Treaty-making power

“ My belief that vigilance is necessary is based upon the following consideration. The treaty-making power is vested in Congress and not in the executive. The latter cannot add a single word to a treaty between the United States and a foreign power. ”

“ The constitution confers on the government of the Union the power of making war, and of making treaties; and it seems consequently to possess the power of acquiring territory either by conquest or treaty. [3] If the cession be by treaty, the terms of that treaty must be obligatory; for it is the law of the land. And if it stipulates for the enjoyment by the inhabitants of the rights, privileges, and immunities of citizens of the United States, and for the admission of the territory into the Union, as a state, these stipulations must be equally obligatory. ”

“ Political treaties, the purposes of which is usually to terminate wars, establish boundaries, award indemnities, etc., naturally belong, as a rule, to the first class, while commercial treaties usually have a time limit. This accounts for a good many of the blank spaces in the above synopsis.
It will be noticed that there are some countries in the above list which have not at present the treaty making power—such, for instance, as Egypt, the Hanseatic Republic, Prussia, Hawaii, Samoa, Madagascar, Borneo, Kongo Free State, etc. ”

“ Shall less prudence, less caution, less moderation, take place among those who negotiate treaties for the United States, than among those who negotiate them for the other nations of the earth? And let it be attended to, that, even in the making of treaties, the states are immediately represented, and the people mediately represented; two of the constituent parts of government must concur in making them. Neither the President nor the Senate, solely can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people. ”

“ Enough has been said to show, that, if such a sovereignty could be exercised after a treaty has been signed, it would be a power to change materially the relations which the people of a ceded territory had to each other ”

“ The analogy between treaty-making and legislation is striking when a congress agrees upon general principles which are afterwards accepted by a large number of states, as, for instance, in the case of the Geneva conventions for improving the treatment of the wounded. Many political treaties containing “transitory conventions,” with reference to recognition, boundary or cession, become, as it were, the title-deeds of the nations to which they relate. [2] But the closest analogy of a treaty is to a contract in private law. ”

“ Paasche, ‘that the government will undertake a thorough revision of all the treaties containing the most favored-nation clause. Promises of this kind were made to us in committee. We have absolutely no occasion to concede anything to such nations as are glad to take what we give by treaty to other countries without making us any concessions in return. The United States has introduced a limitation of the most-favored-nation clause; we have every reason to act in precisely the same manner. ”

“ The Plenipotentiaries of North Germany, of Austria-Hungary, of Great Britain, of Italy, of Russia, and of Turkey, assembled to-day in Conference, recognize that it is an essential principle of the law of nations that no Power can liberate itself from the engagements of a treaty, nor{544} modify the stipulations thereof, unless with the consent Powers by means of an amicable arrangement. ”

“ The reason is plain; one power may make war; it requires two to make peace. It is a state of mutual amity succeeding hostility; it is a state that cannot be created but with the consent of both parties. It required a contract or a treaty between the nations at war. Is this peculiar to a treaty of peace? No; it is common to all treaties. It arises out of their nature, and not from any incidental circumstance attaching itself to a particular class. It is no more or less than that Congress cannot make a contract with a foreign nation. ”

“ There was an obvious difference between treaties of peace and those of commerce, because commercial treaties frequently clashed with the laws upon that subject; so that It was necessary to be ratified in Parliament. As a proof that our present Articles of Confederation were paramount, it was there expressed that France should enjoy certain privileges. Now, supposing any law had passed taking those privileges away, would not the treaty be a sufficient bar to any local or municipal laws? What sort of power is that which leaves individuals in full power to reject or approve? ”

“ It is to be considered, that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed, and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals, or war. [11] It is, therefore, indispensable, that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. ”

“ Did not a treaty stipulation require the United States to 'endeavor by all means in their power to protect and defend this property?' Did not a treaty stipulation require us to 'extend to them all favor, protection and help?' Did not a treaty stipulation bind us to 'restore, entire, the property, to the true proprietors, as soon as due and sufficient proof should be made concerning the same?' If not, then is there no force and meaning in language; and the words of solemn treaties are an idle breath, of which nations may be as regardless as of the passing wind. ”

“ Besides these constitutional limits, the treaty power, like all others, has other limits, derived from its object and nature. It has for its object contracts with foreign nations, as the powers of Congress have for their object whatever can be done in relation to the powers delegated to it without the consent of foreign nations. Each, in its proper sphere, operates with genial influence; but when they become erratic, then they are portentous and dangerous A treaty never can legitimately do that which can be done by law ”

“ The domestic harmony of the nation requires that before the United States assumes treaty obligations or makes war such policy shall represent the largely preponderating sentiment of its people, and nothing could more effectually secure this end than to require the President, before making a treaty, to secure the assent of two-thirds of the Senate and a majority of both Houses of Congress before making war. ”

“ If the authority by treaty is limited as is suggested, then it will be impossible to terminate a successful war by acquiring territory through a treaty, without immediately incorporating such territory into the United States. ”

“ The National Government, by virtue of its control of our foreign relations is entitled to employ the resources of diplomatic negotiations and to effect such an international settlement as may be found to be appropriate, through treaty, agreement, of arbitration, or otherwise. ”

“ But the conventions and the treaties differ from anything that could properly be called law by the absence of sanction: there is no police force able or willing to enforce their observance. It follows from this that every nation concludes multitudes of divergent and incompatible treaties, and that, in spite of the high language one sometimes hears, the main purpose of the treaties is in actual fact to afford the sort of pretext which is considered respectable for engaging in war with another Power. ”

“ When the casus foederis occurs, the requisition or demand must be made by the one nation upon the other. And upon our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized, or even permitted, to hold any communication of a national concern. He alone is authorized, by the Constitution, to negotiate with foreign governments, and enter into treaty obligations binding upon the nation ”

“ To accomplish this, little more is generally required than a simple observance of the rule of reciprocity, and were it possible for the states-men of one nation by stratagem and management to obtain from the weakness or ignorance of another an over-reaching treaty, such a compact would prove an incentive to war rather than a bond of peace. ”

“ No nation looks, in its intercourse, under a treaty, with another to any but the executive government. Every nation has a right to say with what act she will be satisfied as fulfilling a treaty stipulation, the other party to the treaty reserving the same right. ”

“ The powers of peace and war being vested in Congress, it belonged to that body to decide those questions growing out of treaties which might involve peace or war, and the President, therefore, ought to have assembled the national Legislature before he ventured to issue his proclamation of neutrality, or to prohibit, by his instructions to the State governors, the enjoyment of the particular rights which France claimed under the express stipulations of the treaty of commerce. ”

“ But it may be said, if each nation is independent of every other, and if there is no constituted authority to enforce the fulfillment of treaty stipulations, the rights guarantied by treaties are still insecure. But few governments are so devoid of a sense of honor as, by a palpable violation of treaty obligations, to incur the odium and condemnation of all mankind. ”

“ It is very difficult to understand how any different doctrine can be sustained. A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. ”

“ Chairman, I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty. The lives and properties of European subjects are not affected by treaties, which are binding on the aggregate community in its political, social capacity. ”

“ On the subject of treaties, our system is to have none with any nation, as far as can be avoided. The treaty with England has therefore, not been renewed, and all overtures for treaty with other nations have been declined. We believe, that with nations as with individuals, dealings may be carried on as anvantageously [sp.] , perhaps more so, while their continuance depends on a voluntary good treatment, as if fixed by a contract, which, when it becomes injurious to either, is made, by forced constructions, to mean what suits them, and becomes a cause of war instead of a bond of peace. ”

“ By the Law of Nations, in the absence of any express stipulation, a treaty is of perpetual obligation on both parties,—to be abrogated only by a new treaty having the assent of both parties, or by the act of one party, alleging bad faith or hostile intent in the other, and on this account declaring before the civilized world a release from all its obligations. ”

“ If Great Britain asks, then, why she should enter into treaty with us? why not carry on her commerce without treaty? I answer; because till a treaty is made, no consul of hers can be received (his functions being called into existence by a convention only, and the States having abandoned the right of separate agreements and treaties) ; no protection to her commerce can be given by Congress ”

“ Or that the mere fact of a territory having been ceded by one sovereignty to another, opens it to a free commercial intercourse with all the world, as a matter of course, until the new possessor has legislated some terms upon which that may be done. There is no such commercial liberty known among nations, and the attempt to introduce it in this instance is resisted by all of those considerations which have made foreign commerce between nations conventional. 'The treaty that gives the right of commerce, is the measure and rule of that right.' Vattel, c. ”

“ Further, if any clause in the treaty appears to 'have become inapplicable' or to give rise to 'international conditions which might endanger the peace of the world,' under Article XXIII the Assembly of the League may at any time 'advise their reconsideration.' You complain that the terms of the present treaty were imposed upon you, without discussion, by implacable enemies who had you at their mercy; that you have been made a sort of outlaw nation, without freedom, without colonies, without ships, sitting apart while the world is administered by your enemies. ”

“ It doubtless is important that all treaties and compacts formed by the United States with other nations, whether civilized or not, should be made with caution and executed with fidelity.
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. ”

“ The true position, as I understand it, is that a treaty need not be pending; that the President of the United States represents the Nation, and has the right to negotiate a treaty and to protect the dignity of the Nation while it is being negotiated. ”