[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress]
[House Document 111-157]
[Jeffersons Manual of ParliamentaryPractice]
[From the U.S. Government Printing Office, www.gpo.gov]
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stance, that the King of Great
Britain cannot by a treaty make a citizen of an alien. Vattel, b. 1, c.
19, sec. 214. An act of Parliament was necessary to validate the
American treaty of 1783. And abundant examples of such acts can be
cited. In the case of the treaty of Utrecht, in 1712, the commercial
articles required the concurrence of Parliament; but a bill brought in
for that purpose was rejected. France, the other contracting party,
suffered these articles, in practice, to be not insisted on, and adhered
to the rest of the treaty. 4 Russell's Hist. Mod. Europe, 457; 2
Smollet, 242, 246.
participation to the House. This
last exception is denied by some on the ground that it would leave very
little matter for the treaty power to work on. The less the better, say
others. The Constitution thought it wise to restrain the executive and
Senate from entangling and embroiling our affairs with those of Europe.
Besides, as the negotiations are carried on by the executive alone, the
subjecting to the ratification of the representatives such articles as
are within their participation is no more inconvenient than to the
Senate. But the ground of this exception is denied as unfounded. For
examine, e.g., the treaty of commerce with France, and it will be found
that, out of thirty-one articles, there are not more than small portions
of two or three of them which would not still remain as subjects of
treaties, untouched by these exceptions.
Sec. 593. General nature of
Treaties are legislative acts. A treaty is the law of the land. It
differs from other laws only as it must have the consent of a foreign
nation, being but a contract with respect to that nation. In all
countries, I believe, except England, treaties are made by the
legislative power; and there, also, if they touch the laws of the land
they must be approved by Parliament. Ware v. Hylton, 3 Dallas's Rep.,
223. It is acknowledged, for in
Sec. 594. Jefferson's discussion of treaties under the
By the Constitution of the United States this department of
legislation is confined to two branches only of the ordinary
legislature--the President originating and the Senate having a negative.
To what subjects this power extends has not been defined in detail by
the Constitution; nor are we entirely agreed among ourselves. 1. It is
admitted that it must concern the foreign nation party to the contract,
or it would be a mere nullity, res inter alias acta. 2. By the general
power to make treaties, the Constitution must have intended to
comprehend only those subjects which are usually regulated by treaty,
and can not be otherwise regulated. 3. It must have meant to except out
of these the rights reserved to the States; for surely the President and
Senate can not do by treaty what the whole Government is interdicted
from doing in any way. 4. And also to except those subjects of
legislation in which it gave a
territory (II, 1507, 1508), and at various other times there have been
discussions of the general subject (II, 1509, 1546, 1547; VI, 324-326).
Sec. 595. General action of the House as to
The participation of the House in the treaty-making power has
been often examined since Jefferson's Manual was written. The House has
in several instances taken action in carrying into effect, terminating,
enforcing, and suggesting treaties (II, 1502-1505, 1520-1522), although
sometimes the propriety of requesting the executive to negotiate a
treaty has been questioned (II, 1514-1517).
Sec. 596. Authority of the House as to treaties in
The exact authority of the House in the making of general treaties has
been the subject of differences of opinion. 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 (II, 1509); and in 1816, after a
discussion with the Senate, the House 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 entrusted to
Congress (II, 1506). In 1868 the House's assertion of right to a voice
in carrying out the stipulations of certain treaties was conceded in a
modified form (II, 1508). Again, in 1871, the House asserted its
prerogative (II, 1523). In 1820 and 1868 there were discussions of the
House's functions as to treaties ceding or acquiring
Sec. 597. Authority of the House as to revenue
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
(II, 1528-1530), and a Senate committee after examination concluded that
duties were more properly regulated with the publicity of congressional
action than by treaties negotiated by the President and ratified by the
Senate in secrecy (II, 1532). In practice the House has acted on revenue
treaties (II, 1531, 1533); and in 1880 it declared the negotiation of a
revenue treaty an invasion of its prerogatives (II, 1524). At other
times the subject has been discussed (II, 1525-1528, 1531, 1533).
There have been various conflicts with the executive over requests of
the House for papers relating to treaties (II, 1509-1513, 1518, 1519,
Sec. 598. House approves Indian
After long discussion the House, in 1871, successfully asserted its
right to a voice in approving Indian treaties (II, 1535, 1536), although
in earlier times this prerogative had been jealously guarded by the
executive (II, 1534).
Notice to a foreign government of the abrogation of a treaty is
authorized by a joint resolution (V, 6270). A resolution alleging an
unconstitutional abrogation of a treaty by the President, and calling on
the President to seek the approval of Congress before such abrogation,
does not constitute a question of the privileges of the House under rule
IX (June 6, 2002, pp. 9492-98 (sustained by tabling of appeal)).
And in December, 1800, the convention of
that year between the United States and France, with the report of the
negotiations by the envoys, but not their instructions, being laid
before the Senate, the instructions were asked for and communicated by
Sec. 599. Treaties abrogated by
Treaties being declared, equally with the laws of the United States, to be the
supreme law of the land, it is understood that an act of the legislature
alone can declare them infringed and rescinded. This was accordingly the
process adopted in the case of France in 1798.
The mode of voting on questions of ratification is by nominal call.
The Senate now has rules governing its procedure on treaties.
Sec. 600. Procedure of the Senate as to
It has been the usage for the Executive, when it communicates a
treaty to the Senate for their ratification, to communicate also the
correspondence of the negotiators. This having been omitted in the case
of the Prussian treaty, was asked by a vote of the House of February 12,
1800, and was obtained.