    [Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 105th Congress]
    [105th Congress]
    [House Document 104-272]
    [Jeffersons Manual of ParliamentaryPractice]
    [Pages 298-301]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    [[Page 298]]

    * * * * *
                              sec. lii.--treaties.

    Sec. 593. General nature of
    treaties.

      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 v. Hylton, 3 Dallas's 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 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.

    [[Page 299]]

    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 subjects which are usually regulated by treaty,
    and can not 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 can not 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.

    [[Page 300]]

    Sec. 594. Jefferson's discussion of treaties under the
    Constitution.

      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

    Sec. 595. General action of the House as to
    treaties.

      The  participation of the House of Representatives in the treaty-
    making power has been often examined since Jefferson's Manual was
    written. The House has in several instances taken action in carrying
    into effect, terminating, enforcing, and suggesting treaties (II, 1502-
    1505, 1520-1522), although sometimes the propriety of requesting the
    Executive to negotiate a treaty has been questioned (II, 1514-1517).

    Sec. 596. Authority of the House as to treaties in
    general.

      The exact  authority of the House in the making of general treaties has
    been the subject of differences of opinion. In 1796 the House affirmed
    that, when a treaty related to subjects within the power of Congress, it
    was the constitutional duty of the House to deliberate on the expediency
    of carrying such treaty into effect (II, 1509); and in 1816, after a
    discussion with the Senate, the House maintained its position that a
    treaty must depend on a law of Congress for its execution as to such
    stipulations as relate to subjects constitutionally entrusted to
    Congress (II, 1506). In 1868 the House's assertion of right to a voice
    in carrying out the stipulations of certain treaties was conceded in a
    modified form (II, 1508). Again, in 1871, the House asserted its
    prerogative (II, 1523). In 1820 and 1868 there were discussions of the
    House's functions as to treaties ceding or acquiring foreign territory
    (II, 1507, 1508), and at various other times there have been discussions
    of the general subject (II, 1509, 1546, 1547; VI, 324-326).

    Sec. 597. Authority of the House as to revenue
    treaties.

      After long and  careful consideration the Judiciary Committee of the House
    decided, in 1887, that the executive branch of the Government might not
    conclude a treaty affecting the revenue without the assent of the House
    (II, 1528-1530), and a Senate committee after examination concluded that
    duties were more properly regulated with the publicity of congressional
    action than by treaties negotiated by the President and ratified by the
    Senate in secrecy (II, 1532). In practice the House has acted on revenue
    treaties (II, 1531, 1533); and in 1880 it declared the negotiation of a
    revenue treaty an invasion of its prerogatives (II, 1524). At other
    times the subject has been discussed (II, 1525-1528, 1531, 1533).

    Sec. 598. House approves Indian
    treaties.

      After long  discussion the House, in 1871, successfully asserted its
    right to a voice in approving Indian treaties (II, 1535, 1536), although
    in earlier times this prerogative had been jealously guarded by the
    Executive (II, 1534).

      There have been various conflicts with the Executive over requests of
    the House for papers relating to treaties (II, 1509-1513, 1518, 1519,
    1561).

    [[Page 301]]

    cordingly the process adopted in the case of France in 1798.

    Sec. 599. Treaties abrogated by
    law.

      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 ac-

      Notice to a foreign government of the abrogation of a treaty is
    authorized by a joint resolution (V, 6270).

    Sec. 600. Procedure of the Senate as to
    treaties.

      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 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.

      The Senate now has rules governing its procedure on treaties.