§ 57. Objections to lodging power with President.-It was seriously objected that the vesting of the treaty-making power in the President with the concurrence of two-thirds of the senators present was destructive to public liberty and dangerous to the state.1 Speaking of the treaty-making power, the Federalist said: "The essence of the legislative authority is to enact laws, or in other words to prescribe rules for the regulation of society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seems to comprise all the functions of the executive magistrate. The power of making treaty is plainly neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. "5 § 58. Differences between treaty-making power in England and United States.-Again, the Federalist points out the differences that exist between the treaty-making power in England and that in the United States, asserting that the King of Great Britain is in all foreign transactions the sole and absolute representative of the nation, and intimating that in case of the dissolution of the confederacy, the executives of the several states might be invested with the prerogative of making treaties. It asserted that the King of Great Britain could of his own accord make treaties of peace, commerce, alliance, and of every other description. "It has been insinuated that his authority, in this respect, is not conclusive; and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification may be in a monarchy, there is no American statesman but must feel that such a prerogative in an American president would be inexpedient and dangerous. It would be inconsistent with that wholesome jealousy which republics ought to cherish of all depositaries of power; and of parliament. But I believe this doctrine was never heard of till it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown, in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete validity and perfection, independent of any other sanction. The parliament, it is true, is sometimes seen employing itself in altering the existing laws, to conform them to the stipulations in a new treaty; and this may possibly have given birth to the imagination, that its co-operation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause; from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws to the changes made in them by the operation of the treaty; and of adopting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can only do with the concurrence of a branch of the legislature. It must be admitted that, in this instance, the power of the federal executive would exceed that of any state executive. But this arises naturally, from the exclusive possession, by the Union, of that part of the sovereign power which relates to treaties. If the confederacy were to be dissolved, it would become a question whether the executives of the several states were not solely invested with that delicate and important prerogative." § 59. Other objections.-Judge Story stated that one ground of objection was the intermixture of executive and legislative powers, it being contended that the President ought alone to possess the prerogative of concluding treaties. Another objection urged was the small number of the persons to whom the power to make treaties was intrusted, and the opinion was expressed that the House of Representatives should have a voice, as was also the opinion that a treaty should be ratified by two· The Federalist, 69. thirds of all the members of the Senate, and not alone by twothirds of those present. In answer to the objection that the power ought to have been confined exclusively to the President, he said that it might be suggested, "that, however safe it may be in governments, where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an executive magistrate chosen for four years. It has been remarked, and is unquestionably true, that an hereditary monarch, though often the oppressor of his people, has personally too much at stake in the government to be in any material danger of corruption by foreign powers, so as to surrender any important rights or interests. But a man, raised from a private station to the rank of chief magistrate for a short period, having but a slender or moderate fortune, and no very deep stake in the society, might sometimes be under temptations to sacrifice duty to interests, which it would require great virtue to withstand. If ambitious, he might be tempted to seek his own aggrandizement by the aid of a foreign power, and use the field of negotiations for this purpose. If avaricious, he might make his treachery to his constituents a vendible article at an enormous price."7 7 * 2 Story on Constitution, sec. 1515. He also said: "The impropriety of delegating the power exclusively to the senate has been already sufficiently considered. And, in addition to what has been already urged against the participation of the house of representatives in it, it may be remarked that the house of representatives is for other reasons far less fit than the senate to be the exclusive depositary of the power, or to hold it in conjunction with the executive. In the first place, it is a popular assembly, chosen immediately from the people, and representing in a good measure, their feelings and local interests; and it will on this account be more likely to be swayed by such feelings and interests than the senate, chosen by the states In § 60. Prerogative of the Executive. The courts have no power to interfere with the negotiation and modification of treaties, as such is the prerogative of the Executive. President Washington, in a special message, said: "It is said to be the general understanding and practice of nations, as a check on the mistakes and indiscretions of ministers or commissioners, not to consider any treaty, negotiated and signed by such officers as final and conclusive, until ratified by the sovereign or government from whom they derive their powers. This practice has been adopted by the United States respecting their treaties with European nations, and I am inclined to think that it would be advisable to observe it in the conduct of our treaties with the Indians; for, though such treaties, being on their part, made by their chiefs or rulers, need not be ratified by them, yet, being formed on our part by the agency of subordinate officers, it seems to be both prudent and reasonable that their acts should not be binding on the nation, until approved and ratified by the government. It house. Accurate knowledge of foreign politics, a steady and systematic adherence to the same views, nice and uniform sensibility to national character as well as secrecy, decision, and dispatch, are required for a due execution of the power to make treaties. . . . "Besides, the very habits of business and the uniformity and regularity of system, acquired by a long possession of office, are of great concern in all cases of this sort. The senators, from the longer duration of their office, will have great opportunities of extending their political information, and of rendering their experience more and more beneficial to their country. The members are slowly changed; so that the body will at all times, from its very organization, comprehend a large majority of persons who have been engaged for a considerable time in public duties and foreign affairs. If, in addition to all these reasons, it is considered that in the senate all the states are equally represented, and in the house very unequally, there can be no reasonable doubt, that the senate is in all respects a more competent and more suitable depositary of the power than the house, either with or without the cooperation of the executive. And most of the reasoning applies with equal force to any participation by the house in the treaty-making functions. It would add an unwieldy machinery to all foreign operations, and retard if not wholly prevent, the beneficial purposes of the power": 2 Story on Constitution, 1516, 1517. • Frelingheysen v. Key, 110 U. S. 64, 3 Sup. Ct. Rep. 462, 28 L. ed. 71; Great West Ins. Co. v. United States, 19 Ct. of Cl. 206; Angarica de la Rua v. Bayard, 4 Mackey, 310. strikes me that this point should be well considered and settled, so that our national proceedings in this respect may become uniform, and be directed by fixed and stable principles." § 61. Treaty inchoate until ratified.-Every treaty negotiated by the United States is an inchoate compact until it is ratified, and as every nation has knowledge of the limitations upon the power of its officers to conclude treaties, it is entirely free to withhold its own ratification until it has knowledge of ratification on the part of the United States. "In the full powers of European governments to their ministers, the sovereign usually promises to ratify that which his minister shall conclude in his name; and yet if the minister transcends his instructions, though not known to the other party, the sovereign is not held bound to ratify his engagements. Of this principle Great Britain has once availed herself in her negotiations with the United States. But the full powers of our ministers abroad are necessarily modified by the provisions of our Constitution, and promise the ratification of treaties signed by them, only in the event of their receiving the constitutional sanction of our government."10 A payment of preliminary installment of money under a treaty providing for a lease of foreign property does not obligate the government to future payments.11 A treaty, when ratified, relates back to the time of its signature, as a ratification is nothing more than evidence of the authority under which the minister proceeded.12 § 62. Ratification of treaties by Senate.-As a treaty, until sanctioned by the constitutional majority of the Senate, is a mere inchoate and not a consummated compact, the other power 1 Richardson's Messages (Sept. 17, 1789), 61. 10 Mr. Adams, Secretary of State, to Mr. Rush, November 12, 1824, MS. Inst. U. S. Ministers, X, 215. "Mr. Evarts, Secretary of State, to Mr. Delmonte, February 19, 1880, MS. Notes to Dominican Republic, 1, 41. 12 United States v. Arredondo, 6 Pet. 758, 8 L. ed. 547. In a dissent a ing opinion in this case Mr. Justice Thompson said: "A government is bound to perform and observe treaty made by its minister, unless it can be made to appear that he has exceeded his authority. But a ratification is an acknowledgment that he was authorized to make the treaty; and if so, the nation is bound from the time the treaty is made and signed." |