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Treaty with Russia. (To Accompany Bill H.R. No. 1096.)

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Treaty with Russia. (To Accompany Bill H.R. No. 1096.) University of Oklahoma College of Law University of Oklahoma College of Law Digital Commons American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899 6-18-1868 Treaty with Russia. (To accompany bill H.R. no. 1096.). Follow this and additional works at: https://digitalcommons.law.ou.edu/indianserialset Part of the Indian and Aboriginal Law Commons Recommended Citation H.R. Rep. No. 37, 40th Cong., 2nd Sess. (1868) This House Report is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian and Alaskan Native Documents in the Congressional Serial Set: 1817-1899 by an authorized administrator of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. 40TH CONGRESS, } HOUSE OF REPRESENT.ATIVES. REPORT 2d Session. { No. 37. TREATY wrrH RUSSI.A. [To accompany bill H. R. No. 1096.] MAY 18, 1868.-Ordered to be printed. Mr. BANKS, from the Committee on Foreign Affairs, made the following REPORT. Tlie Committee on Foreign A.ffairs, to wliicli was referred the President's message and accompanying documents, relating to the treaty witli Russia, has considered tlie same, and submits tlie following report: A treaty is a compact between\ sovereign nations. Its negotiation and ratifi­ cation are necessarily conducted by specified departments of the govern­ ments which are parties to the i~strument. In despotic governments this power is vested in the crown. In free governments it is intrusted to such branches of the government as may be designated for that purpose by the constitution. The negotiation. of a treaty is necessarily an act of sovereignty. It is the only method of settling controversies and establishing alliances that exists betwe~n governments. The power to negotiate and execute treaties is indispensable to the existence of government. 'I1he confederation of American States failed because it did not possess this power. 'rhe articles of confederation vested the treaty-making power in the Congress, with the assent of nine States represented in Congress. But the States claimed and exercised the right to interpret and obstruct the execution of treaties made by the Congress of the confederation with foreign governments. The execution of the treaty of peace of 1783, between Great Britain and the United States, was defeated by the exercise of such powers, and Great Britain refused to deliver up the military possession of the northern and western frontier; asserting as a reason, that the States refused to repeal their laws prohibiting the collection of British debts. Many of the State laws were conceded to be in violation of the treaty. Congress, four years after the treaty of peace with Great Britain, unanimously declared that a treaty once concluded by Congress, according to the forms of the Constitution, the legislatures of the several States had no right to pass any act explaining or interpreting its meaning, 01: limiting, restricting, or counteracting its operation; that all such acts ought to be repealed, leaving Congress to determine what laws were in conflict with the treaty. But the declara­ tion of Congress was ineffectual. It had no power to control the legislation of States, or annul their laws. The States obstructed in the same manner the execution of treaties with France and Holland. They made war and peacewith Indian nations, formed alliances with each other, and raised and supported troops without consent of Congress. The confederation, therefore, was not a government. It had no sovereignty. It coul~ not enter into and enforce a compact with foreign natiorrs, which is the essential attribute of sovereign power. Mr. Adams, in his account of the close of his mission to Ell gland, under the confederation, says that the observa­ tions of .L,ord Oaermathen on the relations of Great Britain to the United States were intended to signify to him, what had been all. along intimated, that tbere was then no national government, but as soon as there should be, as the govern- 2 TREATY WITH RUSSIA. ment was happy to observe the proposed Constitution would furnish, Great Britain would treat with the United States. France and Holland had as sub­ stantial arguments against the government of the confederation ~s England. The confederation exhibited other defects, but they were all subordmate to that connected with the power to negotiate and execute treaties with other states. It was to remedy this defect, chiefly, that the convention was called which framed the federal Constitution. Under this Constitution the United States became a government. It had power to conclude treaties with foreign govern­ ments, and to maintain in good faith the conditions of such alliances. This power was vested in the President of the United States with the advice and coneent of the Senate, two-thirds of the members of the Senate concurring therein. The aITangement of these powers by the convention was a matter of much consideration and of great difficulty. It was proposed to exclude the President altogether from the exercise of this power, but this was abandoned, for the reason that it was indispensable that the negotiations should be conducted by the executive department of the government. To the Senate was given the power to confirm or reject such negotiations. It was also proposed to embrace the House of Representatives in the treaty-making power, but this was aban­ doned, as it would destroy or defeat the secrecy which was often indispensable in the successful negotiation of treaties, and by the consumption of time render the power itself cumbersome and inefficient, and probably defeat the object it was intended to accomplish. '.rhe wisdom of the framers of the Con.stitution is not more clearly shown in any part of the frame of government than in the arrangement and final disposition of the treaty-making power. The govern­ ment has made alliances with civilized and uncivilized governments in all parts of the world. It has negotiated and maintained nearly 600 treaties during a period of more than three-quarters of a century, without a single violation of the stipulations to which its assent has been given. It is in this respect a per­ fect government, and by means of the authority so wisely regulated it has achieved a prosperity and power which bas never been surpassed by other gov­ ernments. Its success would have been impossible under the government of the confederation, or hy other means than that of the treaty-making power. There i not an instance in which a treaty has been defeated by the refusal of Congress to pass laws for its execution, or the failure of the executive department to enforce them. It is to the uninterrupted success of this power that we owe the prosperity of the people and the strength of tbe government. In the exercise of this power under the Constitution various questions, public and private, have arisen between different departments of the government which have been adjusted by the action of Congress or by the intervention of the judiciary. The first que tion of this character arose under a treaty negotiated !n 1790 ~ith Mc Gil ~ray, chief of the Creek nation. By this treaty goods imported mto the Umted States for the use of the Indians were made free of duty. This provi ion wa in conflict with the revtnue laws of the country and with the pro vi ions of the treaty of peace with Great Britain. General W a h­ ington, who n gotiated the treaty, called for the opinion of the officers of his cabinet as to the authority of the government to conclude a treaty of this char­ act r. The opinion of the cabinet was unanimous in favor of the power. ir. Jefferson stated his opinion upon this subject in these words: A treaty made by the Pre ident with the concurrence of the Senate is a law of the land and a law of superior order, because it not only repeals aU past laws but cannot itself b~ rep aled by future laws. The treaty will then legally control the duty act and the act for licen ing traders in thl particular in tance. bis tr aty, with a secret article providing for the case, was submitted to the nat ~n_d ra~ified without a divi ion.• o obj ection was made to this act of admm1 trat1on by any br· nch of the government or any portion of the peo- ,. 5 farshall, p. 233. TREATY WITH RUS$IA. 3 ple, and no exception was taken to its action except by the government of Great Britain. Thus a treaty made under the authority of the United States in the manner provided by the Constitution, although in contravention of existing laws, was then held by Mr. Jefferson to be the supreme law of' the land, and of equal authority with the Constitution itself. THE BRITISH TREA'rY OF 1794. The right of Congress to call for papers relating to the negotiation, and to consider and decide upon the merits and expediency of treaties, was asserted by the House of Representatives in 1794. The difficulties existing between the United States and Gre.at Britain, to which reference has been made, threatened the peace existing between the two countries. General Washington declared in a letter to the Secretary of State that his object in the conduct of affairs between the two countries was to prevent a wm:, if justice could be obtained by strong representations of the injuries which this country had sustained from Great Britain; and to put the government in a proper state of defence, and pro­ vide eventually for the execution of measures then pending in Congress, if negotiation in a reasonable time should prove unsuccessful.
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