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may be said to have been in some part the legitimate products of wide participation in diplomacy and practical legal affairs. As an adviser of the English Court, Gentilis obtained a great reputation, and his works, familiar to every student of international law, may be readily classed among those which will not die.
We have noted at the outset that Grotius sat down to write his masterpiece in a spirit which sought to propound the first principles of a law between nations, as distinct from those of a system of jurisprudence governing courts when dealing with citizens in their private affairs; but he also endeavored to posit such a foundation in the moral consciousness of man. He looks at a system of law governing nations in their mutual intercourse, therefore, in the light of universal concepts drawn from the ancient ideas of an unwritten law of right reason combined with a system striving to develop the sense of equality and fairness in the personal dealings of men. It was in this manner that the true jus gentium, as well as the unwritten law of Cicero's thought, united in the greatest writer upon international law to found a science which cannot easily yield its place to any theories of the conduct of war or peace which shall sanction modes of international intercourse not in consonance with humanity and civilization. The atrocious doctrine of war necessity, the traitorous ambassador, must, in the future development of international relations, disappear. If the world is to be settled at all in the enjoyment of a definite system of international right, it must be settled in the light of such principles as these, principles which trace their inception and development far beyond definitely known periods of European history and are in fact as ancient as civilization itself.
GORDON E. SHERMAN.
· Authorities: Agraphos Nomos, R. Hirzel; Peregrinenrecht und Jus Gentium, J. Baron; Römische Rechtsgeschichte, 1, 450 seq., Karlowa; Les Institutions Juridiques des Romains, E. Cuq., 1, 457 seq.; Le Droit des Gens dans les Rapports de Rome avec les Peuples de l'Antiquité, M. Chauveau; Mommsen, Römisches Staatsrecht, 2, 1, p. 185 seq.; Clark, Practical Jurisprudence.
TREATIES AND THE CONSTITUTIONAL SEPARATION OF
POWERS IN THE UNITED STATES
The Constitution wholeheartedly accepted Montesquieu's theory 1 of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others. The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that “the executive power shall be vested in a President of the United States of America,” 3 whereas the treaty-making power is vested in the President acting “by and with the advice and consent of the Senate — provided two-thirds of the senators present concur.” 4 Furthermore "treaties made ... under the authority of the United States” are “the supreme law of the land.” 5 Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation emphasized by Hamilton in the Federalist. 6
i Montesquieu, L'Esprit des Lois, liv. xi, c. 6. See also Garner, Introduction to Political Science, New York, 1910, pp. 406 et seq.
2 Kilbourne v. Thompson, 103 U. S. 188; Interstate Commerce Commission v. Brimson, 154 U. S. 447. The principle is implied from the first section of the first three articles of the Constitution. See also Farrand, Records of the Federal Convention, 2: 56, 77; the Federalist, Nos. 47, 48; J. P. Hall, Constitutional Law, Chicago, 1910, p. 16.
3 Art. 2, sec. 1, cl. 1.
* Art. 2, sec. 2, cl. 2. Executive participation in treaty-making was an afterthought. The treaty power under the Articles of Confederation was vested in Congress (Art. 9). In the first draft of the Constitution prepared by the Federal Convention, the treaty power was vested in the Senate alone (Report of Committee on Detail, Aug. 6, 1787, Art. 9; Farrand, Records of the Federal Convention, 2: 183), and proposals were made to vest it in Congress (Farrand, 2: 297, 392, 538).
5 Art. 6, sec. 2.
o The Federalist, No. 75. The treaty power is really neither executive nor legislative, since its ends transcend the domestic purposes of ordinary legislation as
Regarding the treaty-making power as a distinct department of government, the question of constitutionality might arise, in case it attempted to perform or delegate functions assigned by the Constitution to another department.
TREATY POWER AND LEGISLATIVE POWER The Constitution states that “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."'? But as treaties are made the supreme law of the land, it is clear that some legislative authority is vested in the treaty-making power.8 A treaty could scarcely be regarded as a usurpation of the powers of Congress and unconstitutional simply because it was legislative. To so regard it would destroy the meaning of the phrase in Article VI. Question could only arise in case the treaty concerned matters specifically assigned by the Constitution to Congress.
1. The Constitution provides that "no money shall be drawn from the treasury, but in consequence of appropriations made by law.” 9 In accord with the resolutions 10 adopted by Congress after the extensive much as its means, characterized by the contraction of permanent obligations of general effect, differ from the methods of ordinary execution and administration. John Locke divided the departments of government into legislative, executive, and federative, attributing to the latter the function of dealing with foreign nations. The "federative" thus corresponds to the treaty-making power and is distinguished from the executive or power of law enforcement and administration. (Locke, Two Treatises of Government, c. xii, secs. 143, 144, 146.) A combination of the classifications of Locke and Montesquieu suggests a fourfold classification of departments of government into legislative, judicial, executive, and federative. See also E. Root, this JOURNAL, 1: 278.
? Art. 1, sec. 1, cl. 1.
6 The inconsistency was seen by some members of the Federal Convention who thought that treaties should not become “law" "till ratified by legislative authority.” (Farrand, 2: 297, 392, 538.) See also remarks by Gallatin in debate on the Jay Treaty, 1796, Annals, 4th Cong., 1st sess., p. 464. Some legislative power has also been vested in American ministers in countries where the United States enjoys extraterritorial jurisdiction. They exercise a limited power to legislate for citizens of the United States, even in criminal matters. (Rev. Stat., sec. 4086; Cushing, Att. Gen., 1855, 7 Op. 495, 504; Moore, 2: 617.)
Art. 1, sec. 9, cl. 7. 10 This resolution, which was largely the work of Madison, agreed that the
debate on the Jay Treaty of 1794, this was interpreted during the administrations of Jefferson and Madison as rendering it beyond the competence of the treaty power alone to conclude a treaty requiring an appropriation. 11 In deference to this opinion Congress has sometimes been requested to make a provisional appropriation before ratification of the treaty, 12 and the treaty itself has sometimes stated that its effectiveness is dependent upon action by Congress.13
The weight of practice 14 and authority, 15 however, indicates that
authority to make treaties was vested solely in the President and Senate, “but when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon, as in their judgment may be most conducive to the public good.” Annals, 4th Cong., 1st sess., p. 771. The resolution was affirmed without debate in 1871. Cong. Globe, 42d Cong., 1st sess., 835; Wharton, 2: 19.
11 “Mr. Madison's resolution of the year 1796, which asserts the abstract right of the House of Representatives, was adopted by a majority of the House, and remains, unrepealed of record on its journal, and it cannot be denied that during the sixteen years of the administrations of Presidents Jefferson and Madison that was the avowed construction of the Constitution by the Government of the United States.” Mr. Gallatin to Mr. Everett, Jan., 1835, Gallatin's Writings, 2: 479; Wharton, 2: 66; Moore, 6: 232.
12 President Jefferson got a provisional appropriation of $2,000,000 to purchase land at the mouth of the Mississippi before entering into negotiations, but actually exceeded this amount in the Louisiana purchase without further authorization. Moore, 5: 225. President Buchanan suggested in 1858 that an appropriation be made for a proposed purchase of Cuba. Richardson, Messages, 4: 456, 459, 538. An appropriation was made in the Act authorizing the acquisitions for the Panama Canal. 32 Stat. 481; Crandall, Treaties, Their Making and Enforcement, 2d. ed., Washington, 1916, p. 181.
13 Denmark, 1857, Art. 6; Hanover, 1861, Art. 5; Belgium, 1863, Art. 4.
14 Debate on Jay Treaty, 1796; Jefferson's opinion on the Louisiana Purchase; debate on the Russian treaty of 1868 ceding Alaska, Wharton, 2: 15–23. Wharton, after citing these discussions, concludes that “two points may be regarded as accepted in the practical working of our government. One is that without a congressional vote there can be no appropriation of money which a treaty requires to be paid. The other is that it should require a very strong case to justify Congress in refusing to pass an appropriation which is called for by a treaty." See also Moore, 5: 224-233.
15 During the debate in the Federal Convention on the constitution of the treaty power, Wilson of Pennsylvania was for requiring the sanction of the House such treaties are valid and impose an obligation upon Congress to make the appropriation, a point of view well expressed by Senator Cullom in 1902:16
The House, each time the question was considered, insisted upon its powers, but nevertheless it has never declined to make an appropriation to carry out the stipulations of a treaty, and I contend that it was bound to do this, at least as much as Congress can be bound to do anything when the faith of the nation has been pledged.
There can, however, be no doubt but that Congress is the sole power for performing the obligation. Consequently, such provisions, although valid, cannot be executed until Congress has acted.17
of Representatives as well as the Senate. “As treaties,” he said, “are to have the operation of laws, they ought to have the sanction of laws also.” On vote, Pennsylvania alone supported the amendment, and immediately the clause as it now stands was passed unanimously. (Farrand, 2: 538.) A few days previously an amendment proposed by G. Morris, also of Pennsylvania, had failed. It had proposed, “but no Treaty shall be binding on the United States which is not ratified by a law.” (Ibid., 2: 392.) Referring to this debate in his message refusing to comply with the request of the House of Representatives for papers relating to the Jay Treaty, President Washington said, “It is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of & treaty.” (Richardson, 1: 195; Annals, 4th Cong., 1st sess., p. 760.) A recent authority says: “That Congress is under no obligation to make the stipulated appropriation has not been seriously advanced by the House since 1868, although individual advocates of the view have not been wanting. (Crandall, op. cit., p. 177.) See also Kent, Commentaries, 1: 165; Dana's Wheaton, sec. 543; Livingston, Sec. of State, 1833; Calhoun, Sec. of State, 1844; Wharton, 2: 67–68.
16 Cong. Rec. 35: 1083. The House of Representatives authorized a committee to investigate this statement, but no report seems to have been made. Ibid., 35: 1178.
17 “And in such a case the representatives of the people and the States exercise their own judgment in granting or withholding the money. They act upon their own responsibility and not upon the responsibility of the treaty-making power. It cannot bind or control the legislature's action in this respect, and every foreign government may be presumed to know that so far as the treaty stipulates to pay money, the legislative sanction is required.” Turner v. American Baptist Union, 2 McLean, 344 (1852). In reference to the discretion of Congress in this matter, this undoubtedly goes farther than the bulk of authorities. Supra, note 14. The House refused to vote appropriations for the purchase of Alaska until a preamble was agreed to, stating that the stipulations of such treaties "cannot be carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary.” 15 Stat. 198. See also Magoon, Reports, pp. 151 et seq.; C. P. Anderson, this JOURNAL, 1: 653.