any person, who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed. I cannot but think that that must, to a great extent, depend upon the purview of the particular statute, and the language which they have there employed, and more especially when, as here, the act with which the court have to deal is not an act of public or general policy, but is rather in the nature of a private legislative bargain with a body of undertakers as to the manner in which they will keep up certain public works. case of Couch v. Steel therefore is no authority to regulate our decision in the present case. I am of opinion therefore that the declaration discloses no cause of action, and that the judgment of the Court of Exchequer must be reversed." Cockburn, C. J., and Brett, L. J., concurred.

The

It seems to us that Couch v. Steel is distinguishable on the ground that there the obligation was a general one, touching all the inhabitants of the realm, who should choose to " go down to the sea in ships," and not restricted to particular persons, or the residents of a particular place.

CONGRESS AND THE TREATY POWER.

CH

BY SAMUEL T. SPEAR, D. D.

HANCELLOR KENT, referring to a treaty of peace made by the President and Senate, says: "If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the Legislature, the treaty is morally obligatory upon the Legislature to pass the law, and to refuse it would be a breach of the public faith. The department of the government that is intrusted by the Constitution with the treaty-making power is competent to bind the national faith in its discretion. ** * All treaties made by that power become of absolute efficacy, because they are the supreme law of the land." Kent's Com. (3d ed.), vol. 1, pp. 165, 166.

The same eminent jurist, in his lecture "On the President," further says:

"If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but, without such concurrence, a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law." Id., p. 286.

The substance of the doctrine contained in these extracts may be stated in the two following propositions: (1) That every treaty made by the President of the United States, with the consent and approval of the Senate, is, ipso facto, a supreme law of the land. (2) That if any legislative action on the part of Congress, including the action of the House of Representatives, be necessary for the execution of such a treaty, or any part of it, then it is the duty of Congress to supply this legislation, and thus provide for carrying the treaty into effect, accepting the decision of the treaty power as obligatory and conclusive on this point, and, of course, exercising no discretion as to the expediency or inexpediency of the legislation. On this ground the Chancellor condemns the resolution passed by the House of Representatives in 1796, when the Jay treaty with Great Britain was under consideration.

In regard to the matter involved in both of these propositions, Mr. Justice McLean, in Turner v. American Baptist Missionary Union, 5 McLean, 344, gives the following opinion:

"A treaty under the Federal Constitution is declared to be the supreme law of the land. This unquestionably applies to all treaties where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be the supreme law of the land where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as where the appropriation of money is required, the treaty is not perfect. It is not operative in the sense of the Constitution, as money cannot be approThis results priated by the treaty making power. from the limitations of our government. The action of no department of the government can be regarded as a law until it shall have all the sanctions required by the Constitution to make it such. As well might it be contended that an ordinary act of Congress, without the signature of the President, was a law as that a treaty which engages to pay a sum of money is in itself a law. And in such a case the representatives of the people and the States exercise their own judgment in granting or withholding the money. They act upon their own responsibility, and not upon the responsibil ity of the treaty making power. It cannot bind or control the legislative action in this respect, and every foreign government may be presumed to know that so far as the treaty stipulates to pay money the legislative sanction is required."

This supposes that some treaties may require the legislative action of Congress for their execution. Such treaties, according to Mr. Justice McLean, are "not perfect," and not supreme laws, and "not operative in the sense of the Constitution," until the requisite legislation shall be had; and, as to the question of such legislation, the two houses of Congress are to exercise their own judgment, and act upon their own responsibility, and not upon that "of the treaty making power." This right of Congress every government, in making a treaty with the United States, may be presumed to know.

Chief Justice Marshall, in stating the opinion of the court in Foster v. Neilson, 2 Pet. 253, said:

"A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. 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 the aid of any legislativo provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform 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 become a rule for the court."

This opinion was subsequently referred to and reaffirmed in United States v. Arredondo, 6 Pet.691, and again reaffirmed in United States v. Perecheman, 7 Pet. 51. Some treaties, according to this opinion, require no legislation for their execution; and when this is the fact a treaty is equivalent to an act of Congress, being a part of the supreme law of the land, and, of course, a rule to guide the action of a court. Other treaties require legislation for their execution, because their terms import contracts to be fulfilled in futuro; and treaties of this character must be legislatively executed before they become operative as laws or a guide for courts. Whether a treaty belongs to one or the other of these classes is to be determined by examining its terms. In the one case it is a law of itself as soon as duly made, and in the other it "addresses itself" to the legislative and not to the judicial department of the government, and must await its affirmative action before it can become the rule of a court.

and definite terms in article 1, section 8, seventeen specific grants of power to Congress, relating to as many different subjects, and then in the same section provides that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitation in the government of the United States, or in any department or officer thereof." These specific grants of power to Congress are as much a part of the Constitution as is the grant of the treaty power to the President and the Senate.

It is conceded on all hands that the legislative power of appropriating money, belonging to the United States, is exclusively vested in Congress. Article 1, in section 9, declares that "no money shall be drawn from the treasury but in consequence of appropriations made by law." This places all the funds of the government under the supreme and exclusive custody and control of Congress. Not a dollar can be drawn from the treasury for any purpose, except by its legal appropriation. If then the President, with the approval of the Senate, makes a treaty which stipulates for the payment of money by the United States, he enters into a contract which he cannot execute, and which cannot be executed at all without the legislative consent of Congress, including that of the House of Representatives. The presumption is that the Senate, having approved the treaty, will give its consent. What shall the House of Representatives, as a necessary and independent participant in appropriating money, do in the promises? What has it a right to do in the exercise of the power bestowed upon it, jointly with the Senate, by the Constitution? If we adopt the theory that it is absolutely bound by the action of the treaty power, and that it may not and must not deliberate upon the propriety or impropriety of making the appropriation, then its function ceases to be legislative, and becomes simply ministerial.

The existence of the treaty may be a very weighty reason why the House of Representatives should give its assent to the needed appropriation of money. But if it has no right to dissent, to deliberate and judge, and in the end act upon its own judgment, then the action of the treaty power displaces it from the position assigned to it by the Constitution. Its character as a distinct and independent participant in legislation would in this case be destroyed. It would have no will of its own on the subject, and would have no right to have such a will, and would be bound hand and foot by the treaty power. It is not to be supposed that the Constitution, in the general grant of this power, intended such a result; and if not, then no treaty that pledges the United States to pay money can be regarded as one of "perfect" obligation in this particular, until it has the assent of Congress to this feature.

The taxing power is given to Congress in the provision that it shall have power "to lay and collect taxes, duties, excises and imposts," with the qualification that "all bills for raising revenue shall originate in the House of Representatives." Such bills have uniformly been construed to mean bills for the imposition of taxes. If the President makes a treaty involving the subject of taxation and the raising of revenue thereby, then the contract, as to its subject-matter, relates to that which by the express language of the Constitution has been specifically assigned to Congress, and in the first step of the process, to the House of Representatives. That it was not the purpose of the Constitution to delegate the taxing function to the treaty power, and thus enable it to change the revenue laws of the United States, independently of the will of Congress, is evident from the fact that this function is in express and specific terms assigned to Congress, and is not in such terms assigned to the treaty power. Any construction of the treaty power which supersedes this specific grant of legislative power to Congress, or in

terferes with it, or impairs the freedom and independence of its exercise, must be contrary to the intent of the Constitution itself. A grant of power to make treaties, given in general terms, is not to displace or control the taxing power of Congress, given in specific and definite terms. If the President makes a treaty relating to this subject, then it is and must be the constitutional province of Congress, upon its own responsibility, and in the exercise of its own judgment, to decide whether the treaty shall in this respect go into effect or not; and until it has affirmatively decided this question, the treaty is simply a contract made by the President and the Senate, and dependent for its execution upon the will of Congress.

The same method of reasoning may be applied with reference to the other express and specific powers of Congress -as the power to borrow money, to regulate commerce, to coin money, to fix the standard of weights and measures, to declare war, to raise and support armies, and to provide and maintain a navy. These are definite powers. It is the will of the Constitution, given in express language, that Congress should exercise these powers upon the subjects to which they relate. The fact that the President has negotiated a treaty with a foreign government in relation to any or all of these subjects does not change these substantive and express powers as vested in Congress. They are as real after as before the treaty. It is for the two houses of Congress to decide in what manner they shall be exercised. If the President has stipulated for a given manner of exercising any one or more of these powers, then he has made a pledge which only Congress can fulfill; and whether it shall do so is a question for its discretion in the exercise of its own powers. The President, upon any other supposition, might through treaty making absorb nearly the whole power of Congress, and thus reduce to a nullity specific and express grants of legislative power.

The power to declare war and to raise and support armies is given to Congress, with the qualification that no appropriation of money for the support of armies shall be for a longer term than two years. Now, can the President, by a treaty of alliance and succor with one of two belligerent nations, virtually declare war upon the other, and in fulfillment of the treaty raise and support armies? Cau he through a treaty exercise the war power or make it the duty of Congress to exercise this power without deliberation or judgment as to the expediency of the measure? It is enough to ask this question.

So also Congress is authorized to make all laws which may be " necessary and proper" to carry into execution its own express powers, or any other powers delegated by the Constitution to the government of the United States, or to any department or officer thereof. This enables Congress to legislate for the execution of treaties, and implies its right to judge in every case whether and to what extent the power shall be exercised. This is what legislation 'means. A legislative power that has no discretion and can exercise no judgment in regard to the subject on which it acts, but must obey the edict of another power, without any positive and separate will of its own except as the mere instrument of that power, is not in reality a legislative power at all. And yet this would be the position of Congress with reference to treaties, provided its legislative will were absolutely subject to that of the treaty power.

That Congress has power to annul and abolish a treaty, and thus destroy its character as a law, and, if so, that it has the right to judge of the time when, the circumstances in which, and the reasons for which this power shall be exercised, admits of no doubt. Such a power inheres in every independent nation; and, under the Constitution of the United States it belongs to Con

gress, and not to the President and the Senate, except when making another treaty. Congress, exercising this power in 1798, abolished all existing treaties between the United States and France. 1 U. S. Stat. at Large, 578. If then Congress has the power to abolish treaties and render them inoperative as laws, and may exercise this power at any time, being itself the judge of the time and the reasons, how does it appear that a treaty just concluded and relating to subjects within its constitutional domain, or which cannot be executed without legislative action, supersedes all discretion on its part in the enactment of laws with reference to such treaty? Why has not Congress as much discretion in giving or withholding its legislative assent as it has in deliberating and judging whether it will or will not abolish a treaty altogether? If it can repeal a treaty then it certainly can refuse its assent to one when that assent is necessary to its execution.

The conclusions derivable from the preceding argument are the following:

1. That the treaty power, though granted in general terms, and in these terms with no express restrictions upon its scope, is, nevertheless, limited and qualified by the Constitution.

2. That this power cannot supersede, invade, displace or absorb the functions expressly assigned by the Constitution to Congress, or make an absolute law for its action in their performance.

3. That where treaties are self-operating in the sense of needing no legislation for their execution, and are constitutional in their character, they are a part of "the supreme law of the land," without any action of Congress.

4. That where a treaty acts upon subjects that have beeen expressly and specifically committed to Congress, or where it needs legislation in order to carry it into effect, the treaty, considered as creating an international obligation, or as becoming a law of the land, is inchoate and incomplete, until Congress shall have supplied the requisite legislation in regard to it, and that in respect to this legislation it is the right and duty of Congress to judge with as much freedom and independence as it applies to any subject upon which it legislates.

5. That the President, in making treaties which relate to matters within the legislative province of Congress or which require the legislation of Congress, for their execution, is bound by a due regard to the Constitution, to provide expressly in the treaties themselves that they shall not take effect until the necessary legislation has been supplied, and that when he omits to make such a provision the Constitution implies its presence in the powers of Congress, and thus qualifies the treaty.

6. That the refusal of Congress in the exercise of its constitutional powers to furnish the legislation necessary to execute the stipulations of a treaty in regard to matters coming within the scope of these powers, does not involve a violation of international faith, since such stipulations are not binding until they have received the legislative assent, without which the treaty itself is not to be considered a completed contract "under the authority of the United States."

The legal omnipotence of treaties in the form in which Blackstone held the doctrine is not compatible with the distribution of powers made by the Constitution of the United States, and does not accord with the modern practice of Great Britain in making treaties. While the treaty power is vested in the British Crown, it is nevertheless the general practice of the Crown to provide in cases, where Parliament must act in order to the execution of treaties, that they shall become completed contracts only upon the condition of such action.

Mr. Todd, in his Treatise upon Parliamentary Government in England, vol. 1, p. 610, says that Parliament

"has the right to give or withhold its sanction to those parts of a treaty that require legislative enactment to give it force, as, for example, when it provides for an alteration in the criminal or municipal law, or proposes to change existing tariffs or commercial regulations." He adds that "if a treaty requires legislative action in order to carry it out it should be subjected to the fullest discussion in Parliament, and especially in the House of Commons." The day has passed in Great Britain when the Crown can say to Parliament: "Ask no questions, but pass the law, and take the royal will for the reason." If Parliament can assent to a treaty it can dissent from it; and the latter is as potential as the former. Thus the commercial articles of the treaty of Utrecht 'with France never went into operation, because Parliament refused to supply the necessary legislation. This refusal was equivalent to their nullification.

Treaties of the United States are made "under the authority of the United States." This authority is given to the President, in connection with the Senate. And yet, if in the exercise of this authority he shall see fit to make treaties on subjects which the Coustitution has in express terms committed to Congress, or which cannot be executed without its legislative action, then Congress is the department of the government that acts "under the authority of the United States in supplying the requisite legislation, and in such cases it has the right to exercise this authority just as freely as does the President when he makes a treaty. Both-the one in making treaties and the other in passing laws-act under one and the same Constitution in the exercise of different powers derived from the same source.

It necessarily follows, either that the President must wholly forbear to make treaties on subjects placed within the constitutional domain of Congress, or that all treaties in reference to such subjects, and in reference to the legislation necessary to give them effect, must have the assent and cooperation of Congress before they become completed transactions or laws of the land. In no other way can the two classes of powers, both granted by the Constitution, and hence resting on equal authority, be made to harmonize with each other. The President has no more right to prescribe an authoritative rule for the legislative action of Congress than has Congress to prescribe such a rule for him in making a treaty. In each a portion of the sovereignty of the people is constitutionally vested, and no action of either can change this fact in respect to the other.

INVESTMENT OF FUNDS BROUGHT INTO COURT.

NEW YORK COURT OF APPEALS, JUNE 15, 1880.

CHESTERMAN V. EYLAND.

In an action of partition in New York city, funds belonging to infant parties were paid to the city chamberlain and no order directing the investment thereof made. The funds wero deposited in the Fulton Bank to the Chamberlain's credit, and several months thereafter were invested, with other sums held by him, in a mortgage for $10,000, upon real estate, which at the time was ample security for such sum. At the time there were taxes in arrears on the mortgaged property, which were subsequently paid by the mortgagor. Two years afterward a municipal assessment of $8,000 was made on the property, which had fallen away greatly in value, and the mortgagor abandoned paying the interest. Thereafter the mortgage was foreclosed by the chamberlain and he bid in the property for the benefit of those for whom he took the mortgage, including the infants. Held, that the investment made by the chamberlain was not in violation of his duty, and he or his successor was not liable to the infants for any loss which resulted therefrom.