being called upon to enact laws for carrying treaties into effect, he believed that there was not one of them similar to this. The case of Jay's Treaty was not. The Federalists supported that on two grounds: one that it was a good treaty; the other that, whether good or bad, it would not be consistent with the honor of the country to reject it; but it never was brought forward as this is, a re-echo of itself in the shape of a bill. And as to the cases taken from the proceedings of the British records, the organization of that government was in all respects so different from that of ours, that it was impossible to argue fairly or conclusively from the one, to the other."1

§303. Result of conference; extract from report.—The Conference Committee between the House and the Senate made a report in which this point was discussed at length, and should be examined by any one studying this subject; it contains the following statement of principles:

"Without entering upon an extensive inquiry in relation to the treaty-making power, the committee will venture to define, as accurately as they can, the real line which at present divides the contending parties. It is of less importance to ascertain how far they have heretofore disagreed, or may hereafter differ, than to discover what it is precisely that now divides them.

"In the performance of this duty the committee of the House of Representatives are inclined to hope that it will sufficiently appear, that there is no irreconcilable difference between the two branches of the Legislature.

"They are persuaded that the House of Representatives does not assert the pretension that no treaty can be made without their assent; nor do they contend that in all cases legislative aid is indispensably necessary, either to give validity to a treaty, or to carry it into execution. On the contrary, they are believed to admit, that to some, nay many treaties, no legislative sanction is required, no legislative aid is necessary.

"On the other hand the committee are not less satisfied that it is by no means the intention of the Senate to assert the § 302.

1 Annals of Congress, 1815-1816, pp. 544–545.

treaty-making power to be in all cases independent of the legislative authority. So far from it, that they are believed to acknowledge the necessity of legislative enactment to carry into execution all treaties which contain stipulations requiring appropriations, or which might bind the nation to lay taxes, raise armies, to support navies, to grant subsidies, to create States, or to cede territory; if indeed this power exists in the Government at all. In some or all of these cases, and probably in many others, it is conceived to be admitted, that the legislative body must act, in order to give effect and operation to a treaty; and if in any case it be necessary, it may confidently be asserted that there is no difference in principle between the Houses; the difference is only in the application of the principle. For if, as has been stated, the House of Representatives contend that their aid is only in some cases necessary, and if the Senate admit that in some cases it is necessary, the inference is irresistible, that the only question in each case that presents itself is, whether it be one of the cases in which legislative provision is requisite for preserving the national faith, or not."1

$304. President Jackson's views in 1834 in regard to French treaty of 1831.-In 1834 the question was again raised in connection with the refusal of France to carry out the reciprocal provisions contained in the treaty of 1831. President Jackson took the position that a treaty involving commercial regulations had to be submitted to Congress in order to be carried into full execution.1

§ 303.

1 Annals of Congress, 1815-1816, pp. 1018-1023, see p. 1019.

§ 304.

Annual Register, 1834, Public Documents, p. 352, and cited by Mr. Tucker in his Report on Treaty with Hawaiian Islands, referred to in § 307, p. 439, post. Mr. Tucker states that the propositions asserted by President Jackson were (page 16 of the Report): "1. That the treaty involved commercial regulations and rates of duties, which had to be submitted to Congress

to be carried into full execution. 2. That France, having by the treaty (1831) recognized a precedent obligation for depredations on our commerce, though her legislative department refused to comply with its provisions, should be forced to comply by acts of retaliation." In commenting on these propositions Mr. Tucker says: "This is assumed to be a concession by the President in respect to the effect of the treaty on the national faith of France, without the concurrence of her legislative de

In 1844, Mr. Rufus Choate submitted a report from the Committee on Foreign Relations to the Senate, and which Mr. Tucker quotes in the report of 1887, which will be referred to later at greater length, in which it was declared that the legislature is the department of Government by which commerce should be regulated, and that notwithstanding the provisions in the Constitution as to the treaty-making power, the legislative will is paramount to that of the Executive in regard to all matters relating to commerce and revenue.

§ 305. Question again raised regarding Alaska purchase in 1867.-Probably the occasion upon which this question was most extensively debated in Congress, and with more definite results, was after the treaty with Russia of 1867, ceding Alaska to the United States, had been ratified by the Senate, and the question of appropriating $7,200,000 to make the stipulated payment therefor was before the House of Representatives.

partment, that a like construction see p. 101-3, Andrew Jackson's should prevail as to our Constitu- Sixth Annual Message, December, tion. It is obvious that had the ob- 1834. For French Treaty of 1831, ligation of France been created by see U.S. Treaties and Conventions, the treaty, instead of being only edition, 1889, p. 345; 8 U. S. Stat. recognized as a pre-existing obliga- | L. p. 430 (French and English text). tion, the conclusion would have 2 The report of this committee been just. But President Jack-will be found according to Mr. son insisted that it had pre-existed Tucker in Senate Journal, 28th for a long time, and had been too Congress, 1st Session, 1843-1844, long disregarded, and that the re- pp. 445, et seq.; a long quotation fusal of the French Chambers to therefrom will be found in Mr. carry out the pre-existing obliga- Tucker's Report referred to in tion, so recognized by the treaty, § 307, p. 439, post. authorized the United States to enforce the prior claim, and not to punish the violation of the treaty. And the President further insisted that Congress had carried out the treaty of 1831 by enacting commercial and duty regulations favorable to France, and which she was receiving, and yet refused compliance with her just duty to our people (see 4 U. S. Stat. at Large, pp. 574–576).”

See also Richardson's Messages of the Presidents, vol. III, p. 97;

8 See $307, p. 439, post.
§ 305.

1 Convention for the Cession of Russian Possessions in North America to the United States (Seward-Stoeckl) concluded March 30, 1867; ratified by the Senate April 9, 1867; ratifications exchanged and proclaimed June 20, 1867; U. S. Treaties and Conventions, ed. 1889, p. 937; U. S. Treaties in Force 1899, p. 537; 15 U. S. Stat. at L., p. 539 (French & English text).

&

A faction of the House, decidedly in the minority, but sufficiently strong to make itself heard, appears to have taken great umbrage at the action of the Senate, in ratifying a treaty by which the United States acquired territory, and for which a specified payment was to be made, without first obtaining the consent of the House of Representatives, or some expression of approval from that body; every effort was made to defeat the act appropriating the money for the payment until the Senate would first recognize the right of the House of Representatives to participate in the treatymaking power. Many of the Representatives who were in favor of the acquisition of Alaska opposed the appropriation because they desired to have the power of the House in regard to treaties recognized.

§ 306. Position of House on Alaska purchase; the Senate makes concessions.-A concise history of this matter appears in Wharton's International Law, where the details can be found at length. The record shows that the House asserted its position to some advantage at this time, as the Act of Congress2 which was finally passed contained a concession by which the Senate admitted that under some circumstances treaty stipulations "cannot be carried into full force and effect except by legislation to which the consent of both houses of Congress is necessary."

§ 307. Question raised in 1887 on Hawaiian reciprocity treaty; Mr. Tucker's report.-In 1887 the question was before the House of Representatives on a resolution directing the Judiciary Committee to inquire into the facts relating to the treaty of 1884,' extending the reciprocity treaty of 1875 with the Hawaiian Islands, and to report "whether a treaty § 306.

1 Wharton's International Law Digest, vol. 2, § 131a, pp. 15, et seq. See also Binger Hermann's Louisiana Purchase, 1898, pp. 52-55.

2 15 U. S. St. at L., p. 198. § 307.

S. Treaties and Conventions, edition 1889, p. 546. By this treaty certain articles specified in Article I, including "Sandwich Island sugar," were admitted free of duty into the United States and a number of articles were similarly ad

1 Treaty of Reciprocity with Ha-mitted into the Hawaiian Islands waiian Islands, concluded January 30, 1875; ratification advised by the Senate March 18, 1875; exchanged and proclaimed June 3, 1875. U.

from the United States. See Netherclift vs. Robertson, U. S. Circ. Ct. S. D. N. Y. 1886, 23 Blatchford, 546, CoxE, J.

[CH. X. which involves the rate of duty to be imposed on any article, or the admission of any article free of duty, can be valid and binding without the concurrence of the House of Representatives, and how far the power conferred on the House by the Constitution of the United States to originate measures to lay and collect duties can be controlled by the treatymaking power under said Constitution."

It was on this resolution that Mr. Tucker prepared and submitted the report which has already been alluded to and which contains many interesting points as to the history of congressional debate on this subject. The report contains from fifteen to twenty thousand words and is a lengthy review of the history of treaty stipulations and subsequent legislation, citing many congressional precedents, judicial decisions, and opinions of publicists. The conclusions reached were stated in the report as follows:

"(1) That the President, by and with the advice and consent of the Senate, cannot negotiate a treaty which shall be binding on the United States, whereby duties on imports are to be regulated, either by imposing or remitting, increasing or decreasing them, without the sanction of an act of Congress; and that the extension of the term for the operation of the original treaty or convention with the Government of the Hawaiian Islands, proposed by the supplementary convention of December 6, 1884, will not be binding on the United States without like sanction, which was provided for in the original treaty and convention, and was given by act of Congress.

"(2) That the President is respectfully requested to withhold final action upon the proposed convention, and to condition its final ratification upon the sanction of an act of

2 Treaty of Reciprocity with Ha- | United States the exclusive right waiian Islands, concluded Decem- to establish a coaling station at ber 6, 1884; ratification advised by Pearl River Harbor. Senate, with Amendments, Janu- 3 House of Representatives, Reary 20, 1887; proclaimed Novem- port No. 4177, 49th Congress, 2d ber 9, 1887. U. S. Treaties and Session, March 3, 1887. From Mr. Conventions, edition 1889, p. 1187. Tucker of the Committee on the By this treaty the reciprocity pro- | Judiciary, on Treaty with the Havisions were extended for seven waiian Islands.

years, and there was granted to the