[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.