Though all treaties, as declared by the Constitution, are parts of the supreme law of the land, they are not always, in whole or in part, self-exeeutory; but require, in order to be put into full force and effect, ancillary legislative action. Especially is this legislative assistance required when an expenditure of money is called for. The treaty-making power is able to obligate the United States internationally to the payment of sums of money. but is not able itself to appropriate from the United States treasury the amounts called, for, or compel the legislature to provide for their payment.

The question as to the obligation of Congress, morally or legally, to appropriate moneys, the payment of which by the United States is called for by agreement entered into with foreign countries by the treaty-making power, arose in 17Kb' in connection with Jay's treaty, which had been negotiated in 1791 and ratified in 1795. The treaty having been communicated to the House of Representatives in order that the moneys called for by it might be appropriated, Gallatin and other members urged that the House, before passing the appropriation asked for, was entitled to see all the papers in the executive department relating to the treaty in order that it might then pass upon the question of its merits, and refuse or consent to the appropriation as should to the House seem fit. A resolution calling upon the President for the papers was adopted, but Washington, not wishing to create a precedent, refused obedience to it, claiming that the House, being no part of the treaty-making power, was not entitled, of right, to see the documents in question.

Jefferson, in a letter to Monroe, stated1 the position as follows:

1 Works, IV, 134.

"We conceive the constitutional doctrine to be that though the President and Senate have the general power of making treaties, jet wherever they include in a treaty matters confided by the Constitution to the three branches of legislature, an act of legislation will be requisite to confirm these articles, and that the House of Representatives, as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate, and House of Representatives, to the President and Senate, and Piamingo, or any other Indian, Algerine or other chief."

Washington, in his special message refusing compliance with the request of the House's resolution, said: "Having been a member of the general convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government to this moment my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Semite, provided two-thirds of the Senators present concur; and that every treaty so made and promulgated thenceforward became the law of the land. It is thus that the treaty-making power has bun understood by foreign nations, and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they become obligatory. . . . As, therefore, it is per-fectlv clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request."

After some discussion, the House receded from its position and passed the laws and appropriations necessary for carrying the treaty into effect.

When the question of purchasing Louisiana came up, Jefferson, in conformity with his views stated in the letter to Monroe, at first proposed to submit the treaty to both Houses of Congress. He later decided, however, to. submit it to the Senate only, but informed the House that as soon as the treaty should be approved by the Senate, it would be submitted to Congress "for the exercise of their functions as to those conditions which are within the powers vested by the Constitution in Congress." And, after the treaty had been approved and ratified, he sent it to Congress saying: "You will observe that certain important conditions cannot be carried into execution but with the aid of the legislature." These legislative measures were enacted, but without any explicit statement of the principle which the House had urged in 1796.2

The question was again discussed in connection with the appropriation called for in the treaty of 1867 purchasing Alaska from Russia. After some debate, the House appropriated the money, but prefaced the act with the assertion that "the subjects embraced in the treaty are among those which by the Constitution are submitted to Congress and over which Congress has jurisdiction; and for these reasons it is necessary that the consent of Congress should be given to the said stipulations, before the same can have full force and effect."

The Senate objected to this statement, and, after having referred the matter to a conference committee, the following compromise declaration was agreed upon: "Whereas, the President of the United States has entered into a treaty with the Emperor of Russia, . . . and whereas said stipulations cannot be carried into full force and effect, except by legislation to which the consent of both Houses of Congress is necessary; therefore be it resolved, etc."3

2 Cf. Moore, International Law Digest, V, § 759.

What has been said regarding the power of Congress to refuse to appropriate moneys for the payment of which the United States has been obligated by the treaty-making power applies with equal force to whatever other legislation may be required in order to put a treaty into full force and effect.

Though, as is seen from the foregoing, it cannot be said that precedent has established the doctrine one way or the other, it is quite clear that whatever moral obligation, as a matter of good faith, or principle of expediency, may urge Congress to pass appropriation or other laws required for putting into full force and effect agreements entered into by the treaty-making power, there is no constitutional means by which, in case of refusal, such legislation may be compelled; nor is there any constitutional right on the part of the executive or judicial branches of the Federal Government to supply the lacking legislation. A treaty is by the Constitution declared to be a law of the land, and where its provisions operate directly upon a subject, it may be enforced as such without further legislative sanction. But where the treaty is not thus directly executory, the executive and judicial departments must wait until Congress has enacted the necessary legislation. Justice McLean declares: "A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign government may be presumed to know that so far as the treaty stipulates to pay money the legislative sanction is required."4

In Foster v. Neilson5 Chief Justice Marshall with reference to the legal character of a treaty, as fixed by United States Constitutional Law, says: "Our Constitution declares a treaty to be the law of the land. It is. consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without aid of any legislative provision. But when the terms of the stipulation import a contract - when either of the parties engages to perforin a particular act - the treaty addresses itself to the political, not to the judicial department; and the legislature must execute the contract before it can became a rule for the court."6

3 For other discussions in Congress upon this subject, see Butler, Chapter X (The Federal Control Of The Form Of State Governments. 75. State Autonomy). 4 McLean, Constitutional Laic, p. 347. As to whether the last statement of McLean is correct or not, see post, Section 221. 5 2 Pet. 253; 7 L. ed. 415.