House Rule on the matter, was treated as an authorization for the payment of $20,000,000 to Spain. The Panama Canal Treaty (TS 431, 945; TIAS 3297) is an authorization measure, under which there is a permanent appropriation (see Senate Report No. 1074, 84th Cong., 1st Sess., p. 41).

Further examples could be cited. The central point is that practice has resulted in congressional acceptance of a system authorizing the payment of money by means of a treaty stipulation standing alone, and without a separate authorization measure. It should be noted that no particular pattern may be discerned from the practice. Both major (Panama Canal Treaty) and relatively insignificant (Inter-American Indian Institute) treaties have been used as authorizations. Treaties dealing with security matters (Spanish Peace Treaty) as well as those regulating routine technical questions (Trademarks Convention) have served as authorizations. Treaties requiring large (OAS) and small (Permanent Court of Arbitration) amounts of money have been so used, as have those stipulating for a specific sum (Panama Canal Treaty) or a sum to be calculated on the basis of a formula (Inter-American Indian Institute), or an uncertain sum required to meet the obligations of the treaty (ICAO). Nor do the House or Senate Rules establish any qualification as to the type of treaty that would authorize a subsequent appropriation of funds.

Professor Louis Henkin, without citing the Senate or House Rules, or the practice over the years, states simply that a treaty "can apparently serve as legislation authorizing the subsequent appropriation." (Foreign Affairs and the Constitution, at p. 406.) Conclusion

The Rules of both Houses of Congress and a longstanding practice indicate that a treaty may serve as an authorization for a subsequent appropriation of funds. A separate authorization measure, while legally permissible, is not required.

II

THE OBLIGATION OF CONGRESS TO APPROPRIATE MONEY STIPULATED IN A TREATY

The question of the extent of the obligation of Congress to appropriate money stipulated in a treaty was debated seriously in the early days of the Republic and has been discussed periodically ever since. The question has been studied both by those engaged in the treatymaking process and by scholars, but so far without agreement as to the proper answer. While the Congress has usually insisted upon a discretionary right not to furnish the funds required by a perfected treaty, it has nevertheless always appropriated the funds and thus mooted the issue. The major debates on the question occurred during the Washington Administration in 1796, and on several occasions in the 19th century. There have been fewer discussions of the matter in the 20th century, and no disposition on the part of the executive or legislative branch to push the issue to a definitive legal resolution.

A. Historical Examples

In 1792, Washington and Jefferson considered whether a proposed treaty with Algiers should be ratified by the President

only after both Houses of Congress had voted the money to be paid to Algiers. President Washington asked whether a ratified treaty would make it obligatory upon the Congress to furnish the funds. Jefferson replied that it would, but that since the Congress might nevertheless fail to provide the funds, it would be prudent to have the money voted prior to ratification. Washington did not accept Jefferson's proposal stating that if the Congress "would not do what the Constitution called on them to do, the government would be at an end, and must then assume another form." (Writings of Jefferson (Ford ed.), I, 191; MSS. Jefferson Papers, series 4, Vol. II, No. 36; quoted in Crandall, Treaties: Their Making and Enforcement (2nd Edition Washington, D.C., John Byrne & Co., 1916), pp. 164-165)

The outstanding debate in the history of the Republic on this issue occurred in 1796 after the ratification of the Jay Treaty. The Treaty contained no express stipulation for the payment of money, but funds were necessary to pay for the mixed commissions required by several provisions. The House passed a resolution requesting the President to communicate to the House copies of the instructions to the negotiator of the Treaty and other related documents. Washington notified the House that he would consider the request. According to the Crandall account, he then asked for written opinions from the heads of the various departments. They were unanimously of the opinion that the House had no right to insist upon its request, and that treaties properly concluded by the President and the Senate "were legally binding on all bodies of men within the jurisdiction of the United States."

Chief Justice Ellsworth expressed similar views, adding that Their [the House] obligation to appropriate the requisite sums does not result from any opinion they may have of the expediency of the treaty, but from their knowledge of its being a treaty, an authorized and perfect compact which binds the nation and its representatives. The obligation is indispensable, as it is to appropriate for the President's salary, or that of the judges, or in any other cases where fidelity to the Constitution does not leave an option to refuse. (Quoted in Crandall, p. 166.)

President Washington declined to comply with the House request, and the House then passed a second resolution, introduced by Madison, asserting that in case a treaty contained stipulations on any of the subjects entrusted by the Constitution to Congress, it must depend for its execution as to such stipulations on a law to be passed by Congress, and that it was "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."

Jefferson, in a letter to Monroe just prior to the second House resolution, agreed that whenever treaties included matters confided by the Constitution to the legislature, a legislative act was necessary to "confirm" such treaty provisions, and the House was free to refuse its assent. Albert Gallatin argued in the House that specific powers limited general powers and that in case of a conflict, the branch holding the specific power must concur. He argued that the power to make treaties was a general power, while

the power to make appropriations was specifically granted to the Congress.

Hamilton, on the other hand, asserted that any discretionary right in the House to assent to a treaty or to execute it would negative the provisions of the Constitution enabling the President and the Senate to make treaties and that such treaties were the supreme law of the land. Further, the House did not always have discretionary powers over appropriations, examples being funds for the expenses of an office established by the Constitution or a prior act of Congress. Crandall quotes Hamilton as stating that such power over appropriations was discretionary only when the Constitution and laws placed it under no obligation or prohibition. While there was no method for compelling the House to appropriate funds, there was nevertheless a constitutional, legal, and moral obligation to act to give effect to treaties. Hamilton concluded by stating that

it follows that the House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution because it is a law-until at least it ceases to be a law by a regular act of revocation of the competent authority. (Crandall, p. 171.)

According to Corwin's account of the Jay Treaty debate, Madison's resolutions on the matter were summed up in the following statement by Madison:

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. (Quoted in Corwin, Constitution of the United States of America, 1963 edition, p. 469)

Corwin concludes his account with the statement that "The upshot of the matter was that the House adopted Madison's resolutions, while at the same time voting the required funds." On April 30, 1796, by a vote of 51 to 48, the House resolved that provision should be made for carrying the Jay Treaty into effect. While the question has been discussed on many occasions since 1796, the arguments have not advanced beyond those offered by high-level officials of the Washington Administration or by the then members of the House. Jefferson maintained the view that the prudent course was to obtain Congressional approval of the necessary funds prior to ratification of a treaty stipulating for the payment of money, and he acted on that view. For example, under the terms of an 1802 treaty with Great Britain, the United States agreed to pay in discharge of certain claims the sum of 600,000 pounds in three annual installments. Before the exchange of ratifications, Jefferson communicated the treaty to the Congress, requesting an appropriation of the necessary sum. This was done and only then were ratifications of the treaty exchanged.

On the other hand, while Jefferson apparently preferred to send the unratified treaty for the Louisiana Purchase to both Houses, Madison, who was then Secretary of State, and Gallatin, then Secretary of the Treasury, advised against this procedure. They argued that the House could not act on a treaty until it was a treaty, and in accordance with this view, the ratified treaty was sent to both Houses for their consideration in their legislative capacity. The necessary appropriations were duly voted. The Jefferson Administration, in contrast to that of Washington, apparently believed that the House was not legally obligated to give effect to a treaty duly concluded by the President and the Senate.

However, there is evidence that the House felt differently when the burden of voting appropriations was with the other party to the treaty. Under the terms of an 1831 treaty with France, the French Government promised to pay to the United States in six annual installments 25,000 francs in discharge of certain claims by U.S. citizens against France. In 1835, after the failure of the French Chamber of Deputies to vote the appropriation for the payment of the claims, the House unanimously adopted a resolution declaring that the convention should be maintained and its execution insisted on, and that preparation ought to be made to meet any emergency growing out of U.S. relations with France. In the House debate, John Quincy Adams said:

The indemnity was stipulated by that department of the French Government, which was authorized to pledge the faith of the nation to its payment. The question is no longer whether indemnity is due, or to what amount; but the question is, whether we will suffer a nation to violate its engagements to us, entered into under a solemn treaty. (Crandall, p. 174.)

The treaty with Russia for the purchase of Alaska in 1867 provided the occasion for another set of statements on the issue. After the formal ratification of the treaty and its proclamation by President Johnson, it was sent by the President to the Congress inviting attention to the need for an appropriation of $7,200,000 stipulated in the treaty. The House Committee on Foreign Affairs, in reporting a bill making the appropriation, expressed the view that "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." (Crandall, pp. 175-176.) The House, in an amendment to the appropriations bill, stated:

Whereas the subjects thus embraced in the stipulations [for the payment to Russia of $7,200,000, and for the admission of certain of the inhabitants of the ceded territory to the enjoyment of the privileges and immunities of citizens of the United State] 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 stipulation therein, to the end that the same may be carried into

effect....Be it enacted, that the assent of Congress is hereby given to the stipulations of said treaty. (Crandall, p. 176.) After a conference with the Senate, the bill was amended to omit the provision quoted above. The bill as finally approved simply recited that the treaty had been entered into by the President, had been approved by the Senate, and that the stipulations for the payment of money and the admission of certain of the inhabitants could not be "carried into full force and effect except by legislation to which the consent" of both Houses was necessary. The bill appropriated the funds after the transfer of the territory had formally taken place.

There are no Supreme Court holdings on the issue. In De Lima v. Bidwell, 182 U.S. 1, 198 (1901), Mr. Justice Brown, in referring to the 1898 Treaty of Paris between the United States and Spain, said: "We express no opinion as to whether Congress is bound to appropriate the money. . . . It is not necessary to consider it in this case, as Congress made prompt appropriation of the money stipulated in the treaty." The Treaty called for the payment of $20 million to Spain.

However, in Turner v. American Baptist Missionary Union, 5 McLean 344, 347 (1852), Chief Justice McLean of the U.S. circuit court, in passing on an Indian treaty, said:

A treaty under the Federal Constitution is declared to be the supreme law of the land. This, unquestionably, applies to all treaties, where the treatymaking power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be the supreme law of the land, where the concurrence of Congress is necessary to give it effect... It [power] cannot bind or control the legislative action in this the treating making respect, and every foreign government may be presumed to know, that so far as the treaty stipulates to pay money, the legislative sanction is required.

The last extended official discussion of the matter we have found is in a 1925 Report of the House Foreign Affairs Committee on the subject of United States adherence to the Protocol establishing the Permanent Court of International Justice. The Report .. noted that the House had never failed to appropriate funds necessary for the implementation of treaties. The Report stated:

While it would be in the power of the House to refuse, that comity which exists between the respective departments of Government and the delicate nature of our foreign relations have led to the prompt enactment of legislation carrying appropriations. (House Report No. 1569, 68th Cong., 2d Sess., 1925, at p. 9.)

While there have been several subsequent treaties requiring the payment of money, the House has continued regularly to vote the necessary appropriations, and the issue of whether or not it was obligated to vote the funds has not been seriously debated in this century. The legal issue has not been definitively resolved, but consistently mooted, since the practice from 1796 to the present time has been to furnish funds stipulated in treaties.

B. Views of the Authorities

... scholars have also arrived at no clear resolution of the matter.