Jefferson, Thomas, 1743-1826
. A MANUAL OF PARLIAMENTARY PRACTICE /
From The Writings of Thomas Jefferson: Volume 2
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SECTION LII.
TREATIES.
The President of the United States has power, by and with the advice and
consent of the Senate, to make treaties provided two-thirds of the Senators
present concur.-Const. U. S., Art. 2. Sec. 2.
Resolved, That all confidential communications, made by the President of the
United States to the Senate, shall be, by the members thereof, kept inviolably
secret; and that all treaties, which may hereafter be laid before the Senate,
shall also be kept secret, until the Senate shall, by their resolution, take
off the injunction of secresy.-Dec. 22d, 1804.
Treaties are legislative acts. A treaty is a law of the land. It differs from
other laws only as it must have the consent of a foreign nation, being but a
contract with respect to that nation. In all countries, I believe, except
England, treaties are made by the legislative power; and there, also, if they
touch the laws of the land, they must be approved by Parliament. Ware vs.
Hilton.-3 Dallas's Rep. 199. It is acknowledged, for instance, that the King
of Great Britain cannot, by a treaty, make a citizen of an alien.-Vattel, b.
1, c. 19, sec. 214. An act of Parliament was necessary to validate the American
treaty of 1783. And abundant examples of such acts can be cited. In the case of
the treaty of Utrecht, in 1712, the commercial articles required the concurrence of Parliament.
But a bill brought in for that purpose was rejected. France,
the other contracting party, suffered these articles, in practice, to be not
insisted on, and adhered to the rest of the
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treaty.-4 Russell's Hist. Mod. Europe, 457; 2 Smollet, 242, 246.
By the Constitution of the United States, this department of legislation is
confined to two branches only, of the ordinary Legislature; the President
originating, and Senate having a negative. To what subject this power extends,
has not been defined in detail by the Constitution; nor are we entirely agreed
among ourselves. 1. It is admitted that it must concern the foreign nation,
party to the contract, or it would be a mere nullity res inter alias acta. 2.
By the general power to make treaties, the Constitution must have intended to
comprehend only those objects which are usually regulated by treaty, and
cannot be otherwise regulated. 3. It must have meant to except out of these the
rights reserved to the States; for surely the President and Senate cannot do by
treaty what the whole government is interdicted from doing in any way. 4. And
also to except those subjects of legislation in which it gave a participation
to the House of Representatives. This last exception is denied by some, on the
ground that it would leave very little matter for the treaty power to work on.
The less the better, say others. The Constitution thought it wise to restrain
the Executive and Senate from entangling and embroiling our affairs with those
of Europe. Besides, as the negotiations are carried on by the Executive alone,
the subjecting to the ratification of the Representatives such articles as are
within their participation, is no more inconvenient than to the Senate. But
the ground of this exemption is denied as unfounded. For examine, e.g., the
treaty of commerce with France, and it will be found that out of thirty-one
articles, there are not more than small portions of two or three of them which
would not still remain as subjects of treaties, untouched by these exceptions.
Treaties being declared, equally with the laws of the United States, to be the
supreme law of the land, it is understood that an act of the Legislature alone
can declare them infringed and rescinded. This was accordingly the process
adopted in the case of France, 1798.
It has been the usage of the Executive; when it communicates a treaty to the
Senate for their ratification, to communicate also the correspondence of the
negotiations. This having been omitted in the case of the Prussian treaty, was
asked by a vote of the House of February 12, l800, and was obtained. And in
December, l800, the Convention of that year, between the United States and
France, with
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the report of the negotiations by the Envoys, but not their instruction s,
being laid before the Senate, the instructions were asked for, and communicated by the President.
The mode of voting on questions of ratification is by nominal call.
Resolved, as a standing rule, That whenever a treaty shall be laid before the
Senate for ratification, it shall be read a first time for information only;
when no motion to reject, ratify, or modify the whole or any part, shall be
received.
That its second reading shall be for consideration; and on a subsequent day,
when it shall be taken up as in a committee of the whole, and every one shall
be free to move a question on any particular article in this form: " Will the
Senate advise and consent to the ratification of this article?" or to propose
amendments thereto, either by inserting or leaving out words, in which last
case the question shall be,
" Shall the words stand part of the article? " And in every of the said cases,
the concurrence of two-thirds of the Senators present shall be required to
decide affirmatively. And when through the whole, the proceedings shall be
stated to the House, and questions be again severally put thereon for
confirmation, or new ones proposed, requiring in like manner a concurrence of
two-thirds for whatever is retained or inserted.
That the votes so confirmed shall, by the House or a committee thereof, be
reduced into the form of a ratification with or without modifications, as may
have been decided, and shall be proposed on a subsequent day, when every one
shall again be free to move amendments, either by inserting or leaving out
words; in which last case the question shall be, "Shall the words stand part of
the resolution? " And in both cases the concurrence of two-thirds shall be
requisite to carry the affirmative; as well as on the final question to advise
and consent to the ratification in the form agreed to.-Rule of Jan. 6, 1801.
Resolved, That when any question may have been decided by the Senate, in which
two-thirds of the members present are necessary to carry the affirmative, any
member who voted on that side which prevailed in the question may be at liberty
to move for a reconsideration and a motion for reconsideration shall be
decided by a majority of votes.-Rule of Feb. 3, 1801.
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