Imágenes de páginas

A statute making it a felony for a white person to On an accusation of murder, it being claimed that marry a negro or a person of mixed blood is not in certain foot-prints were those of the prisoner, the conflict with the Federal Constitution. Frasher v. prosecuting attorney brought a pan of mud into State, 3 Tex. Ct. App. 263; page 131.

court and placed it in front of the jury, and havFarming lands within a city are subject to muni- ing proved that the mud in the pan was about as cipal taxation, although not benefited. Cary v. soft as that where the tracks were found, called on City of Pekin, 88 Ill. 154; page 543.

the prisoner to put his foot in the mud in the pan. CONTRACT. — Under a statute authorizing school On objection, the court instructed the prisoner that district boards to provide necessary appendages” it'was optional with him whether he would comply. for school-houses, there is no authority to purchase The prisoner refused, and the court instructed the a stereoscope and stereoscopic views. School Dis jury that his refusal was not to be taken against trict v. Perkins, 21 Kans. 536; page 447.

him. The prisoner being convicted, held, that he A note given on the completion and settlement of was entitled to a new trial. Stokes v. State, 5 Baxt. an illegal business, by one of the partners therein 619; page 72. to another, for profits thereof, is valid and enforce On the trial of an indictment for seduction, a able. De Leon v. Trevino, 49 Tex. 88; page 101. child, three months old, alleged to have been born

COVENANT. — A sealed agreement, for a valuable of the alleged intercourse, cannot be exhibited to consideration, not to make a will to the prejudice of the jury as corroborative evidence for the prosecuthe rights of the covenantor's heirs in his estate, is tion on account of its resemblance to the defendvalid. Taylor v. Mitchell, 87 Penn. St. 518; page | ant. State v. Danforth, 48 Iowa, 43; page 387. 383.

In his argument to the jury, on the trial of a CRIMINAL LAW. — The criminal offense of adul- felony, the defendant's counsel said in regard to a tery is not excused by the absence of a guilty in- question of foot-prints, that the jury might try for tent, unless a guilty knowledge is part of the statu- themselves whether such worn-out boots as the wittory definition, nor by the subsequent inter-marriage nesses for the prosecution described would make of the parties. Fox v. State, 3 Tex. Ct. App. 329; such tracks as they described. Some of the jury, page 144.

without leave, made the experiment out of court. One who secretes himself in a dwelling-house at Held, such error as invalidated a conviction. State night, with intent to commit a felony therein, and v. Sanders, 68 Mo. 202; page 782. being discovered, escapes by unlocking or opening DAMAGES. — In an action of assault and battery a door, is not guilty of burglary. Adkinson v. State, exemplary damages are not proper. Boyer v. Barr, 5 Baxt. 569; page 69.

| 8 Neb. 68; page 814. A banker, suspecting defendant of an intention EVIDENCE. — The presumption of a marriage beof robbing his bank, employed detectives to act as tween A. and B., founded simply upon habit and decoys and induce him to enter the bank, with in repute, is overcome by proof of a subsequent actual tent to rob it. Held, that the defendant could not marriage between A. and C. during the life-time of be convicted of burglary. Speiden v. State, 3 Tex. B. Jones v, Jones, 48 Md. 391; page 466. Ct. App. 156; page 126.

FRAUDULENT CONVEYANCE. – Property exempt In an indictment for larceny of a coffin containing from execution is not susceptible of fraudulent the remains of a human being, the coffin is properly | alienation. Derby v. Weyrich, 8 Neb. 174; page charged to be the property of the person who fur- | 827; Carhart v. Harshaw, 45 Wis. 340; page 752. nished it and buried the deceased. State v. Dæpke, INTEREST. -- A contract to pay a sum certain at a 68 Mo. 208; page 785.

future day, with interest at a conventional rate, An indictment for printing and publishing ob- nothing being said as to the rate of interest after scene pictures of naked girls is not sustained by the principal sum becomes due, bears interest at the proof of printing and publishing obscene pictures conventional rate until it becomes due, and from of girls naked only above the waist. Commonwealth that time, upon the aggregate of principal and inv. Dejardin, 126 Mass. 46; page 652.

terest at the legal rate. Briggs v. Winsmith, 10 S. A statute made it felony for any person, under C. 133; page 46. promise of marriage, to have illicit carnal inter- LANDLORD AND TENANT. — Upon leased premises, course with a female infant of good repute for a water-pipe and gutter, not defective in their origichastity. Held, that the promise need not be a nal construction, became stopped up, so that the valid one in fact, if the infant understood it to be water flowed upon the door steps of the leased valid. Callahan v. State, 63 Ind. 198; page 211. house, forming ice, upon which a third person fell

A person indicted for selling intoxicating liquors and was injured. As between lessor and lessee, in may show that he bought and sold the liquor with the absence of contract to the contrary, it is the the understanding and believing that it was not in- duty of the latter to repair the pipe, or remove the toxicating liquor. Farrell v. State, 32 Ohio St. 456; ice, and for failure in this he is liable, and not the page 614.

landlord. Shindelbeck v. Moon, 32 Ohio St. 264; In a criminal case it is error to instruct the jury page 584. that evidence of good character is of but slight Lost PROPERTY. — The plaintiff, while engaged weight and entitled to but little consideration, when as an employee in the defendant's paper mill, in the proof is clear and direct. State v. Northrup, 48 assorting a bale of old papers which the defendant Iowa, 583; page 408.

had bought for manufacture, found a number of bank notes, in a clean unmarked envelope, in a bale, condition the recipient shall be liable to summary and delivered them to the defendant for the purpose arrest upon the governor's warrant; and upon the of ascertaining if they were good, and upon his breach of the first condition, may revoke the parpromise to return them. The defendant refusing to don and recommit the recipient. Arthur v. Craig, return them upon demand, held, that the plaintiff 48 Iowa, 264; page 395. was entitled to recover their value from him. I PARENT AND CHILD. - A father purchased and Bowen v. Sullivan, 62 Ind. 281; page 172.

I paid for a policy of insurance on his own life in the MARRIAGE. — A married woman may bind her name of his daughter, and for her sole benefit, and separate estate by a contract for compensation of an paid the annual premiums until his death. Held, attorney-at-law for his services in defending her in- that the amount of the policy and of the annual terests in a legal proceeding in reference thereto or premiums after its purchase were advancements. affecting the same, although the enabling statutes | Rickenbacker v. Zimmerman, 10 S. C. 110; page 37. do not expressly authorize such employment. Por- PARTNERSHIP. -- As against a general creditor of ter v. Haley, 55 Miss. 66; page 502.

a solvent partnership, one of the firm, with the conMASTER AND SERVANT. — In an action by the ad-sent of his copartners, may in good faith make an ministrator of an employee injured in escaping from absolute transfer of the entire partnership assets in defendant's burning mill, the court charged that if payment of his individual debt. Schmidlapp v. the room where the plaintiff worked was suitable, Currie, 55 Miss. 97; page 530. and there were proper means of extinguishing fires, Where a settling partner, after dissolution, gives and the means of egress and escape were suitable a draft in payment of a partnership debt, he cannot and proper, and in order and ready for use, there waive protest so as to bind his former dormant cocould be no recovery, and refused to charge that it , partner. Mauney v. Coit, 80 N. C. 300; page 80. was the defendant's duty to provide means of giv- SCHOOLS. --- In matters where the board of control ing alarm in case of fire. Held, no error. Keith v. of public schools have made no regulations for the Granite Mills, 126 Mass. 121; page 666.

government of the schools, the teachers stand in MORTGAGE. — A mortgage of a crop to be planted loco parentis, and have inherent power to suspend is valid, the mortgagee having taken the property | pupils, for cause, and mandamus will not lie to cominto his possession after it is acquired and before pel such a teacher to reinstate such a suspended puthe rights of others as creditors or purchasers have pil. State er rel. Burfee v. Burton, 45 Wis. 150; attached thereon. Moore v. Byrum, 10 S. C. 452; | page 706. page 58.

SLANDER AND LIBEL. — Falsely and maliciously MUNICIPAL CORPORATION. – A municipal ordi- calling a justice of the peace “ a damned fool of a nance requiring occupants and owners of premises justice," is slanderous in itself. Spiering v. Andre, to remove snow from the adjacent sidewalks is in- | 45 Wis. 330; page 744. valid. Gridley v. City of Bloomington, 88 Ill. 554; I STATUTE. — One who sells his own goods at aucpage 566.

| tion is an auctioneer within the meaning of an ordiNATIONAL BANK. — State courts have jurisdictionnance requiring persons exercising the business of of actions to recover illegal interest reserved by an auctioneer to be licensed. City of Goshen v. National banks upon loans. Bletz v. Columbia Na- | Kern, 63 Ind. 468; page 234. tional Bank, 87 Penn. St. 87; page 343.

SUNDAY. — While the plaintiff was driving on a NEGLIGENCE. — In the absence of express con- business errand on Sunday, the defendant's dogs tract, a carrier of passengers by hackney coaches is barked at and frightened his horse, thereby causing liable for injuries resulting from his negligence to a an injury to the plaintiff. Held, that the plaintiff gratuitous passenger. Lemon v. Chanslor, 68 Mo. could recover damages therefor, although a statute 340; page 799.

prohibited labor on Sunday Schmid v. Humphrey, In an action for injuries by fire to buildings adja- | 48 Iowa, 652; page 414. cent to a railway, caused by negligent management A church subscription made on Sunday is void, or construction of the defendants' locomotives, it and is not made valid by a subsequent oral acappeared that the plaintiff had suffered an accumu- knowledgment and promise to pay it, without conlation of hay and shavings, between the buildingssideration. Catlett v. Trustees of the V. E. Church burned, and under one of them which was placed of Sweetster Station, 62 Ind. 365; page 197. on blocks, with the side next the railway open.! SURETY. —- Where a joint note is executed by a Held, that this was evidence of contributory negli-l principal, and by a surety not otherwise liable, and gence which should be submitted to the jury. Mur the latter dies leaving the principal surviving, his phy V. Chicago & North-western Railway Co., 45 estate is not discharged from the obligation. SuWis. 222; page 721.

song v. Vaiden, 10 S. C. 247; page 50. PARDON. — The governor may annex to a pardon

WASTE. — An action for waste is not defeated by the condition that the recipient shall refrain from

the transfer of the premises pending the action by

the plaintiff to the defendant. Dickinson v. Mayor, the use of intoxicating liquors as a beverage during

48 Md. 583; page 492.

sex the remainder of the term of sentence; that he

WILL. — If a testator dies leaving an unrevoked shall use proper exertions for the support of his

will, which cannot be found after his death, parol mother and sister; and that he shall not during the evidence is competent to prove its contents, and as same time be convicted of any criminal offense in the thus proved it may be admitted to probate. FosState; and may provide that for a violation of either' ter's Appeal, 87 Penn. St. 67; page 340.


validity. The President cannot take the place of the Senate, and the Senate cannot take his place.

Neither can exchange functions with the other. BY SAMUEL T. SPEAR, D. D.

The powers of both operate independently of each

other, and are distinct in the time and mode of their THE Constitution, in article 2, section 1, declares action. The design of thus restraining the President T that "the executive power shall be vested in a l in the exercise of the treaty power confided to him is President of the United States of America." In enu to protect the nation against any misuse or misapplimerating the items embraced in this power, it further cation of the power declares, in section 2 of the same article, that the The Constitution, of course, makes no grant of President “shall have power, by and with the advice power for its own destruction, or the violation of its and consent of the Senate, to make treaties, provided own provisions; and, hence, 'treaties, in order to be two-thirds of the Senators present concur."

valid as laws of the land, must be consistent with the The power “to make treaties” is the power to do or several provisions of this instrument. On this point authorize to be done the several things uaturally con Mr. Justice Story observes: “But though the power is nected with the process, including negotiation, prepa thus general and unrestricted, it is not to be so conration, agreement upon terms, signature, exchange of strued as to destroy the fundamental laws of the State. ratifications, proclamation; indeed, all the formalities A power given by the Constitution cannot be conand steps usual in such transactions between nations. strued to authorize the destruction of other powers It is not a power directly to unmake, cancel, or modify given in the same instrument. It must be construed, treaties, but simply a power to make them; and, therefore, in subordination to it, and cannot supersede hence, the only way in which the President can change or interfere with any other of its fundamental provisor abrogate existing treaties is by making other treat ions." Story's Const., $ 1508. The remark of Mr. Jusies that will have this effect. He has not been trusted tice Miller, in The Loan Association v. Topeka, 20 with the power of directly annulling or repealing a Wall. 655, that “the theory of our government, State treaty. A treaty, being part of the supreme law of the and National, is opposed to the deposit of unlimited land, binds his action as really as it does that of courts, power anywhere,” is just as applicable to treaties as it so long as it is in force. If repealed, except by making is to the legislation of Congress. In People v. Gerke, 5 another treaty, the repealing process must be an exer Cal. 381, it was said that the treaty power is subject to cise of legislative power.

“the exceptions that necessarily flow from a proper The term "treaties," as occurring in this grant of construction of the other powers granted and those power, is used in the generic sense, and means formal prohibited by the Constitution." In Pierce v. State, contracts between two or more nations, with no enu 15 N. H. 336, it was said by the court that “the politimeration of the subjects upon which the power may cal rights of the people of the several States as such are operate, and, as to these subjects, with no express lim not subjects of treaty stipulations." itation upon the exercise of this power. Chief Justice It is conceivable that a treaty, made by the PresiTaney, in Holmes v. Jennison, 14 Pet. 540, said: “The dent and ratified by the Senate, might in some or all power to make treaties is given by the Constitution in of its stipulations be repugnant to the Constitution general terms, without any description of the objects itself; and, manifestly, such stipulations would not be intended to be embraced; and, consequently, it was entered into “under the authority of the United designed to include all those subjects which, in the or States." They would be usurpations of power not dinary intercourse of nations, had been made subjects warranted by this authority; and it would not be the of negotiation and treaty, and which are consistent duty of Congress legislatively to provide for their exewith the nature of our institutions and the distribu cution, or of courts to treat them as laws. tion of powers between the general and the State goy The only treaty power, either known to or bestowed ernments."

by the Constitution, is granted to the President, subMr. Justice Story says: “The power to make treat- ject in its exercise to the advice and consent of the ies is by the Constitution general; and of course it Senate. Congress, as such, is not, and the President embraces all sorts of treaties, for peace or war, for is, the grantee; and no other part of the Constitution commerce or territory, for alliance or succor, for in contains the slightest intimation that the making of demnity for injuries or payment of debts, for the treaties comes within the scope of the powers of Conrecognition and enforcement of principles of public | gress. The conclusion is that the power is exclusively law, and for any other purposes which the policy or lodged with the President, in connection with the interests of independent sovereigns may dictate in Senate, and that any attempt to substituto the action their intercourse with each other.” Story's Const., of Congress for that of the President in the making of S 1508.

treaties, or to do, by legislation or by joint resolutions The framers of the Constitution, in omitting to of the two houses of Congress, what can only be done enumerate the things intended to be embraced in the by the treaty power, would, if successful, be subvertreaty power, evidently meant to leave the exercise of sive of the Constitution itself. Congress can declare this power to be settled by established usage in the in- war and provide by law for its prosecution; but it tercourse of nations, taken in comection with what cannot make a treaty of peace. There is no doubt ever circumstances or necessities might at any time that the President may, hy a treaty, acquire new terarise in the history of the United States, and also in ritory, and thus incorporate both the territory and its connection with the manner in which the powers of inhabitants into the Union. But the Constitution nogovernment are distributed in this country. Hence where bestows this power upon Congress. The power the grant of the power was made in general terms. It of Congress to admit “new States" into the Union could not well have been more definite without im relates to States formed by a division or junction of pairing the usefulness and efficiency of the power. States already in the Union, or to States organized out

The President, in exercising the power, is, however, of territory belonging to tho United States, and not to subject to "the advice and consent of the Senate." foreign States. The annexation of Texas by a joint Ņo treaty made by him has any validity, unless rati resolution of the two houses of Congress was in effect fied by two-thirds of the Senators present at the time an exercise of the treaty power by Congress, without when the Senate acts upon the subject. The concur any warrant therefor in the Constitution. The resolurence of the Senate, though subordinate and auxiliary, |tion was passed in the Senate by a majority of only and never primary, in the process of making a treaty, two, which is much less than the majority necessary is, nevertheless, indispensable to its completion and I to ratify a treaty.

Some treaty stipulations are self-operating in the a foreign nation in respect to the legislative action of sense that they need no legislation to carry them into Congress, so far as such legislation is necessary to the effect. They act directly, proprio vigore, upon the sub- fulfillment of the treaty, and by this contract Conject-matter involved, and hence become ipso facto a gress is absolutely bound. part of “the supreme law of the land" without any The other theory, while, conceding that the making legislation by Congress. Chief Justice Marshall, in of treaties belongs to the President and the Senate, Foster v. Neilson, 2 Pet. 253, said: “Our Constitution and not to Congress, nevertheless, maintains that when declares a treaty to be the law of the land. It is, con the treaty power is so exercised as to involve stipulasequently, to be regarded in courts of justice as equiv tions whose subject-matter comes within the scope of alent to an act of the Legislature whenever it operates the constitutional powers of Congress, and which canof itself without the aid of any legislative provision." | not be fulfilled without its action in the passage of Mr. Justice lredell, in Ware v. Ilyllon, 3 Dall. 199, re- | laws, the treaty is not to be considered perfect and fers to such stipulations as executed contracts, “because complete until such action shall be had, and that in from the very nature of them they require no further respect to this action Congress has the right to judge act to be done,” in order to give them legal effect. The and determine upon its own responsibility, and should fourth article of the treaty of peace of 1783 with Great always exercise this right. Congress, according to Britain was held to be of this character; and hence the this theory, is not bound blindly and passively to folSupreme Court of the United States declared certain low the will of tbo treaty power. It may and should laws of Virginia to be void on the ground of their in deliberate and decide, within the sphere of its own consistency with this article, without any legislation powers, upon the expediency or inexpediency of doing by Congress to make the article operative. It was the things necessary to make the treaty one of perfect operative of itself, and, being by the Constitution a obligation, and may adopt or withhold the measures part of “the supreme law of the land,” it furnished a indispensable to the result. Whether money shall be rule for the guidance of the court.

appropriated to fulfill the stipulations of a treaty is a Other stipulations of treaties are, however, not thus question for Congress to determine in the exercise of self-operative. They require legislative action in order | its own discretion, and until such appropriation shall to carry them into effect. They are hence contracts in be made, the treaty is simply one of imperfect obligafuturo, stipulating for the doing of what the treaty tion, and is not a law of the land. power camot do, and what can be done only by the Such are the two theories which have been held in legislative department of the government. A stipula- regard to the relation of Congress to the exercise of tion for the payment of money to a foreign nation the treaty power. Both theories were the subject of a presents a case of this kind. The Constitution, in ar- prolonged and earnest debate in the House of Repreticle 1, section 9, expressly declares that “no money sentatives iu 1796, when the treaty with Great Britain shall be drawn from the Treasury, but in consequence known as Jay's treaty was under consideration. The of appropriations made by law." Law here means treaty contained stipulations repugnant to the then law enacted by Congress. The term has been uni existing revenue laws of the United States, and also formly so construed. If the President makes a treaty required the appropriation of money. These features which contemplates the payment of money to a for brought up the question whether it was not fully eign nation, not a dollar of the money can be drawn within the legislativo competency of the House of Repfrom the Treasury unless Congress shall see fit to make resentatives, as one branch of Congress, to judge as to an appropriation for this purpose. Such a treaty | the expediency of adjusting the laws to the treaty, and would not be self-executing, but would be dependent | making the necessary appropriation of money. On in this respect on the legislative will of Congress. Nei- | this question there were two parties strongly arrayed ther the President nor any United States court can against each other, each affirming one of the above appropriate the public money for any purpose, except theories. The debate was continued daily from the when acting under authority bestowed by Congress. hth of March to the 7th of April; and as the result, The Constitution makes Congress the exclusive guard the Ilouse, by fifty-seven yeas to thirty-five nays, ian of the public treasure.

passed the following resolution : Here then is a question which, on two memorable “Resolved, That, it being declared by the second secoccasions, was the subject of protracted debate in the 1 tion of the second article of the Constitution, that the House of Representatives. That question is whether

President shall have power, by and with the advice and the stipulations of a treaty are so binding upon Con

consent of the Senate, to make treaties, provided two

thirds of the Senators present concur, the House of gress as to supersede all its discretion in the premises,

Representatives do not clain any agency in making and require it to register in the form of law the decree

treaties; but, that when a treaty stipulates regulations of the treaty power, by supplying the legislation neces on any of the subjects submitted by the Constitution sary to give effect to the treaty. If, for example, the to the power of Congress, it must depend for its exetreaty contains a promise to pay money which the cution, as to such stipulations, on a law or laws to be

passed by Congress. And it is the constitutional right President, without the action of Congress, cannot

nd duty of the House of Representatives, in all such fulfill, must Congress legislatively provide for its ful

cases, to deliberate on the expediency or inexpediency fillment by appropriating the money, asking no ques of carrying such treaty into effect, and to determine tions, and exercising no discretion in the matter? and act thereon as in their judgment may be most This is a very interesting and has been a much debated conducive to the public good.” Benton's Abridgiñent, question. Two directly opposite theories have been

vol. 1, p. 696. held in regard to it.

Subsequently the House passed another resolution, The treaty power, according to one of these theories, | by fifty-one yeas to forty-eight nays, declaring it to be is so plenary and complete that a treaty, as soon as expedient to carry the treaty into effect. In the debate made by the President and ratified by the Senate, is, on the former resolution, Mr. Gallatin said: like the Constitution itself, in all cases a part of “the " A treaty is unconstitutional if it provides for doing supreme law of the land," and that, in respect to such such things, the doing of which is forbidden by the provisions as require legislative action to make them | Constitution; but if a treaty embraces objects within effective, Congress has no discretion as to whether the the sphere of the general powers delegated to the Fedenecessary legislation shall be supplied or not, and no

ral government, but which have been exclusively and right to judge of the expediency thereof, but must

specially granted to a particular branch of government,

say to the legislative department, such a treaty, though obey the sovereign behests of the treaty power by

| not unconstitutional, does not become the law of the doing what that power has stipulated shall be done. land until it has obtained the sauction of that branch." The treaty power has, in effect, made a contract with | Id., p. 64.

So, also, Mr. Madison, referring to those "cases certain changes in the revenue laws of the United where the Constitution had given express and specific States, but which, when submitted to the Senate, was power to the Legislature,” said:

rejected. The Senate Committee on Foreign Rela" It was to be presumed that, in all such cases, the tions, reporting on the subject through Senator Choate, Legislature would exercise its authority with discre- of Massachusettes, recommended the rejection of the tion, allowing due weight to the reasons which led to

treaty “on a single ground,” which was stated as the treaty, and to the circumstances of the existence of the treaty. Still, however, this House, in its legis

follows: lative capacity, must exercise its reason; it must de “In the judgment of the Committee, the Legislature liberate, for deliberation is implied in legislation. If is the department of the goverument by which comit must carry all treaties into effect, it would no longer merce should be regulated and the laws of revenue be exercise a legislative power; it would be the mere in passed. The Constitution in terms communicates the strument of the will of another department, and would power to regulate commerce and to impose duties to have no will of its own. Where the Constitution con- | that department. It communicates it in terms to no tains a specific and peremptory injunction on Congress other. * * * The Committee believe that the general to do a particular act, Congress must, of course, do the rule of our system is, indisputably, that the control of act, because the Constitution, which is paramount trade and the function of taxing belong, without over all the departments, has expressly taken away the abridgment or participation, to Congress. They infer legislative discretion of Congress. The case is essen this from the language of the Constitution, from the tially different where the act of one department of nature and principles of our government, from the government interferes with a power expressly vested theory of Republican liberty itself, from the uuvaried in another, and nowhere expressly taken away. Here practice evidencing the universal belief of all in all the latter power must be exercised according to its periods and of all parties and opinions. * * * Upon nature; and if it be a legislative power, it must be this single ground then, the Committee advise that the exercised with that deliberation and discretion which treaty be rejected.” is essential to the nature of legislative power.” Id., p. 651.

This was equivalent to saying that President Tyler The whole debate related to two questions; and

had undertaken to do by a treaty what, if done at all,

should be done by Congress. The Senate adopted the both, though distinct, were simultaneously carried

report, and thus affirmed the doctrine of the Commitalong in the same discussion. The first was whether

tee, and heuce no question in respect to this treaty the House of Representatives has the right to refuse

came before the House of Representatives for conassent to a treaty which requires an appropriation of

sideration. money, or regulates commerce, or requires the exercise

President Grant, on the 30th of January, 1875, conof any other power specifically granted to Congress.

cluded a commercial treaty with the King of the This question was answered in the affirmative by a

Hawaiian Islands, the first article of which provided for decided majority; and this view Mr. Madison sup

admission, into the ports of the United States, of cerported in an elaborate speech. The second question was whether the commercial treaty with Great Britain,

tain articles, being the growth, manufacture or prohaving been made, should, in the then existing circum

duce of those Islands, free of duty. The second stances, be carried into effect by the necessary legisla

articlo provided for admission, into the ports of the

Hawaiian Islands, of certain articles, being the growth, tive action; and this question was also answered in the

manufacture, or produce of the United States, free of affirmative by a small majority. The House of Representatives, however, in the second answer, did not

duty. The fifth article provided that the treaty should

take effect after ratification and due proclamation), abandon the position taken in the first. It simply de

"but not until a law to carry it into operation shall cided that it was expedient to give its assent to the

have been passed by the Cougress of the United States necessary legislation for the execution of the treaty.

of America.” 19 U. S. Stat. at Large, 625. This The commercial treaty between the United States

treaty was confirmed by the Senate, March 18, 1875. and Great Britain, the ratifications of which were exchanged on the 22d of December, 1815, involved a

The treaty proposed a change in the revenue laws of change in the rate of tonnage imposed on British ves

the United States; and Cougress, on the 15th of

August, 1876, passed an act to give effect to the prosels, and of imposts on articles imported in such vessels. 8 U.S. Stat. at Large, 228. In 1816 the ques

posed change. 19 U. S. Stat. at Large, 200. In the tion was sharply debated in the House of Representa

House of Representatives, the relations of Congress to tives, whether the law should be so altered as to con

the treaty power were again discussed. General Banks,

in advocating the necessary legislation to carry the form to the stipulations of this treaty. See Benton's Abridgment, vol. 5, pp. 446-546. The same general

treaty into effect, insisted that the President having

negotiated the treaty with the approval of the Senate, grouud was traversed in the debate that had been pre

the House of Representatives had no discretion as to viously traversed in the debate of 1796. The two

the legislation needed to make it operative. It had houses of Congress at last agreed to the report of a

but one duty to perform, and that was to pass the bill conference committee in the following words:

then pending. Mr. Tucker, of Virginia, and Mr. “That so much of any act as imposes a higher duty of tonnage, or of imposts on vessels and articles im

Thomas, of Maryland, in their replies, defended the ported in vessels of Great Britain, than on vessels and

view asserted in the resolution of the House of Reprearticles imported in vessels of the United States, con sentatives in 1795. trary to the stipulations of the convention between the There was really no necessity for the discussion of United States and his Britannic Majesty, the ratifica this constitutional question, since the President, in the tions whereof were mutually exchanged the twenty

fifth article of the treaty, had taken the precaution to second day of December, one thousand eight hundred and fifteen, be, from and after the date of the ratifica

provide that it should not go into effect “until a law tion of the said convention, and during the continuance

to carry it into operation shall have been passed by the thereof, deemed and taken to be of no force or effect." Congress of the United States of America." If no 3 U. 8. Stat. at Large, 255.

such law had been passed, the treaty, by its own terms, This conformed the law to the treaty, as was done in would not have become operative, and hence, would 1796; and yet the question, as to the obligation of the not have created any international obligation. It was Ilouse of Representatives to comply with and carry not in fact a completed treaty until the legislative out the provisions of a treaty that cannot be executed assent of both houses of Congress had been obtained. without its concurrence, was left as an undetermined Which of the views, ils to the treaty power in its problem.

relations to Congress, presented in this historical President Tyler, in 1814, negotiated a treaty with | sketch, is the one that best harmonizes with the ConPrussia and the other States of the Germanic Associa stitution of the United States? The answer to this tion of Customs and Commerce, which provided for ' question is reserved for another article.

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