The Portland daily press., 1870-07-18
THE PR JESS.
Monday Morning, July 10, 1870.



The discussion on the Appropriation Bill to
carry out the Indian treaties revived qu,s-
ton which agitated our national eounoNs
and the country soon after the adop''oh vi
the Constitution: is the consent vi Tue
House of Representatives necessary 10 Tue
validity of a treaty requiring an appropria-
ton of money, or any other Official action ON
the part of Congress? In oiher words, has
the House a right TO exercise its discretion in
consenting TO the appropriation or law, or is
the making OF the appropriation an act le-
gay obligatory? May the House rightlully
inquire into the expeaiency Of the treaty, or
is the question whether the treaty has been
made by the President by and with the adj
advice and consent of thirds of the Sem
ators present the only proper inquiry?
The question arose under the admnistra-
ton of Washington, in 1895. He had in 1194
negotiated through John jay, a commercial
treaty with Great Britain, which was unsatis-
factory TO large portion of the public, though
probably the best that could then be obtained.
The House attempted to nullify the treaty by
refusing the means of carrying it into effect,
and among the leaders in this opposition
were such eminent statesmen as Madison and
Gallatin. A resolution was adopted, on mo-
ton of Edward Livingston, requesting tie
President to lay before the House copy Of
his instructions to Mr.. Jay together with the
correspondence and other documents relating
to the treaty. President Washington refused,
on the ground that those were matters with
which the House had nothing to do. The
right to nullify was claimed by the House, but
was not acted upon. A resolution was intro
duced that provision ought to be made by
law for carrying into effect with good faith"
the treaty with Great Britain. Speeches were
made by more than thirty members and in the
debate, great ability and eloquence were dis
played, and it was near the close that the Gel
ebrated speech of Fisher Ames was delivered
in favor of the treaty. This, with the firm
attitude of Washington, secured the success
of the resolution.
The question came up again in 1876 and
the binding force of treaties was acknowledge
ed. This may be considered leading case
OF this question, and has been a precedent
ever since. Though Mr.. Jefferson and his
school of statesmen took contrary view
which has at times been asserted by individu-
ais, it has never to any considerable extent
influenced the official action of Congress, and
has met the decided disapprobation of our
leading jurists. The Constitution declares
that treaties made "under the authority of the
United States, shall be the supreme law of the
land" and Chancellor Kent considers treaty
no less binding upon every branch of the gov
eminent than law of Congress.
1t may be urged that serious mischief might
be done there were no check upon the pow.
er OF the President and Senate. But it may
well be questioned whether greater mischie
would not flow from the existence of such
check. The government might be powerles:
to negotiate at some critical juncture if :
treaty could be nullifleG afterwards by anotli
er branch of the government. Government
must always be an affair of trust, and it is i'm.
possible by machinery to secure that trust
from abuse without making the government
poweriess 1or good.