The Defence No. XXXVII1
[New York, January 6, 1796]
It shall now be shewn, that the objections to the Treaty founded on its pretended interference with the powers of Congress tend to render the Power of making Treaties in a very great degree if not altogether nominal. This will be best seen by an enumeration of the cases of pretended interference.2
I The power of Congress to lay taxes is said to be impaired by those stipulations which prevent the laying of duties on particular articles, which also prevent the laying of higher or other duties on British commodities than on the commodities of other countries and which restrict the power of increasing the difference of duties on British Tonnage and on goods imported in British Bottoms.
II The power of Congress to regulate Trade is said to be impaired by the same restrictions respecting duties, inasmuch as they are intended & operate as regulations of Trade—by the stipulations against prohibitions in certain cases and in general by all the rights privileges immunities, and restrictions in Trade which are contained in the Treaty, all which are so many regulations of commerce, which are said to encroach upon the legislative authority.
III The power of Congress to establish a uniform rule of naturalization is said to be interfered with by those provisions of the Treaty which secure to the settlers within the precints of the British Posts the right of becoming citizens of the U States, and those which in certain cases remove the disability of alienism as to property.
IV The power of Congress “to define and punish piracies and felonies committed on the high seas and offences against the law of Nations” is said to be contravened by those parts of the Treaty which declare that certain acts shall be deemed piracy which constitute certain other things offences & stipulate the reciprocal punishment of them by each.
V It is also said that the constitution is violated in relation to that provision which declares that “no money shall be drawn from the Treasury but in consequence of appropriations made by law”—by those parts of the Treaty which stipulate compensations to certain Commissioners and indemnifications to G Britain in certain cases to be adjusted and pronounced by the commissioners, and generally by all those parts which may involve an expenditure of money.
[VI]3 The constitution is said to be violated in that part which requires the establishment of Officers of the U States by law—by those stipulations of the Treaty which without the intervention of law provide for the appointment of Commissioners.
[VII] The Constitution is said to be violated in that part, which empowers Congress to dispose of and make all needful rules and regulations respecting the territory or other property of the U States, by those provisions of the Treaty which respect the adjustment boundary in the cases of the Rivers St Croix & Mississippi.
[Lastly,] The Constitution is said4 to be violated in its provisions concerning the Judiciary Department by those parts of the Treaty which contemplate the confiding to the determination of Commissioners certain questions between the two Nations.
A careful inspection of the Treaty with these objections in view will discover that of the 28 articles which compose it at least seventeenth are involved in the charge of unconstitutionality and these seventeen comprise all the provisions which adjust past controversies or establish rules of Commercial Intercourse between the Parties. The other eleven, whch are the 1st 10th 17th 18th 19th 20th 22d. 23d and 24,5 except the first, are made up of provisions which have reference to War; the first merely declaring that there shall be peace between the parties. And it is a question even with respect to all of these, except the 1st & 10th, whether they also are not implicated in the charge; inasmuch as some of their dispositions have commercial relations. Is not this alone sufficient to bring under strong suspicion the validity of the principles which impeach the constitutionality of the instrument?
It must have been observed, that the argument in the last number is applicable to all the legislative powers of Congress, as well as to that of regulating trade which was selected by way of illustration, the ground of it being common to all. Indeed the instance of the regulation of Trade is that which is most favourable to the opposite doctrine—since foreign nations are named in the clause; the true intent of which however has been explained.6
The same reasoning too would extend the power of Treaties to those objects which are consigned to the legislation of individual states; but here the constitution has announced its meaning in express terms, by declaring that the treaties which have been and shall be made under the authority of the U States shall be the supreme law of the land any thing in the constitution or laws of any state to the contrary notwithstanding. This manifestly recognises the supremacy of the power of treaties over the laws of particular states and goes even a step farther.
The obvious reason for this special provision in regard to the laws of individual states is that there might otherwise have been room for question whether a Treaty of the Union could embrace objects the internal regulation of which belonged to the separate authorities of the States. But with regard to the U States there was no room for a similar question. The power of Treaty could not but be supposed commensurate with all those objects to which the legislative power of the Union extended.7
It is a question among some theoretical Writers—whether a Treaty can repeal preexisting laws? This question must always be answered by the particular form of Government of each Nation. In our constitution, which gives ipso facto the force of law to Treaties, making them equally with the Acts of Congress, the supreme law of the land, a Treaty must necessarily repeal an antecedent law contrary to it; according to the legal maxim that “leges posteriores priores contrarias abrogant”*8
But even in those forms of government in which there may be room for such a question, it is not understood that a Treaty containing stipulations which require the repeal of antecedent laws is on that account unconstitutional and null. The true meaning is that the antecedent laws are not ipso facto abrogated by the Treaty. But the Legislature is nevertheless bound in good faith under the general limitation stated in another place9 to lend its authority to remove obstacles which previous laws might oppose to the fair execution of a Treaty.
One instance of the inconsistency prevailing in the arguments against the Treaty negotiated by Mr. Jay [is] observable on this point. To get rid of the infractions of our Treaty of peace with G Britain by certain laws of particular States, it is strenuously maintained that Treaties controul the laws of states. To impeach the constitutionality of the Treaty under consideration it is objected that in some points it interferes with the objects of state-legislation. The express provision of the constitution in this particular quoted above has not been sufficient to check the rage for objection.
The absurdity of the alleged interferences will fully appear by shewing how they would operate upon the several kinds of Treaties usual among nations. These may be classed under three principal heads 1 Treaties of Commerce 2 Treaties of Alliance 3 Treaties of Peace.
Treaties of Commerce are of course excluded, for every Treaty of Commerce is a system of rules devised to regulate and govern the Trade between Contracting Nations; invading directly the exclusive power of regulating Trade which is attributed to Congress.
Treaties of Alliance whether defensive or offensive are equally excluded, and this on two grounds—1 because it is their immediate object to define a case or cases in which one nation shall take part with another in war, contrary, in the sense of the objection, to that clause of the constitution which gives to Congress the power of declaring war, and 2 because the succours stipulated in whatever shape they may be must involve an expenditure of money—not to say that it is common to stipulate succours in money either in the first instance or by way of alternative. It will be pertinent to observe incidentally in this place, that even the humane and laudable provision in the XXII article,10 which all have approved, is within the spirit of the objection; for the effect of this is to restrain the power and discretion of Congress to grant reprisals till there has been an unsuccessful demand of Justice.11
3 Treaties of peace are also excluded or at the least are so narrowed as to be in the greatest number of cases impracticable. The most common conditions of these Treaties are restitutions or cessions of territory on one side or on the other, frequently on both sides, regulations of boundary, restitutions & confirmations of property—pecuniary indemnifications for injuries or expences. It will probably not be easy to find a precedent of a Treaty of Peace which does not contain one or more of these provisions as the basis of the cessation of hostilities, and they are all of them naturally to be looked for in an agreement which is to put an end to the state of War between conflicting nations. Yet they are all precluded by the objections which have been enumerated—pecuniary indemnifications, by that which respects the appropriation of money; restitutions or cessions of territory or property, regulations of boundary, by that which respects the right of Congress to dispose of and make all needful rules and regulations concerning the territory and property of the U States. It is to be observed likewise that cessions of territory are almost always accompanied with stipulations in favour of those who inhabit the ceded territory securing personal privileges and private rights of property; neither of which could be acceded to on the principle of that objection, which relates to the power of naturalization; for this power has reference to two species of rights, those of privilege and those of property. An act allowing a foreigner to hold real estate is so far an act of naturalization; since it is one of the consequences of alienism not to be able to hold real estate.
It follows that if the objections which are taken to the Treaty on the point of constitutionality are valid, The President with the advice and consent of the senate, can make neither a Treaty of Commerce nor Alliance, and rarely, if at all, a Treaty of Peace. It is probable that on a minute analysis, there is scarcely any species of treaty which would not clash, in some particular, with the principle of those objections; and thus, as was before observed, the power to make treaties granted in such comprehensive and indefinite terms and guarded with so much precaution would become essentially nugatory.
This is so obviously against the principles of sound construction, it at the same time exposes the Government to so much impotence in one great branch of political power, in opposition to a main intent of the Constitution—and it tends so directly to frustrate one principal object of the institution of a General Government—the convenient management of our external concerns—that it cannot but be rejected by every discerning man who will examine and pronounce with sincerity.
It is against the principles of sound construction; because these teach us that every instrument is so to be interpreted, that all the parts may if possible consist with each other and have effect. But the construction which is combated would cause the legislative power to destroy the power of making Treaties. Moreover, If the power of the Executive Department be inadequate to the making of the several kinds of Treaties which have been mentioned, there is then no power in the Government to make them; for there is not a syllable in the constitution which authorises either the Legislative or Judiciary Department to make a Treaty with a foreign Nation. And our Constitution would then exhibit the ridiculous spectacle of a Government without a power to make Treaties with foreign nations: a result as inadmissible as it is absurd, since in fact our Constitution grants the power of making Treaties in the most explicit and ample Terms to the President with the advice and consent of the Senate.
On the contrary, all difficulty is avoided by distinguishing the provinces of the two powers according to ideas which have been always familiar to us and which were never exposed to any question till the Treaty with G Britain gave exercise to the subtilties of party-spirit.
By confining the power to make laws within its proper sphere & restricting its action to the establishment of rules for our own nation and those foreigners who come within our jurisdiction, and by assigning to the power of Treaty the office of concerting those rules of mutual intercourse and connection between us and foreign nations which require their consent as well as our own; allowing to it the latitude necessary for this purpose, a harmonious agreement is preserved between the different powers of the Government—that to make laws and that to make treaties between the authority of the Legislative & the authority of the Executive department.
Hence Though Congress by the Constitution have power to lay taxes, yet a Treaty may restrain the exercise of it in particular cases: for a Nation like an individual may abrige its moral power by agreement and the organ charged with the legislative power of a nation may be restrained in its operation by the agreements of the Organ of its Fœderative Power or power to contract. Let it be remembered that the Nation is the Constituent; & that the Executive within its sphere is no less the organ of its will than the Legislature.
Though Congress are empowered to make regulations of Trade; yet they are not exclusively so empowered, but regulations of Trade may also be made by Treaty, and where other nations are to be bound by them must be made by Treaty.
Though Congress are authorised to establish a uniform rule of naturalization, yet this contemplates only the ordinary cases of internal administration. In particular & extraordinary cases, those in which the pretensions of a foregin Government are to be managed—a Treaty may also confer the rights and privileges of Citizens. Thus the absolute cession and plenary dominion of a province or district possessed by our arms in War may be accepted by the Treaty of Peace on the condition that its inhabitants shall in their persons and property enjoy the privileges of citizens.
The same reasoning applies to all the other instances of supposed infraction of the legislative authority; with regard to piracies and offences against the laws of Nations; with regard to expenditures of money; with regard to the appointment of officers; with regard to the judiciary tribunals; with regard to the disposal and regulation of national territory & property. In all these cases the power to make laws and the power to make treaties are concurrent and coordinate. The latter and not the former must act where the cooperation of other Nations is requisite.
As to what respects the Commissioners agreed to be appointed, they are not in a strict sense Officers. They are arbitrators between the two Countries. Though in the Constitutions, both of the U States and of most of the Individual states, a particular mode of appointing officers is designated, yet in practice it has not been deemed a violation of the provision to appoint Commissioners or special Agents for special purposes in a different mode.
As to the provision, which restricts the issuing of money from the Treasury to cases of appropriation by law, and which from its intrinsic nature may be considered as applicable to the exercise of every power of the Government, it is in no sort touched by the Treaty. The constant practice of the Government, the cause of an expenditure or the contract which incurs it, is a distinct thing from the appropriation for satisfying it. Thus the salary of a public officer is fixed by one law, the appropriation for its payment by another. So, the Treaty only stipulates what may be a cause of Expenditure. An appropriation by law will still be requisite for actual payment.
As to the disposal & regulation of the territory and property of the U States, this will be naturally understood of dispositions and regulations purely domestic and where the title is not disputed by a foreign power. Where there are interfering claims of foreign powers, as neither will acknowlege the right of the other to decide, Treaty must directly or indirectly adjust the dispute.
So far then is it from being true that the Power of Treaty can extend to nothing upon which, in relation to ourselves, the Legislative Power may act—that it may rather be laid down as a general rule that a Treaty may do between different Nations whatever the legislative Power of each may do with regard to itself. The exceptions to this rule are to be deduced from the unfitness & inconvenience of its application to particular cases and are of the nature of abuses of a general principle.
In considering the power of Legislation, in its relations to the Power of Treaty, instead of saying that the objects of the former are excepted out of the latter, it will be more correct, indeed it will be intirely correct to invert the rule and to say that the Power of Treaty is the power of making exceptions in particular cases to the power of Legislation. The stipulations of Treaty are in good faith restraints upon the exercise of the last mentioned power. Where there is no Treaty it is completely free to act. Where there is a Treaty, it is still free to act in all the cases not specially excepted by the Treaty. Thus Congress is free to regulate Trade with a foreign nation with whom we have no Treaty of Commerce in such manner as they judge for the interest of the U States, and they are also free so to regulate it with a foreign nation with whom we have a Treaty, in all the points which that Treaty does not specifically except. There is always therefore great latitude for the exercise of the legislative power of regulating Trade with foreign Nations notwithstanding any Treaties of Commerce which may be formed.
The effect of a Treaty to impose restraints upon the legislative power may in some degree be exemplified by the case of the compacts which the legislative Power itself makes, as with regard to the Public Debt. Its own compacts are in good faith exceptions to its power of action. Treaties with foreign powers for obvious reasons are much stronger exceptions.
ADf, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, January 6, 1796.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795.
2. The objections to the Jay Treaty which follow were made by Alexander J. Dallas in “Features of Jay’s Treaty” (Dunlap and Claypoole’s [Philadelphia] American Daily Advertiser, July 31, 1795.
3. This number and those that follow have been taken from the newspaper rather than the MS, in which H made several mistakes.
4. H’s first draft of the remainder of this sentence, which he crossed out, reads: “… to be violated in those parts which regard the Judiciary Tribunals and the modes of Trial to be observed—by those articles of the Treaty which refer to Commissioners the liquidation of mutual claims.”
7. In the newspaper the following clause was added to this sentence: “which are the proper subjects of compacts with foreign nations.”
8. See Blackstone, who wrote: “Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon a general principal of universal law, that, ‘leges posteriores priores contrarias abrogant:’ consonant to which it was laid down by a law of the twelve tables at Rome, that ‘quod populus postremum jussit, id jus ratum esto’” (Commentaries on the Laws of England. In Four Books. By Sir William Blackstone, Knt. One of the Justices of His Majesty’s Court of Common Pleas. The Tenth Edition, With the Last Corrections of the Author; Additions by Richard Burn, LL.D. And Continued to the Present Time, By John Williams, Esq. [London: Printed for A. Strahan; T. Cadell, in the Strand; and D. Prince, Oxford, 1787], I, 89).
10. In the newspaper this is incorrectly printed as “the seventeenth article.”
11. In the newspaper the following sentence has been added to this paragraph: “Nothing can better illustrate the unreasonable tendency of the principle.”