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Congress to pass subsequent laws, qualifying, altering, or wholly annulling a treaty; for such an authority, in certain cases, is supported on grounds wholly independent of the treaty-making power. For, as Congress possesses the sole right of declaring war, and as the alteration or abrogation of a treaty tends to produce it, the power in question may be regarded as an incident to that of declaring war.
The exercise of such a right may be rendered necessary to the public welfare and safety, by measures of the party with whom the treaty was made, contrary to its spirit, or in open violation of its letter ; and on such grounds alone can this right be reconciled ei. ther with the provisions of the Constitution or the principles of public law. A memorable instance has occurred in our history of the annulment of a treaty by the act of the injured party. In the year 1798, Congress declared that the treaties with France were no longer obligatory on the United States, as they had been repeatedly violated by the French government, and our just claims for reparation disregarded. Nevertheless, all treaties, as soon as ratified by competent authority, become of absolute efficacy, and, as long as they continue in force, are bind. ing upon the whole nation. 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 Legislature, it is morally obligatory upon the legislative power to pass the requisite law; and its refusal to do so would amount to a breach of the public faith, and afford just cause
That department of the government which is intrusted with the power of making treaties may bind the national faith at its dis.
cretion; for the treaty-making power must be coextensive with the national exigencies, and necessarily involves in it every branch of the national sovereignty, of which the operation may be necessary to give effect to negotiations and compacts with foreign nations. If a nation have conferred 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, because that department is the organ of the government for the purpose, - and its contracts are made by the deputed will of the nation. The fundamental laws of the state may withhold from it the power of alienating the public domain, or other property belonging to it; but if there be no express provision of that kind, the inference is that it has confided to the department, charged with the duty and the power of making treaties, a discretion commensurate with all the great interests of the nation.*
The concurrence of each branch of the legislative power, we have seen, is necessary to a declaration of war, while the President, with the advice and consent of the Senate alone, may conclude a treaty of peace. Now a power to make treaties necessarily implies a power to settle the terms on which they shall be concluded; and foreign states could not deal safely with the government on any other presumption. That branch of the government which is intrusted thus largely and generally with authority to make valid treaties of peace, can, of course, bind the nation by the alienation of part of its
territory, and this, according to an approved wri ter on the law of nations,* is equally the case, whether that territory be already in the occupation of the enemy, or remain in possession of the nation, or whether the property be public or private. In a case decided in the Supreme Court of the United States, it was admitted that indi. vidual rights acquired by war, and vested rights of the citizen, might be sacrificed by treaty for national purposes.t And in another case it was held to be a clear principle of national law, that private rights might be surrendered by treaty to secure the public safety, but the governmentwould be bound to make compensation and indemnity to the individual whose rights had thus been sacrificed.
The conclusion of a treaty of commerce and navigation with Great Britain, in 1794, gave rise to much public discussion as to the nature and extent of the treaty-making power. A resolution was passed by the House of Representatives requiring the President to lay before them a copy of his instructions to the minister who conducted the negotiation, with the correspondence, and other documents, relative to the treaty, except. ing such papers as any existing negotiations might render it improper to disclose. The illustrious individual who then held the office of President returned for answer, “that, in his opinion, the power of making treaties was exclusively vested in the President, by and with the advice and consent of the Senate, provided two thirds of the senators present concurred in the ratification; and that any treaty so made and ratified,
* Vattel, b. i., ch. xxi., 92, 32; b. iv., ch. ii., g 11, 12.
on being duly promulgated, became the law of the land. It was thus,” he added, “ that the treaty-making power had been understood by foreign nations; and that in all treaties made with them, we had declared, and they had believed, that when so ratified, they became obli. gatory on the nation.” In this construction of the Constitution, every former House of Representatives had acquiesced, and until that time not a doubt or suspicion had appeared, to his knowl. edge, that it was held not to be the true con. struction; and he concluded by observing that " it was perfectly clear to his understanding, that the consent of the House of Representatives was not necessary to the validity of a treaty. As the treaty in question exhibited in itself all the objects requiring legislative provision, upon which the papers called for could throw no light, and that, as it was essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution, and to the duties of his office, for. bade a compliance with their request."
The principles thus, laid down by General Washington were so far acquiesced in by the House, that they passed a resolution, disclaiming the power to interfere in making treaties; but asserting the right of the House of Repre. sentatives, whenever stipulations are made on subjects committed by the Constitution to Con. gress, to deliberate on the expediency of carrying them into effcct; and subsequently it was declared, by a small majority, to be expedient to pass the laws necessary for carrying the treaty into effect. From that time the question re
mained undisturbed until the conclusion of a convention with Great Britain, in 1815, when the House of Representatives, after much debate, passed a bill specifically enacting, on a particular subject, the same provisions which were contained as stipulations in the treaty. This dangerous innovation on the treaty-making power was warmly opposed by a minority in the House, and disagreed to by the Senate ; but, after sevi eral conferences between them, the affair termi. nated in a compromise, which it is difficult to reconcile with a sound construction of the Constitution. The law passed on the occasion briefly declares that so much of any act as imposes a duty on tonnage, contrary to the provisions of the convention with Great Britain, should, from the date of that instrument, and during its continuance, be of no force or effect; thus setting a precedent which may produce future difficulty in our national legislation, though the judicial tribunals would probably regard such a law as a work of supererogation, or a mere nullity, and, from its retroactive operation, at variance with the spirit of the Constitution.
Treaties of every kind, when made by competent authority, are not only to be observed with the most scrupulous good faith, but are to receive a fair and liberal interpretation. Their meaning is to be ascertained by the same rules of construction and course of reasoning as are applied to the intérpretation of private contracts; and, according to the most authoritative writers on international law, if a treaty should be in fact violated by one of the parties, either by proceedings incompatible with its nature, or by an intentional breach of any of its articles, it rests with the in.