that the House should be consulted before a treaty is agreed to. For a century, however, the President and the Senate, without consulting the House, have been negotiating treaties; and the Supreme Court, whenever the question has arisen, has held that while they could not agree to do what is forbidden by the Constitution, or to make a change in the government of the United States or of one of the states, or to cede the territory of one of the states without its consent, there is not "any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."

Most treaties which have been made by the United States would have remained empty pacts without action by Congress. In connection with the present discussion it is pertinent to note that by some of such treaties we have guaranteed the territorial integrity or the political independence of some foreign nation, and have thus committed the nation to war, if necessary, for the enforcement of the guaranty; while by others we have agreed to reduce armament on the

Great Lakes, to maintain a naval force on the coast of Africa or to refrain from war during the arbitration of international disputes; and we have frequently made treaties requiring the appropriation of money or some economic legislation by Congress in order to give them effect. But the President and the Senate have never waited in making such treaties for action by Congress, nor, on the other hand, has that branch of the government ever failed to enact necessary legislation.

There would be no constitutional way of compelling Congress to take action, although a legal discretion to refuse to act is virtually a power to abrogate a treaty. Hamilton sums up the matter thus:

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"The House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith And Washington, in a case where the question arose sharply, said that "every House of Representatives has therefore acquiesced and until the present time not a doubt or suspicion has appeared to my

knowledge that this construction was not the true one; nay, they have more than acquiesced, for till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect."

Suggestions have been made that treaties of such importance as the League of Nations should not be entered into by the President without ascertaining the will of the nation and of the representatives of the people elected to the House of Representatives. But we are a nation governed by a constitution, and there is no way under that instrument for submitting a treaty directly to the people or to Congress for their approval; and if governmental agencies vested with treaty-making powers should attempt to do so, they would be evading the duty clearly imposed upon them by the Constitution.

Furthermore, it would not be possible to ascertain how some future Congress would act. If the sentiments of one Congress could be ascertained, that would be no assurance that the next Congress would be of the same mind. One Congress might be willing to enforce an

economic boycott under Article XVI or to take military measures for the performance of the guaranty of Article X, while another would not assent to such action. Congressional action would, of course, be taken under the circumstances existing when a concrete situation had arisen; and in the vast majority of cases it would be impossible to forecast those circumstances. It would, therefore, be a futile expedient to procure assurances from the Congress that happened for the moment to be in power.

It is quite true that, as the President and Senate always take the initiative in making treaties, Congress, in enacting supplementary legislation to give a treaty effect, acts under a sort of coercion due to the fact that duly-constituted governmental agencies have committed the nation to a solemn moral obligation. But this situation is inevitable under the distribution of powers under the Constitution, and it no doubt accounts for the historical fact that Congress has never refused to take appropriate legislative action. It was this phase of the matter that led President Washington, when the House of

Representatives sought to investigate the instructions under which the Minister of the United States negotiated the Hay Treaty, to refuse to send to the House the papers which had been before him when the treaty was signed, and to say:

"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."