nations for the purposes of treaty making, and to render its declaration effective by refusing to recognize any subsequent treaties with them; and this view prevailed. (See, especially, Congressional Globe, 41st Cong. 3 sess. (1870-1871), part 1, pp. 763-765; part 3, pp. 1821-1825). V. ENFORCEMENT OF TREATIES. 1. DUTY OF PERFORMANCE. § 757. "When a party from necessity or danger withholds compliance with part of a treaty, it is bound to make compensation where the nature of the case admits and does not dispense with it.” Opinion of Mr. Jefferson, Sec. of State, April 28, 1793, 7 Jeff. Works, 617. "When performance [of a treaty], for instance, becomes impossible, nonperformance is not immoral; so if performance becomes selfdestructive to the party, the law of self-preservation overrules the laws of obligation in others; " but "it is not the possibility of danger which absolves, for that possibility always exists, and in every case." Opinion of Mr. Jefferson, Sec. of State, April 28, 1793, 7 Jeff. Works, 613, 614. When there is a treaty giving certain privileges as to repairing armed vessels of a belligerent, such treaty will be enforced by the neutral state, though the favors it confers on the belligerent may be in excess of what would be conferred by the law of nations. Moodie v. The Phoebe Anne, 3 Dall. 319. See Bee's Adm. R. 40 76. 2. LEGISLATIVE AID. § 758. Since by the Constitution treaties made in pursuance thereof are to be the law of the land, they are to be regarded by the courts as equivalent to a legislative act when they operate directly upon a subject; but if they merely stipulate for future legislation by Congress, they address themselves to the political and not to the judicial department, and the latter must await the action of the former. Foster v. Neilson, 2 Pet. 253, cited in Mr. F. W. Seward, Act. Sec. of The particular point decided in Foster v. Neilson, viz, that art. 8 of the May 13, 1786, Mr. Jay, as Secretary of Foreign Affairs, sent a circular to the governors of the various States, asking what had been done towards executing the treaty of peace of 1782-3 with Great Britain. The governor of Massachusetts, James Bowdoin, May 17, 1786, sent in answer copies of acts of the State legislature. (MS. American Letters, II. 323-345.) Other answers were received as follows: Samuel Huntington, governor of Connecticut, June 12, 1786, MS. Am. Let. II. 371; William Livingston, New Jersey, June 15, 1786, id. 410; R. Caswell, North Carolina, June 21, 1786, id. 407; Wm. Moultrie, South Carolina, June 21, 1786, id. 411; John Sullivan, New Hampshire, July 11, 1786, id. 416; Geo. Clinton, New York, July 20, 1786, id. 439; John Collins, Rhode Island, Sept. 4, 1786, id. 450; John Sullivan, New Hampshire (second reply), Sept. 18, 1786, id. 457. While a treaty is the supreme law of the land, and operates as such in all matters not requiring legislative action, yet, when made dependent on legislative action, it does not take effect until such action is had. Foster v. Neilson, 2 Pet. 253; United States v. Percheman, 7 Pet. 51; 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. Turner v. American Baptist Missionary Union, 5 McLean, 347. "Where a treaty can not be executed without the aid of an act of Congress, it is the duty of Congress to enact such laws. Congress has never failed to perform that duty. But when it can be executed without legislation, the courts will enforce its provisions." Davis, Notes, United States Treaty Volume (1776–1887), 1228, citing Davis's Notes were published in 1873. Where a treaty obviously requires As to the necessity of legislation to execute treaties that purport to modify revenue laws, see Crandall, Treatles, Their Making and Enforcement, 135 et seq. In 1816 the Senate passed a bill to carry into effect the commercial convention of 1815 with Great Britain, the bill so passed providing that so much of any existing act as might be contrary to the provisions of the convention should be deemed and taken to be of no effect. The House of Representatives, on the other hand, passed a bill enacting seriatim the provisions of the treaty. The Senate refused to concur, on the ground that the treaty was operative of itself, and therefore that the act should be declaratory only. On the other hand, the House insisted that legislation was necessary to carry the treaty into effect. A committee of conference, Rufus King being chairman of the managers on the part of the Senate and John Forsyth chairman of the managers on the part of the House, agreed on a bill, which was then adopted. The principle upon which this adjustment was made was thus explained by Mr. Forsyth: "Your committee understood the committee of the Senate to admit the principle contended for by the House, that whilst some treaties might not require, others may require, legislative provision to carry them into effect; that the decision of the question, how far such provision was necessary, must be founded upon the peculiar character of the treaty itself." See Crandall, Treaties, Their Making and Enforcement, 135–140. By Article X. of the treaty between the United States and Prussia, of May 1, 1828, jurisdiction over disputes between the masters and seamen of vessels of the contracting parties was conferred on their respective consuls. In June, 1844, the Prussian consul at New Bedford, Massachusetts, applied to Mr. Justice Story for the enforcement of an award in such a case. Judge Story decided that the article could not be executed without an act of Congress, and prepared a bill for the purpose, which was found among his papers after his death, and which was sent to the Department of State. The President submitted the matter to Congress with a recommendation that such legislation be adopted as might be necessary to give effect to the treaty. President Polk, annual message, Dec. 2, 1845; Mr. Buchanan, Sec. of "The prohibition of Art. II. of the treaty of 1880 not only covers the importation, transportation, purchase, or sale of opium by American citizens in China, but extends also to vessels owned by such citi 6 zens, whether employed by themselves or by others in the opium trade. The provision of the treaty is not self-executing. The enforcement of the prohibition, as to American citizens in China, is expressly dependent upon appropriate legislation' on the part of the United States. There certainly appears little room to doubt that if the treaty as to opium is dependent on appropriate legislation,' it can not become effective in the absence of such legislative action." 6 Mr. Bayard, Sec. of State, to Mr. Denby, min, to China, May 14, 1886, MS. See, also, Mr. Denby, min, to China, to Mr. Bayard, Sec. of State, No. The international convention for the protection of industrial property, signed at Paris March 20, 1883, requires legislation to give it effect, and, in the absence of such legislation, is inoperative. Rousseau v. Brown (1903), 21 App. D. C. 73. 3. APPROPRIATIONS OF MONEY. $ 759. Jay's treaty was approved by the Senate by the requisite two-thirds majority. Its ratification was proclaimed by the President on February 29, 1796, and this proclamation was communicated to the two Houses of Congress on March 1, 1796. On the one side it was maintained that the power of the President and Senate as to treaties was absolute, and that the House of Representatives was bound, under the Constitution, to make the appropriations necessary to carry the treaty into effect. On the other side it was contended that under the Constitution the consent of the House was requisite to pass appropriations to carry the treaty into effect, and that this was as much known to the other contracting party as was the consent of the Senate to the preliminary adoption of the treaty. On the latter assumption the House, on March 24, 1796, called on the President for the facts relative to the treaty. On March 30, 1796, the President declined to give such information, his reasons being stated in a message to the House, given below. See also 8 Lodge's Hamilton, Federal ed., 161-181. For the action taken in Congress on the Jay treaty, see Crandall, Treaties, On April 30, 1796, the House, by a vote of 51 to 48, resolved that provi- "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." 66 Mr. Jefferson to Mr. Monroe, Mar. 21, 1795, 4 Jeff. Works, 134. 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 became 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 regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request.” President Washington, special message, Mar. 30, 1796, on Jay's treaty, Jefferson, before entering into negotiations for the purchase of lands lying at the mouth of the Mississippi, obtained from Congress a provisional appropriation of two million dollars for that purpose. Unexpectedly, his commissioners, being confronted with H. Doc. 551-vol 5-15 |