understood by foreign nations; and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the president, with the advice and consent of the senate, they become obligatory. In this construction of the Constitution every house of representatives had acquiesced, and until the present time, not a doubt or suspicion had appeared, to his knowledge, that this construction was not the true one.

With some further remarks, he concluded by observing, that as it was perfectly clear to his understanding that the consent of the house of representatives is not necessary to the validity of a treaty, as the treaty with Great Britain exhibited in itself all the objects requiring legislative provision, and on these the papers called for could throw no light; and as it is essential to the due administration of a government, that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duties of his office forbade a compliance with their request.

*

The principles thus laid down were so far acquiesced in by the house, that they passed a resolution disclaiming a power to interfere in making treaties, but asserting the right of the house of representatives, whenever stipulations are made on subjects committed by the Constitution to congress, to deliberate on the expediency of carrying them into effect. And subsequently, though not without much acrimonious debate, and by a small majority, it was declared to be expedient to pass the laws necessary to carry the treaty into effect.

From that time, the question remained undisturbed, until the session of 1815-16, when in relation to another treaty with

Message, March 30, 1796, and see Marshall's Life of Washington, vol. 5.

Great Britain, the house of representatives, after much debate, passed a bill particularly enacting the same stipulations on one subject as those which were contained in the treaty. This, as a dangerous innovation on the treaty making power, was warmly opposed by the minority, and disagreed to by the senate. But after conferences between the two houses, it terminated in a sort of compromise, which it is difficult to reconcile with a sound construction of the Constitution. The act, (which was passed on the 1st of March, 1816,) shortly declares, that so much of any act as imposes a duty on tonnage, contrary to the provisions of a convention between the United States and his Britannic Majesty, shall from and after the date of that instrument, and during its continuance, be of no force or effect.

Thus a precedent was set, which a dissatisfied house of representatives may hereafter resort to; and although the judicial tribunals would probably consider the law as being wholly unnecessary, and a nullity in itself, it may be the cause of future legislative attempts producing more difficulty.

Yet however manifest these principles may appear, it must be confessed that another part of the Constitution presents an apparent difficulty which requires examination.

By the 9th sect. of the 1st article, it is expressly declared, that no money shall be drawn from the treasury but in consequence of appropriations made by law.

A treaty may be made, by which a sum of money is engaged to be paid to a foreign power, on considerations beneficial to the Union; can such a contract be fulfilled without an act of congress? Three eventual cases may be stated:

1. Where there is a sufficient sum of money in the treasury, not under any specific appropriation.

2. Where there is a sufficient sum, but actually appropriated to different objects.

3. Where there is no money in the treasury, but a sufficient sum must be raised in some manner to fulfil the contract.

In the second and third of these supposed cases, it would seem that the treaty could not be carried into effect by its own power. Taxation, direct or indirect, can only be the work of congress.

By Art. 1. § viii. the congress shall have power to lay and collect taxes, duties, imposts, and excises.

No such power is given to the president and senate in direct

terms.

By another section, (the 7th,) of the same article, All bills for raising revenue shall originate in the house of representatives. A nice disquisition might here be introduced, whether the fulfil ment of a contract with a foreign power, was to be considered as raising revenue. The term ought to be interpreted in its broad and general sense, and in reference to the spirit and meaning of the whole Constitution. By revenue we must understand whatever is produced by taxes, duties, imposts, and excises, for public use. The moneys so raised may be applied to defray the expenses of government, to pay the principal or interest of the public debt, to maintain an army and navy, to pay for acquisitions of territory, (as in the recent instance of the purchase of Florida from Spain, when by treaty we assumed the payment of the money to which our own citizens were justly entitled, by reason of the injuries inflicted on them by that country,) to preserve peace and harmony with foreign powers, as the barbarous states of Africa, and a variety of other cases. It is still revenue, and congress alone can raise it, and the bill can only originate in the house of representatives. If, therefore, a new tax must be laid, or a specific appropriation already made by congress superseded, it seems obvious that it cannot be done by the president and senate.

The first of the three cases supposed will seldom happen, but should it ever take place, and a sum, which by treaty the

United States were bound to pay to a foreign power, could be discharged out of moneys lying in the treasury, unfettered by appropriation, the difficulty would not yet be subdued. If the surplus in the treasury arose from a tax, laid with a view to the fulfilment of treaties which were thereafter to be concluded, great doubts might be entertained whether such a law would be constitutional. To extract money from the people for a purpose so indefinite, and to place those moneys at the disposal of the treaty making power, might possibly be supported by the authority given to congress to provide for the common defence and general welfare. But even this, as it would amount to a concurrence of congress in effectuating the treaty, would leave the question unresolved. The original difficulty remains, if the moneys thus found in the treasury, consisted of a surplus unappropriated by congress in any manner, or to any object whatever. Now we must keep in view, that a treaty with a foreign power, is not of itself an appropriation of moneys in the treasury of the United States, any more than it would be an appropriation of moneys in the treasury of the foreign power. It is evidently not an appropriation in a constitutional sense, for it can only be made (so far as relates to other subjects) as the act of both houses, and in the solemn form of a law. However strong, therefore, the obligation of good faith may be on the nation to fulfil the treaty, it does not seem that it has invested in the president and senate a full effectuating power. And if the president alone, or conjunctly with the senate, were to draw on the treasury for the sum necessary to fulfil it, such draught would not appear to be within the direction of the Constitution.*

On the whole, the conclusion seems to be, that in this single instance, the payment of money, the concurrence of the house

→ When lands are purchased of the Indian tribes through treaties made with them, the money is always paid under appropriations by acts of congress.

of representatives is necessary to give effect to the treaty. But an engagement to pay a sum of money would not be, like the engagement to cede a part of the territory of the United States, unconstitutional and void. When it should receive the sanction of congress, and the means are provided, the treaty may be effected. It is reserved for congress alone "to dispose of the territory of the United States," if by this general expression we are to understand the alienation of any part of the territory, which we shall hereafter consider.

In another shape the same question was agitated in the year 1798. Parties at that time ran high; the house of repre. sentatives was much divided. It was conceived or alleged, that the expenses incurred by the multitude of our foreign ministers, were greater than necessary. The practice always had been, and still continues, to make an annual appropriation of a gross sum for the expenses of foreign intercourse, without further interference than to limit the compensation to ministers of different grades, but leaving it implicitly to the president, with the concurrence of the senate, to send ministers to such courts as they, who were best acquainted with the subject, should deem expedient. An effort was made to confine the higher rate of compensation to the ministers of three specified courts, and to allow all the others only half the same amount. It was warmly contended that congress, by having the exclusive power to raise and appropriate, was authorized to grant only so much money as they should think necessary. Happily for the interests and character of our country, the effort failed, and it is hoped will never be renewed.

There can be no doubt of the spirit and true intent of the Constitution, in respect to all pecuniary supplies required to support the exercise of the treaty making power. It is incumbent on congress to furnish those supplies. The Constitution has vested exclusively in the president and senate the duty of foreign intercourse. The interference of congress