; 28 L. ed. 770; Ward v. Race Horse, 163 U. S. 504; 16 Sup. Ct. Rep. 1076; 41 L. ed. 244; Draper v. United States, 164 U. S. 240; 17 Sup. Ct. Rep. 107; 41 L. ed. 419; Thomas v Gay, 169 U. S. 264; 18 Sup. Ct. Rep. 340; 42 L. ed. 740; Fong Yue Ting v. United States, 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905; Chinese Exclusion Cases, 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068; La Abra Silver Mining Co. v. United States, 175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223; United States v. Gue Lim, 176 U. S. 459; 20 Sup. Ct. Rep. 415; 44 L. ed. 544.

9 130 U. S. 581; 9 Sup. Ct. Rep. 623; 32 L. ed. 1068.

10 For a very full account of discussions of this subject in Congress, see Hinds' Precedents of the House of Representatives, Chapters XLVIII and

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