The President (Madison) by message transmitted the proclamation of it, and recommending to Congress such legislation as the convention (treaty) called for. (Annals of Congress, 402.) After long debate and conferences between the two Houses, a bill was passed (3 U. S. Stat. at L., 255), in which Congress modified its duties according to the terms of the treaty approved March 1, 1816. The report of Mr. Forsyth, of Georgia, for the managers of the House (Annals of Congress, 1816, p. 1018, et seq), is a full statement of the contention between the Houses and the settlement agreed on. The debate was very able in the House, and against the bill (on the ground that the treaty did not require legislative action); was conducted by Calhoun, of South Carolina, and William Pinkney, of Maryland, and others, with masterly force, and for the bill, with equal force, by Lowndes, of South Carolina, Randolph, of Virginia, and others. The great point made against the bill was that a treaty was a compact between two nations, which necessarily overrode all legislative acts of either, which was answered, as your committee have suggested, by holding that it was petitio principii to claim that to be a complete compact which depended for its consummate effect upon the concurrence of the law-making authority. In all cases to which your committee have referred the action was like that in the cases of Jay's treaty and that of Ghent. One other case has been cited of the action of President Jackson in December, 1834. (Annual Register, 1834, Public Documents, p. 352.) He asserted two leading propositions: 1. That the treaty involved commercial regulations and rates of duties, which had to be submitted to Congress to be carried into full execution. 2. That France having by the treaty (1831) recognized a precedent obligation for depredations on our commerce, though her legislative department refused to comply with its provisions, should be forced to comply by acts of retaliation. This is assumed to be a concession by the President in respect to the effect of the treaty on the national faith of France, without the concurrence of her legislative department, that a like construction should prevail as to our Constitution. It is obvious that had the obligation of France been created by the treaty, instead of being only recognized by it as a pre-existing obligation, the conclusion would have been just. But President Jackson insisted that it had pre-existed for a long time, and had been too long disregarded, and that the refusal of the French Chambers to carry out the pre-existing obligation, so recognized by the treaty, authorized the United States to enforce the prior claim, and not to punish the violation of the treaty. And the President further insisted that Congress had carried out the treaty of 1831 by enacting commercial and duty regulations favorable to France, and which she was receiving, and yet refused compliance with her just duty to our people. (See 4 Stat. at L., pp. 574-576.) The treaty with Mexico was carried into effect by act of Congress. In 1844 the Senate considered the Zollverein treaty, and in the report of the Committee on Foreign Affairs by Mr. Rufus Choate there is a passage of great force, in which the views already asserted in this report are well sustained. The report says (Senate Journal, first session, Twenty-eighth Congress, 1843-44, p. 445 et seq): 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 Fresident 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 negotiation, places it beyond the power of Congress to exceed the stipulated maximum of impost 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 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, 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 and more discreetly; may acquire more accurate and more minute information concerning the employments and the interest 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 in 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. These precedents having been examined, it may be well to add that in no case has it ever been claimed that a tax could be laid or repealed, or money taken from the Treasury by a treaty proprio vigore. Intimations have been thrown out that a treaty put a constraint upon the legislative department which made its conformity a matter of moral duty, but no one has ever had the temerity to claim that the free will of the House was impaired in its legislative action in execution of a treaty. The agreement by the treaty-making authority that something shall be done which Congress alone can do, has never been held binding in the United States until Congress has by its free action legislated that to be done which the treaty stipulated; and until and unless by express declaration or clear implication the executory act of one of two agents is made obligatory on the other, who alone can execute it, no compact is consummate from the executory agreement of the one until and unless the other freely consents. It remains to refer to the text writers and to the judicial decisions on this question. In Wheaton's Elements, page 329. the author says on this point: The treaty, when thus ratified, is obligatory upon the contracting States, independently of the auxiliary legislative measures which may be necessary of the part of either in order to carry it into complete effect. Where, indeed, such auxiliary legis lation becomes necessary, in consequence of some limitation upon the treaty-making power, expressed in the fundamental laws of the State, or necessarily implied from the distribution f 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 constitu tion. And Mr. Lawrence, the learned annotator of Wheaton, claims no more than that "if the treaty be within the constitutional limits, free from fraud, and not destructive of any of the great rights and interests of the country, then there is a moral obligation to grant the aid required." And this accords with Chancellor Kent. (1 Kent, p. 285.) Judge Story, in his Commentaries on the Constitution (3 vol., sec. 1502), says: The power "to make treaties" is, by the Constitution, general; and, of course, it embraces all sorts of treaties, for peace or war, for commerce or territory, for alliance or succors; for indemnity for injuries or payment of debts; for the recognition and enforcement of principles of public law; and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other. But though the power is thus general and unrestricted, it is not to be so construed as to destroy the fundamental laws of the State. A power given by the Constitution cannot be construed to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in subordination to it; and cannot supersede or interfere with any other of its fundamental provisions. Each is equally obligatory and of paramount authority within its scope; and no one embraces a right to annihilate any other. A treaty to change the organization of the Government or annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void; because it would destroy what it was designed merely to fulfill, the will of the people. Whether there are any other restrictions necessarily growing out of the structure of the government will remain to be considered whenever the exigency shall arise. (See also 1 Tucker's Black's App. 332, 333.) In Foster vs. Neilson, 2 Peters, 314, Marshall, C. J., says: A treaty is, in its nature, a contract between two nations, not a legislative act, and does not generally effect of itself the object to be accomplished, but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States the Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature whenever it operates of itself, without any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the Legislature must execute the contract before it can become a rule for the court. In Turner vs. The American Baptist Union, 5 McLean's Circuit Court Reports, 344 (decided in 1852), Mr. Justice McLean 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 treaty-making 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. 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 cannot be appropriated by the treaty-making power. This results from the limitations of our Government. The action of no Department of the Government can be regarded as a law until it shall have all the sanctions required by the Constitution to make it such. As well might it be contended that an ordinary act of Congress without the signature of the President, was a law as that a treaty which engages to pay a sum of money is in itself a law. And in such a case the representatives of the people and States exercise their own judgments in granting or withholding the money. They act upon their own responsibility, and not upon the responsibility of the treaty-making power. It cannot bind or control the legislative action in this respect, and every foreign Government may be presumed to know that, so far as the treaty stipulates to pay money, the legisla tive sanction is required. A compromise in a treaty with Russia as to a particular rate of duty was considered by the late Judge Curtis, in Taylor vs. Morton, 2 Curtis's Circuit Court Reports, 454, decided in 1855. He said, after quoting the second section of the fourth article of the Constitution, as to the supremacy of the Constitution and laws of the United States made in pursuance thereof, and treaties made under the authority of the United States (and remark, in passing, it does not say by the President and Senate, but under the authority of the United States; that is, with the sanction of that law which is necessary and proper to carry the treaty into effect): * * * There is nothing in the language of this clause which enables us to say that in the case supposed the treaty, and not the act of Congress, is to afford the rule. This provision of our Constitution has made treaties part of our municipal law. But it has not assigned to them any particular degree of authority in our municipal law, nor declared whether laws so enacted shall or shall not be paramount to laws otherwise enacted. And after holding that a treaty and its obligatory force as between the United States and the foreign nation is a question for the political and not the judicial department, he says: There is nothing in the mere fact that a treaty is a law which would prevent Congress from repealing it. And again To refuse to execute a treaty for reasons which approve themselves to the conscientious judgment of the nation is a matter of the utmost gravity and delicacy; but the power to do so is a prerogative, of which no nation can be deprived without deeply affecting its independence. That the people of the United States have deprived their Government of this power in any case I do not believe. That it must reside somewhere, and be applicable to all cases, I am convinced. I feel no doubt that it belongs to Congress. The decision was, that a law of Congress could repeal a treaty. And finally, in the Cherokee Tobacco, 11 Wallace, 616 (decided in 1870), Swayne, justice, speaking for the Supreme Court, and citing the case of Taylor vs. Morton, already quoted with approval, said: A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty. It is proper to say that the case did not decide the first branch of this proposition, but only the latter. The latter was decided, the former was obiter dictum. And speaking of the power to regulate commerce and lay duties, he says: But it can not be admitted that these powers can be or were expected to be exerted under all circumstances which might possibly occur in the life of a nation in subordination to an existing treaty; nor that the only modes of escape from the effect of an existing treaty, were the consent of the other party to it, or a declaration of war. These decisions seem to settle the question mooted by Mr. Calhoun in the debate in 1816, that the supremacy of a treaty over an act of Congress results necessarily from its being a compact between two nations. These decisions adjudge that Congress may repeal a treaty, may annul a treaty stipulation with a foreign nation. And Chief Justice Marshall, in the passage above quoted, seems to think that a treaty which is not eventual (i. e., final, self-effective), as Mr. Madison expresses it, is not operative as law until the legislative act gives it validity. In confirmation of the general views submitted, your committee, for the benefit of the opinion of a very able constitutional lawyer, refer to the case of McLeod in 1842. The British Government offered to protect McLeod, on the ground that his act, which resulted in the murder of a citizen of the State of New York, was done under the direction of Her Majesty. The British Government demanded of Mr. Webster, then our Secretary of State, that McLeod, who was arrested and held by the New York State authorities to be tried for the murder should be surrendered to the British Government, because his act was an act of war, a public act of that Government, and not an act of private British subject against an American citizen. What said Mr. Webster? In substance his reply was: I am very sorry to say that such is the organization of our federal system that McLeod is in the hands of State authorities, and no negotiation or action on the part of the Executive Department of the Federal Government can take the man out of the hands of the State authorities. Your committee have thus considered the question on the true interpretation of the language of the Constitution; upon the construction of the Government itself; on the historic development of the Constitution from its British original through the Articles of Confederation to its present form; on analogy to the British prototype; on precedents and the authority; and have come to the conclusion expressed in the following resolution, which, though the discussion has taken a wider range, is confined to the question submitted by the resolution referred to the committee: 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. All of which is respectfully submitted. J. R. TUCKER, Chairman of Judiciary Committee. We the members of the Judiciary Committee have not had time to consider the questions discussed in the foregoing report, or the resolution which is proposed. The question is of great consequence, and without assenting to or dissenting from the report or the resolution reported with it, we agree that the chairman be authorized to submit his report and the accompanying resolution to the House for its consideration and action. N. J. HAMMOND. A. X. PARKER. |