Treaty making

“ How can our government make a treaty with a foreign nation? With this question we bring our pupils face to face with the first type-element in the Jay Treaty lesson. The class has not long since taken up the story of the making of our Constitution, and may be assumed to realize its significance as the “fundamental law.” What has the Constitution to say on the subject of treaty-making? The President “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” ”

“ The treaty miking power is purely executive, or at least the entire natural sovereignty of the country, is excluded from sharing in it. By "natural," I mean the people. State governments are artificial beings, and nearly the whole treaty making power is the creature of these artificial beings. It is not meant to discuss the propriety of making law by treaties, without the assent of the natural sovereignty or its representative, and by a moiety of a legislature, but this mode of legislation is exhibited to illustrate the defectiveness of judicial responsibility to the sovereignty. ”

“ The hardship of the inhabitants being handed over to a new Sovereign against their will can be lessened by a stipulation in the treaty of cession binding the acquiring State to give the inhabitants of the ceded territory the option of retaining their old citizenship on making an express declaration. ”

“ 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. ”

“ ART. XIV. Any individual, possessing property under both Governments, who shall nave once made a declaration of his place of abode, shall be allowed, for the period of eight years, dating from the day of the ratification of the present Treaty, to settle under another Government, by making a new declaration, and by producing the permission of the Power, under whose government he wishes to reside. ”

“ With such nations, the only wisdom is, to conclude treaties, not of reciprocity, but of commerce; that is, treaties in which, in consideration of certain branches of our manufactures being admitted on favourable terms, we agree to admit certain articles of their produce on equally advantageous conditions. Thus, a treaty, by which we agreed to admit, for a moderate duty, the wines of France, which we can never rival, in return for their admitting our iron and cotton goods on similar terns, would be a measure of equal benefit to both countries. ”

“ 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 ”

“ Subject to any contrary stipulations which may be provided for in the present treaty, the Allied and Associated Powers reserve the right to retain and liquidate all property, rights, and interests belonging at the date of the coming into force of the present treaty to German nationals, or companies controlled by them, within their territories, colonies, possessions, and protectorates including territories ceded to them by the present treaty. ”

“ 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. ”

“ When a nation binds itself by treaty, either to permit the entry of certain goods from one foreign country which it prohibits from all others, or to exempt the goods of one country from duties to which it subjects those of all others, the country, or at least the merchants and manufacturers of the country, whose commerce is so favoured, must necessarily derive great advantage from the treaty. ”

“ A "personal treaty," having reference to dynastic interests, is contrasted with a "real treaty," which binds the nation irrespectively of constitutional changes; treaties creating outstanding obligations are opposed to "transitory conventions," e.g., for cession of territory, recognition of independence, and the like, which operate irrevocably once for all, leaving nothing more to be done by the contracting parties; and treaties in the nature of a definite transaction (Rechtsgeschäft) are opposed to those which aim at establishing a general rule of conduct (Rechtssatz) . ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The real difficulty in the way of negotiating profitable reciprocity treaties is that we have given freely so much that would have had value in the mutual concessions which such treaties imply. I can not doubt, however, that the present advantages which the products of these near and friendly States enjoy in our markets, though they are not by law exclusive, will, with other considerations, favorably dispose them to adopt such measures, by treaty or otherwise, as will tend to equalize and greatly enlarge our mutual exchanges. ”

“ As to England, any one of the legislatures may impose on her goods double the duties which are paid other nations; may prohibit their goods altogether; may refuse them the usual facilities for 287 recovering their debts or withdrawing their property; may refuse to receive their Consuls or to give those Consuls any jurisdiction. But with France, whose commerce is protected by a treaty, no State can give any molestation to that commerce which is defended by the treaty. ”

“ The law of nations would have given this guaranty if the treaty had been silent upon the subject, and the result would have been the same if the territory had been acquired by conquest and not by cession. ”

“ At the opening of the present session I informed the Legislature that the measures which had been taken with the Government of Great Britain for the settlement of our neutral and national rights and of the conditions of commercial intercourse with that nation had resulted in articles of a treaty which could not be acceded to on our part; that instructions had been consequently sent to our ministers there to resume the negotiations, and to endeavor to obtain certain alterations, and that this was interrupted by the transaction which took place betweenthe frigates Leopard and Chesapeake. ”

“ While the question of the construction of treaties is judicial in its nature, and courts when called upon to act should be careful to see that international engagements are faithfully kept and observed, the construction placed upon the treaty before us and consistently adhered to by the Executive Department of the Government, charged with the supervision of our foreign relations, should be given much weight. ”