Constitution. Gallatin defended the right of the House to use its discretion in providing for the carrying out of this treaty, that the House could review the merits and desirability of the treaty, and was not bound to carry it out merely because it had been agreed to by the President and the Senate. The House was competent to look into the papers, as it had a right to do, and see the public reasons for the treaty and the methods of its negotiation.

"Gallatin did not claim on the part of the House an absolute right of review in every instance of negotiation, but that whenever the President and Senate include in a treaty matters confided by the Constitution to the whole Congress of the United States, an act of legislation will be necessary to confirm these articles; this act the House, as a co-ordinate branch of Congress, is perfectly competent to pass or reject at discretion, and that thus the absorption of legislative powers by the treaty-making organ will be obviated.”1

The Constitution, and treaties made in accordance with it, are the supreme law of the land. In saying this, the Constitution did not intend to place treaty law above congressional law, or to compare these different kinds of national law with one another; but the intention was to declare whether "the constitutional laws and treaties of the General Government, or the laws and constitutions of the States are supreme, in case of clashing powers.

2

It was understood that the Jay Treaty contained provisions touching the regulation of commerce known to be in opposition to the will of the House. These provisions were inserted in the treaty on the recommendation of Hamilton with the express design of making laws by the more convenient combination of President and Senate instead of President and the whole Congress. Gallatin and the Republicans held that they had a right to pre 1 Schouler, History of the United States, vol. i., p. 309.

Gallatin.

vent this, and their position, especially since there was no precedent in such a case, cannot be said to have been unreasonable. The House passed the Livingston resolution by a large majority, calling upon the President for the papers. But Washington refused to submit the papers to the House because, as a matter of precedent, he did not wish to acknowledge that the assent of the House was necessary to the validity and execution of a treaty. The House, after discussing the President's reply, receded from its position in this particular case and passed the laws and appropriation necessary for carrying the treaty into effect. It, however, resolved that while it claimed no agency in the making of treaties, that power being exclusively with the President and Senate, yet, as a part of Congress, it claimed the right of deliberating upon the expediency or inexpediency of carrying into effect a treaty which must depend for its execution on laws to be passed by Congress, or that deals with subjects, like the regulation of commerce, which had been given by the Constitution to the control of Congress; and that the House might act in such cases as, in its judgment, might seem most conducive to the public good. Jefferson briefly summarized the Republican doctrine on this subject in a letter to Monroe:

Claims of

the House

in TreatyMaking.

"We conceive the Constitutional doctrine to be that the President and Senate have the general power of making treaties, yet when they include in a treaty matter confided by the Constitution to the three branches of the Legislature, an act of legislation will be necessary to confirm these articles, and that the House as one branch are perfectly free to pass the act or refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On this depends whether the powers of legislation shall be transferred from the President, Senate, and

House of Representatives to the President, Senate, and Piamingo, or any other Indian, Algerine, or other chief."

Jefferson on the Powers

of the House in TreatyMaking.

Jefferson acted on this principle in the Louisiana Treaty of 1803. He sought the judgment of the House before the treaty was made, and he approved the statement of Randolph that, in such a treaty, the Representatives "are as free as the President and Senate were to consider whether the national interest requires or forbids their giving the forms and force of law to the articles over which they have a power"; and there was, of course, no trouble about the law necessary to carry the Louisiana Treaty into effect. In 1868, in the contest between the two Houses over the Alaskan Treaty, while the House receded from the larger claim which it first put forth it still succeeded in securing the assent of the Senate, substantially, to the treatydoctrine as announced by Jefferson. After the treaty The Alaskan with Russia by which we purchased Alaska, in Treaty, 1867. 1867, the House hesitated to make the appropriation necessary to fulfil the obligation. General Banks, Chairman of the House Committee on Foreign Affairs, urged the appropriation on the ground, inter alia, of the obligation imposed by the treaty. Mr. C. C. Washburn, in a speech answering Banks, July 1, 1868, held that it was the "right and duty of the House to inquire into the treaty, and to vote or not vote the money, according to its best judgment." The House appropriated the money, but it prefaced its Appropriation Bill with the declaration that "the subjects embraced in the treaty are among those which by the Constitution are submitted to the power of Congress and over which Congress has jurisdiction; and for these reasons it is necessary that the consent of Congress should be given to the said stipulations, before the same can have full force and effect." The House made no mention of the Senate's ratifica

tion, but merely referred to the fact that the President had entered into a treaty with the Emperor of Russia, agreeing to certain terms. This was equivalent to claiming that the consent of the House was as essential to a treaty as that of the Senate, and that a treaty involving appropriations was a subject for the consideration of Congress. The Senate denied this pretension and rejected this declaration unanimously. A conference committee evolved a compromise declaration that

66

Whereas, the President has entered into a treaty with the Emperor of Russia, and the Senate thereafter gave its advice and consent to said treaty . and whereas said stipulations cannot be carried into full force and effect, except by legislation to which the consent of both Houses of Congress is necessary; therefore, be it enacted that there be appropriated the sum of $7,200,000"

for the purchase of Alaska. This does not state that the House is free to refuse an appropriation, or to withhold legislation, necessary to carry out a treaty, but it must be assumed that the "consent of both Houses" means the free, not the forced, consent of those bodies.

It cannot be said that the law of the unwritten constitution of precedent and custom is fully established upon this point. The subject is still open to discussion and to differences of opinion. It is still held by high authority that while the House cannot be coerced to provide for the execution of a treaty, it is clearly the duty of the House so to do, and the necessary appropriation is discretionary with Congress only in the sense that the payment of public debts or the fulfilment of public obligations is discretionary,—that is, it cannot be compelled by any process of execution.' Yet what the House should do in such cases is a political rather than a judicial question;

1 Cooley, Constitutional Law, p. 103.

and it is safe to say that political rather than judicial opinions and motives will govern.'

House to

Prevent the

The tendency is clearly in favor of the doctrine announced by Jefferson, that while there is a strong prePower of the sumption in favor of a treaty already made, yet the House has a right to defeat a treaty, by Operation of withholding necessary appropriations, if the a Treaty still proposed treaty is too objectionable or violates too much the House's appreciation of the public welfare." "The House would not now in any case consider itself under a constitutional obligation to appropriate money in support of a treaty the provisions of

Asserted.

which it did not approve. It is therefore practically true

that all such treaties must pass under the judgment of the House as well as under that of the Senate and the President.' Judge Cooley admits that, while the refusal of the House to carry out a treaty would be an extreme measure, yet "it is conceivable that a case might arise in which a resort to it might be justified."'

This view is further supported by the opinion delivered by Justice McLean of the Supreme Court:

"A treaty is the supreme law of the land only when the treaty-making power can carry it into effect. A treaty which

1 The Supreme Court has recognized that legislation may be necessary before a treaty can become law, and that the House as a political branch of the Government may decide at its discretion whether it will complete a treaty. "When the terms of the stipulations import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not to the judicial department, and the Legislature must execute the contract before it can become the rule of the court."-See Chief Justice Marshall in Foster vs. Neilson, 2 Peters, 253. The Court in this case recognized a distinction between the provision of a treaty which is so framed as to operate directly upon the citizens of a country and a provision which merely stipulates that certain things shall be done. It is in the latter case only that legislation by Congress is necessary.-Boutwell, The Constitution at the End of the First Century, p. 291.

See Blaine, Twenty Years, vol. ii., pp. 333-339. 'Ibld., p. 338.

4 Constitutional Law, p. 167.