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._, II, 2.]
[All confidential communications made by the President of the United
States to the Senate, shall be by the members thereof kept 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. _Rule 39._]
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 vs. Hayton, 3 _Dallas’ 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 _Russel’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 the Senate having a negative. To what
subjects 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 alios 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 cannot be otherwise regulated. 3. It must have meant to except out
of these 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 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.]
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 in 1798.
[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 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.]
[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. 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 by
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 requisite 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.]
[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 37._]
[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
37._]