The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-07-15

people be called sheer act of reputation. 1t is eear
think that the necessity of legislative action does not give
full discretion The legislative action Of Congress is as
necessary meet existing obligation as is to create
The fact Of such necessity does not decide the
the way the other Ii does not prove anything
therefore, regard to the existing obligation Of treaty
merely to show that the legislative action OF the House Oh
Representatives is necessary 10 carry out its provisions
Where such obligations exist failure to carry them out
does invadae them. The power to refuse
does not imply, necessarily, the right to do so.
Where debt is contracted, then, by the treaty-makns
power acting in its legitimate sphere if the House OF Rep
resentatves refuse the appropriation to pay it. the debt
still binding the good faith of the nation, and we may
Justly be held answerae by the other nation for SO doing
1t is cause of war This doctrine we acknowledged and
maintained in regard the of France under her
treaty with this country, made July 4, 1881
Is there then il has been inquired rghtfn discretion
in the House of Representatives this subject are we
here merely to register edic in this behalf made by the
President and Senate?
We have discretion, but it has limits.
have shown that to the President and Senate the const
tuition gives the power to make caies The phrase TO
make treaties though somewhat indefinite is by no means
unlimited in the authority which it conveys
1t is limited first by the terms and intent OF the cons
ton This appears from the face of the proceedings OF the
federal convention itself and if it did not could readily
have been Inferred the pancst principles of construction
1t not be presumed that any authority established
under a constitution would be clothed with power in the
exercise of its ordinary functions to contravene that con
stitution or thwart the objects of its formation
Any stipulation in treaty, therefore, which requires
ytng TO be done by Congress or by any other author
ty under the government which the constitution says that
authority shall notdo which it prohibits altogether
is absolutely void and constitutes obligation upon the
country.
further limitation upon the authority granted by the
phrase make treaties arises from another wellseted
rue of construction or of interpretation Mr. Madson in
his speech in the House of Representatives, delivered in
April l796, says of the pdrdoiy power that under our
constitutions it is vested in the President 1t pre-
rogatye also of the British King And in order to
tain the extent OF the technical term pardon in
stituton it would not be irregular search into the
ing and exercise of the power in Great Britain 80 in
asceranng the meaning OF the technical phrase to make
the power in other nations This search proper to limit
the power still further within the scope of the constitution
1t cannot be enlarged beyond the restrictions of that in
strument Any treaty stipulation, then, upon subject
which, by the law usage OF nations is not matter of
treaty regulations unless be clearly made so by some pc
| culiarity of SYSTEM would not be obligatory.
the application Of these principles it must be observed
that the Congress- under the constitution has two different
classes of primary powers and
iary powers Those of the first class complete within
themselves those of the second class aids and en-
poyed exclusively carry ont others The set claim
independence the other seek direction The power to
regulate commerce. or to declare uar is substantive pow
e because the whole object in view in the case is included
in the power The power to appropriate money on the
other hand is auxiliary being always employed to
carry other power Where substantive powers
conferred Congress by the constitution it has con-
troll of the snbjecmaer, and acts of its motion. In
regard to its auxiliary powers it is in sense the
creature of former Congresses of other authorities
Whenever any authority acting in its legitimate sphere
requires legislation to enable it TO carry out its granted
powers it is the duty of Congress to grant the legislation
Upon this doctrine perhaps distinction might properly
arise in regard 10 the rights of the House Of Representa-
ves in carrying out treaties Where the constitution con-
fers unqualifedy Congress substantive power ebra
cling control distinct SUBJECT the implication seems
arise that it the intent OF that instrument to conhde
slow to contend that the trcaty-makng power is not re-
srced in its sphere of action by this intent of the cons-
tuition On the other hand, auxiliary power, embracing
particular subject but being liable to be employed when
it is necessary proper to out another granted
power is naturally subserven to obligations created by
any legal authority, such as that to make treaties.
,,nl, hoy-n
may be placed under moral cOnstran which is altogether
inconsistent with full discretion Thus, if the treay-ma-
king authority creates legitimate debt the action re.
qured Of Congress Ito appropriate temoney incidental
to the creation of the debt But where treaty spuates
for particular rate of duty for duty at ALL the
goods of foreign nation Congress is called upon to make
regulation upon subject which lies lcgitimaely in its
own ample discretion They not therefore matters APP
propriate for regulation by treaty merely.
Another limitation the treaty making power arises
from the fact that treaties are contracts and must be made
in good faith Like other contracts they vitinted by
fraud corrupt couson This strikes at the validity
their execution made in fraud, they arc no treaties and
course not obligatory With these principles settled lei
observe the practical operation of them in carrying
treaty. When the House of Representatives is called
upon take action, it should inquire first whether thu
treaty violates requires violation OF the letter or spr
r Of the constitution; then, whether it within the Legitimate
scope of the treatymalng power and further whether
is free from fraud corrupt colson any circumstan
attending its negotiation which would nvalidate any
other contract If the treaty be found to be proper on
in these respects it appears TO it is in high moral
constitutional sense the duty Of Congress take steps
carry out its provisions Its failure to do in such
case does not have sad weaken the obligation which
rests upon the good faith and honesty of the country
is only to postpone discharge OF the obligation.
t Every which gentlemen have instanced readily
be disposed Of in satisfactory upon the principle
which have laid down. If the treaty-makng author
should undertake to bring in territory condition tha
e it should be admitted State contrary to the spua
tons intention of the constitution supposed b.
the gentleman from Missouri; if it should agree that re
: blacks from jamaica should be transported and settled il
South Carolina as my colleague Mr. MlLIsoN has sug
gcsted if it should contract to establish titles OF nob
4 itv pass post faco laws make appropriations for h
support of the for than two years together, a
Il the from South Carolina has instanced OF cours
such requirements would be totally disregarded Some
them properly subjects OF treaty regulation; an
all are opposed either to the express terms of constu
3 ton or the nature of iederative system Wher
property il baraiucd for by treaty, al price greatly to
= large such circumstance npeaches the honesty OF tn
transaction implies fraud and would justify Congress
70 refusing the bargain not b0nu hde The stor
once that Queen Dido, coming from Tyre purchase
OF the Africans much land could be covered by
d bulls hide Cutting up the hide into strings she made
e embrace the site of ancient Carthage This was t b
% ginning nation which afterwards rendered immortal I'll
o term "uac faih" Treaties like that of Queen Did
is would bc little respected now
The doctrine which have thus laid down Is very dic
cnt from that which has been conended for by the gent
N man from South Carolina, Mr. BoYoE my colleague N
MulsoS and other gentlemen this oor who hold TIN
whenever legislative action Of Congress necessary
carry out treaty the House of Representatives becomes
part of the authority and the treaty is NJ
complete obligatory till it is ratified by the action OF u
r House have already noticed and, ms think retued
leading argument in favor of that position and one w'
or has been adduced by all the gentlemen
desire to notice more particularly some OF the q
D. puments of the gentleman from South Carolina. NJ
ID BoycE do so because the doctrine Is one which !