1867, entered into a treaty with the Emperor of Russia, by the terms of which it was stipulated that in consideration of the cession by the Emperor of Russia to the United States of certain territory therein described, the United States would pay to the Emperor of Russia the sum of $7,200,000 in coin; and whereas it was further stipulated in said treaty that the United States shall accept of such cession, and that certain inhabitants of said territory shall be admitted to the enjoyment of all the rights and immunities of citizens of the United States; and whereas the subjects thus embraced in the stipulations 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 shall be given to the said treaty before the same shall have full force and effect, having taken into consideration the said treaty, and approving of the stipulations therein, to the end that the same may be carried into effect, therefore,

"SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the assent of Congress is hereby given to the stipulations of said treaty."

The Senate, on July 17, restored the bill to its original shape, in this way rejecting the distinctive position of the House that the consent of Congress as a legislative body is necessary to the payment of money and the incorporation of territory, when provided for in a treaty. This conflict of opinion between the two houses led to the two bills being sent to a conference committee, the Senatorial members of which insisted that the House was absolutely bound to carry out the stipulations of a treaty which was duly ratified by the Senate. (See Congressional Globe for 1867, 4031, 4159, 4392.) The committee, however, finally united on the following measure:

"An act making an appropriation of money to carry into effect the treaty with Russia of March 0, 1867.

"Whereas the President of the United States, on the 30th of March, 1867, entered into a treaty with the Emperor of Russia, by the terms of which it was stipulated that in consideration of the cession by the Emperor of Russia to the United States of certain territory therein described, the United States should pay to the Emperor of Russia the sum of $7,200,000 in coin; and whereas it was further stipulated in said treaty that the United States shall accept of such cession, and that certain inhabitants of said territory shall be admitted to the enjoyment of all the rights and immunities of citizens of the United States; 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 resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that there be and hereby is, appropriated, from any money in the Treasury not otherwise appropriated, 87,200,000 in coin, to fulfill stipulations contained in the sixth article of the treaty with Russia, concluded at Washington, on the 30th day of March, 1867."

This measure, which was adopted in the House by a vote of 91 to 48, has the features of compromise strongly impressed upon it. All that it gives specific legislative assent to is the appropriation of $7,200,000. The preamble asserts, not merely that $7,200,000 is to be paid for the purchase, but that certain inhabitants of the territory should be admitted to certain privileges. The resolution says nothing about the privileges

and confines itself to the appropriation. So far, therefore, as Congress was concerned, there was no action which might be regarded as taking the position that the House has the prerogative of affirming or rejecting, at its discretion, execution of a treaty when such execution is dependent on its action. This right, however, is implied in the resolution of the House adopted on July 14, 1867.

The question, therefore, which was agitated in 1796, whether Congress can, under the Constitution, refuse, in its legislative capacity, to pass acts for the execution of treaties duly ratified, remains still open. Yet two positions may be regarded as accepted in the practical working of our Government. One is that without a Congressional vote there can be no appropriation of money which a treaty requires to be paid. The other is that it should require a very strong case to justify Congress in refusing to pass an appropriation which is called for by a treaty duly ratified.

"Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legis lature to pass the law, and to refuse it would be a breach of the public faith. The department of the Government that is intrusted by the Constitution with the treaty-making power is competent to bind the national faith in its discretion, for the power to make treaties of peace must be co-extensive with all the exigencies of the nation, and neces sarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the supreme law of the land. There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid treaty. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a State may withhold from the executive department the power of transferring what belongs to the States, but if there be no express provision of that kind the inference is that it has confided to the department charged with the power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nation."

1 Kent's Com., 162.

"If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the Government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and to repeal laws, provided the Senate and President concur, but without such concurrence a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law. The argument in favor of the binding and conclusive efficacy of every treaty made by the President and Senate

is so clear and palpable, that it has probably carried very general conviction throughout the community; and this may now be considered as the decided sense of public opinion." (Ibid., 286.)

"If a treaty require the payment of money to carry it into effect, and the money can only be raised or appropriated by an act of the legisla ture, the existence of the treaty renders it morally obligatory on Congress to pass the requisite law, and its refusal to do so would amount to a breach of the public faith, and afford just cause of war. That department of the Government which is intrusted by the Constitution with the power of making treaties is competent to bind the national faith at its discretion; for the power to make treaties must be co-extensive with the national exigencies, and necessarily involves in it every portion of the national sovereignty, of which the co-operation may be necessary to give effect to negotiations and contracts with foreign nations. If a nation confer on its executive department without reserve the right of treating and contracting with other sovereignties, it is considered as having invested it with all the power necessary to make a valid contract, and that it is the organ in making its contracts; and such alienations are valid, because they are made by the reputed assent of the nation."

Duer's Outlines of Constitutional Jurisprudence of the United States, 138.

"The treaty-making power is limited by all the provisions of the Constitution which inhibit certain acts from being done by the Government. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law. This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Representatives, as a portion of Congress, the right to withhold appropriations, and thereby an important control over the treaty-making power, whenever money is required to carry a treaty into effect, which is usually the case, especially in reference to those of the most importance. There still remains another and more important lim itation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the Government, or to do that which can only be done by the constitution-making power, or which is inconsistent with the nature and structure of the Government."

Calhoun's Discourse on Government. 1 Works, 201.

"D'après la constitution des Etats-Unis, par laquelle les traités faits et ratifies par le président, avec l'avis et le consentement du sénat, sont déclarés être la loi supréme du pays, ou semble comprendre que le congrès est obligé de dégager la foi nationale ainsi engagée, et d'adopter les lois nécessaires à l'execution du traité."

Wheaton, Eléments du droit int. (4th ed.), 241.

Mr. Wheaton's letter to Mr. Butler, Attorney-General, on the refusal of the French Chamber to appropriate the sum necessary for the payment of the fund agreed on by the French indemnity treaty, has been already cited. (Supra, § 9; infra. § 318. See also Halleck's Int. Law (Baker's ed.) 232, citing Wheaton's Life of Pinkney, 517-49; 1 Kent's Com., 285; President's Mess., Dec., 1834; Ann. Reg., 1834, 361.) This is another

form of stating the position elsewhere mentioned, that a treaty may bind internationally when it would not bind municipally. (Supra, § 9.) The United States, for instance, may by statute impose on its own citizens less stringent rules of neutrality than it imposes on itself by treaty; but such municipal laxity on its part will not relieve it from its obligations by treaty or by international law. (See infra, § 402.) A Government also is liable for violations of international duty by its judiciary. (Infra, § 329a.)

It is not inconsistent with this position that the United States is not liable for a treaty which the Senate refuses to ratify, since no Government is internationally liable on a treaty not agreed to by the treatymaking power. (See supra, § 9; infra, § 318.)

"The disputed northeastern boundary between Great Britain and the United States involved the territory of the State of Maine, in which Massachusetts also had an interest. The line established by the Ashburton treaty of 1842 differed from that claimed by Maine, and ceded parts over which Maine had exercised jurisdiction. Still the treaty was a sovereign act of the United States with Great Britain and operated as an international settlement. Neither of the States of Maine or Massachusetts was in any way party to it, or named in it, except in the fifth article, in which the United States agreed to receive and pay over to those States certain portions of a common fund established by consent for the care of the territory while under dispute, and to pay to those States a further sum on account of their assent to the line of boundary described in this treaty. Lord Ashburton disclaimed all responsibility of Great Britain for any matters between the United States and the individual States referred to in that article. Commissioners on the part of Maine and Massachusetts gave their assent to the treaty before it was concluded by the Government; but that was an internal matter, and did not concern Great Britain. Neither is the fact that the United States chose to secure the consent of Massachusetts and Maine conclusive upon the much canvassed question of its constitutional power to have made the treaty without their assent. (United States Laws, viii, 554; Webster's Works, vi, 272, 289; Opinions of Attorneys-General, vi, 756; Kent's Com., i, 166, 167; Woolsey's Introd., § 99; Halleck's Int. Law, 848. The Schooner Peggy, Cranch, i, 103; Ware v. Tilton, Dallas, iii, 109.)

"If a treaty requires the payment of money, or any other special act, which cannot be done without legislation, the treaty is still binding on the nation, and it is the duty of the nation to pass the necessary laws. If that duty is not performed, the result is a breach of the treaty by the nation, just as much as if the breach had been an affirmative act by any other department of the Government. Each nation is responsible for the right working of the internal system by which it distributes its sovereign functions, and as foreign nations dealing with it cannot be permitted to interfere with or control these, so they are not to be affected or concluded by them to their own injury. (See Kent, i, 165-6; Heffter, § 84; Vattel droit des gens, liv. iv, ch., 2, § 14; Halleck, 854.)

Dana's Wheaton, § 543, note 250.

"Chancellor Kent, I think, expressed astonishment and regret that a resolution, founded on the incidents of Jay's treaty, was passed by the

House of Representatives in 1796, declaring what is now understood to be settled English law and practice, that is, if a treaty depend for the execution of any of its stipulations upon a legislative act, the House could and should determine on the expediency of carrying it into effect or letting it abort. Whether the principle of that resolution was abandoned, or only pretermitted on the emergency of 1816, may be questioned. It disappoints expectation, but in reality is not illogical, that the treatymaking power when in the hands of a hereditary monarch should be more trammeled and restricted than when in the bands of an elective Chief Magistrate and Senate. I trust, however, that should the controversy revive, our Representatives may feel themselves, maugre Chancellor Kent, free to be at least as democratic as the British Commons. It is noticeable that the precedent of a parliamentary stand against a treaty was made during the ministry of Pitt, almost contemporaneously with Jay's; and that while on this side of the Atlantic, the popular resistance triumphed, by leading to the withdrawal and abandonment of the measure on our side, not withstanding an agitation alike universal and violent, we were compelled to swallow, pure and undiluted, the strong concoction of the venerable Chief Justice."

Mr. Dallas to Mr. Ingersoll, May 21, 1860. 2 Dallas's Letters from London, 209.

That a treaty cannot invade the constitutional prerogatives of the legislature is thus illustrated by a German author, who has given to the subject a degree of elaborate and extended exposition which it has received from no writer in our own tongue. "Congress has under the Constitution the right to lay taxes and imposts, as well as to regulate foreign trade, but the President and Senate, if the treaty-making power' be regarded as absolute, would be able to evade this limitation by adopting treaties which would compel Congress to destroy its whole tariff system. According to the Constitution, Congress has the right to determine questions of naturalization, of patents, and of copyright. Yet, according to the view here contested, the President and Senate, by a treaty, could on these important questious utterly destroy the legislative capacity of the House of Representatives. The Constitution gives Congress the control of the Army. Participation in this control would be snatched from the House of Representatives by a treaty with a foreign power by which the United States would bind itself to keep in the field an army of a particular size. The Constitution gives Congress the right of declaring war; this right would be illusory if the President and Senate could by a treaty launch the country into a foreign war. The power of borrowing money on the credit of the United States resides in Congress; this power would cease to exist if the President and Senate could by treaty bind the country to the borrowing of foreign funds. By the Coustitution'no money shall be drawn from the Treasury, but in consequence of appropriations made by law;' but this limitation would cease to exist if by a treaty the United States could be bound to pay money to a foreign power. Congress would cease to be the law-making power as is prescribed by the Constitution; the law-making power would be the President and the Senate. Such a condition would become the more dangerous from the fact that treaties so adopted, being on this particular hypothesis superior to legislation, would continue in force until superseded by other treaties. Not only, therefore, would a Congress consisting of two houses be made to give way to an oligarchy of President and Senate, but the decrees of this oligarchy, when once