In summary, then, we may say that the United States Government though one of complete powers in all that relates to its deal-x ings with foreign States, is, in all other respects, one of limited, enumerated powers.

§ 191. The Manner of Exercise of the Treaty-making Power. The Constitution provides that 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."

It was not until the closing days of the Constitutional Convention that the President was associated with the Senate in the negotiation and ratification of treaties. Upon August 23d, however, Madison observed, "that the Senate represented the States alone, and for this as well as other obvious reasons it was proper that the President should be made an agent in the treaties." September 4th, the Committee to which undetermined sections of the Constitution had been referred, reported back the treaty clause in substantially the form in which it now appears. The only discussion which the clause then received was with reference to the size of the majority that should be required in the Senate for approval of treaties, and whether treaties of peace should not, by way of exception, require only a simple majority vote.

The second clause of Article VI of the Constitution declares that "This Constitution, and the laws of the United States nations, and not expressly withheld from Congress by the Constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in the payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress."

In the foregoing it will be observed that the court find the legal tender power implied in other powers expressly given by the Constitution to Congress, but the validity of this implication it founds on the nature of sovereignty as exemplified in the political world generally.

Again in United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) with reference to its powers of eminent domain, the court say: "The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and as said in Boom v. Patterson (98 U. S. 403; 25 L. ed. 206), requires no constitutional recognition."

6 Art. II, Sec. 2, Cl. 2.

which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the Constitution and laws of any State to the contrary notwithstanding." It had been suggested in the Convention by Gouverneur Morris that no treaty should be binding on the United States until ratified by a law, but, the disadvantages of such a provision being pointed out, the suggestion was voted own. A proposal was also made, but rejected because of the often necessity of secrecy, that the House of Representatives should participate with the Senate in the ratification of treaties.

That treaties duly ratified should bind the States, and be beyond their power to change, was never questioned in the Convention. Until August 23d, it was agreed that the General Government should have an express power to enforce by arms all treaties, but this provision was then stricken out for the reason that treaties being expressly declared to have the force of law, the federal judicial power would have sufficient authority to determine when they were infringed and to order their enforcement.

In the state ratifying conventions the fact that treaties were to be superior to state constitutions and laws created not a little fear of possible oppression. In Virginia Patrick Henry raised strong objection to this, and in several States there was urged the necessity of an amendment specifically declaring that no treaty should operate to change the Constitution of a State.

§ 192. The Negotiation of Treaties.

With respect to the manner in which treaty-making is, according to the Constitution, to be conducted, the first question that arises is as to the extent to which the Senate may properly participate not only in the ratification, but in the preliminary negotiation of international agreements.

In the same clause, indeed in the same sentence, of the Constitution in which provision is made for entering into treaties, it is provided that the President "shall nominate and by and

with the advice of the Senate shall appoint ambassadors, other public ministers and consuls," etc. Here the phraseology shows that the act of nominating the public officials mentioned, is clearly distinguished from their appointment. They are to be nominated by the President, but to be appointed by the Senate and President. The negotiating of treaties is not, however, by the phraseology of the treaty clause thus sharply distinguished from their ratification as regards the federal organs by which this negotiation and ratification is to be performed. The language is that the President" shall have power, by and with the advice and consent of the Senate, to make treaties," not that "he shall negotiate, and, with the consent of the Senate, ratify treaties."

As further indicative of an intended participation of the Senate in the negotiation of treaties is the fact, already adverted to, that in the Convention, until almost the last moment, it was agreed that the treaty-making power should be vested exclusively in the Senate, a body the membership of which at that time it was thought would remain comparatively small.

Actual practice exhibits frequent instances in which the Senate has participated in the negotiation of treaties.

During the first years under the Constitution the relations between the President and the Senate were especially close. In 1789 President Washington notified the Senate that he would confer with them with reference to a treaty with certain of the Indian tribes, and, on the next day, and again two days later, went with General Knox before that body for that purpose. Again, in 1790, President Washington in a written communication asked the advice of the Senate as to a new boundary treaty to be entered into

7 It would appear that the original intention of the framers of the Constitution was that the Senate should act more as an executive council than as an upper legislative chamber. See Ford, Rise and Growth of American

Politics. "The law makes the Senate the adviser of the President in the mak

ing of a treaty through all its stages- not that it requires that, in every instance, the President shall have the advice and consent of the Senate, but that, in every instance, the President has the right to have it, and correspondingly, in every instance, the Senate has the right to enforce it. It is a reciprocal right for a common benefit." Senator A. O. Bacon in the North American Review, April 19, 1906.

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with the Cherokees. So also, in 1791, he asked the Senate to advise him as to what answer to be made to the French Chargé des Affaires, with regard to a question of tonnage on foreign vessels.

John Quincy Adams in his Memoirs relates that Crawford told him that Washington went to the Senate with a draft of a treaty; that "they debated it, and proposed alterations, so that, when Washington left the Senate Chamber, he said he would be damned if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate."

In fact, however, the Presidents did continue occasionally to consult with the Senate in regard to the negotiation of treaties.

In 1794, when sending the name of John Jay as Envoy Extraordinary to England, Washington explained to the Senate his purpose in doing so; and the same was done by President Adams in 1797 when nominating the special commission to France."

§ 193. Powers of the Senate.

After the first few years under the Constitution, however, the practice on the part of the President of consulting the Senate with regard to the treaties to be negotiated, became an infrequent one, but yet not one wholly obsolete. Thus, in 1818, President Monroe asked the Senate whether he alone as Executive was constitutionally competent to arrange with Great Britain as to naval armaments upon the Great Lakes; and, if not, that they would give him. advice as to the proper agreement with reference thereto, that should be entered into. Again, in 1830, President Jackson asked the advice of the Senate as to the terms of a treaty to be negoti ated with the Choctaw Indians. His message, however, bears evidence to the fact that he is aware that he is departing from the practice of years immediately preceding, though not from

8 VII, 427.

9 For other instances in which during the early days, as well as at later times, the advice of the Senate has been asked by the President in the negotiation of international agreements, see Crandall, Treaties: Their Making and Enforcement, pp. 54 et seq. and an article in Scribner's Magazine, Jan., 1902, by Senator Henry Cabot Lodge, entitled "The Treaty-making Power."

that of the early period. He says: "I am aware that in thus resorting to the early practice of the government, by asking the previous advice of the Senate in the discharge of this portion of my duties, I am departing from a long and for many years unbroken usage in similar cases. But being satisfied that this resort is consistent with the provisions of the Constitution, that it is strongly recommended in this instance by considerations of expediency, and that the reasons which have led to the observance of a different practice, though very cogent in negotiations with foreign nations, do not apply with equal force to those made with Indian tribes, I flatter myself that it will not meet with the disapprobation of the Senate."10

In the article already referred to, Senator Lodge enumerates a not inconsiderable number of instances down to comparatively recent times in which the Senate has participated in the negotiation of treaties.

In a number of cases the Senate has by resolution suggested to the President that certain negotiations be initiated. Thus in 1835 the Senate requested the President to open negotiations with the Central American governments with a view to securing treaties granting protection to such individuals as might undertake the construction of an interoceanic canal. In 1888, President Cleveland was requested by the Senate to open negotiations with China for the regulation of immigration of subjects of that country into the United States. In 1880, by a concurrent resolution, the Senate and House of Representatives requested the Executive to seek the co-operation of other Powers in providing for the amicable settlement by arbitration of disputes which could be settled

10" Secretary Webster, in the important negotiations which he conducted for the adjustment of the northeastern boundary kept the Senate advised of the progress of the negotiations and it was mainly for that reason he was able to carry the treaty by an overwhelming vote in the Senate which was politically hostile to the administration. Secretary Buchanan, before signing the treaty adjusting the Oregon boundary, submitted the full text to the Senate and received an informal note approving it. President Jackson even consulted the Senate as to the propriety of refusing to accept the award (under a treaty) of the King of the Netherlands, and procured a note of that body advising him as to the course to be pursued." (J. W. Foster in Yale Law Journal, XI, 71.)