Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 104th Congress-Section LII.Treaties

[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 104th Congress]
[104th Congress]
[House Document 103-342]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 296-299]
[From the U.S. Government Printing Office, www.gpo.gov]

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SEC. LII.--TREATIES.

* * * * *

Sec. 593. General nature of
treaties.

Treaties are legislative acts. A treaty is the law of the land. It
differs from other laws only as it must have the consent of a foreign
nation, being but a contract with respect to that nation. In all
countries, I believe, except England, treaties are made by the
legislative power; and there, also, if they touch the laws of the land
they must be approved by Parliament. Ware v. Hylton, 3 Dallas's Rep.,
223. It is acknowledged, for instance, that the King of Great Britain
cannot by a treaty make a citizen of an alien. Vattel, b. 1, c. 19, sec.
214. An act of Parliament was necessary to validate the American treaty
of 1783. And abundant examples of such acts can be cited. In the case of
the treaty of Utrecht, in 1712, the commercial articles required the
concurrence of Parliament; but a bill brought in for that purpose was
rejected. France, the other contracting party, suffered these articles,
in practice, to be not insisted on, and adhered to the rest of the
treaty. 4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

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entirely agreed among ourselves. 1. It is admitted that it must concern
the foreign nation party to the contract, or it would be a mere nullity,
res inter alias acta. 2. By the general power to make treaties, the
Constitution must have intended to comprehend only those subjects which
are usually regulated by treaty, and can not be otherwise regulated. 3.
It must have meant to except out of these the rights reserved to the
States; for surely the President and Senate can not do by treaty what
the whole Government is interdicted from doing in any way. 4. And also
to except those subjects of legislation in which it gave a participation
to the House of Representatives. This last exception is denied by some
on the ground that it would leave very little matter for the treaty
power to work on. The less the better, say others. The Constitution
thought it wise to restrain the Executive and Senate from entangling and
embroiling our affairs with those of Europe. Besides, as the
negotiations are carried on by the Executive alone, the subjecting to
the ratification of the representatives such articles as are within
their participation is no more inconvenient than to the Senate. But the
ground of this exception is denied as unfounded. For examine, e.g., the
treaty of commerce with France, and it will be found that, out of
thirty-one articles, there are not more than small portions of two or
three of them which would not still remain as subjects of treaties,
untouched by these exceptions.

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Sec. 594. Jefferson's discussion of treaties under the
Constitution.

By the Constitution of the United States this department of
legislation is confined to two branches only of the ordinary
legislature--the President originating and the Senate having a negative.
To what subjects this power extends has not been defined in detail by
the Constitution; nor are we

Sec. 595. General action of the House as to treaties.

The participation of the House of Representatives in the treaty-making
power has been often examined since Jefferson's Manual was written. The
House has in several instances taken action in carrying into effect,
terminating, enforcing, and suggesting treaties (II, 1502-1505, 1520-
1522), although sometimes the propriety of requesting the Executive to
negotiate a treaty has been questioned (II, 1514-1517).

Sec. 596. Authority of the House as to treaties in
general.

The exact authority of the House in the making of general treaties has
been the subject of differences of opinion. In 1796 the House affirmed
that, when a treaty related to subjects within the power of Congress, it
was the constitutional duty of the House to deliberate on the expediency
of carrying such treaty into effect (II, 1509); and in 1816, after a
discussion with the Senate, the House maintained its position that a
treaty must depend on a law of Congress for its execution as to such
stipulations as relate to subjects constitutionally entrusted to
Congress (II, 1506). In 1868 the House's assertion of right to a voice
in carrying out the stipulations of certain treaties was conceded in a
modified form (II, 1508). Again, in 1871, the House asserted its
prerogative (II, 1523). In 1820 and 1868 there were discussions of the
House's functions as to treaties ceding or acquiring foreign territory
(II, 1507, 1508), and at various other times there have been discussions
of the general subject (II, 1509, 1546, 1547; VI, 324-326).

Sec. 597. Authority of the House as to revenue
treaties.

After long and careful consideration the Judiciary Committee of the House
decided, in 1887, that the executive branch of the Government might not
conclude a treaty affecting the revenue without the assent of the House
(II, 1528-1530), and a Senate committee after examination concluded that
duties were more properly regulated with the publicity of congressional
action than by treaties negotiated by the President and ratified by the
Senate in secrecy (II, 1532). In practice the House has acted on revenue
treaties (II, 1531, 1533); and in 1880 it declared the negotiation of a
revenue treaty an invasion of its prerogatives (II, 1524). At other
times the subject has been discussed (II, 1525-1528, 1531, 1533).

Sec. 598. House approves Indian
treaties.

After long discussion the House, in 1871, successfully asserted its
right to a voice in approving Indian treaties (II, 1535, 1536), although
in earlier times this prerogative had been jealously guarded by the
Executive (II, 1534).

There have been various conflicts with the Executive over requests of
the House for papers relating to treaties (II, 1509-1513, 1518, 1519,
1561).

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cordingly the process adopted in the case of France in 1798.

Sec. 599. Treaties abrogated by
law.

Treaties being declared, equally with the laws of the United States, to be the
supreme law of the land, it is understood that an act of the legislature
alone can declare them infringed and rescinded. This was ac

Notice to a foreign government of the abrogation of a treaty is
authorized by a joint resolution (V, 6270).

Sec. 600. Procedure of the Senate as to
treaties.

It has been the usage for the Executive, when it communicates a
treaty to the Senate for their ratification, to communicate also the
correspondence of the negotiators. This having been omitted in the case
of the Prussian treaty, was asked by a vote of the House of February 12,
1800, and was obtained. And in December, 1800, the convention of that
year between the United States and France, with the report of the
negotiations by the envoys, but not their instructions, being laid
before the Senate, the instructions were asked for and communicated by
the President.

The mode of voting on questions of ratification is by nominal call.

The Senate now has rules governing its procedure on treaties.