[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 111th Congress]
[111st Congress]
[House Document 110-162]
[Jeffersons Manual of ParliamentaryPractice]
[Pages 307-311]
[From the U.S. Government Publishing Office, www.gpo.gov]


 

* * * * *
                           sec. lii--treaties


[[Page 308]]

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.


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



[[Page 309]]

wise 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. 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.



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 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 other




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

  The  participation of the House 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).



[[Page 310]]

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. 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




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).




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




[[Page 311]]


  Notice to a foreign government of the abrogation of a treaty is 
authorized by a joint resolution (V, 6270). A resolution alleging an 
unconstitutional abrogation of a treaty by the President, and calling on 
the President to seek the approval of Congress before such abrogation, 
does not constitute a question of the privileges of the House under rule 
IX (June 6, 2002, pp. 9492-98 (sustained by tabling of appeal)).



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.