which arose was over the bill approving it, and the wide difference of opinion which still exists was shown in the three distinct positions which were supported, in debate, by the most learned and able lawyers in the Senate:

First, that reciprocity treaties could not constitutionally be made and ratified by the President and the Senate, even though Congress may subsequently pass a law to carry such treaties into effect, or may repeal the tariff laws with which they conflict;

Second, that reciprocity treaties can constitutionally be made by the President, ratified by the Senate, but that Congress must pass a law carrying all such treaties into effect;

Third, that the President and Senate have the power to make and ratify reciprocity treaties, and that they immediately become the supreme law of the land, repealing any law with which they may conflict; that, where the treaty does not itself provide for Congressional action, it becomes fully effective upon ratification by the Senate.

The Constitution says that the President shall have power, with and by the advice and consent of the Senate, to make treaties. At least, we shall all admit that the President does not derive his treaty-making power from Congress, and that no law of Congress can in any way modify or limit that power, and that, in the Constitution, Congress, as a legislative body, is not, in any way, a part of the treaty-making power.

Justice Field said upon this question:

"The treaty-making power, as expressed in the Constitution, is in terms unlimited except by those restrictions which are found in that instrument against the action of the Government or of its departments, and those arising from the nature of the Government itself, and that of the States. It would not be contended that it extends so far as to authorize that which the Constitution forbids, or a change in the character of the Government, or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiations with a foreign nation."

Justice Story said:

"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 injuries or pay

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ment of debts, for recognition and enforcement of principles of public law, and for any other purpose which the policy or interests of independent sovereigns may dictate in their intercourse with each other."

The history of the treaty-making power is, in itself, suggestive of its intent. In the original Articles of Confederation, the power was given to Congress, only limited by the provision that no treaty should restrict the legislative power of the States to impose duties and prohibit commerce in any species of goods; and not the least of the defects which soon developed in the Articles was the defect in the treaty-making power. The result was the Constitutional Convention for the purpose of revising the Federal system of government, which met May 14th, 1787.

Early in the Convention, Alexander Hamilton suggested, practically, the treaty-clause which was afterward adopted: "That the Executive, with the advice and approbation of the Senate, have power to make all treaties, and that those treaties be a part of the supreme law of the land." Twice, in the Convention, it was proposed to add the House of Representatives, but Pennsylvania alone voted in the affirmative. An amendment was proposed by Mr. Morris, that no treaty should be binding till it was ratified by law, and this was also lost. During the last discussion of the clause, Mr. Wilson moved again to add the words, "House of Representatives," and this was also lost.

All of this is indisputable evidence, clearly showing that the subject was carefully discussed and fully understood, and that the almost unanimous voice of the Convention, of the framers of our Constitution, was that the treaty-making power should be vested in the President and its ratification rest with the Senate.

Before its final adoption, the Constitution was carefully, sometimes violently, discussed and debated in State conventions, every State taking up the treaty clause, Virginia most hotly of all, and finally suggesting the amendment that: "No commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the Senate." If the able men of Virginia who discussed this treaty-clause, as founders of the Constitution, had so construed it that, before a commercial treaty could become binding, an act of Congress would be necessary to establish it, they would not have sought to introduce an amendment providing that "no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the Senate."

The first and in many respects most noteworthy attempt to restrict this power occurred in the House in 1796, seven years after the adoption of the Constitution. The House was called upon for an appropriation of $80,000 in carrying out the terms of the so-called "Jay treaty," between England and the United States. The treaty was intensely unpopular in the United States, a fact which influenced the action. It was in every sense a commercial treaty. Not until it was ratified and proclaimed did President Washington send a copy to the House "for its information," in connection with the appropriation. The House was in a majority against the Administration. It was an opportunity not to be lost. A resolution was offered, requesting President Washington to furnish the House with all correspondence in the matter, that it might judge of the wisdom of passing the appropriation. The right of the House to consider any question connected with a treaty, against its imperative duty to appropriate money so required, was vigorously fought, for a month-a long time, considering the fact that at the time there were only 96 members. They were reminded that in March, 1794, a law went into effect laying an embargo on all vessels, when the Executive construed an earlier treaty with Sweden as exempting the vessels of that nation, and they were suffered to depart, although Congress had prohibited it; that several treaties had been concluded with Indian tribes, embracing all of the points which were now subject of contest-settlement of boundaries, money grants-ratified by the Senate and proclaimed, without reference to the House, but that the House had considered them laws and made the necessary appropriations without discussion. The majority prevailed, and the resolution passed. President Washington refused to present the required correspondence, saying, in his message:

"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 the 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 twothirds of the Senators present concur, and that every treaty so made and promulgated thenceforward becomes the law of the land."

This opinion of President Washington was not based wholly upon his own convictions, nor was he alone responsible for the

action. He received written opinions from every member of his Cabinet. Among them was Oliver Ellsworth, afterward Chief Justice of the Supreme Court. Chief-Justice Ellsworth's letter, written March 13, 1796, I believe, has never before been published. It is, in part, as follows:

"The grant of the treaty-making power is in these words: 'The President, with the advice and consent of the Senate, shall make treaties.' The power goes to all kinds of treaties, because no exception is expressed; and also because no treaty-making power is elsewhere granted to others, and it is not to be supposed that the Constitution has omitted to vest sufficient power to make all kinds of treaties which have usually been made, or which the existence or interests of the nation may require. "The effect of treaties is declared in these words: 'All treaties made under the authority of the United States shall be the supreme law of the land.' The Constitution gives them their effect, and they do not, therefore, need or derive it from Congressional resolutions or statutes. The instant the President and Senate have made a treaty, the Constitution makes it the law of the land; and, of course, all persons and bodies, in whatever station or department, within the jurisdiction of the United States, are bound to conform their actions and proceedings to it.

"Such treaty, ipso facto, repeals all existing laws so far as they in. terfere with it. This is an inseparable attribute of a statute or of what has the effect of one; but, on the other hand, a treaty cannot be repealed or annulled by statute, because it is a compact with a foreign Power, and one party to a compact cannot dissolve it without the consent of the other.

"The claim of the House of Representatives to participate in or control the treaty-making power is as unwarranted as it is dangerous. It has no support but from a usage of the British House of Commons, the reason of which does not apply here. The House of Representatives have no examination to make, nor does it appear that they have before them any legitimate object of inquiry to which the papers can apply. They have a right to impeach, or to originate a declaration of war, but neither of these objects is avowed by the House nor are they to be presumed."

A resolution of protest was passed, but the House also passed the necessary appropriation; so that the question was left unsettled on the first occasion when it was discussed, and the same arguments have been used many times, since then, down to the present day, with the same result, and it is doubtful if it is now any nearer a final settlement, at least so far as the contending opinions of Congress are concerned.

In 1803, the whole question was again discussed, when Congress

was called upon to make the appropriation for the purchase of Louisiana. Jefferson was then President. In 1790, he was of the opinion that a treaty of itself repealed a revenue law, as he stated, in a written opinion, on a treaty with the Creek Indians, which he submitted to Washington on July 29th:

"A treaty made by the President, with the concurrence of two-thirds of the Senate, is the law of the land, and a law of superior order, because it not only repeals past laws, but cannot itself be repealed by future ones. The treaty then will legally control the duty acts."

It will be noted that Jefferson's opinion touches the very question which has been so much discussed-whether a treaty, of itself, repeals a duty or revenue law.

Thus far the question had only been as to the duty of the House to pass the required appropriations; but, in 1816, the question came under consideration: Does an act of Congress become necessary to repeal a revenue or tariff law with which a treaty conflicts, or does the treaty, of its own force, repeal it? It cannot, I suppose, be questioned that treaties generally repeal laws with which they conflict; but do they repeal revenue and tariff laws?

The treaty regulating commerce and trade between the United States and Great Britain, signed by Adams, Clay and Gallatin, was necessitated by discriminating revenue laws which grew out of the war of 1812, and was in direct conflict with certain revenue acts of Congress. After it was ratified and proclaimed by President Madison, he laid the proclamation before Congress, stating: "I recommend such legislative provisions as the convention may call for, on the part of the United States."

Simply out of courtesy, the Senate passed a Declaratory Act, stating that: "So much of any act or acts as is contrary to the provisions of the convention shall be deemed and taken to be of no force or effect." But the House, in an effort to instigate the question of its rights, passed a bill of its own, in which the provisions of the treaty were substantially reenacted, in the shape of law. When this bill came before the Senate, Senator Barbour, of Virginia, made a strong protest, in which he said:

"Is the aid of the legislature necessary in all cases whatsoever to give effect to a commercial treaty? It is readily admitted that it is not; that a treaty whose influence is extra-territorial becomes obligatory the instant of its ratification; that, as the aid of the legislature