law of the land, would not have due effect. As Congress may by statute abrogate, so far at least as this country is concerned, a treaty previously made by the United States with another nation, so the United States may by treaty supersede a prior act of Congress on the same subject."

But, as was observed by Chief Justice Marshall in Foster vs. Neilson, not all treaties become fully effective as laws proprio vigore. Some may require legislative execution. In Article VIII of the treaty of February 22, 1819, which was before the Court in this case, it was stipulated, according to the English text, which was alone considered in the decision, that all grants of land made by his Catholic Majesty in the ceded territory prior to January 24, 1818, "shall be ratified and confirmed to the persons in possession of the lands." The language, the Chief Justice observed, indicated merely a contract in which the United States engaged to do a particular act and until Congress had confirmed the grants, the courts were not at liberty to disregard the existing laws on the subject; that as such a stipulation addressed itself to the political not the judicial department, the legislature must execute the contract before it could bind the courts. He added, had the words "are hereby confirmed" been used, the article would have been self-executing and have repealed acts of Congress repugnant to it. So also Mr. Justice Field in the case of Whitney vs. Robertson observed that "When the stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect ***If the treaty contains

'Only one other justice considered this point essential to the decision. 2 Pet., 313. In the later case of U. S. vs. Percheman, 7 Pet., 51, 89 the Court, construing the English and the Spanish text together, held that the article was self-executing.

stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment." In order to determine what treaty provisions require legislative execution, it is necessary to resort to legislative precedents, as the promptness with which Congress has usually met these obligations has quite removed the question from judicial determination.

On April 14, 1792, an act, which had been passed at the suggestion of President Washington, was approved, to carry into effect the consular convention with France of November 14, 1788, the first treaty to be ratified under the Constitution. It did little more than designate the judges and marshals, whose duty it should be to render assistance to French subjects and French consuls according to the tenor of the treaty. The act was principally concerned with the duties of American consular officers abroad."

Appropriations.-Jefferson records under date. of April 9, 1792, a meeting with President Washington, in which questions for consultation with the Senate on the proposed Algerian treaty were considered. It having been suggested by Jefferson that the seal should not be put to the treaty until the two houses had voted the money which was to be paid to Algiers, the President asked whether if such a treaty were ratified by him with the consent of the Senate it would not be valid under the Constitution, and obligatory on the representatives to furnish the money. Jefferson replied that "it certainly would, and that it would be the duty of the representa

124 U. S., 194. See opinion of Mr. Justice Baldwin in Lessee of Pollard's Heirs vs. Kibbe, 14 Pet., 415 (1840).

tives to raise the money; but that they might decline to do what was their duty *** it might be incautious to commit himself by a ratification with a foreign nation, where he might be left in the lurch in the execution; it was possible, too, to conceive a treaty which it would not be their duty to provide for." The President did not favor the precaution, and declared that if the representatives "would not do what the Constitution called on them to do, the government would be at an end, and must then assume another form."'

On February 29, 1796, the Jay treaty was proclaimed by President Washington, the ratifications having been. exchanged October 28 of the previous year, and on March 1 it was communicated to Congress for its information. The treaty, while not expressly so stipulating, required an expenditure of money in the organization of the mixed commissions therein provided for. It met with disfavor in the House, and on March 24 a resolution introduced by Edward Livingston was passed (62 to 37), requesting the President to communicate to that body the instructions and other documents relative to the negotiation of the treaty. Fully appreciating the importance of the reply as a precedent, President Washington informed the committee, Livingston and Gallatin, appointed to present the resolution, that he would consider the matter; and according to his usual practice on important questions he requested the opinions in writing of the members of the cabinet. He also wrote to Hamilton for his advice. The members of the cabinet were unanimous in denying the right of the House to

'Writings of Jefferson (Ford ed.), vol. i, p. 191. MSS. Jefferson Papers, series 4, vol. ii, no. 36.

'Annals, 4th Cong., 1st Sess., pp. 759, 760.

insist on the request, and in asserting the exclusive power of the President and Senate to make treaties on all the usual subjects of negotiation with foreign states, maintaining that treaties thus concluded were legally binding on all bodies of men within the jurisdiction of the United States. Chief Justice Ellsworth, whose appointment to the Supreme Court bears the date of March 4, 1796, expressed in a lengthy letter under date of March 13 similar views. He opened his argument with the statement that the treaty-making power as vested by the Constitution in the President and Senate went to all kinds of treaties, for no exception was expressed and no treaty-making power was elsewhere granted to others, and it was not to be supposed that the Constitution had omitted to vest sufficient power to make all kinds of treaties which had been usually made, or which the existence or interests of the nation might require. That an appropriation was necessary to carry the treaty into effect was an accidental circumstance, and did not give the House any more right to examine into the expediency of the treaty or control its operation than it would have without that circumstance. "Their obligation to appropriate the requisite sums," so he concluded, “does not result from any opinion they may have of the expediency of the treaty, but from their knowledge of its being a treaty, an authorized and perfect compact which binds. the nation and its Representatives. The obligation is indispensable, as it is to appropriate for the President's salary, or that of the Judges, or in any other cases where fidelity to the Constitution does not leave an option to refuse." Hamilton advised against compliance in a letter of March 26, and three days later submitted a

I

1MSS. Letters to Washington, vol. cxvii, p. 287.

.

draft of a message in reply. President Washington had, however, already decided to refuse the request, and his message, prepared with the assistance of the cabinet, was in final form before the arrival of Hamilton's. He accordingly reserved the latter's draft, "as a source for reasoning," should, as was expected, a fresh demand be made. The message, as communicated March 30, concluded with an unqualified refusal in the following words: "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. 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. In reaching this conclusion President Washington made several observations on the mode of making treaties under the Constitution. He spoke with more confidence of the purpose of the treaty-making provision, having been a member of the Convention that framed it and an observer of the proceedings of the State conventions that adopted it. He recalled that a proposition that no treaty should be binding which was not ratified by law had been proposed and had received explicit rejection in the Convention. He had ever entertained but one opinion on this subject, which from the establishment of the government until the present had been acquiesced in by the House-that the power of making treaties was exclusively vested in the President

Writings of Washington (Ford ed.), vol. xiii, p. 181. Works of Hamilton (Lodge ed.), vol. viii, pp. 386, 389.

'Richardson's Messages, vol. i, p. 196.