§ 53. Compacts relating to property.-Mr. Justice Brewer, after referring to the enabling act and the Constitution of the state, said that it was evident that they, in form at least, made a compact between the United States and the state. "In an inquiry as to the validity of such a compact," said he, "this distinction must at the outset be noticed. There may be agreements or compacts attempted to be entered into between two states, or between a state and the nation, in reference to political rights and obligations, and there may be those solely in reference to property belonging to one or the other. That different considerations may underlie the question as to the validity of these two kinds of compacts or agreements is obvious. It has often been said that a state admitted into the Union enters therein in full equality with all the others, and such equality may forbid any agreement or compact limiting or qualifying political rights and obligations; whereas, on the other hand, a mere agreement in reference to property involves no question of equality of status, but only if the power of a state to deal with the nation or with any other state in reference to such property. The case before us is one involving simply an agreement as to property between a state and the nation. That a state and the nation are competent to enter into an agreement of such a nature with one another has been affirmed in past decisions of this court, and that they have been frequently made in the admission of new states is a matter of history." He said that if the right of agreement between one another belongs to the several states except as

thority when reviewing the final judgment of a state court which upholds a state statute alleged to violate the contract clause of the Constitution, to determine the existence or nonexistence of the contract set up, and whether the obligation has been impaired by the statute. Douglas v. Kentucky, 168 U. S. 488, 8 Sup. Ct. Rep. 199, 42 L. ed. 553; Ohio Life Ins. & T. Co. v. Debolt, 16 How. 416, 14 L. ed. 997; Wright v. Nagle, 101 U. S. 791, 25 L. ed. 923; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683, 6 Treaties-4

Sup. Ct. Rep. 265, 29 L. ed. 510; Vicksburg S. & P. R. Co. v. Dennis, 116 U. S. 665, 6 Sup. Ct. Rep. 625, 29 L. ed. 770; New Orleans Water Works Co. v. Louisiana Sugar Ref. Co., 125 U. S. 18, 8 Sup. Ct. Rep. 741, 31 L. ed. 607; Bryan v. Kentucky Conference M. E. Church etc., 151 U. S. 639, 14 Sup. Ct. Rep. 465, 38 L. ed. 297; Mobile & O. R. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. Rep. 968, 38 L. ed. 793; Bacon v. Texas, 163 U. S. 207, 16 Sup. Ct. Rep. 1023, 41 L. ed. 132.

limited by the constitutional provisions requiring the consent of Congress, "equally true is it that a state may make a compact with all the states, constituting as one body the nation, possessed of general right of sovereignty and represented by Congress.

26

26 Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. Rep. 73, 45 L. ed. 162.

CHAPTER IV.

MAKING OF TREATIES.

54. Power to make treaties.

§ 55. Difference of opinion as to where power should be vested.

56. Vehement attack on treaty clauses.

§ 57. Objections to lodging power with President.

§ 58. Differences between treaty-making power in England and in United States.

$59. Other objections.

$60. Prerogative of the Executive.

61. Treaty inchoate until ratified.

§ 62. Ratification of treaties by Senate.

63. Rejection of treaties by Senate.

§ 64. Views of Mr. Clay.

§ 65. Adding declaration.

§ 66. Proviso adopted by Senate.

§ 67. Amendment by declaration of interpretation.

§ 68. Views of Department of State.

§ 69. Senate resolution controlling meaning of treaty.

70. Executive agreements.

71. Protocols within Executive authority.

§ 72. Instances.

73. Suspension of tariff act by President.

74. No discretion in President.

75. Nonintercourse act.

76. Suspension and operation of acts dependent upon President.

77. Suspension of act prohibiting imports.

78. Same subject—Continued.

$79. Importation of neat cattle.

§ 80. Products of Cuba and Porto Rico.

§ 81. Appropriation of money.

§ 82. Moral obligation.

§ 83. Alaska purchase.

$84. Porto Rico as foreign territory.

$85. Treaty dependent upon legislative action.

§ 54. Power to make treaties.-The Constitution places the power to make treaties in the hands of the President, by and with the advice and consent of the Senate, if two-thirds of the senators present concur.1 The clause on this subject found its origin in the Committee on Detail, who in their first report placed the treaty

making power in the Senate by a clause reading: "The Senate of the United States shall have power to make treaties, and appoint embassadors, and judges of the Supreme Court." When the convention took up this clause for consideration, an amendment was moved by Gouverneur Morris that "no treaty shall be binding on the United States which is not ratified by law," but after some debate the entire clause was reported back to the Committee on Detail. As this committee did not return a further report, the matter went to the Committee on Unfinished Portions, who, when they reported, vested the power in the President by and with the advice and consent of the Senate.

§ 55. Difference of opinion as to where power should be vested. The language of the report of the Committee on Unfinished Portions was: "The President, by and with the advice and consent of the Senate, shall have power to make treaties. But no treaty shall be made without the consent of twothirds of the members present. An amendment was offered in the convention to add the words "and House of Representatives" after "Senate," but it failed to carry. Much difference of opinion was manifested on the provision that required two-thirds of the senators present to ratify a treaty, some of the members advocating an amendment whereby treaties of peace could be ratified by a majority and others wishing to eliminate completely the requirement of a two-thirds vote. It was also urged that "no treaty should be made without the consent of two-thirds of all the members of the Senate," and also that "no treaty shall be made without a majority of the whole number of the Senate"; and still again, that previous notice to members and with a reasonable time to attend, should be given. All these propositions were defeated, and the Committee on Style finally reported it in the form in which it now appears in the Constitution.2

§ 56. Vehement attack on treaty clauses.-Judge Story said that the plan of the Constitution was happily adapted to secure all just objects in relation to foreign negotiations, while admitting that few parts of the Constitution were assailed with

25 Elliot, 524-527; The Federalist No. 75; Journal of Convention, 225, 326, 342.

more vehemence. "In the formation of treaties," he said, "secrecy and immediate dispatch are generally requisite, and sometimes absolutely indispensable. Intelligence may often be obtained, and measures matured in secrecy which never could be done unless in the faith and confidence of profound secrecy. No man at all acquainted with diplomacy, but must have felt that the suc cess of negotiations as often depends upon their being unknown by the public as upon their justice or their policy. Men will assume responsibility in private, and communicate information, and express opinions, which they would feel the greatest repugnance publicly to avow; and measures may be defeated by the intrigues and management of foreign powers, if they suspect them to be in progress, and understand their precise nature and extent. In this view the executive department is a far better depositary of the power than Congress would be. The delays. incident to a large assembly; the differences of opinion; the time consumed in debate; and the utter impossibility of secrecy, all combine to render them unfitted for the purposes of diplo

macy.

3

The

2 Story on Constitution, sec. 1510. "The same difficulties would occur from confiding it exclusively to either branch of Congress. Each is too numerous for prompt and immediate action, and secrecy. The matters in negotiations, which usually require these qualities in the highest degree, are the preparatory and auxiliary measures; and which are to be seized upon, as it were, in an instant. president could easily arrange them. But the House, or the Senate, if in session, could not act, until after great delays; and in the recess could not act at all. To have intrusted the power to either would have been to relinquish the benefits of the constitutional agency of the president in the conduct of foreign negotiations. It is true that the branch so intrusted might have the option to employ the president in that capacity; but they would also have the option of re

fraining from it; and it cannot be disguised, that pique, or cabal, or personal or political hostility, might induce them to keep their pursuits at a distance from his inspection and participation. Nor could it be expected, that the president, as a mere ministerial agent of such branch, would enjoy the confidence and respect of foreign powers to the same extent as he would, as the constitutional representative of the nation itself; and his interposition would of course have less efficacy and weight.

"On the other hand, considering the delicacy and extent of the power, it is too much to expect that a free people would confide to a single magistrate, however respectable, the sole authority to act conclusively, as well as exclusively, upon the subject of treaties. In England, the power to make treaties is exclusively vested in the crown. But however proper it