[Hinds' Precedents, Volume 2]
[Chapter 48 - Prerogatives of the House as to Treaties]
[From the U.S. Government Publishing Office, www.gpo.gov]


               PREROGATIVES OF THE HOUSE AS TO TREATIES.

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   1. Suggestions of the House as to treaties. Sections 1502-
     1505.\1\
   2. Conflicts with Senate and Executive. Sections 1506-1519.
   3. Functions of the House as to revenue treaties. Sections 
     1520-1533.
   4. House exacts a share in making Indian treaties. Sections 
     1534-1536.
   5. Opinion of the Supreme Court as to explanations of treaties. 
     Section 1537.

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  1502. Instances of the action of the House in carrying into effect, 
terminating, enforcing, and suggesting treaties.--On March 2, 1835,\2\ 
the House, by a unanimous vote, and after debate, agreed to the 
following resolutions:

  Resolved, That in the opinion of this House the treaty with France of 
the 4th of July, 1831, should be maintained, and its execution insisted 
on.
  Resolved, That contingent preparations ought to be made to meet any 
emergency growing out of our relations with France.

  1503. On February 19, 1833,\3\ a bill (H. R. 741) ``to carry into 
effect the convention between the United States and His Majesty the 
King of the Two Sicilies'' was reported from the Committee on Foreign 
Affairs. This bill became a law.
  1504. On June 3, 1874,\4\ the Committee on Foreign Affairs reported 
to the House a joint resolution (H. J. Res. 107) providing for the 
termination of the treaty between the United States and His Majesty the 
King of the Belgians. This resolution passed the House, and became a 
law.
  1505. In 1879,\5\ the House passed a joint resolution (H. J. Res. 
117) providing for a treaty with the Republic of Mexico.
  1506. In 1816 the House, after discussion with the Senate, maintained 
its position that a treaty must depend on a law of Congress for its 
execution as to such stipulations as relate to subjects 
constitutionally intrusted to Congress.
  An instance wherein the enacting words of a bill were declaratory as 
well as legislative in form.
  Under the early practice the conference reports made to the two 
Houses were not identical.
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  \1\ Notice of abrogation of a treaty made by joint resolution, 
section 6270 of Volume V.
  \2\ Second session Twenty-third Congress, Journal, pp. 499-581; 
Debates, p. 1634.
  \3\ Second session Twenty-second Congress, Journal, pp. 361, 491.
  \4\ First session Forty-third Congress, Journal, pp. 1097, 1251; 
Record, p. 4507.
  \5\ First session Forty-sixth Congress, Journal, p. 584.
                                                            Sec. 1506
  On January 4, 1816,\1\ the House, in Committee of the Whole House, 
proceeded to the consideration of the bill of the House ``to regulate 
the commerce between the Territories of the United States and His 
Britannic Majesty according to the convention concluded on the 3d day 
of July, 1815.'' Mr. John Forsyth, of Georgia, chairman of the 
Committee on Foreign Relations, stated that the bill was intended to 
carry into effect those parts of the treaty which required legislative 
interposition. The present discriminating duties on tonnage and 
importations were abrogated by the provisions of the treaty, and the 
present bill was for the purpose of conforming American law to the 
provisions of the treaty.
  Mr. William Gaston, of North Carolina, made the point that the treaty 
since its ratification had become the law of the land, and therefore 
the pending bill seemed to him to be nugatory and unmeaning. On the 
succeeding day, January 5, in order to try the principles of the bill, 
Mr. Gaston moved that it be indefinitely postponed.
  On January 8,\2\ Mr. Forsyth replied, stating that the constitutional 
principle had been settled in 1795, when the House had enunciated the 
principle that ``when a treaty stipulates regulations on any of the 
subjects submitted by the Constitution to the power of Congress it must 
depend for its execution, as to such stipulations, on a law or laws to 
be passed by Congress.'' This doctrine evidently applied not only to 
appropriations but to all cases over which power was specially given by 
the Constitution to the legislative department. Mr. Forsyth reviewed 
then instances where Congress had legislated in obedience to this broad 
principle. It was further urged \3\ by Mr. Philip P. Barbour, of 
Virginia, that a treaty was the supreme law of the land so far as the 
States were concerned, but that this superiority did not extend over 
the Constitution and laws of the United States. Were there not such a 
check upon the treaty-making power the harmony between the departments 
of the Government would be broken down, and the treaty-making power 
would swallow up all the rest.
  On the other hand, Mr. Thomas R. Gold, of New York, urged \4\ that a 
treaty required the aid of an act of Congress for its validity no more 
than an act of Congress required the aid of a treaty. If the treaty's 
reduction of the impost on British tonnage were not valid until an act 
of Congress should be passed what became of the most important act the 
Government ever passed--the declaration of war with Great Britain? The 
law declaring that war had not been repealed by Congress, and unless 
the treaty of peace abrogated it--i. e., was supreme to it--we were 
still at war. On a succeeding day Mr. John C. Calhoun elaborated \5\ 
this argument also.
  The motion to postpone the bill was decided in the negative,\6\ yeas 
60, nays 81.
  But the discussion still continued on the constitutional question up 
to the taking of the question on the third reading of the bill on 
January 9, when it passed to a third reading, yeas 86, nays 69.\7\
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  \1\ First session Fourteenth Congress, Journal, p. 124 (Gales & 
Seaton ed.); Annals, pp. 454-457.
  \2\ Annals, pp. 473-477.
  \3\ Annals, pp. 478-481.
  \4\ Annals, pp. 482-485.
  \5\ Annals, pp. 526-532.
  \6\ Annals, p. 489.
  \7\ Journal, p. 142; Annals, p. 545.
Sec. 1506
  And on the question of the passage the constitutional debate was 
again renewed, and on January 13\1\ the bill passed, yeas 86, nays 71.
  In the Senate the bill was, on January 18,\2\ opposed for two 
reasons. Mr. James Barbour, of Virginia, stated that the Senate had 
already sent to the House a bill, the result of unanimous action by the 
Senate, declaring that all laws in opposition to the treaty should be 
held as null and void. The principle on which the Senate had acted was 
that, while the treaty operated to repeal any commercial regulations 
incompatible with its regulations, yet a declaratory act would remove 
all doubts and difficulties. It seemed to him that it would have been 
more decorous for the House to have acted on the Senate bill. But by 
the present proceedings an issue had been made up. Mr. Barbour then 
went on to argue that the treaty-making power was supreme over 
commerce, and that no legislative sanction was necessary in this case.
  The debate was extended, various Senators speaking, among them Mr. 
Nathaniel Macon, of North Carolina, who upheld the principle contended 
for in the proposition of the House.
  On January 19 \3\ the Senate rejected the bill of the House, yeas 10, 
nays 21.
  On January 20 and February 4 \4\ the House considered the Senate bill 
``concerning the convention to regulate commerce between the 
territories of the United States and His Britannic Majesty.'' On the 
same day amendments were agreed to which in effect substituted for the 
text of the Senate bill the provisions of the bill passed by the House, 
and which the Senate had rejected. The bill was then passed by the 
House. The yeas and nays on the amendments were, yeas 81, nays 70.
  The Senate disagreed to the amendments and the House insisted and 
asked a conference, naming as its conferees Messrs. Forsyth, William 
Lowndes, of South Carolina, and Henry St. George Tucker, of Virginia. 
The Senate joined as conferees Messrs. Rufus King, of New York, James 
Barbour, of Virginia, and W. W. Bibb, of Georgia.\5\
  On February 19 \6\ the House conferees reported to their House. Their 
report, after stating that the disagreement between the Houses related 
to their respective constitutional powers, continues:

  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 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, to 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
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  \1\ Journal, p. 159; Annals, p. 674.
  \2\ Annals, pp. 46-89.
  \3\ Annals, p. 89.
  \4\ Journal, pp. 200, 281; Annals, pp. 719, 897.
  \5\ Journal, pp. 335, 350; Annals, pp. 136, 960.
  \6\ Journal, p. 364; Annals, pp. 1014-1023.
                                                            Sec. 1506
of principle between the two 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.
  This appears to the committee to be by no means an unimportant point 
gained. Its influence upon the feelings with which the two bodies will 
naturally approach questions of this description may be of no trivial 
consequence; for as every case, according to this course of reasoning, 
would appear to rest upon its own foundation, there is less danger of 
its being drawn into precedent and therefore less occasion for 
solicitude in regard to it. It is a view of the subject, therefore, 
calculated to harmonize and to enable us to yield at all times to the 
application of another principle which the committee deem of the utmost 
consideration on all such occasions.
  The committee allude to the principle which inculcates the propriety 
of always taking care if we do err to err on the safe side. Should 
Congress fail to legislate where legislation is necessary, either the 
public faith must be broken or, to avoid that evil, the executive 
branch of the Government must be tempted to overstep the boundaries 
prescribed by the Constitution. If, on the contrary, Congress should 
legislate where legislation is not necessary, the act could only be 
drawn into precedent in a case precisely similar; because upon the 
principle assumed, ``that each case rests upon its own circumstances,'' 
it never could serve as a precedent, save where those circumstances are 
the same. Nor is it indeed unimportant to mention that there is little 
danger of much respect being paid to precedents upon great 
constitutional questions. Conscience will always burst the trammels of 
precedent unless restrained by reason.
  The committee therefore believe that it is safer in every doubtful 
case to legislate, and by the joint act of the whole Congress give 
authority to the execution of the stipulations of a treaty by the 
executive, than to leave a doubtful case, without the sanction of the 
legislature, to tempt the executive to overleap its proper bounds, or 
to endanger the public faith by a failure to perform the provisions of 
a treaty which has received a constitutional ratification.

  After referring to the passage of the bill by the Senate in the first 
instance as an act which manifests unequivocally the conviction of the 
Senate, either that the treaty did require legislative aid or that the 
case was at least doubtful, the report continues:

  Both Houses having thus united in the opinion that a legislative act 
is necessary, the Senate having clearly assented to the propriety of 
passing a law, the committee waive any argument on the necessity of a 
legislative act. It only remains to consider whether the scheme of the 
House of Representatives or the bill of the Senate is best calculated 
to effect the object of legislation. The committee will succinctly 
offer the reasons which, as they believe, support the correctness of 
the amendments of the House of Representatives.
  The first amendment proposed to strike out the word ``declared,'' the 
insertion of which, in the enacting clause of the law, has not appeared 
to the House to be justified by the usages of the legislative body * * 
*. It forms, in their estimation, a sufficient objection to the 
phraseology alluded to, that it departs from the accustomed style of 
the acts of the Congress of the United States. * * * The retention of 
the words ``and declared'' was considered by the Senate expedient, with 
a view of giving to the bill a declaratory as well as an enacting form. 
It was said, also, that they were not unprecedented, that they were to 
be found in the acts of Congress not declaratory in their nature, and 
might be considered as not affecting the character of the present bill. 
Believing these words to be mere surplusage, not changing the character 
or impairing the force of the legislative act, that they have been 
introduced into previous acts of Congress; that no agreement could take 
place between the two Houses without permitting them to remain, your 
committee consented to recommend to the Houses to recede from the first 
amendment to the Senate's bill.

  The report discusses further the other amendments, which only go to 
perfect the bill and do not involve the constitutional features of the 
disagreement.
Sec. 1507
  The Senate conferees, who submitted their report to the Senate on 
February 27,\1\ say:

  The conferees of the Senate did not contest but admitted the doctrine 
that of treaties made in pursuance of the Constitution some may not and 
others may call for legislative provisions to secure their execution, 
which provision Congress in all such cases is bound to make. But they 
did contend that the convention under consideration requires no such 
legislative provisions, because it does no more than suspend the alien 
disability of British subjects in commercial affairs in return for like 
suspension in favor of American citizens; that such matter of alien 
disability falls within the peculiar province of the treaty power to 
adjust; that it can not be securely adjusted in any other way, and that 
a treaty duly made and adjusting the same is conclusive, and by its own 
authority suspends or removes antecedent laws that are contrary to its 
provisions.
  That even a declaratory law to this effect is matter of mere 
expediency, adding nothing to the efficacy of the treaty, and serving 
only to remove doubts wherever they exist.
  The conferees of the Senate therefore insisted on retaining the word 
``declared,'' in addition to the usual formula of enactment, because it 
imparts to the bill passed by the Senate the character of a declaratory 
law, a quality without which any law would in this case be 
inadmissible.

  The Senate agreed to the report of their conferees as soon as it was 
presented, the amendments proposed being concurred in.
  The House, on February 24,\2\ agreed to the recommendations of the 
conferees, yeas 100, nays 35.
  1507. In 1820 the House considered, but without result, its 
constitutional right to a voice in any treaty ceding territory.--On 
April 3, 1820,\3\ the House proceeded in Committee of the Whole House 
on the state of the Union to consider the following resolutions, 
submitted by Mr. Henry Clay, of Kentucky, then Speaker: \4\

  Resolved, That the Constitution of the United States vests in 
Congress the power to dispose of the territory belonging to them, and 
that no treaty, purporting to alienate any portion thereof, is valid 
without the concurrence of Congress.
  Resolved, That the equivalent proposed to be given by Spain to the 
United States in the treaty concluded between them, on the 22d day of 
February, 1819, for that part of Louisiana lying west of the Sabine, 
was inadequate, and that it would be inexpedient to make a transfer 
thereof to any foreign power or renew the aforesaid treaty.

  In discussing the right of the House of Representatives to express 
its opinion on the arrangement made in that treaty, Mr. Clay contended 
that in acting on the subjects committed by the Constitution to the 
charge of Congress the treaty-making power should have the concurrence 
of Congress. The House had uniformly maintained this right to 
deliberate on those treaties in which their cooperation was asked by 
the Executive. This was illustrated in the proceedings on the Jay 
treaty, in 1795, and later on the convention of 1815 with Great 
Britain. In the latter case, although a compromise was the final 
result, the House substantially maintained its contention. It was to be 
admitted that a treaty might fix disputed limits of territory without 
the cooperation of Congress, for the object in such cases was only to 
make
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  \1\ Annals, pp. 160, 161.
  \2\ Journal, pp. 396, 397; Annals, pp. 1048-1050, 1057.
  \3\ First session Sixteenth Congress, Annals, pp. 1719-1781.
  \4\ The Annals (p. 1691) would indicate that Mr. Clay offered these 
resolutions in the House, but the Journal of March 28 does not contain 
any reference to them (pp. 343-346). At that time original propositions 
were offered in Committee of the Whole.
                                                            Sec. 1508
certain what was before uncertain. This was to be distinguished from a 
proposition to cede away whole provinces.
  Mr. William Lowndes, of South Carolina, urged that the resolution 
went much farther than the contention of the House in 1795, and 
declared that there was not time for so long a discussion as would be 
necessary.
  Mr. John Rhea, of Tennessee, opposed the resolutions, contending that 
there was no power vested in Congress by the Constitution to alienate 
territory of the United States, and that the treaty-making power was 
confided to the Executive and the Senate.
  The discussion consumed the time of the House until April 5, when the 
House passed finally to other business without any decision on the 
resolutions.
  1508. In 1868, after discussion with the Senate, the House's 
assertion of right to a voice in carrying out the stipulations of 
certain treaties was conceded in a modified form.
  In 1868 the House declined to assert that no purchase of foreign 
territory might be made without the sanction of a previously enacted 
law.
  On May 18, 1868,\1\ Mr. Nathaniel P. Banks, of Massachusetts, from 
the Committee on Foreign Affairs, reported the bill (H. R. 1096)--

to enable the President of the United to fulfill the treaty between the 
United States and Russia, of March 30, 1867.

  The report, after reviewing the history and nature of the treaty-
making power under our Constitution, proceeds to review the instances 
where this power has come in conflict with the authorities of other 
branches of the Government, beginning with the Creek treaty of 1790, 
and noting the precedents of 1794, when a question arose between the 
President and House concerning the correspondence relating to that 
treaty; the treaty of 1819, the Spanish treaty of 1831, and the French 
treaty, and quotes the opinions of commentators on the Constitution--
Jefferson, Story, and Kent. The report then proceeds with the following 
views as to the power of the House:

  A treaty, then, is a contract between the United States and the 
sovereign power of a foreign government; and if within the authority 
conferred upon the treaty-making power by the Constitution both the 
House of Representatives and the Senate are solemnly bound to give 
effect to the conditions of the treaty by proper legislation. In the 
discharge of this duty the House has an unquestionable right to all the 
information connected with the subject, if not inconsistent with the 
public interest or safety. It can not be doubted that the House was 
entitled to the information it demanded in 1794, unless, upon other 
grounds, its communication would have been prejudicial to the 
Government. It must be remembered that this was the first occasion in 
which the treaty-making power was discussed by Congress, and that this 
was but one of several difficult and delicate questions considered and 
decided, for the first time, by the different branches of the 
Government. The information then called for has never been refused as 
to any subsequent treaty. Mr. Hamilton, who was regarded by Mr. 
Jefferson as the author of the President's message, afterwards 
expressed his regret that a qualified answer had not been returned. It 
is now conceded that the House is entitled to consider the merits of a 
treaty that it may determine whether its object is within the scope of 
the treaty power; but, if it be not inconsistent with the spirit and 
purpose of the Government, Congress is bound to give it effect, by 
necessary legislation, as a contract between the Government and a 
foreign nation. If, on the contrary, it is found to be in conflict with 
the fundamental principles, purposes, or interests of the Government, 
it would be justified, not merely in withholding its aid, but in giving 
notice to foreign nations interested that it would not be regarded as 
binding
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  \1\ Second session Fortieth Congress, House Report No. 37.
Sec. 1508
upon the nation, in passing laws for its abrogation, and preparing the 
State for whatever consequences might attend its action.
  This was the course pursued by the Government in 1798 in regard to 
the three treaties of alliance, commerce, and consular representation 
concluded with France in 1778, the first treaties negotiated by this 
Government with any foreign nation, and which were concluded 
immediately upon the recognition of American independence by France. 
The House would be justified in such action in regard to any treaty 
which should change the character of the Government; bring into the 
Union and confer political powers upon large populations incapable of 
self-government, whose participation in its affairs would imperil our 
institutions and endanger the peace and safety of the people; which 
should alienate territory, surrender political power to any other 
Government, civilized or uncivilized; bind the Government to engage in 
the wars of other nations, or surrender the rights of the nation on the 
high seas in any part of the world; which should admit as States of the 
Union distant foreign nations or Indian tribes, conferring upon them 
representative powers, as was proposed under the confederation with 
regard to the Delaware Indians; reestablish slavery, annul the 
institution of marriage, or interdict the Christian religion. In such 
case the House would be justified in aiding in its rejection or its 
abrogation by any act within its power. But when a treaty is limited to 
objects consistent with the interests of the Government, which can not 
be attained except by the treaty-making power, its first and highest 
duty is to enact such measures as are necessary to carry the treaty 
into effect. To say that a treaty is not a treaty until approved by the 
House is to make the House a part of the treaty-making power. To say 
that the House has no rights in regard to foreign treaties, except when 
they are referred to the House by its provisions, is to admit that the 
House is not a part of the Government.

  Mr. Cadwallader C. Washburne, of Wisconsin, in behalf of himself and 
Mr. George W. Morgan, of Ohio, presented minority views, contending 
that the House had the right to withhold the appropriation needed to 
carry the treaty into effect, and cited authorities in support of this 
contention--Jefferson, Madison, and the Supreme Court.
  The report having been made to the House, the subject, especially in 
its constitutional aspects, was debated at length from June 30 to July 
14, 1868.\1\ On the latter date the bill was reported from the 
Committee of the Whole with two amendments. The first amendment, which 
had been adopted on motion of Mr. William Loughridge, of Iowa, proposed 
to insert the following preamble and additional section:

  Whereas the President of the United States, on the 30th of March, 
1867, entered into a treaty with the Emperor of Russia, by the terms of 
which it was stipulated that in consideration of the cession by the 
Emperor of Russia to the United States of certain territory therein 
described, the United States should pay to the Emperor of Russia the 
sum of $7,200,000 in coin; and whereas it was further stipulated in 
said treaty that the United States shall accept of such cession, and 
that certain inhabitants of said territory shall be admitted to the 
enjoyment of all the rights and immunities of citizens of the United 
States; and whereas the subjects thus embraced in the stipulations of 
said treaty are among the subjects which by the Constitution of the 
United States are submitted to the power of Congress, and over which 
Congress has jurisdiction; and it being for such reason necessary that 
the consent of Congress should be given to said stipulation before the 
same can have full force and effect; having taken into consideration 
the said treaty, and approving of the stipulations therein, to the end 
that the same may be carried into effect; Therefore,
  Section 1. Be it enacted, That the assent of Congress is hereby given 
to the stipulations of said treaty.

  This amendment was agreed to, yeas 89, nays 49.
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  \1\ Second session Fortieth Congress, Globe, pp. 3620, 3658, 3661, 
3804, 3809, 3883, 4052-4055; Appendix, pp. 305, 382, 385, 421, etc.
                                                            Sec. 1509
  The second amendment, which had been adopted on motion of Mr. Thomas 
D. Eliot, of Massachusetts, proposed to add the following proviso to 
the bill:

  Provided, That no purchase in behalf of the United States of any 
foreign territory shall be hereafter made until after provision by law 
for its payment; and it is hereby declared that the powers vested by 
the Constitution in the President and Senate to enter into treaties 
with foreign governments do not include the power to complete the 
purchase of foreign territory before the necessary appropriation shall 
be made therefore by act of Congress.

  This amendment was disagreed to by the House, yeas 78, nays 80.
  The bill, which consisted, besides the amendment adopted, of a simple 
enactment appropriating the money, was then passed by the House and 
went to the Senate, where, on July 17,\1\ the Senate concurred with the 
Committee on Foreign Relations in striking out all of the bill except 
the simple proposition for appropriating the money. With these 
amendments, the bill was returned to the House, where the amendments of 
the Senate were disagreed to, and the bill was sent to conference, 
Messrs. Banks, Loughridge, and Samuel J. Randall, of Pennsylvania, 
being the House conferees, and Messrs. Charles Sumner, of 
Massachusetts, O. P. Morton, of Indiana, and J. R. Doolittle, of 
Wisconsin, the Senate conferees.
  The conference report, which was signed by all the conferees, was 
presented in the House on July 23, and provided that the Senate agree 
to the preamble with the insertion, after the words ``Emperor of 
Russia'' where they first occur, the following: ``And the Senate 
thereafter gave its advice and consent to said treaty,'' and with the 
further amendment striking out all of the preamble after the words 
``immunities of citizens of the United States;'' and inserting the 
words, ``and whereas said stipulations can not be carried into full 
force and effect except by legislation to which the consent of both 
Houses of Congress is necessary.'' The conference report also struck 
out the following section of the bill proper: ``That the assent of 
Congress is hereby given to the stipulations of said treaty.''
  Thus the result of the conference was the amended preamble, and the 
section of the bill reduced to the form in which it was originally 
reported from the House Committee on Foreign Affairs, viz, a simple 
clause appropriating the money for the purchase in accordance with the 
treaty.
  The report\2\ was debated at some length in the House, the House 
conferees explaining that they were forced to waive the extreme 
contention of the House, because to have insisted on it would have been 
to defeat the appropriation.The report was agreed to, yeas 91, nays 48.
  In the Senate the report was agreed to without debate.
  1509. President Washington, in 1796, declined the request of the 
House that he transmit the correspondence relating to the recently 
ratified treaty with Great Britain.
  Discussion of the right of the House to share in the treaty-making 
power.
  In 1796 the House affirmed that when a treaty related to subjects 
within the power of Congress it was the constitutional duty of the 
House to deliberate on the expediency of carrying such treaty into 
effect.
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  \1\ Globe, p. 4159.
  \2\ Globe, pp. 4392, 4404.
Sec. 1509
  The House declared in 1796 that its constitutional requests of the 
executive for information need not be accompanied by a statement of 
purposes.
  On March 24, 1796,\1\ the House agreed to this resolution:

  Resolved, That the President of the United States be requested to lay 
before this House a copy of the instructions to the minister of the 
United States, who negotiated the treaty with the King of Great Britain 
(communicated by his message of the 1st instant), together with the 
correspondence and other documents relative to the said treaty; 
excepting such of the said papers as any existing negotiation may 
render improper to be disclosed.

  This treaty had been communicated to both House and Senate by the 
President for information, on March 1. The resolution calling for the 
additional papers was the subject of a long debate, beginning on the 
7th of March. The extent to which the House had the right to share in 
the treaty-making power was discussed at length, as well as the 
question of how much right to call for information was involved in the 
House's constitutional prerogative of making appropriations to carry 
intoeffect the provisions of treaties.\2\
  The resolution was finally agreed to, yeas 62, nays 37, and Messrs. 
Livingston and Gallatin were appointed a committee to wait on the 
President with the resolution.
  On March 30 \3\ President Washington transmitted to the House a 
message in which he stated at length his reasons for declining to 
transmit the papers. He said that to admit the right of the House of 
Representatives to demand and receive as a matter of course all the 
papers respecting a negotiation with a foreign power would be to 
establish a dangerous precedent.

  It does not occur--

he continues,

that the inspection of the papers called for can be relative to any 
purpose under the cognizance of the House of Representatives except 
that of an impeachment, which the resolution has not expressed.

  After discussing the intention of the constitutional convention when 
it framed the clause relating to treaties, the President concludes:

  As, therefore, it is perfectly clear to my understanding that the 
assent of the House of Representatives is not necessary to the validity 
of a treaty, as the treaty with Great Britain exhibits in itself also 
the objects requiring legislative provision, and on these the papers 
called for can throw no light; and as it is essential to the due 
administration of the Government, that the boundaries fixed by the 
Constitution between the different departments should be preserved; a 
just regard to the Constitution and to the duty of my office, under all 
the circumstances of this case, forbid a compliance with your request.

  On April 7,\4\ at the close of a long discussion, the House agreed to 
the following resolutions, the vote on each being 54 yeas to 37 nays:

  Resolved, That it being declared by the second section of the second 
article of the Constitution, ``That the President shall have power, by 
and with the advice and consent of the Senate, to make treaties, 
provided two-thirds of the Senators present concur,'' the House of 
Representatives do not claim
-----------------------------------------------------------------------
  \1\ First session Fourth Congress, Journal, p. 480 (Gales & Seaton 
ed.); Annals, pp. 394, 426-782.
  \2\ Annal pp. 426-782.
  \3\ Journal, pp. 487-489.
  \4\ Journal, p. 499. The Annals (p. 771) show that the resolutions 
were proposed by Thomas Blount, of North Carolina, and supported by 
James Madison, of Virginia. Annals, pp. 782, 783.
                                                            Sec. 1510
any agency in making treaties; but that when a treaty stipulates 
regulations on any of the subjects submitted by the Constitution to the 
power of Congress, it must depend for its execution, as to such 
stipulations, on a law or laws to be passed by Congress; and it is the 
constitutional right and duty of the House of Representatives in all 
such cases to deliberate on the expediency or inexpediency of carrying 
such treaty into effect, and to determine and act thereon as, in their 
judgment, may be most conducive to the public good.
  Resolved, That it is not necessary to the propriety of any 
application from this House, to the Executive, for information desired 
by them, and which may relate to any constitutional functions of the 
House; that the purposes for which such information may be wanted, or 
to which the same may be applied, should be stated in the application.
  In relation to the treaty with Great Britain, as well as in relation 
to several other treaties, the House came to the resolution that it was 
expedient to pass the laws necessary to carry it into effect.\1\

  1510. The House has requested the President to lay before it 
information as to the carrying out and the violation of treaties, and 
the information has been furnished.--On January 2, 1797,\2\ the House, 
after some debate as to the propriety of the request, agreed to this 
resolution:

  Resolved, That the President of the United States be requested to 
cause to be laid before this House information what measures have been 
taken for carrying into effect the treaty between the United States and 
the Dey and Regency of Algiers, and also whether any, and what, further 
legislative aid may be necessary for that purpose.

  On January 3 Mr. Parker, of the committee appointed to wait on the 
President with the resolution, reported that the President was already 
preparing to send the papers when the resolution was passed and would 
transmit them as soon as they should be made out.
  1511. On December 17, 1802,\3\ on motion of Mr. John Randolph, of 
Virginia--

  Resolved, That the President of the United States be requested to 
cause to be laid before this House such information in possession of 
the Department of State as relates to the violation, on the part of 
Spain, of the twenty-second article of the treaty of friendship, 
limits, and navigation between the United States and the King of Spain.

  Messrs. Randolph and Huger were appointed a committee to present the 
foregoing resolution to the President of the United States.
  On December 22 President Jefferson transmitted the information.
  1512. In 1822 the House called generally and specifically for papers 
relating to the treaty of Ghent and obtained them, although the 
Executive advised against their publication.--On January 17, 1822,\4\ 
the House proceeded to the consideration of a resolution requesting of 
the President

all the correspondence which led to the treaty of Ghent which has not 
yet been made public.

  After debate as to the propriety of leaving to the President the 
option of communicating such only of the correspondence as he might 
think it not improper to disclose, the House, on motion of Mr. William 
Lowndes, of South Carolina, agreed to this amendment:

and which, in his opinion, it may not be improper to disclose.

  The resolution as amended was agreed to.
-----------------------------------------------------------------------
  \1\ Journal, pp. 511, 512, 529-531; Annals, pp. 939-1291.
  \2\ Second session Fourth Congress, Journal, pp. 634, 636 (Gales & 
Seaton ed.); Annals, pp. 1763-1767.
  \3\ Second session Seventh Congress, Journal, pp. 253, 257 (Gales & 
Seaton ed.); Annals, pp. 281, 285.
  \4\ First session Seventeenth Congress, Annals, p. 733.
Sec. 1513
  1513. On April 19, 1822,\1\ the House agreed to this resolution:

  Resolved, That the President of the United States be requested to 
cause to be communicated to this House, if not injurious to the public 
good, any letter or communication which may have been received from 
Jonathan Russell, esq., one of the ministers of the United States who 
concluded the treaty of Ghent, after the signature of that treaty, and 
which was written in conformity to the indications contained in said 
minister's letter, dated at Ghent 25th December, 1814.

  On May 4 \2\ President Monroe, in a message to the House, after 
explaining the circumstances of the letter, said:

  On full consideration of the subject, I have thought it would be 
improper for the Executive to communicate the letter called for unless 
the House, on a knowledge of these circumstances, should desire it, in 
which case the document called for shall be communicated.

  On May 7 \3\ the House called for the letter, although the propriety 
of such a course was questioned.
  The letter was promptly transmitted to the House.\4\
  1514. The House sometimes requests the Executive to negotiate a 
treaty, although the propriety of the act has been questioned.--On May 
15, 1826,\5\ Mr. Edward Livingston, of Louisiana, offered these 
resolutions:

  Resolved, That the President of the United States be requested to 
inform this House whether any arrangement has been made with the 
Government of Great Britain in consequence of the resolution of this 
House of the 23d of December, 1823, requesting that a negotiation 
should be opened for the cession of certain keys on the Bahama Banks.
  Resolved, That the President be requested to open a negotiation with 
the Spanish Government for the cession of a proper situation for a 
light-house on one of the double-headed shot keys, to be used solely 
for the purpose of such light-house.

  On May 16 the resolutions were considered, and Mr. Livingston 
explained that the resolution of 1823 requested the President to open 
negotiations for the cession of a part of the island of Abaca, and that 
the President had done so, but the efforts of our minister in London 
had been without avail.
  The first resolution was agreed to without division, but there was 
objection to the second, Mr. John Forsyth, of Georgia, urging that, in 
spite of the precedent, it was irregular for the House to request the 
President to exercise any of his constitutional powers. The second 
resolution was then laid on the table.
  1515. On February 28, 1823,\6\ on motion of Mr. Charles F. Mercer, of 
Virginia, and by a vote of 131 yeas to 9 nays, the House agreed to this 
resolution:

  Resolved, That the President of the United States be requested to 
enter upon, and to prosecute from time to time, such negotiations with 
the several maritime powers of Europe and America, as he may deem 
expedient for the effectual abolition of the African slave trade, and 
its ultimate denunciation as piracy, under the law of nations, by the 
consent of the civilized world.
-----------------------------------------------------------------------
  \1\ First session Seventeenth Congress, Journal, pp. 468, 471; 
Annals, pp. 1617, 1619.
  \2\ Journal, p. 554; Annals, p. 1791.
  \3\ Journal, pp. 576, 585; Annals, p. 1877.
  \4\ Journal, p. 599; Annals, p. 1891.
  \5\ First session Nineteenth Congress, Journal, pp. 567, 576; 
Debates, pp. 2634-2638.
  \6\ Second session Seventeenth Congress, Annals, pp. 1147-1155; 
Journal, p. 280.
                                                            Sec. 1516
  1516. On December 3, 1833,\1\ the President, in his annual message, 
stated that he had--

the satisfaction to inform you that a negotiation which, by desire of 
the House of Representatives, was opened some years ago with the 
British Government for the erection of light-houses on the Bahamas, has 
been successful.

  1517. On April 3, 1876,\2\ the House agreed to this resolution:

  Whereas it is alleged that at the present time there are over 100,000 
Chinese on the Pacific coast, many of whom have been brought thither 
under contracts for servile labor, and that their numbers are being 
constantly increased, to the great detriment of the laboring men of the 
coast and in derogation of the treaty stipulations existing between the 
United States and the Empire of China: Therefore,
  Be it resolved, That the President be, and he is hereby, requested to 
open negotiations with the Chinese Government for the purpose of 
modifying the provisions of the treaty between the two countries and 
restricting the same to commercial purposes.

  A concurrent resolution of similar intent was \3\ introduced later, 
but was referred and not acted on.
  1518. In 1848 President Polk declined on constitutional grounds to 
honor the unconditional request of the House for a copy of the 
instructions to the minister sent to negotiate a treaty with Mexico.--
On January 4, 1848,\4\ the House, by a vote of 146 yeas to 15 nays, 
agreed to the following resolution, which was offered by Mr. William L. 
Goggin, of Virginia:

  Resolved, That the President of the United States be requested to 
communicate to this House any instructions which may have been given to 
any of the officers of the Army or Navy of the United States, or other 
persons, in regard to the return of President General Antonio Lopez de 
Santa Ana, or any other Mexican, to the Republic of Mexico, prior or 
subsequent to the order of the President or Secretary of War, issued in 
January, 1846, for the march of the Army from the Neuces River, across 
the ``stupendous deserts'' which intervene, to the Rio Grande; that the 
date of all such instructions, orders, and correspondence, be set 
forth, together with the instructions and orders issued to Mr. Slidell, 
at any time, prior or subsequent to his departure from Mexico, as 
minister plenipotentiary of the United States to that Republic.
  Resolved further, That the President be requested to communicate all 
the orders and correspondence of the Government in relation to the 
return of General Paredes to Mexico.

  On January 13 President Polk communicated to the House a portion of 
the information called for, but in relation to another portion, took 
the following grounds:

  The resolution calls for the ``instructions and orders issued to Mr. 
Slidell at any time prior or subsequent to his departure for Mexico, as 
minister plenipotentiary of the United States to that Republic.'' The 
customary and usual reservation contained in calls of either House of 
Congress upon the Executive for information relating to our intercourse 
with foreign nations has been omitted in the resolution before me. The 
call of the House is unconditional. It is that the information 
requested be communicated, and thereby be made public, whether, in the 
opinion of the Executive (who is charged by the Constitution with the 
duty of conducting negotiations with foreign powers), such information 
when disclosed would be prejudicial to the public interest or not. It 
has been a subject of serious deliberation with me whether I could, 
consistently with my constitutional duty and my sense of the public 
interests involved and to be affected by it, violate an important 
principle, always heretofore held sacred by my prede-
-----------------------------------------------------------------------
  \1\ First session Twenty-third Congress, Journal, p. 11.
  \2\ First session Forty-fourth Congress, Record, p. 2158.
  \3\ First session Forty-fourth Congress, Record, p. 3087.
  \4\ First session Thirtieth Congress, Journal, pp. 193, 194-197, 233, 
566, 567, 570; Globe, pp. 103, 166-170, 203-207, 461, 463.
Sec. 1519
cessors, as I should do by a compliance with the request of the House. 
President Washington, in a message to the House of Representatives of 
the 30th of March, 1796, declined to comply with a request contained in 
a resolution of that body, to lay before them ``a copy of the 
instructions to the minister of the United States who negotiated the 
treaty with the King of Great Britain, together with the correspondence 
and other documents relative to the said treaty, excepting such of the 
said papers as any existing negotiations may render improper to be 
disclosed.'' In assigning his reasons for declining to comply with the 
call, he declared that ``the nature of foreign negotiations requires 
caution, and their success must often depend on secrecy; and, even when 
brought to a conclusion, a full disclosure of all the measures, 
demands, and eventual concessions which may have been proposed or 
contemplated would be extremely impolitic; for this might have a 
pernicious influence on future negotiations, or produce immediate 
inconveniences, perhaps danger and mischief, in relation to other 
powers. The necessity of such caution and secrecy was one cogent reason 
for vesting the power of making treaties in the President, with the 
advice and consent of the Senate--the principle on which that body was 
formed confining it to a small number of Members. To admit, then, in 
the House of Representatives, a right to demand and to have, as a 
matter of course, all the papers respecting a negotiation with a 
foreign power, would be to establish a dangerous precedent.'' In that 
case the instructions and documents called for related to a treaty 
which had been concluded and ratified by the President and Senate, and 
the negotiations in relation to it had been terminated. There was an 
express reservation, too, ``excepting'' from the call all such papers 
as related to ``any existing negotiations'' which it might be improper 
to disclose. In that case President Washington deemed it to be a 
violation of an important principle, the establishment of a ``dangerous 
precedent,'' and prejudicial to the public interests, to comply with 
the call of the House. Without deeming it to be necessary on the 
present occasion to examine or decide upon the other reasons assigned 
by him for his refusal to communicate the information requested by the 
House, the one which is herein recited is, in my judgment, conclusive 
in the case under consideration.
  Indeed, the objections to complying with the request of the House, 
contained in the resolution before me, are much stronger than those 
which existed in the case of the resolution of 1796. This resolution 
calls for the ``instructions and orders'' to the minister of the United 
States to Mexico, which relate to negotiations which have not been 
terminated, and which may be resumed. The information called for 
respects negotiations which the United States offered to open with 
Mexico immediately preceding the commencement of the existing war. The 
instructions given to the minister of the United States relate to the 
differences between the two countries out of which the war grew, and 
the terms of adjustment which we were prepared to offer to Mexico in 
our anxiety to prevent the war. These differences still remain 
unsettled; and to comply with the call of the House would be to make 
public, through that channel, and to communicate to Mexico, now a 
public enemy engaged in war, information which could not fail to 
produce serious embarrassment in any future negotiation between the two 
countries. I have therefore communicated to Congress all the 
correspondence of the minister of the United States to Mexico which in 
the existing state of our relations with that republic can, in my 
judgment, be at this time communicated without serious injury to the 
public interest.
  Entertaining this conviction, and with the sincere desire to furnish 
any information which may be in possession of the Executive Department, 
and which either House of Congress may at any time request, I regard it 
to be my constitutional right and my solemn duty, under the 
circumstances of this case, to decline compliance with the request of 
the House contained in their resolution.

  Debate at once arose over this message, Mr. John Quincy Adams, of 
Massachusetts, saying that he believed that the House was right in 
asserting its position in 1796, and urging that it should maintain its 
position now, that it had a right to the information. The subject was 
debated at length on this day, and again on January 19 and March 14 and 
15; but no further action seems to have been taken.
  1519. On July 17, 1848,\1\ the House agreed to the following 
resolution:

  Resolved, That the President be requested to communicate to this 
House (if not inconsistent with the public interest) copies of all 
instructions given to the Hon. Ambrose H. Sevier and Nathan Clifford, 
commissioners appointed to conduct negotiations for the ratification of 
the treaty lately concluded between the United States and the Republic 
of Mexico.
-----------------------------------------------------------------------
  \1\ First session Thirtieth Congress, Journal, pp. 1051, 1145; Globe, 
pp. 943, 1025.
                                                            Sec. 1520
  On August 2, the President (Mr. Polk) responded in a message in which 
he said:

  I avail myself of this occasion to observe that, as a general rule, 
applicable to all our important negotiations with foreign powers, it 
could not fail to be prejudicial to the public interest to publish the 
instructions to our ministers until some time had elapsed after the 
conclusion of such negotiations.
  In the present case the object of the mission of our commissioners to 
Mexico has been accomplished. The treaty, as amended by the Senate of 
the United States, has been ratified. The ratifications have been 
exchanged, and the treaty has been proclaimed as the supreme law of the 
land. No contingency occurred which made it either necessary or proper 
for our commissioners to enter on any negotiations with the Mexican 
Government further than to urge upon that Government the ratification 
of the treaty in its amended form.

  1520. The House has at times advised the Executive in regard to 
treaties affecting the revenue.--On December 13, 1869,\1\ the House, on 
motion of Mr. John A. Peters, of Maine, agreed to the following 
resolution, after declining, by a vote of yeas 43, nays 129, to lay it 
on the table:

  Resolved, That the sentiment of this House accords with the opinion 
expressed in the message of the President of the United States, that a 
renewal of a treaty of reciprocal trade with the British provinces on 
this continent would be wholly in favor of the British producer, and 
should not in our present condition be favorably considered.

  1521. On March 3, 1869,\2\ the last day of the Congress, Mr. Robert 
C. Schenck, of Ohio, from the Committee of Ways and Means, reported the 
following resolution:

  Resolved, That while this House does not admit any right in the 
Executive and treaty-making power of the United States to conclude 
treaties or conventions with any foreign government by which import 
duties shall be mutually regulated, it is, however, of the opinion, and 
recommends to the President, that negotiations with the Government of 
Great Britain should be renewed and pressed, if possible to a definite 
conclusion regarding commercial intercourse and securing to our own 
citizens the rights claimed by them in the fisheries on the coasts of 
the British provinces of America, and the free navigation of the St. 
Lawrence River from its source to the sea.

  This resolution was referred to the Committee of the Whole House on 
the state of the Union.
  1522. On April 23, 1879,\3\ the House, on motion of Mr. Fernando 
Wood, of New York, and without debate, agreed to the following:

  Resolved, That the President be respectfully requested to consider 
the expediency of entering into a convention with the Government of 
France for the negotiation of a treaty which shall secure a more equal 
interchange of the products and manufactures of each country and serve 
to cement closer relations of amity, trade, and commerce.

  1523. In 1871 the House asserted its right to a voice in carrying 
into effect treaties on subjects submitted by the Constitution to the 
power of Congress.--On April 20, 1871,\4\ under suspension of the 
rules, and without debate or division, the House agreed to the 
following:

  Resolved, That it being declared by the second section of the second 
article of the Constitution ``that the President shall have power, by 
and with the advice and consent of the Senate, to make treaties, 
provided two-thirds of the Senators present concur,'' the House of 
Representatives do not claim any
-----------------------------------------------------------------------
  \1\ Second session Forty-first Congress, Journal, pp. 54, 55; Globe, 
p. 99.
  \2\ Third session Fortieth Congress, Journal, p. 521; Globe, p. 1877.
  \3\ First session Forty-sixth Congress, Journal, p. 190; Record, p. 
741.
  \4\ First session Forty-second Congress, Journal, p. 200; Globe, p. 
835.
Sec. 1524
agency in making treaties; but that when a treaty stipulates 
regulations on any of the subjects submitted by the Constitution to the 
power of Congress, it must depend for its execution as to such 
stipulations on the law or laws to be passed by Congress; and it is the 
constitutional right and duty of the House of Representatives in all 
such cases to deliberate on the expediency or inexpediency of carrying 
such treaty into effect, and to determine and act thereon as in their 
judgment may be most conducive to the public good.

  1524. In 1880 the House declared that the negotiation of a treaty 
affecting the revenues was an invasion of its prerogatives.--On January 
19, 1880,\1\ Mr. William D. Kelley, of Pennsylvania, moved to suspend 
the rules and agree to the following resolution:

  Resolved, That it is the sense of this House that the negotiation by 
the Executive Department of the Government of a commercial treaty 
whereby the rates of duty to be imposed on foreign commodities entering 
the United States for consumption should be fixed would, in view of the 
provision of section 7 of article 1 of the Constitution of the United 
States, be an infraction of the Constitution and an invasion of one of 
the highest prerogatives of the House of Representatives.

  Mr. Benjamin Wilson, of West Virginia, opposed the resolution on the 
ground that the Foreign Affairs Committee were examining the 
subject,\2\ and action should be deferred until their report.
  But the House agreed to the resolution, yeas 175, nays 62.
  1525. In 1881 the House Committee on Foreign Affairs, discussing the 
treaty-making power, concluded that the House had no share in it.--On 
February 14, 1881,\3\ Mr. George A. Bicknell, of Indiana, from the 
Committee on Foreign Affairs, submitted the following report on the 
House joint resolution (H. J. Res. 132) relating to the treaty-making 
power:

  This resolution affirms that the treaty-making power of the United 
States ``does not extend to treaties which affect the revenue, or 
require the appropriation of money to execute them; but that in such 
cases the consent of the law-making power of the Government is 
required, which includes, as one of its branches, the House of 
Representatives.''
  It is assumed in the preamble of this resolution that article 1, 
section 7, of the Constitution, which declares that ``all bills for 
raising revenue shall originate in the House of Representatives,'' is 
in conflict with the subsequent provisions in article 2, section 2, and 
in article 6 of the Constitution, which declares that the President, 
``by and with the advice and consent of the Senate, provided two-thirds 
of the Senators present shall concur,'' shall have power to make 
treaties, and that ``all treaties made, or which shall be made, under 
the authority of the United States, shall be the supreme law of the 
land.''
-----------------------------------------------------------------------
  \1\ Second session Forty-sixth Congress, Journal, pp. 261, 323, 324; 
Record, pp. 394, 532.
  \2\ Reference here seems to be made to the consideration of the 
fishery provisions of the treaty of Washington. The Committee on 
Foreign Affairs reported on June 9, 1880. (H. Rept. 1746, second 
session Forty-sixth Congress, p. 4.) In the course of this report they 
say: ``The decisions of our highest law tribunal go so far as to say 
that in all matters within the purview of Congress, as, for instance, 
the tariff, as on hemp in the case of Tyler v. Morton (Curtis's 
Reports, vol. 2, p. 454), no treaty should intervene to prevent the 
action of the Federal legislation as to imposts on foreign articles. 
The question as to the right of the treaty-making power to affect 
duties on imports is not a new question. The Constitution in delegating 
such a power did not, however, interfere with that of Congress to 
regulate commerce and impose duties. It is not necessary to discuss 
here and now how far Congress may participate in the matter of 
reimposing duties on fish, which were made free by the Washington 
treaty, as whatever power the Federal Government had to make the treaty 
as to imposts may of right be controlled by Congress. This part of our 
constitutional duty it is not proposed to assume by the bill reported. 
No one can question the power of Congress to control the revenues to be 
derived from fish and fish oil.''
  \3\ Third session Forty-sixth Congress, House Report No. 225.
                                                            Sec. 1526
  In the opinion of your committee there is no conflict in these 
provisions. The words ``all bills for raising revenue,'' in section 7 
of article 1 of the Constitution, do not embrace treaties; a treaty is 
not a bill for raising revenue, and the requirement that ``all bills 
for raising revenue shall originate in the House of Representatives'' 
is not a limitation upon the treaty-making power, but is only a 
condition imposed on the ordinary law-making power of the Government. 
The President and the two Houses of Congress constitute the ordinary 
law-making power of the Government; the President and two-thirds of the 
Senators present constitute the treaty-making power. Neither of these 
powers has anything to do with the other, and to require the consent of 
the House of Representatives to make a treaty valid would violate the 
Constitution by making the House of Representatives a branch of the 
treaty-making power.
  The first clause of section 8 of article 1 of the Constitution 
declares that ``Congress shall have power to lay and collect taxes, 
duties, imposts, and excises.'' It is sometimes asserted that this 
clause impairs the force of the subsequent grant of the treaty-making 
power to the President and Senate already referred to.
  Provisions apparently conflicting, in the same writing, must be 
construed so as to give effect to all of them if possible; but if that 
is not possible, then the latest clearly-expressed intention must 
prevail. And it will be observed that if the mere grant of power in 
section 8 of article 1 excludes all the subjects mentioned in that 
section from the treaty-making power, the latter power will be confined 
within very narrow limits. Under that construction the President and 
Senate could not make a commercial treaty with a foreign nation, 
because said section 8 gives power to Congress ``to regulate commerce 
with foreign nations,'' and no treaty could be made to promote the 
general welfare because the same section gives power to Congress to 
provide ``for the general welfare.''
  Treaties, however, for the general welfare, and commercial treaties 
and reciprocity treaties affecting duties, have often been made.
  It seems clear to your committee that section 8 of article 1 of the 
Constitution refers exclusively to the ordinary law-making power, but 
section 2 of article 2 creates the extraordinary treaty-making power, 
in which the House of Representatives can not participate.
  The making of treaties is the exercise of the supreme power of the 
State (Vattel, 192). Ordinarily it belongs to the executive department, 
but wherever it may be placed by a written constitution, it is a 
supreme power, subject to no limitations except such as are expressed 
in the Constitution, or are necessarily implied from the nature of the 
subject-matter, or from the distribution of the constitutional powers. 
(Halleck, 189; Wheaton, 457.)
  A treaty can not be construed so as to destroy other powers given in 
the Constitution, or to change the form of Government, or to renounce 
the national sovereignty, or to alienate the entire national domain. 
(Story, sec. 1508.) It has been asserted that treaties altering the 
rules of trade and navigation may require the sanction of the 
legislature (Wheaton, 457), and in 1816 a question was made whether a 
certain treaty changed the revenue and whether an act of Congress was 
necessary to reinforce it, and such an act was passed (3 Stat., 354); 
but it seems to be agreed by American writers on public law that a 
treaty within constitutional limits and free from fraud, and not 
renouncing the national sovereignty or giving up the national domain, 
is binding upon Congress, and that a refusal by Congress to carry the 
treaty into effect might be regarded by the other party as just cause 
of war. (See authorities already cited, and 2 Peters, 314; 6 Peters, 
375.) But within our own jurisdiction, in case of a conflict between a 
valid treaty and a valid act of Congress, they both being the law of 
the land, it seems that the later law would govern. The resolution 
under consideration (H. J. Res. 132) affirms a proposition which, under 
existing constitutional provisions, can not be sustained. Your, 
committee therefore recommend that the same be not adopted.

  In the House on the same day that this report was presented the joint 
resolution was laid on the table \1\ without debate.
  1526. In 1884 and 1886 the Ways and Means Committee assumed that the 
right of the House to a voice in making treaties affecting the revenue 
had been conceded.--On June 17, 1884,\2\ Mr. Abram S. Hewitt, of New 
York, from the Committee on Ways and Means, made a report on the 
convention
-----------------------------------------------------------------------
  \1\ Third session Forty-sixth Congress, Journal, p. 400; Record, p. 
1568.
  \2\ First session Forty-eighth Congress, House Report No. 1848.
Sec. 1527
between the United States and Mexico, in which the following principles 
are laid down:

  Under the Constitution the right to negotiate treaties is vested in 
the executive power, subject to the ratification of the Senate. The 
intervention of the House of Representatives is not required, unless 
the treaty calls for the exercise of powers which, by the Constitution, 
are vested in the Congress. Commercial treaties dealing with questions 
of revenue, which, by the Constitution, are subject to the control of 
the Congress, could not be carried into effect without affirmative 
action of the legislative branch of the Government. It is true the 
question has been raised whether it would not be competent for the 
President and Senate alone to enter into treaties which would change 
the laws for the collection of revenue; but the practice has been 
uniform, and the House has always insisted that where the rates of duty 
are changed by treaty the approval of the Congress is necessary for its 
execution. In the case of the treaty under consideration, however, this 
question does not arise, for the reason that the Senate, before 
ratifying the convention, adopted the following amendment:
  ``The present convention shall take effect as soon as it has been 
approved and ratified by both contracting parties according to their 
respective constitutions, but not until laws necessary to carry it into 
operation shall have been passed by both the Congress of the United 
States of America and the Government of the United Mexican States, and 
regulations provided accordingly, which will take place twelve months 
from the date of the exchange of ratifications to which article 10 
refers.''
  The adoption of this amendment by the Senate is a substantial 
admission, in the nature of a precedent, which may be expected 
hereafter to govern treaties affecting the revenue.

  1527. On May 25, 1886,\1\ the Committee on Ways and Means reported 
adversely the bill (H. R. 1513) to carry into effect the reciprocity 
treaty with Mexico. This treaty contained a clause making its validity 
dependent on the law-making power, and the report of the committee, as 
well as the minority views, assume this as a recognition by the treaty-
making power of the right of the Congress to have a voice in treaties 
relating to the revenue.
  1528. After long and careful consideration, the Judiciary Committee 
of the House decided, in 1887, that the Executive branch of the 
Government might not conclude a treaty affecting the revenue without 
the assent of the House.--On January 15, 1884,\2\ Mr. Roger Q. Mills, 
of Texas, presented and the House agreed to the following:

  Resolved, That the Judiciary Committee be directed to report to the 
House whether the President, by and with the advice and consent of the 
Senate, can negotiate treaties with foreign Governments by which the 
duties levied by Congress on importations can be changed or abrogated.

  On March 3, 1885,\3\ at the end of the Congress, and when there was 
no time for action by the House, Mr. J. Randolph Tucker, of Virginia, 
chairman of the Judiciary Committee, made a very elaborate and able 
report on this subject. The remaining members of the committee sign a 
statement accompanying, stating that they have not had time to examine 
the important question, and that they are not to be considered as 
assenting or dissenting from the report or its conclusions.
  The report offers the following resolution, as the conclusion to 
which the arguments come: \4\
  Resolved, That the President, by and with the advice and consent of 
the Senate, can not negotiate treaties with foreign Governments by 
which the duties levied by Congress can be changed or abrogated, and 
such treaties to be operative as law must have the sanction of an act 
of Congress.
-----------------------------------------------------------------------
  \1\ First session Forty-ninth Congress, Report No. 2615.
  \2\ First session Forty-eighth Congress, Journal, p. 316; Record, p. 
412.
  \3\ Second session Forty-eighth Congress, Journal, p. 814; House 
Report No. 2680.
  \4\ In 1884-85 (second session Forty-eighth Congress, Record, pp. 
175, 231, 506, 548) this subject was discussed at length in the Senate.
                                                            Sec. 1528
  Mr. Tucker, after quoting those articles of the Constitution bearing 
on the treaty-making power, says it will not be denied that the power 
to make treaties is exclusively vested in the President and Senate; but 
he denies that this power is absolute and unlimited, even as to the 
rightful subjects within its scope. He says:

  The question then recurs, What limitations are there on the power of 
the President and Senate to make treaties? Or, to limit the inquiry to 
the terms of the resolution referred to us, Can a treaty (so called) 
made by President and Senate repeal existing tax laws or impose 
taxation propro vigore, or make it imperative on the House of 
Representatives to pass laws conforming to the terms of the treaty 
relative to taxation?
  A treaty is a contract, or agreement between nations. It binds each 
nation when made by its lawful authority. If not so made it is not 
binding at all. The agency through which the national faith is bound 
must be authorized to bind it. The power to make some contracts may be 
exclusive and even absolute, but the question still remains, what 
contracts may be made? When, therefore, it is asserted that the 
President and Senate alone have authority to make treaties, it does not 
follow that it may by treaty do anything which is a possible subject of 
contract. What subjects the treaty power embraces is untouched by the 
conclusion of the exclusive authority to make treaties being vested in 
the President and the Senate.
  What limitations exist as to the subjects within the treaty power are 
to be determined by the circumstances.
  Vattel declares a treaty is not valid which is contrary to a former 
one with another nation. (Vattel, Book II, chap. 12, secs. 164, 165, p. 
196; 2 Phil. International Law, 75.)
  So he declares that no treaty is binding on a nation which is 
pernicious to the nation for whose safety the Government is constituted 
a trustee. (Vattel, Book II, chap. 12, sec. 160, pp. 194-195.)
  It is from the fundamental laws of each State that we must learn 
where resides the authority that is capable of contracting with 
validity in the name of the State. (Id., section 154, p. 193.)
  It is therefore beyond question that a treaty is invalid which 
destroys the Constitution of the nation, or the rights of its people 
thereby secured. A treaty can not violate the Constitution of the 
nation. It is a sound principle of international law, on the high 
authority just cited, that the government of a nation can not annul the 
Constitution from which its authority is derived.
  But it is also a clear constitutional doctrine. The language of the 
Constitution of the United States, which gives the character of 
``supreme law'' to a treaty, confines it to ``treaties made under the 
authority of the United States.'' That authority is limited and defined 
by the Constitution itself. The United States have no unlimited but 
only delegated authority. The power to make treaties is bounded by the 
same limits which are prescribed for the authority delegated to the 
United States by the Constitution. To suppose that the power to make 
treaties with foreign nations is unlimited by the restraints imposed on 
the power delegated by the United States would be to assume that by 
such treaty the Constitution itself might be abrogated and the liberty 
of the people secured thereby destroyed. The power to contract must be 
commensurate with and not transcend the powers by virtue of which the 
United States and their Government exist and act. It can not contract 
with a foreign nation to do what is unauthorized or forbidden by the 
Constitution to be done. The power to contract is limited by the power 
to do. (3 Story Com. on Const., sec. 1501.)
  It is on this principle that a treaty can not take away essential 
liberties secured by the Constitution to the people. The treaty power 
must be subordinate to these. A treaty can not alien a State or 
dismember the Union, because the Constitution forbids both.
  In all such cases the legitimate effect of a treaty is to bind the 
United States to do what they are competent to do and no more. The 
United States by treaty can only agree with another nation to perform 
what they have authority to perform under the constitutional charter 
creating them. The treaty makes the nexus which binds the faith of the 
Union to do what their Constitution gives authority to do. A treaty 
made under that authority may do this; all it attempts to do beyond it 
is ultra vires--is null and can not bind them.
  We advance to a further limitation. Can a treaty do what the 
Constitution has expressly delegated to another department the 
exclusive and independent authority to do? Or can a treaty compel a 
department to do what the Constitution submits to its exclusive and 
absolute will? And is not the obligation of the treaty conditioned upon 
its free action in those things which the Constitution confides to it 
as an exclusive and independent department?
Sec. 1529
  If a treaty has any operation to supersede legislative action, or to 
constrain it, it would follow that by treaty a State might be admitted 
to the Union. Congress alone has that power. The treaty between the 
United States and Texas did not propose to make her a member of the 
Union, and the admission was made by the action of Congress.
  Congress has power to naturalize foreigners. A treaty can not do so 
without or contrary to the will of Congress. So as to bankruptcy, 
patents, copyright, coinage of money, etc.; so as to the Army, Navy, 
postal service, exclusive legislation in the District of Columbia. If a 
contract may be made with a foreign nation as to all these subjects 
which is obligatory on the United States, then it follows that foreign 
intervention in all our internal concerns may supersede under treaty 
stipulations all the powers of Congress intrusted to it by the 
Constitution. The cases of the power to tax and to appropriate money to 
public objects is a stronger case than any other against the 
construction which gives this supremacy to the treaty power. The same 
results follow as to the powers of the President and of the judiciary. 
These, too, may be subordinated by treaty to the supreme control of 
foreign nations through the action of the treaty-making power under 
this construction. Treaties may not usurp the chair of the Executive 
and the bench of the judges.

  The report then goes on to an analysis of the terms of the 
Constitution, the English precedents, including the treaty of Utrecht, 
which, in respect to a clause respecting reciprocity of commerce, was 
never sanctioned by parliamentary consummation, and to a view of the 
debates during the framing of the Constitution, and of the precedents 
of the House, those of 1796 and 1816. The report made in the Senate in 
1844 \1\ by Mr. Rufus Choate, of Massachusetts, and the action of 
President Jackson in 1834, in regard to the French treaty.\2\
  The report also quotes the law writers and commentators on the 
Constitution.
  1529. On January 22, 1887,\3\ Mr. Nathaniel D. Wallace, of Louisiana, 
submitted as a question of privilege a resolution reciting that the 
President and Senate had ratified a convention with Hawaii, which 
convention, unlike the preceding one of the same kind, was not subject 
to the approval of Congress, and further setting forth that the new 
convention provided for the admission of certain articles into the 
United States free of duty. Therefore the resolution provided for the 
investigation of the subject by the Committee on the Judiciary.
  The point of order being made that the resolution was not privileged, 
the Speaker \4\ held that such subjects, referring to the 
constitutional prerogatives of the House, had always been considered as 
privileged.
  The resolution was agreed to and on March 3 Mr. J. Randolph Tucker, 
of Virginia, chairman of the Committee on the Judiciary, reported from 
that committee the following resolutions:

  That the President, by and with the advice and consent of the Senate, 
can not 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.
-----------------------------------------------------------------------
  \1\ First session Twenty-eighth Congress, Journal of Senate, p. 445.
  \2\ Annual Register, 1834, Public Documents, p. 352; Stat. L., pp. 
574-576.
  \3\ Second session Forty-ninth Congress, Journal, pp. 349, 852; 
Record, pp. 914, 2721; House Report No. 4177.
  \4\ John G. Carlisle, of Kentucky, Speaker.
                                                            Sec. 1530
  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 Congress, in respect of the duties upon 
articles to be imported from the Hawaiian Islands.

  Accompanying these resolutions was a report similar to that in the 
preceding Congress. It appears, however, that in this case, the report 
was authorized by the committee, and it does not appear that there was 
dissent. The report was made too late for action by the House.
  1530. On January 31, 1902,\1\ the following resolution was reported 
from the Committee on Rules and agreed to by the House: \2\
  Whereas it is seriously claimed that under the treaty-making power of 
the Government, and without any action whatever on the part of the 
House of Representatives or by Congress, reciprocal trade agreements 
may be negotiated with foreign governments that will of their own force 
operate to supplant, change, increase, or entirely abrogate duties on 
imports collected under laws enacted by Congress and approved by the 
Executive for the purpose of raising revenue to maintain the 
Government: Now, therefore, be it
  Resolved by the House of Representatives, That the Committee on Ways 
and Means be directed to fully investigate the question of whether or 
not the President, by and with the advice and consent of the Senate, 
and independent of any action on the part of the House of 
Representatives, can negotiate treaties with foreign governments by 
which duties levied under an act of Congress for the purpose of raising 
revenue are modified or repealed, and report the result of such 
investigation to the House.

  No report on this subject was made at this session of Congress.
  1531. The House maintains that customs duties may not be changed 
otherwise than by an act of Congress originated by itself.
  Approvals by Congress of reciprocity treaties affecting customs 
duties.
  Discussion of the prerogatives of the Senate as to treaties affecting 
customs duties.
  On November 16, 1903,\3\ the House proceeded, in Committee of the 
Whole House on the state of the Union, to the consideration of the bill 
(H. R. 1921) to carry into effect a convention between the United 
States and the Republic of Cuba signed on the 11th day of December, in 
the year 1902:

  Be it enacted, etc., That whenever the President of the United States 
shall receive satisfactory evidence that the Republic of Cuba has made 
provision to give full effect to the articles of the convention between 
the United States and the Republic of Cuba, signed on the 11th day of 
December, in the year 1902, he is hereby authorized to issue his 
proclamation declaring that he has received such evidence, and 
thereupon, on the tenth day after exchange of ratifications of such 
convention between the United States and the Republic of Cuba, and so 
long as the said convention shall remain in force, all articles of 
merchandise being the product of the soil or industry of the Republic 
of Cuba which are now imported into the United States free of duty 
shall continue to be so admitted free of duty, and all other articles 
of merchandise being the product of the soil or industry of the 
Republic of Cuba imported into the United States shall be admitted at a 
reduction of 20 per cent of the rates of duty thereon, as provided by 
the tariff act of the United States approved July 24, 1897, or as may 
be provided by any tariff law of the United States subsequently 
enacted. The rates of duty herein granted by the United States to the 
Republic of Cuba are and shall continue during the term of said 
convention preferential in respect to all like imports from other 
countries: Provided, That while said convention is in force no sugar 
imported from the Republic of Cuba, and being the product of the soil 
or industry of the Republic of Cuba, shall be admitted into the United 
States at a reduction of duty greater than 20 per cent of the rates of 
duty
-----------------------------------------------------------------------
  \1\ First session Fifty-seventh Congress, Journal, p. 287; Record, p. 
1178.
  \2\ On January 29, 1902, Mr. Shelby M. Cullom, of Illinois, had made 
in the Senate a speech on this subject. (First session Fifty-seventh 
Congress.)
  \3\ First session Fifty-eighth Congress, Record, p. 260.
Sec. 1531
thereon, as provided by the tariff act of the United States approved 
July 24, 1897, and no sugar the product of any other foreign country 
shall be admitted by treaty or convention into the United States while 
this convention is in force at a lower rate of duty than that provided 
by the tariff act of the United States approved July 24, 1897: And 
provided further, That nothing herein contained shall be held or 
construed as an admission on the part of the House of Representatives 
that customs duties can be changed otherwise than by an act of Congress 
originating in said House.
  Sec. 2. That so long as said convention shall remain in force the 
laws and regulations adopted or that may be adopted by the United 
States to protect the revenues and prevent fraud in the declarations 
and proofs that the articles of merchandise to which said convention 
may apply are the product or manufacture of the Republic of Cuba shall 
not impose any additional charge or fees therefor on the articles 
imported, excepting the consular fees established, or which may be 
established, by the United States for issuing shipping documents, which 
fees shall not be higher than those charged on the shipments of similar 
merchandise from any other nation whatsoever; that articles of the 
Republic of Cuba shall receive, on their importation into the ports of 
the United States, treatment equal to that which similar articles of 
the United States shall receive on their importation into the ports of 
the Republic of Cuba; that any tax or charge that may be imposed by the 
national or local authorities of the United States upon the articles of 
merchandise of the Republic of Cuba embraced in the provisions of said 
convention subsequent to importation and prior to their entering into 
consumption into the United States shall be imposed and collected 
without discrimination upon like articles whencesoever imported.

  The report \1\ of the Committee on Ways and Means, submitted by Mr. 
Sereno E. Payne, of New York, began as follows:

  The enactment of this bill into law is necessary to give effect to 
the convention providing for reciprocal trade between this country and 
Cuba.\2\ This results not merely because the convention itself provides 
that it ``shall not take effect until the same shall have been approved 
by the Congress,'' but because the Constitution gives no power to the 
President and the Senate to make a convention or treaty changing the 
rates of revenue. That power is expressly lodged in the Congress. (Sec. 
8, Article I, of the Constitution.) Section 7 of the same article 
provides that ``all bills for raising revenue shall originate in the 
House of Representatives.'' lt is not intended here to cite authorities 
or advance reasons on this proposition. The records of Congress abound 
with unrefuted arguments on the affirmative of this contention, and the 
practice of Congress has been uniformly in the same direction. The 
reciprocity treaties with Great Britain in reference to our trade 
relations with Canada and with Hawaii were by their terms each 
dependent upon the passage by the Congress of appropriate legislation 
reducing the duties and making provision for the carrying into effect 
of their terms.\3\ Every treaty requiring the payment of money, from 
the Jay treaty to the treaty of Paris with Spain, has been referred to 
the Congress to make the necessary appropriation of money. Foreign 
countries in making treaties with us are bound to take notice of this 
requirement of our Constitution, and, whether it is expressed in the 
treaty or not, the whole matter is subject to the necessary legislation 
by the Congress.
-----------------------------------------------------------------------
  \1\ House Report No. 1, Record, pp. 274-276. Mr. S. B. Cooper, of 
Texas, filed individual minority views, holding that it ``was plainly a 
subterfuge to contend that this is a bill of the House when its only 
purpose and effect is to ratify a treaty or law already perfected in 
form by the other branch of Congress, and practically already ratified 
in that branch, under the treaty-making power conferred by the 
Constitution, which treaty or law the House is now simply called upon 
by the majority to accept as a fait accompli, without any voice as to 
the wording of the original document, and even without the privilege of 
amending or modifying the terms laid down by its constructors. It 
certainly appears an unconstitutional proceeding thus to tie the hands 
of the House of Representatives in a matter of legislation affecting 
the revenue.''
  \2\ For text of this treaty see Executive Document No. 2, first 
session Fifty-eighth Congress. This treaty provided: ``This convention 
shall not take effect until the same shall have been approved by 
Congress.''
  \3\ Both Canadian and Hawaiian treaties had clauses requiring 
legislation of Congress, and acts were passed in accordance therewith. 
(See 10 Stat. L., pp. 587, 1092; 13 Stat. L., p. 566; 19 Stat. L., p. 
200.) The Mexican reciprocity treaty also had a similar clause, but the 
legislation failed and the treaty did not become effective. (24 Stat. 
L., p. 988; 25 Stat. L., p. 1370.)
                                                            Sec. 1531
  The convention to which this bill refers is by its terms not to 
``take effect until the same shall have been approved by the 
Congress.'' If, in the judgment of Congress, the terms of the treaty 
are to become the law of the land, it is necessary, both by the terms 
of the convention and by force of the express requirement of the 
Constitution, that Congress pass the requisite legislation authorizing 
the change in our revenue laws.
  To render the convention valid it is necessary to enact into law the 
language of the proviso of Article VIII: ``And no sugar the product of 
any other foreign country shall be admitted by treaty or convention 
into the United States while this convention is in force at a lower 
rate of duty than that provided by the tariff act of the United States 
approved July 24, 1897.'' To enact these words into law would be to 
admit, by implication, that duties could be lowered by treaty or 
convention. Your committee can not consent to this proposition, nor is 
it believed that such an admission would be sanctioned by any Member of 
the House. The bill therefore adds the following saving clause at the 
conclusion of this proviso:
  ``And provided further, That nothing herein contained shall be held 
or construed as an admission on the part of the House of 
Representatives that customs duties can be changed otherwise than by an 
act of Congress originating in said House.''
  This proviso, in the judgment of your committee, preserves the 
contention of the House as to its rights and prerogatives under the 
Constitution.

  The bill was debated November 16 \1\ and succeeding days and passed 
the House without amendment.\2\
  In the Senate on December 14 and 16,\3\ Mr. Joseph W. Bailey, of 
Texas, discussed at length the constitutional question, holding the 
initiatory action of the Senate unconstitutional. On December 16 Mr. 
John C. Spooner, of Wisconsin, also discussed the question in 
controversy with Mr. Bailey.
  Mr. Bailey laid down three propositions:

  My first proposition is that--
  The House of Representatives alone has the right to originate revenue 
bills; and neither the President alone nor the President and the Senate 
jointly possesses that power.
  My second proposition is that--
  The Constitution commits the treaty-making power of the Government to 
the President and the Senate; and the House of Representatives has no 
right to approve or to disapprove a treaty.
  My third proposition is that--
  The President and the Senate, acting in conjunction with the House of 
Representatives, can not validate an invalid law or treaty; and that 
what is null and void from the beginning must remain null and void to 
the end.
  Mr. President, in declaring that all revenue bills must originate in 
the House of Representatives I merely repeat the very language of the 
Constitution, and it follows as a corollary from that that neither the 
President alone nor the President and the Senate acting together can 
initiate such a measure.

  Mr. Bailey, in the course of the discussion of his propositions, 
said:

  In 1843 the President of the United States negotiated what is 
commonly known as the ``Zollverein commercial treaty,'' and transmitted 
it to the Senate for its ratification. That treaty was referred to the 
Committee on Foreign Relations, and from that committee, on the 14th 
day of June, Senator Choate, of Massachusetts, submitted a report in 
which he states the case against the President's right and power to 
negotiate a treaty of this kind so much better than I could hope to 
state it that I shall ask the Secretary to read it.
  I commend this report \4\ to the careful attention of all Senators, 
but I especially commend it to the attention of the Senators from 
Massachusetts. I do not need to remind them that Rufus Choate was not a 
strict-construction Democrat, who insisted upon the cold letter of the 
Constitution. He was a Whig,
-----------------------------------------------------------------------
  \1\ Record, pp. 260-276, 293-312, 323-349, 361-389.
  \2\ Journal, p. 81; Record, pp. 388, 389.
  \3\ Second session Fifty-eighth Congress, Record, pp. 178-194, 277-
286.
  \4\ See section 1532 of this chapter.
Sec. 1531
and a leader in the party which had elected the President who had 
negotiated this treaty and urged its ratification. But over and above 
his political affiliations he was a profound lawyer, whose learning and 
eloquence are still cherished by the Massachusetts bar, even if his 
advice is not followed by the Massachusetts Senators.

  Mr. John C. Spooner, of Wisconsin, during the debate, said:

  That the question the Senator has discussed as to the power of the 
President and the Senate by treaty alone to change tariff rates was not 
raised by this treaty, because it is part of the agreement itself that 
it should not take effect until it had been approved by Congress. I did 
not say, nor do I say, nor do I think that if that provision had not 
been in the treaty the treaty would have been unconstitutional, 
although I assume, for the purposes of argument, and I should be 
strongly inclined to the opinion, that it would have remained executory 
until legislation originating in the House had given effect to it.
* * * * * * * 

  I certainly can not agree that where a treaty is of such a character 
that it can not become effective until Congress has supplied the 
legislation to carry it into effect it becomes a perfect obligation, 
unless there is a provision in the treaty itself that it shall not 
become effective until it has been approved by Congress. The 
Constitution itself is written into the treaty and if it can not take 
effect under the organic law without affirmative action by Congress, 
that is in the body of the treaty. The nations must take notice of the 
limitations upon the treaty-making power.
  If the Senator will pardon me a moment, Wheaton says:
  ``The treaty, when thus ratified, is obligatory upon the contracting 
states, independently of the auxiliary legislative measures which may 
be necessary on the part of either in order to carry it into complete 
effect. Where, indeed, such auxiliary legislation becomes necessary, in 
consequence of some limitation upon the treaty-making power, expressed 
in the fundamental laws of the State, or necessarily implied--''
  As the Senator from Texas thinks in this case--
``from the distribution of its constitutional powers--such, for 
example, as a prohibition of alienating the national domain--then the 
treaty may be considered as imperfect in its obligation until the 
national assent has been given in the forms required by the municipal 
constitution.''
  And so it is said by Mr. Story; and so it is said in Foster v. 
Neilson by Chief Justice Marshall; and so it is said by Mr. Justice 
McLean, who, in the case of Turner v. The American Baptist Union, 
expressed himself as follows:
  ``A treaty under the Federal Constitution is declared to be the 
supreme law of the land. This unquestionably applies to all treaties 
where the treaty-making power, without the aid of Congress, can carry 
it into effect. It is not, however, and can not, be, the supreme law of 
the land where the concurrence of Congress is necessary to give it 
effect.''
  That is either where it provides as a part of the agreement that it 
shall not take effect until approved by Congress or where it is 
provided as a part of the Constitution that it shall not take effect 
until approved by Congress. Justice McLean continues:
  ``Until this power is exercised, as where the appropriation of money 
is required, the treaty is not perfect. It is not operative, in the 
sense of the Constitution, as money can not be appropriated by the 
treaty-making power. This results from the limitations of our 
Government.''
* * * * * * * 

  The point of the Senator's argument was that the House was no part of 
the treaty-making power. That is true. A treaty which the President and 
the Senate may lawfully enter into would be no better if it provided 
for approval by the House, but would be an attempt to confer by 
contract a power upon the House which under the Constitution it does 
not possess, which it claimed long ago in President Washington's day, 
but which it abandoned then and has never since asserted.
  But a provision that the treaty shall not take effect until approved 
by Congress is a valid provision unless the Senator takes the narrow 
view of the word ``approved,'' that it involves a ratification of the 
treaty by the House and by the Senate as legislative bodies. You will 
find the word ``approved'' in the provision of the Dingley Act as to 
commercial treaties. If that word means what the Senator seems to think 
it does, it is bad; there is no sense in it. If it means what I think 
it means, until the House, where it relates to duties, shall approve by 
legislation the duty provisions of the treaty, it is entirely 
harmonious with my contention that it is constitutional. It is a 
different proposition from that which the Senator was making a moment 
ago.
                                                            Sec. 1532
  In the course of the debate, Mr. Eugene Hale, of Maine, said:

  But when you come to an event which it is declared is absolutely 
indispensable to the operation of the treaty, an act by Congress, what 
better can you have than that? I can see none, and that is the reason 
why I am going to vote for this bill, that all the rights of the great 
body of popular Representatives of the Government are preserved.
  I do not agree with certain Senators here that the President and the 
Senate can ride roughshod over the popular branch, and that the power, 
which is given in terms to negotiate treaties undermines and destroys 
the fundamental proposition that revenue measures must originate in the 
House. I do not agree with Senators in that. My education in the House 
and all my thought and reflection since have been in the other 
direction. I shall vote for this bill because it has been so amply 
guarded in that direction that the right of the House is maintained, 
and the treaty is dependent upon a single event which must be initiated 
and started and adopted by the House and the Senate as Congress.

  On December 16,\1\ Mr. George F. Hoar, of Massachusetts, said:

  The Constitution provides for two methods of legislation. It declares 
that bills passed in accordance with the Constitution and treaties 
shall be the law of the land. They have equal authority, and the latest 
bill or treaty is the latest declaration of the law and repeals all 
others in conflict with it. Then the Constitution proceeds to say, not 
that measures or even laws for raising revenue shall originate in the 
House, but that bills for that purpose shall do so--that is, in 
substance, that when the method of doing this is by majority vote the 
method of accomplishing it is by statute, the origin of which is a 
bill, the popular branch shall have the sole prerogative of originating 
it. But the Constitution leaves untouched, by any suggestion of a 
provision, direct or indirect, the otherwise unlimited authority to 
make any kind of law by treaty.
  It is true there are many treaties which, while pledging the faith of 
the Government, require an act of Congress to give them effect, just as 
there are many laws which, while pledging the faith of the Government, 
require a supplementary act of Congress to give them effect. A law 
providing for a public debt and authorizing the Secretary of the 
Treasury to sign the evidences of the public debt requires a future law 
making an appropriation for its payment, but it is operative and 
pledges the faith of the Government to the public creditor, and it 
becomes the bounden duty of both Houses to make the appropriation, just 
as much as it becomes the bounden duty of both Houses to carry into 
effect any other provision of the Constitution whatever. So in the 
matter of the salaries of judges. But it is not necessary to carry the 
illustration further.
  There may be treaties affecting revenue--and it makes no difference, 
as I agree with the Senator from Wisconsin, whether their effect is the 
diminution or the raising of revenue--which require future legislation 
to carry them into effect. It is not necessary to illustrate that. And 
there may be treaties which require no further legislation to carry 
them into effect. For instance, suppose, being in the habit of charging 
$100 head money on every passenger brought into the United States, we 
should make a treaty with Spain in these words: ``Hereafter no officer 
of the United States shall receive or exact any head money from any 
passenger coming from Spain.'' That would be a complete, perfect 
enactment. It would be the law of the land, by the express provision of 
the Constitution, requiring no farther act of Congress to give it 
effect or to provide any mechanism for carrying it out. I hold that 
such a treaty, although it affects revenue and never has been in the 
House, is as absolutely, by the plain meaning of the Constitution, the 
law of the land as if those same words were put into a statute enacted 
by both Houses.

  The bill, on December 16, was passed by the Senate without amendment, 
yeas 57, nays 18.\2\
  1532. In 1844 the Senate took the view that the constitutional method 
of regulating duties was by act of Congress rather than by treaty.
  Argument that duties are more properly regulated with the publicity 
of Congressional action than by treaties negotiated by the Executive 
and ratified by the Senate in secrecy.
-----------------------------------------------------------------------
  \1\ Record, p. 277.
  \2\ Record, p. 286.
Sec. 1532
  On June 14, 1844,\1\ in executive session of the Senate, Mr. Rufus 
Choate, from the Committee on Foreign Relations, to whom had been 
referred the convention with Prussia and the other states of the 
Germanic Association of Customs and Commerce, reported the same 
adversely. In the report the committee says:

  That the Senate ought not to advise and consent to the ratification 
of the convention aforesaid.
  In submitting this report the committee do not think it necessary to 
say anything on the general object sought to be accomplished by the 
convention, or on the details of the actual arrangement; not to attempt 
to determine, by the weight and measure of the reciprocal concessions, 
which Government, if either, has the best of the transaction. These 
subjects have not escaped their notice, but they propose to confine 
themselves to a very brief exhibition of another and single ground, 
upon which, without reference to the particular merits of the treaty, 
they advise against its ratification.
  The committee, then, are not prepared to sanction so large an 
innovation upon ancient and uniform practice in respect of the 
department of Government by which duties on imports shall be imposed. 
The convention which has been submitted to the Senate changes duties 
which have been laid by law. It changes them either ex directo and by 
its own vigor, or it engages the faith of the nation and the faith of 
the Legislature through which the nation acts to make the change. In 
either aspect it is the President and Senate who, by the 
instrumentality of negotiation, repeal or materially vary regulations 
of Commerce and laws of revenue which Congress had ordained. More than 
this, the executive department, by the same instrumentality of 
negotiations, places it beyond the power of Congress to exceed the 
stipulated maximum of import duties for at least three years, whatever 
exigency may intervene to require it.
  In the judgment of the committee the Legislature is the department of 
Government by which commerce should be regulated and the laws of 
revenue be passed. The Constitution, in terms, communicates the power 
to regulate commerce and to impose duties to that department. It 
communicates it, in terms, to no other. Without engaging at all in an 
examination of the extent, limits, and objects of the power to make 
treaties, the committee believe that the general rule of our system is 
indisputably that the control of trade and the function of taxing 
belong, without abridgment or participation, to Congress. They infer 
this from the language of the Constitution, from the nature and 
principles of our Government, from the theory of Republican liberty 
itself, and from the unvaried practice, evidencing the universal belief 
of all, in all periods and of all parties and opinions. They think, 
too, that, as the general rule, the representatives of the people 
sitting in their legislative capacity, with open doors, under the eye 
of the country, communicating freely with their constituents, may 
exercise this power more intelligently, more discreetly, may acquire 
more accurate and more minute information concerning the employments 
and the interests on which this description of measures will press, and 
may better discern what true policy prescribes and rejects, than is 
within the competence of the executive department of the Government.
  To follow, not to lead; to fulfill, not to ordain the law; to carry 
into effect, by negotiation and compact with foreign governments, the 
legislative will, when it has been announced, upon the great subjects 
of trade and revenue; not to interpose with controlling influence, not 
to go forward with too ambitious enterprise--these seem to the 
committee to be the appropriate functions of the Executive.
  Holding this to be the general rule upon the subject, the committee 
discern nothing in the circumstances of this case, nothing in the 
object to be attained or in the difficulties in the way of obtaining 
it, which should induce a departure from this rule. If Congress think 
the proposed arrangement a beneficial one, it is quite easy to pass a 
law which shall impose the rates of duty contemplated by it, to take 
effect when satisfactory information is conveyed to the President that 
the stipulated equivalents are properly secured.
  Upon this single ground, then, the committee advise that the treaty 
be rejected. It may help to reconcile the Senate to this conclusion if 
they add that they do not regard the stipulated concessions of the 
foreign contracting power as in any degree equivalent to the 
considerations by which we obtain them. * * *
-----------------------------------------------------------------------
  \1\ Senate Executive Journal, 1841-1845, pp. 333-334.
                                                            Sec. 1532
  On June 15, 1844, by a vote of yeas 26, nays 18, the treaty was laid 
on the table.
  On February 26, 1845,\1\ the Committee on Foreign Relations, to whom 
had been referred a message of the President, submitting arguments as 
to the merits of the convention rather than as to the constitutionality 
of the question involved, made a second report,\2\ in which was 
reiterated the reason of the former report, and which then continues:

  The committee have experienced no change of these views. The fact of 
the President and Senate being invested with authority to control 
Congress in a sphere so appropriate to its jurisdiction furnishes no 
sufficient cause for the exertion of the authority, unless for peculiar 
reason of injury to be avoided or advantage realized which legislation 
may not reach with the same facility or effect. Retaliatory regulation, 
when required, for example, may be best arranged or obviated by 
treaties. In such cases the cooperation of Congress may always be 
expected, with no impairment of harmony between the departments.
  The question has been debated how far Congress would be bound to give 
effect, in cases requiring its cooperation, to regulations by treaty on 
subjects put within its express province by the Constitution. Whichever 
may be the better opinion, the doubt supplies reason enough against 
putting the question to trial in other circumstances than those in 
which the concurrence of Congress may be safely assumed. And the reason 
is the stronger for this forbearance from the fact that in the 
contingency of conflict it would be not the interests only, but the 
faith, too, of the nation which might be compromised, as this would 
have been committed by the adoption of the treaty regulations.
  The condition of the Government at this point is of peculiar delicacy 
as regards the arrangement of its imposts. Parties have been arrayed 
with vehemence and the greatest sensibility awakened on the subject. 
Regulation by treaty in these circumstances would doubtless be carried 
into effect by the House of Representatives. But the temper in which 
the supposed intrusion might be expected to be received would be 
anything but cordial or placid. Ought not the occasion to be 
considerable, the motive urgent, to warrant the exercise of the 
authority at this cost? This is a topic requiring only to be displayed, 
not dwelt on.
  It is further to be considered, if we were to have separate 
regulation of duties with the various powers which might invite or 
desire this course of action, how inconveniently diversified and 
mottled our tariff system might soon become, whilst we should be 
precluded from simplifying and restoring it to uniformity and symmetry 
by engagements we were not at liberty to retire from, or which we could 
only retract at the hazard of disturbing harmony and possibly inciting 
changes of tariff unfavorable to our interests.
  We have at this time treaty stipulations with twenty-one foreign 
States, engaging that their articles of produce or manufacture, 
respectively, shall be liable to the payment of no higher or other 
duties on importation into the United States than shall be payable on 
the like articles from other countries. We say that this pledge does 
not preclude us from changes of our rates of duty for equivalents 
without letting other powers to participation, unless in the render of 
the same equivalents by these other powers. Let this view be granted to 
be correct. Is it not true, nevertheless, that others might be found to 
contest this construction, and, whilst they could not prevail on us to 
abandon it, might still seek occasion of dissatisfaction on our 
refusal, possibly to the extreme of introducing change to our 
disadvantage in their tariffs? The consequence may not be hazarded on 
light inducements in any event.
  If we make regulations of reduction and favor in regard to articles 
from a foreign country, unless (the instances of which are rare) they 
are peculiar to that country, the operation will not be confined to 
these articles, but extend to 0 of the same class from all countries, 
or, it may be, have the effect to derange the established channels of 
trade, not in these classes of articles only, but much larger classes 
in connection with these, as having formed their associates in 
importation from the same country. The committee do not feel required 
to expand and assign their full development to views of this character. 
They regard it their duty, however, to bring them to the attention of 
the Senate, for a better and wiser consideration, with the expression 
of the opinion that they are worthy of that consideration. The effect 
of granting reductions of impost on the revenue of the country is, in 
this view, not to be confined to
-----------------------------------------------------------------------
  \1\ Senate Executive Journal, 1841-1845, pp. 406-410.
  \2\ This second report was submitted not by Mr. Choate, but by Mr. 
William S. Archer, of Virginia.
Sec. 1533
the mere estimate of the articles to be introduced from the country 
with which the stipulation for the reduction has been made. The 
reduction must affect the articles of the same claw from all countries, 
and, of course, the revenue which the duties on them will afford.
  Such, in a condensed form, are the views which the committee 
entertain as regards the general question of the propriety and policy 
of interference by regulations of treaty with the tariff arrangements 
of the Government. The power under the Constitution to interfere is not 
contested. The possible occurrence of occasions in which it may be 
advisable to exert it is not disputed. But the opinion is intended to 
be expressed that the occasions should be marked by the promise of very 
superior advantage, or lie out of the convenient reach of the exertion 
of the ordinary power of Congress.

  1533. Discussion by a Senate committee as to the jurisdiction of the 
Senate over revenue treaties.
  Provisions of the tariff act of 1897 in reference to reciprocity 
treaties.
  On December 15, 1902,\1\ the Senate removed the injunction of secrecy 
from the following report made at the preceding session by Mr. S. M. 
Cullom,\2\ of Illinois, from the Committee on Foreign Relations:

  The Committee on Foreign Relations, having adopted the following 
report of a subcommittee appointed to consider the question of the 
jurisdiction of the Senate to act upon the reciprocity treaties now 
pending in that body, submits the same for the consideration of the 
Senate.
  The subcommittee to whom was referred the question whether the Senate 
has jurisdiction to act upon the reciprocity treaties transmitted to 
the Senate, and now pending in that body, begs leave respectfully to 
report as follows:
  Section 4 of the tariff act of 1897, commonly known as the Dingley 
Act, provides
  ``Sec. 4. That whenever the President of the United States, by and 
with the advice and consent of the Senate, with a view to secure 
reciprocal trade with foreign countries, shall, within the period of 
two years from and after the passage of this act, enter into commercial 
treaty or treaties with any other country or countries concerning the 
admission into any such country or countries of the goods, wares, and 
merchandise of the United States and their use and disposition therein, 
deemed to be for the interests of the United States, and in such treaty 
or treaties, in consideration of the advantages accruing to the United 
States therefrom, shall provide for the reduction during a specified 
period, not exceeding five years, of the duties imposed by this act, to 
the extent of not more than twenty per centum thereof, upon such goods, 
wares, or merchandise as may be designated therein of the country or 
countries with which such treaty or treaties shall be made as in this 
section provided for; or shall provide for the transfer during such 
period from the dutiable list of this act to the free list thereof of 
such goods, wares, and merchandise, being the natural products of such 
foreign country or countries, and not of the United States; or shall 
provide for the retention upon the free list of this act during a 
specified period, not exceeding five years, of such goods, wares, and 
merchandise now included in said free list as may be designated 
therein; and when any such treaty shall have been duly ratified by the 
Senate and approved by Congress, and public proclamation made 
accordingly, then and thereafter the duties which shall be collected by 
the United States upon any of the designated goods, wares, and 
merchandise from the foreign country with which such treaty has been 
made shall, during the period provided for, be the duties specified and 
provided for in such treaty, and none other.''
  It will be observed that the treaties contemplated by this section 
are those which the President of the United States, ``by and with the 
advice and consent of the Senate, with a view to secure reciprocal 
trade with foreign countries, shall enter into within the period of two 
years from and after the passage of this act,'' such treaties to be 
operative if they shall provide for a reduction of duties imposed by 
the act during a specified period, not exceeding five years, and to an 
extent of not more than 20 per cent. The section contains other similar 
limitations.
  The act was approved July 24, 1897. The pending treaties were 
negotiated by the President and transmitted to the Senate within two 
years from the passage of the act, but have not been ratified by
-----------------------------------------------------------------------
  \1\ Second session Fifty-seventh Congress, Senate Document No. 47.
  \2\ While Mr. Cullom was a Member of the House a resolution on this 
subject was pending. Second session Fortieth Congress, Globe, p. 3885.
                                                            Sec. 1534
the Senate within the time limited by section 4, although the time 
fixed by the treaties for the exchange of ratifications has been 
extended by agreement between the parties thereto.
  It is difficult to discover the theory upon which this section was 
drawn. It certainly was not drawn upon the theory that such treaties 
require, as a condition precedent to their becoming effective, the 
approval of Congress, and that the act gave conditionally that approval 
in advance, for the section provides that when such treaties shall have 
been duly ratified by the Senate and approved by Congress, and 
proclamation made accordingly, then and thereafter the duties which 
shall be collected, etc., * * * shall be the duties specified and 
provided for in such treaty, and none other.
  The single question submitted to the subcommittee for examination and 
report is whether the treaties not having been ratified by the Senate 
within two years from July 24, 1897, are still within its jurisdiction.
  Section 2 of article 2 of the Constitution provides that the 
President ``shall have power, by and with the advice and consent of the 
Senate, to make treaties, provided two-thirds of the Senators present 
concur.''
  The President and the Senate are, under the Constitution, the treaty-
making power. The initiative lies with the President. He can negotiate 
such treaties as may seem to him wise, and propose them to the Senate 
for the advice and consent of that body, which is as free and 
independent in its action upon the same as the President is in 
exercising his power of initiative and negotiation.
  The power of the President and the Senate is derived from the 
Constitution. There is under our system no other source of treaty-
making power. The Congress is without power to grant to the President 
or to the Senate any authority in respect of treaties, nor does the 
Congress possess any power to fetter or limit in any way the President 
or the Senate in the exercise of this constitutional function. It can 
not enlarge or in any wise limit or attach conditions to the exercise 
of the treaty-making power.
  Whether the treaty is one which is self-executing, or one which 
requires legislation by the Congress to give it effect, it must first 
in any event be negotiated by the President and ratified by the Senate. 
Whether he will negotiate a treaty and when, and what its terms shall 
be, are matters committed by the Constitution entirely to the 
discretion of the President, and whether the Senate will advise and 
consent to it, with or without amendment, is a matter committed 
entirely to the discretion of the Senate.
  If a treaty be such as to require legislative action, and when 
entered into by the President and ratified by the Senate does not meet 
the approval of Congress, it has the power to withhold the legislation 
requisite to give it effect, but with the preliminary steps of 
negotiation and ratification the Congress has nothing whatever, under 
the Constitution, to do.
  The subcommittee is clearly of the opinion therefore that nothing 
contained in section 4 constitutes any valid restriction upon the 
jurisdiction and power of the Senate to act upon the commercial 
treaties now pending.
  Whether such treaties operate without the approval of Congress, to 
change tariff duties theretofore fixed by law, is a question not 
involved, and upon which the subcommittee expresses no opinion.
  The fact that the Senate as a legislative body concurred with the 
House of Representatives in the enactment of the tariff act of 1897, 
including section 4, is without weight upon the subject, for the 
obvious reason that it is impossible for the Senate by participation, 
deliberate or inadvertent, as a legislative body in such an enactment 
to disable itself in the slightest degree from exercising the power 
conferred upon it by the Constitution to act upon treaties negotiated 
by the Executive.
  It is entirely competent for the Senate to amend these treaties so as 
to provide that they shall not take effect without the approval of 
Congress. Several treaties have thus provided, among others that with 
the Hawaiian Government in 1876. Such an amendment can not be objected 
to by the governments which have entered into these treaties with the 
United States, because they were known to be entered into with 
reference to the provisions of section 4.
  The subcommittee therefore recommend, without reference to the merits 
thereof, that each of said treaties be amended by the Senate by 
inserting therein the following additional provision:
  ``This treaty shall not take effect until the same shall have been 
approved by the Congress.''

  1534. Even in the case of an application for papers relating to an 
Indian treaty, President Jackson asserted the Executive prerogative as 
opposed to the contention of the House.--In 1832 the Committee on the 
Public
Sec. 1534
Lands were instructed by a resolution of the House to inquire 
concerning the lease of a certain tract of land reserved by treaty with 
the Chickasaw tribe of Indians. In the course of this investigation the 
committee called on the Secretary of War for a copy of a certain treaty 
with these Indians and a copy of the journal of the commissioners 
negotiating the treaty and such other papers as might be in the 
Department touching the subject before the committee. The committee 
accompanied their request with the statement that it was made subject 
to the judgment of the President as to whether or not the communication 
could be made without injury to the public service.
  On March 2, 1832,\1\ Secretary of War Lewis Cass transmitted the 
information required, but accompanied this with an exposition of the 
views of President Jackson, who did not wish this compliance to be made 
a precedent. The Secretary says:

  The Constitution has assigned to the different departments of the 
Government their appropriate duties. To the President and Senate it has 
given the treaty-making power. And although there is, in many important 
particulars an obvious difference between the treaties concluded with 
the civilized nations of the world and the compacts formed with the 
various Indian tribes, subject to the jurisdiction of the General 
Government or of the respective States, still the latter, as well as 
the former, have, by the usage of the Government since its 
establishment, been negotiated and ratified by the same authority and 
under the same general provision of the Constitution, and many of them 
expressly require the action of the Senate.
  The same principle, therefore, which regulates one of these subjects 
must regulate the other whenever any question arises involving the 
exercise of an authority connected with either. Upon the preservation 
of the Constitution, as well in its partition of duties as in its 
limitations upon their exercise, depends, in the opinion of the 
President, the stability of this Government which the people have 
established.
  In considering the application made by the committee the President 
does not perceive that a copy of any part of the incomplete and 
unratified treaty of 1830 can be ``relative to any purpose under the 
cognizance of the House of Representatives, except that of impeachment, 
which the resolution has not expressed.'' If this quotation, which 
gives the view taken of this subject by General Washington in his 
message to the House of Representatives of March 30, 1796, applied to 
the circumstances of a call for the papers relating to a ratified 
treaty in the process of execution, and for the faithful performance of 
which an appropriation was required, it will apply with much more force 
to the present application, which calls for a paper that will be wholly 
inoperative until the parties have again met and completed their 
arrangements, which at present gives no rights, and can ``change'' 
none, and which has not and ought not yet be submitted to the 
coordinate branch of the treaty-making power for their concurrence.
  That circumstances may not yet arise in which the papers relating to 
a ratified or an unratified treaty should be transmitted to either 
House of Congress upon their application the President is not prepared 
to deny; more particularly when such ratified ``treaty stipulates 
regulations on any of the subjects submitted by the Constitution to 
either House of Congress,'' and when ``it must depend for its execution 
as to such stipulations on a law or laws to be passed by Congress.''
  Such are the views of the President upon this subject--a subject 
connected with the relative duties of the executive and legislative 
departments of the Government and which may hereafter involved, as it 
has heretofore involved, consequences of the highest importance. He is 
therefore anxious that his sentiments upon the general subject, not 
less than the reasons of his course in this particular case, should be 
distinctly made known and understood. Precedents established for good 
purposes are easily perverted to bad ones, and while, therefore, he 
assents to the application which has been made in this particular case, 
he does so under his own views of its peculiar circumstances, and not 
because the committee has a right to call for the information or he is 
bound to furnish it.
-----------------------------------------------------------------------
  \1\ House Report No. 488, pp. 14, 15, first session Twenty-second 
Congress.
                                                            Sec. 1535
  1535. After long discussion the House, in 1871, successfully asserted 
its right to a voice in approving Indian treaties.--In a report made to 
the House on July 20, 1842,\1\ by the Committee on Indian Affairs \2\ 
the committee discussed the nature of treaties with the Indians as 
related to the power of the House over such subjects:

  There is scarcely a point of resemblance between the relations of 
this Government with an Indian tribe and a foreign independent nation. 
The Indian tribes are not regarded as foreign nations by the 
Constitution, for, amongst the enumeration of the powers of Congress by 
that instrument there is one which gives it authority ``to regulate 
commerce with foreign nations and among the several States, and with 
the Indian tribes.'' Our relations with these tribes and the business 
of negotiating with them is not entrusted to the Department of State, 
whose duty it is to conduct negotiations with foreign Governments. By 
the act of Congress which established the War Department the execution 
of all duties relating to our Indian affairs was devolved upon it. The 
laws of the United States for many purposes extend over and are in 
force in the Indian Territory. No person is permitted to trade in the 
Indian country without a license from the superintendent of Indian 
affairs. The President may prohibit the introduction of goods or of any 
particular article into the country belonging to any Indian tribe 
either by citizens of the United States, foreigners, or any other 
tribe. The whole of the country occupied by the tribes who have removed 
west of the Mississippi is annexed to the judicial district of the 
United States to which it is contiguous. The jurisdiction of our courts 
extends to crimes committed in the Indian country, and Congress has 
always claimed to exercise the power of protecting the Indians. Indeed, 
the Indian tribes can not in any sense be regarded as independent 
nations, the wardship exercised over them by the Government of the 
United States being entirely incompatible with their independence. 
There is no reason, therefore, for regarding our negotiations with them 
in the light and subject to the rules which prevail in relation to the 
treaties negotiated with foreign nations.

  1536. In 1870 \3\ the Indian appropriation bill (H. R. 1169) failed 
because of adherence by both House and Senate after two unsuccessful 
conferences. The point of difference was the refusal of the House to 
appropriate to carry out the stipulations of certain treaties. The 
House took the ground that the Indian treaties did not stand on the 
same grounds under the Constitution as did the treaties with foreign 
nations. In short, the House denied the right of the President and 
Senate to bind the Government by a treaty with Indians. The Senate held 
that the right had been recognized by the House and the Supreme Court 
from the organization of the Government until the present Congress, and 
declined to yield what it conceived to be one of its prerogatives.
  A new bill was then passed in the House (H. R. 2413) without 
provision for payment of certain treaty stipulations. The Senate 
amended it in accordance with their contention, and a disagreement 
arose, which in the last hours of the session was composed by a 
provision of the conference report as follows:

  That nothing in this act contained, or in any of the provisions 
thereof shall be construed as to ratify, approve, or disaffirm any 
treaty made with said tribes, bands, or parties of Indians, since the 
20th of July, 1867, or affirm or disaffirm any of the powers of the 
Executive and Senate over the subject.

  Mr. Henry L. Dawes, of Massachusetts, said in presenting the report 
that it merely postponed the question at issue. The report was agreed 
to, and the bill became a law.\4\
-----------------------------------------------------------------------
  \1\ Second session Twenty-seventh Congress, House Report No. 960.
  \2\ This committee: Messrs. James Cooper (Pa.), Robert L. Caruthers 
(Tenn.), Thomas C. Chittenden (N. Y.), Augustus R. Sollers (Md.), 
William Butler (S. C.), Harvey M. Watterson (Tenn.), Wm. A. Harris 
(Va.), John B. Weller (Ohio), and John C. Edwards (Mo.).
  \3\ Second session Forty-first Congress, Globe, pp. 4971, 5008, 5111, 
5572, 5606, 5609.
  \4\ Journal, p. 1292, Globe, p. 5656.
Sec. 1537
  The conflict between the two Houses was renewed in 1871, when the 
Indian appropriation bill (H. R. 2615) came up for consideration. The 
difficulties were submitted to a conference composed, on the part of 
the House, of Messrs. Aaron A. Sargent, of California; James B. Beck, 
of Kentucky, and Sidney Clarke, of Kansas. On the part of the Senate 
the conferees were Messrs. Cornelius Cole, of California; James Harlan, 
of Iowa, and John P. Stockton, of New Jersey.
  On March 1 they agreed to a conference report, which all the 
conferees signed, and which included, among other provisions, the 
following:

  That hereafter no Indian nation or tribe within the territory of the 
United States shall be acknowledged or recognized as an independent 
nation, tribe, or power with whom the United States may contract by 
treaty: Provided further, That nothing herein contained shall be 
construed to invalidate or impair the obligation of any treaty 
heretofore lawfully made and ratified with any such Indian nation or 
tribe.

  In the Senate the report was assailed by Mr. Garrett Davis, of 
Kentucky, and others as a surrender of a great principle, but the 
report was agreed to in both Houses without division.\1\
  1537. The meaning of a treaty may not be controlled by subsequent 
explanations sanctioned by a majority vote only of the Senate.--In the 
caseof Fourteen Diamond Rings v. The United States,\2\ Chief Justice 
Fuller, in delivering the opinion of the court, discussed the following 
joint resolution, which had been passed by the Senate:

  Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That by the ratification of 
the treaty of peace with Spain it is not intended to incorporate the 
inhabitants of the Philippine Islands into citizenship of the United 
States, nor is it intended to permanently annex said islands as an 
integral part of the territory of the United States; but it is the 
intention of the United States to establish on said islands a 
government suitable to the wants and conditions of the inhabitants of 
said islands to prepare them for local self-government, and in due time 
to make such disposition of said islands as will best promote the 
interests of the United States and the inhabitants of said islands.\3\

  The Chief Justice says:

  But it is said that the case of the Philippines is to be 
distinguished from that of Porto Rico because on February 14, 1899, 
after the ratification of the treaty, the Senate resolved that it was 
not intended to incorporate the inhabitants of the Philippines into 
citizenship of the United States nor to permanently annex those 
islands.
  We need not consider the force and effect of a resolution of this 
sort, if adopted by Congress, not like that of April 20, 1898, in 
respect of Cuba, preliminary to the declaration of war, but after title 
had passed by ratified cession. It is enough that this was a joint 
resolution; that it was adopted by the Senate by a vote of 26 to 22, 
not two-thirds of a quorum; and that it is absolutely without legal 
significance on the question before us. The meaning of the treaty can 
not be controlled by subsequent explanations of some of those who may 
have voted to ratify it. What view the House might have taken as to the 
intention of the Senate in ratifying the treaty we are not informed, 
nor is it material; and if any implication from the action referred to 
could properly be indulged, it would seem to be that two-thirds of a 
quorum of the Senate did not consent to the ratification on the grounds 
indicated.
-----------------------------------------------------------------------
  \1\ Third session Forty-first Congress, Journal, p. 456; Globe, pp. 
1811, 1822.
  \2\ 183 U. S., pp. 179-180.
  \3\ Record, Fifty-fifth Congress, third session, vol. 32, p. 1847.