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and those of treaties in the former it is said those which shall be made in pursuance of the constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.
The explanation is, that at the time of adopting the constitution, certain treaties existed, which had been made by congress under the confederation,(16) the continuing obligations of wbich it was proper to declare. The words “under the authority of the United States," were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a constitution wbich was not then in existence, the latter would not be “ under the authority of the United States," unless they are conformable to its constitution.
It has been observed, that it is not distinctly declared whether treaties are to be held superior to acts of congress, or whether the latter are to be co-equal with or superior to the former. The mere collocation of the words would tend to give the superiority to the laws, but bigher ground must be taken for the decision of the question.
Having felt the necessity of the treaty making power, and having fixed on the department in which it shall be vested, the people of course excluded from all interference with it, those parts of the government which are not described as partaking of it. The representation beld out by our constitution to foreign powers, was that the president with the advice and consent of the senate, could bind the nation in all legitimate com
(16) With France, the United Netherlands, and particularly the treaty of peace with Great Britain.
pacts : but if pre-existent acts, contrary to the treaty, could only be removed by congress, this representation would be fallacious; it would be a just subject of reproach, and would destroy all future confidence in our public stipulations. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions.
But this is not inconsistent with a power to pass subsequent laws, qualifying, altering, or even wholly annul. ling a treaty. Such a power may be supported on another ground. Congress alone possesses the right to declare war, and the right to qualify, alter, or annul a treaty being of a tendency to produce war, is an incident to the right of declaring war. Such measures may be essential to the interests of the nation, and it is impossible to find them in any other part of the constitution than in the general powers held by congress. But in these procedures, the senate must necessarily, and the president may eventually be parties, and they are essen. tially different from laws to carry a treaty into effect, which suppose the treaty imperfect, till they are passed. The former laws on the contrary, consider the treaty as complete and effective, and are passed as the only means of counteracting it under a change of cir. cumstances, at the hazard indeed of exciting the complaints, resentment, or hostilities of the foreign power.
In the years 1795 and 1796, the house of representatives was much agitated on account of the treaty of November 19th, 1794, between the United States and Great Britain. A resolution was passed requesting the president to lay before them a copy of his instructions to the minister who negociated the treaty, with the correspondence and other documents relative to that treaty, excepting such papers as any existing negaciations may render it improper to disclose.
The illustrious individual who then held the office, answered, that he had never had but one opinion on the subject, and that his conduct had always conformed to it. His opinion was, 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 any treaty so made and promulgated, thenceforward becomes the law of the land.
It is thus, he added, 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 become obligatory. In this construction of the constitution every house of representatives had acquiesced, and until the present time, not a doubt or suspicion had appeared, to his knowledge, that this construction was not the true one.
With some further remarks, he concluded by observing, that as it was perfectly clear to his understanding that the consent of the house of representatives is not necessary to the validity of a treaty, as the treaty with Great Britain exhibited in itself all the objects requiring legislative provision, and on these the papers called for could throw no light; and as it is essential to the due administration of a government, that the boundaries fixed by the constitution between the different departments should be preserved, a just regard to the constitution and to the duties of his office forbid a compliance with their request. (17)
The principles thus laid down were so far acqui
(17) Message, March 30, 1796, and see Marshall's Life of Washington, vol. 5.
esced in by the house, that they passed a resolution disclaiming a power to interfere in making treaties, but asserting the right of the house of representatives, whenever stipulations are made on subjects committed by the constitution to congress, to deliberate on the expédiency of carrying them into effect. And subsequently, though not without much acrimonious debate, and by a small majority, it was declared to be expedient to pass the laws necessary to carry the treaty into effect.
From that time, the question remained undisturbed, until the session of 1815–16, when in relation to an. other treaty with Great Britain, the house of representatives, after much debate, passed a bill particularly enacting the same stipulations on one subject as those which were contained in the treaty. This, as a dangerous innovation on the treaty making power, was warmly opposed by the minority, and disagreed to by the senate. But after conferences between the two houses, it terminated in a sort of compromise, which it is difficult to reconcile with a sound construction of the constitution. The act, (which was passed on the 1st of March, 1816,) shortly declares, that so much of any act as imposes a duty on tonnage, contrary to the provisions of a convention between the United States and his Britannic Majesty, shall from and after the date of that instrument, and during its continuance, be of no force or effect.
Thus a precedent was set, which a dissatisfied house of representatives may hereafter resort to; and although the judicial tribunals would probably consider the law as being wholly unnecessary, a nullity in itself, it may be the cause of future legislative attempts producing more difficulty.
Yet however manifest these principles may appear, it must be confessed that another part of the constitution presents an apparent difficulty which requires examination.
By the 9th sect. of the 1st article, it is expressly declared, that “no money shall be drawn from the
treasury but in consequence of appropriations made 6 by law.”
A treaty may be made, by which a sum of money is engaged to be paid to a foreign power, on considerations beneficial to the union; can such a contract be fulfilled without an act of congress ? Three eventual cases may be stated :
1. Where there is a sufficient sum of money in the treasury, not under any specific appropriation.
2. Where there is a sufficient sum, but actually appropriated to different objects.
3. Where there is no money in the treasury, but a sufficient sum must be raised in some manner to fulfil the contract.
In the second and third of these supposed cases, it would seem that the treaty could not be carried into effect by its own power. Taxation, direct or indirect, can only be the work of congress.
By Art. 1. 6 viii. the congress shall have “power “ to lay and collect taxes, duties, imposts, and ex
No such power is given to the president and senate in direct terms.
By another section, (the 7th,) of the same article, 66 All bills for raising revenue shall originate in the 6 house of representatives.” A nice disquisition might here be introduced, whether the fulfilment of a contract with a foreign power, was to be considered as raising revenue. The term ought to be interpreted in its broad and general sense, and in reference to the spirit and