TREATIES.
$The President of the United States has power, by and with the advice
and consent of the Senate, to make treaties, provided two-thirds of the
Senators present concur.--_Const. U. S._ Art. II. Sec. 2.
Resolved, That all confidential communications, made by the President
of the United States to the Senate, shall be, by the members thereof,
kept inviolably secret; and that all treaties, which may hereafter be
laid before the Senate, shall also be kept secret, until the Senate
shall, by their resolution, take off the injunction of secrecy.--_Dec.
22d, 1804._$
Treaties are legislative acts. A treaty is a 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 _vs._ Hilton.--3 _Dallas's Rep._ 199. 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.
$By the Constitution of the United States, this department of legislation
is confined to two branches only, of the ordinary Legislature; the
President originating, and Senate having a negative. To what subject
this power extends, has not been defined in detail by the Constitution;
nor are we entirely agreed among ourselves. 1. It is admitted that it
must concern the foreign nation, party to the contract, or it would be
a mere nullity _res inter alias acta_. 2. By the general power to make
treaties, the Constitution must have intended to comprehend only those
objects which are usually regulated by treaty, and cannot be otherwise
regulated. 3. It must have meant to except out of these the rights
reserved to the States; for surely the President and Senate cannot do by
treaty what the whole government is interdicted from doing in any way.
4. And also to except those subjects of legislation in which it gave a
participation to the House of Representatives. This last exception is
denied by some, on the ground that it would leave very little matter
for the treaty power to work on. The less the better say others. The
Constitution thought it wise to restrain the Executive and Senate from
entangling and embroiling our affairs with those of Europe. Besides, as
the negotiations are carried on by the Executive alone, the subjecting
to the ratification of the Representatives such articles as are within
their participation, is no more inconvenient than to the Senate. But
the ground of this exemption is denied as unfounded. For examine, _e.
g._, the treaty of commerce with France, and it will be found that out
of thirty-one articles, there are not more than small portions of two
or three of them which would not still remain as subjects of treaties,
untouched by these exceptions.$
* * * * *
$Treaties being declared, equally with the laws of the United States,
to be the supreme law of the land, it is understood that an act of the
Legislature alone can declare them infringed and rescinded. This was
accordingly the process adopted in the case of France, 1798.$
* * * * *
$It has been the usage of the Executive, when it communicates a treaty to
the Senate for their ratification, to communicate also the correspondence
of the negotiations. This having been omitted in the case of the Prussian
treaty, was asked by a vote of the House of February 12, 1800, and was
obtained. And in December, 1800, the Convention of that year, between
the United States and France, with the report of the negotiations by
the Envoys, but not their instructions, being laid before the Senate,
the instructions were asked for, and communicated by the President.$
* * * * *
$The mode of voting on questions of ratification is by nominal call.$
* * * * *
$Resolved, as a standing rule, That whenever a treaty shall be laid
before the Senate for ratification, it shall be read a first time for
information only; when no motion to reject, ratify, or modify the whole
or any part, shall be received.$
* * * * *
$That its second reading shall be for consideration; and on a subsequent
day, when it shall be taken up as in a committee of the whole, and
every one shall be free to move a question on any particular article in
this form: "Will the Senate advise and consent to the ratification of
this article?" or to propose amendments thereto, either by inserting or
leaving out words, in which last case the question shall be, "Shall the
words stand part of the article?" And in every of the said cases, the
concurrence of two-thirds of the Senators present shall be required to
decide affirmatively. And when through the whole, the proceedings shall
be stated to the House, and questions be again severally put thereon
for confirmation, or new ones proposed, requiring in like manner a
concurrence of two-thirds for whatever is retained or inserted.$
* * * * *
$That the votes so confirmed shall, by the House or a committee thereof,
be reduced into the form of a ratification with or without modifications,
as may have been decided, and shall be proposed on a subsequent day, when
every one shall again be free to move amendments, either by inserting or
leaving out words; in which last case the question shall be, "Shall the
words stand part of the resolution?" And in both cases the concurrence
of two-thirds shall be requisite to carry the affirmative; as well as
on the final question to advise and consent to the ratification in the
form agreed to.--_Rule of Jan. 6, 1801._$
* * * * *
$Resolved, That when any question may have been decided by the Senate,
in which two-thirds of the members present are necessary to carry the
affirmative, any member who voted on that side which prevailed in the
question may be at liberty to move for a reconsideration; and a motion
for reconsideration shall be decided by a majority of votes.--_Rule of
Feb. 3, 1801._$