Графични страници
PDF файл
ePub

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. regard to extradition cases there was much question as to the necessity of legislation, but that is now obviated by the statute of 1848 (9 U. S. Stat. at L. p. 302), the provisions of the Revised Statutes, (§§ 5270, et seq.) and the amendments thereto which cover not only all existing treaties but all treaties hereafter made, so far as extradition provisions are concerned. See §§ 432, et seq., post..

In fishermen, over those granted to Canadian fishermen along the coasts of the United States rendered its decision awarding $5,500,000 to Great Britain. This award, known as the Halifax award, was made in 1877. It was considered as unjust and excessive, and grave questions were raised as to the appointment of the third arbitrator. Many members of Congress thought that the award was so unjust that it should 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.

1A 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

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 conformity 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;' in 1834 in regard to the treaty with France; 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,) 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

[blocks in formation]

of the Fourteenth Congress, 1815-1816; the necessary acts were finally passed by which the tariff was regulated and the treaty carried into effect."

§301. Views of Mr. King of Massachusetts.-In the course of the debate Mr. Cyrus King of Massachusetts stated that he had made an investigation of the question with the following result:

"The result of my investigation on this subject is that whenever a treaty or convention does, by any of its provisions, encroach upon any of the enumerated powers vested by the Constitution in the Congress of the United States, or any of the laws by them enacted in execution of those powers, such treaty or convention, after being ratified, must be laid before Congress, and such provisions cannot be carried into effect without an act of Congress. For instance, whenever a treaty affected duties on imposts, enlarging or diminishing them, as the present one did to diminish; whenever a treaty went to regulate commerce with foreign nations, as that expressly did with one, as the power to lay duties and the power to regulate commerce are expressly given to Congress, such provisions of such treaty must receive the sanction of Congress before they can be considered as obligatory and as part of the municipal law of this country. And this construction is strengthened by a part of the general power given to Congress, following the enumerated powers, 'to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or office thereof.' In other words, for carrying into execution the treaty-making power (that being among the other powers) in all cases where it has been exercised on subjects, placed by the Constitution within the control of the legislative department. This construction is further strengthened by the concession of honorable gentlemen, in one case, that where appropriations of money are. necessary for carrying the provisions of any treaty into effect, there legislative provision is necessary. Now, sir, to concede that the sanction of Congress is necessary in one case of

43 U. S. Stat. at L. p. 255.

enumerated and specified power, is to concede it in all such cases. Nor, sir, can any serious inconvenience arise from this construction. As to negotiations with foreign Powers, our Ministers will always know the peculiar structure of our Government; nor can foreign Ministers, who may ever be sent to treat with us, be ignorant thereof. Besides, the distinction, as to the several kinds of treaties, is well known; some, respecting solely our external relations, or the intercourse between our Government and that of a foreign Power, will execute themselves, or are perfect without any legisla tive aid; and it can instantly be determined, from the nature of the provisions, when legislative aid is necessary. Further, sir, your Government has well understood this distinction. Some treaties they, by their proclamations, merely ratify and confirm, where legislative aid is necessary, as in the present case; others, they not only ratify and confirm, but enjoin an observance thereof upon all our citizens, as will be seen by turning to the ratification, by Mr. Jefferson, of several treaties published in the seventh volume United States laws. The fear that the President and Senate (they must both, or two-thirds of the latter, concur) will agree with the House in passing an improper law on the subject of a treaty which they had before ratified, cannot be well founded. There is much more reason to fear that they may be induced to ratify a treaty requiring legislative provision, which the House ought to refuse. Should a case of that kind occur, while I have the honor to be one of the Representatives of the people, I shall have no hesitation, with my brethren, to interpose ourselves between the Executive and the people, in the defence of their rights, or the freedom of our country. Far, then, from shrinking from what my honorable friend is pleased to call an awful responsibility, I should think it a sacred duty to meet the crisis, resist the encroachment, and leave the consequences with God. I never will consent that the House of Representatives of the people shall become a mere Parliament of Paris, to register the edicts of the President. I shall vote for the bill."1

§ 302. Presentation of other side by Mr. Hardin.-The § 301.

1 Annals of Congress, 1815-1816, pp. 538-539.

other side of the question was presented by Mr. Hardin as follows:

"Gentlemen had said, that, on a commercial subject, no treaty could be obligatory, because the Constitution had assigned to Congress the regulation of commerce. Where, then, said he, will gentlemen stop? To Congress, they say, is delegated the exclusive jurisdiction over everything. According to their construction, therefore, the treaty-making power was impotent, a nullity, it could do nothing; it could not make peace, because peace repeals war, the right of making which is delegated to Congress: and it could not form alliances, for the same reason. But gentlemen, he observed, seemed not to recollect the old logical maxim, that he who proves too much, proves nothing. The President, say they, cannot repeal the excise!-no; but the President can make a peace without the concurrence of that House, and fortunate it was, that he could do so. We now, said Mr. H., feel the happy effects of that power, and conceive that a treaty of peace has been accomplished without any encroachments, or pretended encroachments on our Congressional acts. The power to treat generally, he said, was vested in the President by the Constitution-but to the law of nations it was left, to determine the limitations of that power. If it be true, said Mr. H., that by the terms of the Constitution of the United States, this treaty is already the law of the land, then is the treaty guaranteed by that Constitution; and yet gentlemen insist that it is not valid, and that this House ought to be consulted. By the Constitution we are forbidden to be heard in the subject, yet they will have it otherwise, and by this species of indirection, this left-handed. course, bring the treaty under our legislative cognizance. Sir, I say we cannot do indirectly that which we are forbidden to do directly. Treaties might be made, no doubt, he said, for the execution of which it might be necessary to call upon the House to make laws; offensive and defensive. treaties for instance, which could not otherwise be carried into effect; but when, as in the present case, the treaty was complete, and capable of executing itself, nothing of the kind was necessary.

"As to the instance which had been adduced of Congress

« ПредишнаНапред »