[CH. X. resentatives to recognize the fact that the treaty-making power of the Constitution was lodged in the Executive, subject only to the ratification of two-thirds of the Senate, and that the House could not participate therein as a matter of right, to any extent whatever; a resolution was at once passed by the House of Representatives, which recognized the sound basis on which the President's reply was based, and in which that body distinctly disclaimed any agency in making treaties, but asserted the principle that when a call was made on the President for information it was not necessary to state why the information was wanted; the object of this resolution was evidently to convey the idea that the House did not wish to investigate as to how the Executive had made the treaty, but to ascertain what legislation was necessary to carry it into effect, and what the duty of the House was in this respect. It was, however, a distinct victory for the Executive.1 § 294. Other treaties ratified by the Senate, and before the House. Meanwhile other treaties had been negotiated with Spain, Algiers, and some of the Indian tribes, all that under this influence the "As, therefore, it is perfectly smaller States were admitted to an clear to my understanding that equal representation in the Senate the assent of the House of Repre with the larger States, and that sentatives is not necessary to the this branch of the Government was validity of a treaty; as the treaty invested with great powers, for on with Great Britain exhibits in itthe equal participation of those self all the objects requiring legispowers the sovereignty and politi- lative provision, and on these the cal safety of the smaller States papers called for can throw no were deemed essentially to depend. light, and as it is essential to the "If other proofs than these and due administration of the Governthe plain letter of the Constitution ment that the boundaries fixed by itself be necessary to ascertain the Constitution between the difthe point under consideration, ferent departments should be they may be found in the journals preserved, a just regard to the of the General Convention, which Constitution and to the duty of my I have deposited in the office of office, under all the circumstances the Department of State. In those of this case, forbids a compliance journals it will appear, that a with your request. Go. WASHINGproposition was made that no TON." Richardson's Messages of treaty should be binding on the the Presidents, vol. 1, p. 194–196. United States which was not rati- § 293. fied by law,' and that the proposition was explicitly rejected. 1 See McMaster's History, vol. II, chap. IX, p. 276. of which had been ratified by the Senate; the House, therefore, had before it at this time no less than four treaties, every one of which had, according to the Constitution, become the supreme law of the land, but all requiring more or less Congressional legislation to make them operative in certain respects, such as tariff, tonnage dues, establishment of commissions and appropriations; the chief questions which had been raised in regard to the treaty with Great Britain were equally applicable to all of the treaties, and they necessarily assumed even greater proportions than before, so that the position became more and more complicated as the debate continued. 295. Fisher Ames's address and argument; treaty legislation enacted. The leading speech of this debate was made by Fisher Ames,' in Committee of the Whole in support of a resolution for the enactment of legislation to carry the treaties into effect; under the influence of a great burst of oratory from that eminent Bostonian, the resolution was adopted by a tie vote of the Committee, which was made. affirmative by the casting vote of the chairman; the Committee at once rose, the session of the House was resumed, and the resolution carried by a vote of fifty-one to fortyeight. On May 6, 1796, the legislation was enacted and approved, giving effect to all provisions of the above mentioned treaties which required legislative assistance." § 296. Position of House of Representatives in treaty matters defined. Thus ended the first of the great parliamentary battles fought by the House of Representatives to gain control of the treaty-making power of the United States; while one point was definitely settled, other points still remain unsettled, as several of them do to-day. It was definitely decided that the House of Representatives had no voice whatever in the negotiation or ratification of a treaty; that the treaty-making power is vested exclusively in the Executive, subject only to the prescribed ratification by two § 295. 2 Fourth Congress, Sess. I, chap 1 For an account of Mr. Ames, and ters XVII, XVIII, XIX and XX; this address, see McMaster's His-1 U. S. Stat. at L. 459, 460. The tory, vol. 2, chap. IX, pp. 277, et acts are very brief, the four together seq. occupying only a page and a half. thirds of the Senate; that when the Executive makes a treaty and the Senate ratifies it in a constitutional manner, the treaty becomes the supreme law of the land; on the other hand, as was subsequently stated by Chief Justice Marshall in one of the opinions which will be referred to at greater length in a subsequent chapter,' it was practically decided that although a treaty becomes the supreme law of the land as soon as it is ratified as to every provision which can be enforced without legislation, it remains ineffectual as to those matters which do require legislation, or the appropriation of money, and can only be enforced after both Houses of Congress enact appropriate legislation, in the shape of entirely new laws, or those which modify or repeal such existing statutes as conflict with the treaty, or which appropriate money to carry out such provisions as entail expenditures and payments. § 297. Practical results of this method.-During the ninety-five years which have elapsed since the debate over the Jay treaty in the House of Representatives many statutes have been passed to carry out treaty stipulations,' both as to appropriations and other measures necessary to make treaties negotiated by the Executive and ratified by the Senate effective. Many of these statutes have been modifications of tariff and tonnage laws, some of them general in their nature and scope, and therefore applicable to all treaties of the class referred to in the statutes, and others specific and applicable only to the treaty specified. It would hardly be worth while to enumerate all of them; a few examples are given in the notes appended to this section, which indicate the vari§ 296. 1 Foster & Elam vs. Neilson, U. S. Sup. Ct. 1829; 2. Peters, 253, MARSHALL, Ch. J., and see § 314, post, and § 364, Vol. II. § 297. 1 Reference has already been made to the statutes carrying out the treaties with Great Britain and other powers in May, 1796 (see note 2, § 295, ante). Many of the statutes enacted by Congress carrying out the provi sions of claims conventions will be found either in full, or fully referred to, in Moore's History of Arbitration under the history of the various arbitrations, or adjustments by commissions between the United States and foreign governments. After the treaties with Great Britain in regard to Canadian matters, fisheries, reciprocal tariff årrangements, etc., statutes have always been passed to make the ous methods which have been adopted by Congress to carry out the contract elements of treaties with foreign powers.2 $298. Good faith in this respect always shown by Congress. It is a remarkable fact that while the great moral question still remains undecided as to how far the House of Representatives is bound, as a matter of good faith, to carry out, by legislative enactments and appropriations, provisions of treaties, which, without its participation or approval, and possibly against its own judgment, have been made by the President and ratified by the Senate, it has remained so in theory only and not in practice; as a matter of fact, no treaty has ever been made and ratified, 'by which the faith of the Union has been pledged, that the House has not fully carried out by enacting the necessary legislation so far as appropriations and modifications of existing laws are concerned; in deed, instances might be cited in which members of the House of Representatives have waived party and personal feelings so that there could be no question as to the good faith of the United States in carrying out treaty stipulations.1 treaty stipulations effectual. In fishermen, over those granted to regard to extradition cases there Canadian fishermen along the was much question as to the neces- coasts of the United States rendered sity of legislation, but that is now its decision awarding $5,500,000 to obviated by the statute of 1848 (9 Great Britain. This award, known U. S. Stat. at L. p. 302), the pro- as the Halifax award, was made in visions of the Revised Statutes, 1877. It was considered as unjust (§§ 5270, et seq.) and the amend- and excessive, and grave questions ments thereto which cover not only were raised as to the appointment all existing treaties but all treaties of the third arbitrator. Many memhereafter made, so far as extradi-bers of Congress thought that the tion provisions are concerned. award was so unjust that it should See §§ 432, et seq., post. not be paid, the feeling, however, that the United States was bound to pay it as the result of a treaty ob 2 Consult Index of U. S. Rev. Stat. under TREATIES. See also for various general provisions as to carry-ligation prevailed, and on June 20, ing out treaty stipulations. § 298. 1878, the amount was included in the final clause of the Sundry Civil Expense act; the act, however, placed the amount of the award under the direction of the President to be paid by him, “if after correspondence with the British Government, on the subject of the con 1 A notable instance was after the commission appointed under the Treaty of Washington of 1871, to adjust the difference to be paid by the United States for the excess of value of fishery privileges off the British coast, granted to American | formity of the awards to the re § 299. Subsequent debates in Congress on same subject. -Congressional debate similar to that over the Jay treaty, as to the extent of the rights and the duty of the House of Representatives in regard to legislation necessary and proper to make treaties effectual, has often been renewed; but it will only be possible in a volume of this size to refer briefly to the most important occasions; which were in 1816, in regard to the Commercial Treaty with Great Britain;1in 1834 in regard to the treaty with France;2 in 1867 after the treaty with Russia ceding Alaska; in 1887 while the Hawaiian treaty was pending; and in 1899 after the treaty with Spain terminating the Spanish war and ceding Porto Rico, Guam and the Philippines.5 a § 300. After commercial treaty of 1815 with Great Britain. After the ratification of the Treaty of Commerce of 1815 with Great Britain, an extended debate took place in the House on this subject; one element of Congress took the position that the treaty itself so altered existing laws that no further legislation was necessary, while the other led by Mr. Tucker, 1 (progenitor of John Randolph Tucker, whose report seventy years later followed the same views of his ancestor,2) contended that no commercial regulation could be made by a treaty, or that any laws could be modified to comply therewith without the action of both Houses. Mr. Randolph, another progenitor of John Randolph Tucker, took the same view. The debate was lengthy and can be found in full in the Annals of Congress for the First Session quirements of the treaty and to the terms of the question thereby submitted to the Commission, the President shall deem it his duty to make the payment without further communication with Congress," and if he deemed it necessary for the honor of the Nation so to do. See Resolution, 20 U. S. Stat. at L. p. 240. For a full account of this affair and the protest of the United States against the award, prepared by Mr. Wm. M. Evarts, Secretary of State, and the circumstances under which the $5,500,000 was paid on Novem ber 21, 1878, see Foreign Relations 1 See § 300, post. 2 See § 304, p. 437, post. 1 Annals of Cong., 1815-16, p. 463. 8 Annals of Cong., 1815-16, p. 533. |