Alexander Hamilton Papers

Enclosure: [Draft of a Response to Concerns about the Jay Treaty], [29 March 1796]



I have received your resolution  3 and have considered it with the attention always due to a request of the House of Representatives. I feel a consciousness (not contradicted I trust by any part of my conduct) of a sincere disposition to respect the rights privileges and authorities of Congress collectively and in its separate branches—to pay just deference to their opinions and wishes—to avoid intrusion on their province—to communicate freely information pertinent to the subjects of their deliberation. But this disposition, keeping steadily in view the public good, must likewise be limited and directed by the duty, incumbent upon us all, of preserving inviolate the constitutional boundary between the several departments of the Government: a duty enjoined by the very nature of a constitution which defines and distributes the powers delegated among different dipositories, enforced by the solemn sanction of an oath, and only to be fulfilled by a regard no less scrupulous for the rights of the Executive than for those of every other Department.

When I communicated to the House of Representatives the Treaty lately made with Great Britain,4 I did not transmit the papers respecting its negotiation, for reasons which appeared to me decisive.

It is contrary to the general practice of Governments to promulge the intermediate transactions of a foreign negotiation without weighty and special reasons. The motives for great delicacy and reserve on this point are powerful. There may be situations of a Country, in which particular occurrences of a negotiation, though conducted with the best views to its interest and even to a satisfactory issue, if immediately disclosed, might tend to embarrassment and mischief in the interior affairs of that Country. Confidential discussions and overtures are inseparable from the nature of certain negotiations and frequently occur in others—essays are occasionally made by one party to discover the views of another in reference to collateral objects—motives are sometimes assigned for what is yielded by one party to another: which, if made public, might kindle the resentment or jealousy of other powers, or might raise in them pretensions not expedient to be gratified. Hence it is a rule of mutual convenience and security among nations that neither shall without adequate cause and proper reserves promulge the details of a Negotiation between them: otherwise one party might be injured by the disclosures of the other, and sometimes without being aware of the injury likely to be done.

Consequently, The general neglect of this rule in the practice of a Government would naturally tend to destroy that confidence in its prudence and delicacy—that freedom of communication with it; which are so important in the intercourses between Nation and Nation, towards the accommodation of mutual differences, and the adjustment of mutual interests.

Neither would it be likely to promote the advantage of a Nation, that the Agents of a foreign Government, with which it was at any time in Treaty, should act under the apprehension that every expression, every step of theirs would presently be exposed, by the promulgation of the other party, to the criticism of their political adversaries at home. The disposition to a liberal and perhaps for that very reason a wise policy in them might be checked by the reflection that it might afterwards appear from the disclosures on the other side, that they had not made as good bargains as they might have made. And while they might be stimulated by this to extraordinary effort and perseverance; maxims of greater secrecy and reserve in their Cabinet would leave their competitors in the negotiation without the same motive to exertion. These having nothing to fear from the indiscretion of the opposite Government would only have to manage with caution their communications to their own. The consequences of such a state of things would naturally be an increase of obstacles to the favourable close of a negotiation, and the probability of worse bargains for the Nation, in the habit of giving indiscreet publicity to its proceedings.

The Agents of such a Nation, themselves, would have strong inducements to extreme reserve in their communications with their own government; lest parts of their conduct might subject them in other quarters to unfriendly and uncandid constructions—which might so narrow the information they gave as scarcely to afford sufficient light either with regard to the fitness of their own course of proceeding or the true state and prospects of the negotiation with which they were charged.

And thus in different ways the channels of information to a Government might be materially obstructed by the impolitic practice of too free disclosure in regard to its foreign negotiations.

Moreover—It is not uncommon for the instructions to negotiating Agents, especially where differences are to be settled, to contain observations on the views and motives of the other party, which after an amicable termination of the business, it would be contrary to decorum, unfriendly and offensive, to make public. Such instructions also frequently manifest views, which, if disclosed, might renew sources of jealousy and ill will which a Treaty had extinguished—might exhibit eventual plans of proceeding which had better remain unknown for future emergencies, & might even furnish occasion for suspicion, and pretext for discontent, to other powers. And, in general, where more had been obtained by a Treaty than the ultimata prescribed to the negotiation, it would be inexpedient to publish those ultimata: Since, among other ill effects, the publication of them might prejudice the interest of the Country in future negotiations with the same or with different powers.

These reasons explain the grounds of a prevailing rule of Conduct among prudent Governments, (viz) not to promulge without weighty cause nor without due reserves the particulars of a foreign negotiation. It so happens indeed that many of them have no immediate application to the case of the present Treaty. And it would be unadviseable to discriminate here between such as may and such as may not so apply. But it would be very extraordinary, situated as the UStates were in relation to Great Britain, at the commencement of the negotiation if some of them did not operate against a full disclosure of the papers, in which it is recorded.

Connected with these general reasons against the transmission of the papers with the Treaty, it was proper to consider if there were any special reasons which recommended in the particular case a departure from the rule, and especially whether there was any purpose to which the house of Representatives is constitutionally competent, which might be elucidated by those papers.

This involved a consideration of the nature of the constitutional agency of that house, in regard to Treaties.

The Constitution of the U States empowers the President with the advice and consent of the Senate two thirds concurring to “Make Treaties.” It no where professes to authorise the House of Representatives, or any other branch of the Government, to partake with the President and Senate in the making of Treaties. The whole Power of making Treaties is therefore by the terms of the Constitution vested in the President and Senate.

To make a Treaty, as applied to Nations, is to conclude a contract between them obligatory on their faith. But that cannot be an (obligatory) contract, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Again: The Constitution declares that a Treaty made under the authority of the U States shall be a supreme law of the land—let it be said “a law.” A law is an obligatory rule of action prescribed by the competent authority: But that cannot be an obligatory rule of action, or a law, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Hence, a discretionary right in the House of Representatives, to assent or not to a Treaty, or what is equivalent to execute it or not, would negative these two important propositions of our constitution I   That the President and Senate shall have power to make Treaties II   That a Treaty made by them shall be a law—and in the room of them would establish this proposition “That the power of making Treaties resides in the President, Senate and House of Representatives.” For whatever coloring may be given a right of discretionary assent to a contract is in substance a right to participate in the making of it.

Is there any thing in the constitution which by necessary implication changes the force of the express terms that regulate the deposit of the Power to make Treaties?

If there is, it must be found in those clauses which regulate the deposit of the Legislative Power. Here two questions arise—

I   Can the Power of Treaty reach and embrace objects upon which the legislative power is authorised to act, as the regulation of Commerce, the defining of piracy &c or are these objects virtually excepted out of the operation of that power?

II   If it can reach and embrace those objects, is there any principle which as to them gives to Congress or more properly the House of Representatives, a discretionary right of assent or dissent?

The affirmative of the first question is supported by these considerations.

I   The words which establish the Power of Treaty are manifestly broad enough to comprehend all Treaties.

II   It is a reasonable presumption, that they were meant to extend to all treaties usual among nations, and so to be commensurate with the variety of exigencies and objects of intercourse which occur between nation and nation; in other words that they were meant to enable the Organ of the Power to manage with efficacy the external affairs of the Country in all cases in which they must depend upon compact with another nation.

III   The Treaties usual among nations are principally those of Peace, Alliance and Commerce. It is the office of Treaties of peace to establish the cessation of hostilities and the conditions of it, including frequently indemnifications, sometimes pecuniary ones. It is the office of Treaties of alliance to establish cases in which nations shall succour each other in war stipulating a union of forces, the furnishing of troops, ships of war, pecuniary and other aids. It is the office of Treaties of Commerce to establish rules and conditions according to which nations shall trade with each other, regulating as far as they go the external commerce of the nations in Treaty—whence it is evident that Treaties naturally bear in different ways upon many of the most important objects, upon which the legislative power is authorised to act, as the appropriation of money, the raising of armies, the equipment of fleets, the declaring of war, the regulation of Trade. But

IV   This is no objection to the Power of Treaty having a capacity to embrace those objects5   1   Because that latitude is essential to the great ends for which the Power is instituted   2   Because unless the Power of Treaty can embrace objects upon which the legislative power may also act, it is essentially nugatory—often inadequate to mere treaties of Peace—always inadequate to Treaties of Alliance or Commerce 3 Because it is the office of the legislative power to establish separate rules of action for the nation of which it is—6 its arm being too short to reach a single case in which a common obligatory rule of action for two nations is to be established IV Because inasmuch as a common rule of action, for independent nations can only be established by compact, it necessarily is of the office of the Power of Treaty to effect its establishment V Because the power of legislation being unable to effect what the power of Treaty must effect, it is unreasonable to suppose that the former was intended to exclude the action of the latter VI Because on the other hand there is no incongruity in the supposition that the Power of Treaty, in establishing a joint rule of action with another nation, may act upon the same subject which the Legislative Power may act upon, in establishing a separate rule of action for one nation VII Because it is a common case for the different powers of Government to act upon the same subject within different spheres and in different modes. Thus the legislative power lays and provides for the collection of a particular tax—the Executive Power collects the tax and brings it into the Treasury.7 So the power of Treaty may stipulate pecuniary indemnification for an injury and the Legislative power may execute the stipulation by providing & designating the fund out of which the indemnification shall be made. As in the first case the Executive Power is auxiliary to the Legislative, so in the last legislative Power is auxiliary to the Power of Treaty. VIII Because this doctrine leads to no collision of powers, inasmuch as the stipulations of a Treaty may reasonably be considered as restraints upon the legislative discretion. Those stipulations operate by pledging the faith of a nation and restricting its will by the force of moral obligation, and it is a fundamental principle of social right that the will of a nation as well as that of an individual may be bound by the moral obligation of a contract. IX Because the organ of the Power of Treaty is as truly the Organ of the Will of a Nation as that of its legislative Power; and there is no incongruity in the supposition, that the will of a Nation, acting through one organ, may be bound by the pledge of its faith through another Organ. From these different views of the subject it results, that the position that the Power of Legislation, acting in one sphere, and the power of Treaty, acting in another sphere, may embrace in their action the same objects, involves no interference of constitutional Powers; and of course that the latter may reach and comprehend objects which the former is authorised to act upon; which it is necessary to suppose it does do since the contrary supposition would essentially destroy the Power of Treaty: whereas the stipulations of Treaties being only particular exceptions to the discretion of the Legislative Power, this power will always still have a wide field of action beyond and out of the exceptions.

The latitude of the Power of Treaty granted by analogous terms in the articles of our late confederation as practiced upon for years in treaties with several foreign Powers and acquiesced in by the Governments and citizens of these states, is an unequivocal comment upon the meaning of the provision in our present constitution and a conclusive evidence of the sense in which it was understood by those who planned and those who adopted the Constitution—supporting fully the foregoing construction of the Power. That latitude cannot be indebted to the circumstance of all the power granted by the confederation being in one body—for that body had legislative power in but very few cases & none in some very important cases embraced by its treaties. The examples of past practice under our present Government without the least question of its propriety afford a further corroboration of the intended & accepted sense of the Constitutional instrument.

The negative of the second question above stated is supported by these considerations.

I   A discretionary right of assent in the House of Representatives (as before shewn) would contradict the two important propositions of the Constitution—That the President with the Senate shall have power to make Treaties—That the Treaties so made shall be laws.

II   It supposes the House of Representatives at liberty to contravene the faith of the Nation engaged in a Treaty made by the declared constitutional Agents of the Nation for that purpose—and thus implies the contradiction that a Nation may rightfully pledge its faith through one organ, and without any change of circumstances to dissolve the obligation may revoke the pledge through another organ.

III   The obvious import of the terms which grant the Power of Treaty can only be controuled, if at all, by some manifest necessary implication in favour of the discretionary right which has been mentioned. But it has been seen that no such implication can be derived from the mere grant of certain powers to the House of Representatives in common with the other branch of the legislative body. As there is a rational construction which renders the due exercise of these powers in the cases to which they are competent compatible with the operation of the power of Treaty in all the necessary latitude, excluding the discretionary cooperation of the house of Representatives, that construction is to be preferred. It is far more natural to consider the exercise of those powers as liable to the exceptions which the power of Treaty granted to the President and Senate may make; than to infer from them a right in the House to share in this power in opposition to the terms of the grant and without a single expression in the constitution to designate the right. It is improbable that the constitution intended to vest in the house of Representatives so extensive a controul over treaties, without a single phrase that would look directly to the object. It is the more improbable, because the Senate being in the first instance a party to treaties, the right of discretionary cooperation in the House of Representatives, in virtue of its legislative character, would in fact terminate in itself, though but a part of the legislative body—which suggests this question,—Can the House of Representatives have any right in virtue of its general legislative character which is not effectually participated [in] by the Senate?

IV   The claim of such a right on the ground that the Legislative power is essentially deliberative, that wherever its agency is in question it has a right to act or not—and that consequently where provision by law is requisite to execute a Treaty there is liberty to refuse it—cannot be acceded to without admitting in the legislative body and in each part of it an absolute discretion incontroulable by any constitutional injunctions limits or restrictions; thereby overturning the fabric of a fixed & definite constitution and erecting upon its ruins a legislative Omnipotence.

It would, for example, give to Congress a discretion to allow or not a fixed compensation to the Judges, though the constitution expressly enjoins “that they shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office”; and would sacrifice this solemn & peremptory command of the Constitution to the opinion of Congress respecting a more essential application of the public money. Can this be true? Can any thing but absolute inability excuse a compliance with this injunction, and does not the constitution presuppose a moral impossib[il]ity of such inability?8 If there be a legal discretion in any case to contravene this injunction, what limit is there to the legal discretion of the legislative body? What injunction, what restrictionof the constitution may they not supersede? If the Constitution cannot direct the exercise of their authority in particular cases how can it limit it in any? What becomes of the appeal to our Courts on the constitutionality of a legislative act? What becomes of the power they solemnly assert to test such an act by the constitutional Commission and to pronounce it operative or null according to its conformity with a repugnance to that Commission? What in fine becomes of the Constitution itself?

This inquiry suggests a truth fundamental to the principles of our Government and all important to the security of the People of the U States—namely that the legislative body is not deliberative in all cases, that it is only deliberative and discretionary where the constitution and the laws lay it under no command nor prohibition—that where they command, it can only execute—where they prohibit it cannot act. If the thing be commanded and the means of execution are undefined it may then deliberate on the choice of the means—but it is obliged to devise some means. It is true that the Constitution provides no method of compelling the legislative body to act, but it is not the less under a Constitutional legal and moral obligation to act, where action is prescribed, & in conformity with the rule of action prescribed.

In asserting the authority of laws as well as of the constitution to direct and restrain the position is to be understood with this difference. The constitution obliges always—the laws ’till they are annulled or repealed by the proper authority. But till then they oblige the legislative body as well as individuals; and all their antecedent effects are valid and binding. And the abrogation or repeal of a law must be by an act of the regular organ of the national will for that purpose in the forms of the constitution; not by a mere refusal to give effect to its injunctions and requisitions; especially by a part of the legislative body. A legal discretion to refuse the execution of a preexisting law is virtually a power to repeal it—and to attribute this discretion to a part of the legislative body is to attribute to it the whole instead of a part of the legislative power in the given case. When towards the execution of an antecedent law further legislative provision is necessary, the past effects of the law are obligatory; and a positive repeal or suspension by the whole legislature is requisite to arrest its future operation. The idea is essential in a government like ours that there is no body of men or individual above the law; not even the legislative body till by an act of legislation they have annulled the law.

The argument from the principle of an essentially deliberative faculty in the legislative body is the less admissible, because it would result from it that the Nation could never be conclusively bound by a Treaty. Why should the inherent discretion of a future legislature be more bound by the assent of a preceding one than this was by a pledge of the public faith through the President & Senate.9

Hence it follows that the house of representatives have no moral power to refuse the execution of a treaty, which is not contrary to the constitution, because it pledges the public faith, and have no legal power to refuse its execution because it is a law—until at least it ceases to be a law by a regular act of revocation of the competent authority.

The ingredient peculiar to our Constitution, in that provision, which declares that Treaties are laws, is of no inconsiderable weight in the question. It is one thing whether a Treaty pledging the faith of the Nation shall by force of moral duty oblige the legislative will to carry it into effect; another whether it shall be of itself a law. The last is the case in our constitution which by a fundamental decree gives the character of a law to every Treaty, made under the authority which it designates. Treaties therefore in our government of themselves and without any additional sanction have full legal perfection as laws.

Questions may be made as to the cases in which and the authority by which under our constitution a Treaty consonant with it may be pronounced to have lost or may be divested of its obligatory force; a point not necessary now to be discussed. But admitting that authority to reside in the legislative body—still its exercise must be by an act of Congress declaring the fact and the consequence, or declaring war against the power with whom the Treaty is. There is perceived to be nothing in our constitution, no rule of Constitutional law, to authorise one branch alone, or the House of Representatives in particular, to pronounce the existence of such cases, or from the beginning to refuse compliance with such a Treaty without any new events to change the original obligations. A right in the whole Legislative body consisting of the two houses of Congress by a collective act to pronounce the cases of non operation & nullity of a Treaty asserts every thing that can reasonably be claimed in favour of the legislative Power, presents a consistent rule & obviates all pretence of collision.10

How discordant might be the results of a doctrine that the House of Representatives may at discretion execute or not a constitutional Treaty! What confusion, if our Courts of Justice should recognise & enforce as laws treaties, the obligation of which was denied by the House of Representatives!—and that on a principle of inherent discretion which no decision of the Courts could guide. We might see our commercial & fiscal systems disorganised by the breaches made in antecedent laws by posterior treaties, through the want of some collateral provisions requisite to give due effect to the principle of the new rule.

Can that doctrine be true which may present a Treaty operating as a law upon all the citizens of a country and yet legally disregarded by a portion of the legislative body?

The sound conclusion appears to be—that when a Treaty contains nothing but what the constitution permits, it is conclusive upon All and All are bound to give it effect. When it contains more than the constitution permits it is void either in the whole or as to so much as it improperly contains.

While I can discover no sufficient foundation in the constitution for the claim of a discretionary right in the House of Representatives to participate in giving validity to Treaties; I am confirmed in the contrary inference by the knowlege I have that the expediency of this participation was considered by the Convention which planned the Constitution and was by them overruled.

The greatness of the power of Treaty under this construction is no objection to its truth. It is doubtless a great power, and necessarily so, else it could not answer those purposes of national security and interest in the external relations of a Country for which it is designed. Nor does the manner in which it is granted in our constitution furnish any argument against the magnitude which is ascribed to it—but the contrary. A treaty cannot be made without the actual cooperation and mutual consent of the Executive and two thirds of the Senate. This necessity of positive cooperation of the Executive charges him with a high responsibility, which cannot but be one great security for the proper exercise of the Power. The proportion of the Senate requisite to their valid consent to a treaty approaches so near to unanimity, that it would always be very extraordinary, if it should be given to one really pernicious or hurtful to the State. These great guards are manifest indications of a great power being meant to be deposited. So that the manner of its deposit is an argument for its magnitude rather than an argument against it, and an argument against the intention to admit with a view to security the discretionary cooperation of the House of Representatives rather than in favour of such a right in them.

Two thirds of the two houses of Congress may exercise their whole legislative power, not only without but against the consent of the Executive. It is not evident on general principles, that in this arrangement, there is a materially greater security against a bad law than in the other against a bad Treaty. The frequent absolute necessity of secrecy not only in the conduct of a foreign negotiation, but at certain conjunctures as to the very articles of a Treaty is a natural reason why a part and that the least numerous part of the legislative body was united with the Executive in the making of Treaties in exclusion of the other and the most numerous. But if the deposit of the Power of Treaty was less safe & less well guarded, than it is conceived to be, this would not be a good argument against its being in fact exclusively deposited, as the terms of the Constitution which establish it import it to be. It would only be an argument for an amendment to the Constitution modifying the deposit of the power differently & superadding new guards.

If the House of Representatives called upon to act in aid of a Treaty made by the President & Senate believe it to be unwarranted by the cons[ti]tution which they are sworn to support—it will not be denied that they may pause in the execution; until a decision, on the point of constitutionality, in the Supreme Court of the United States shall have settled the question.

But this is the only discretion in that House, as to the obligation to carry a Treaty made by the President & Senate into effect, in the existence of which I can acquiesce, as being11 within the intent of the constitution.

Hence there was no question in my opinion of the competency of the House of Representatives, which I could presuppose likely to arise, to which any of the papers now requested could be deemed applicable; nor does it yet appear that any such question has arisen, upon which the request has been predicated.

Were even the course of reasoning which I have pursued less well founded than it appears to me to be—the request of papers, as a preliminary proceeding of the House, would still seem to be premature.

A question on the Constitutionality of a Treaty can manifestly only be decided by comparing the instrument itself with the Constitution.

A question whether a Treaty be consistent with or adverse to the interests of the U States must likewise be decided by comparing the stipulations which it actually contains with the situation of the U States in their internal and external relations.

Nothing extrinsic to the Treaty, or in the manner of the negotiating, can make it constitutional or unconstitutional, good or bad, salutary or pernicious. The internal evidence it affords is the only proper standard of its merits.

Whatever therefore be the nature of the duty or discretion of the house, as to the execution of the Treaty, it will find its rule of action in the Treaty. Even with reference to an animadversion on the conduct of the Agents who made the Treaty—the presumption of a criminal mismanagement of the interests of the U States ought first it is conceived to be deduced from the intrinsic nature of the Treaty & ought to be pronounced to exist previous to a further inquiry to ascertain the guilt or the guilty.

Whenever the House of Representatives, proceeding upon any Treaty, shall have taken the ground that such a presumption exists in order to such an inquiry, their request to the Executive to cause to be laid before them papers which may contain information on the subject will rest on a foundation that cannot fail to secure to it due efficacy.

But under all the circumstances of the present Request (circumstances which I forbear to particularise) and in its present indefinite form, I adopt with reluctance and regret but with intire conviction the opinion that a just regard to the Constitution and to the duty of my office forbid on my part a compliance with that request.12

(G W)

If the President should conclude to send the papers reserving parts not proper to be sent instead of the last paragraph the conclusion may be this

“But though under all the circumstances of the present request (circumstances which have produced great hesitation) I should deem myself warranted in witholding the papers—I am nevertheless induced by a desire to cultivate harmony and to obviate unfavourable inferences in a case which has excited so much sensibility, to transmit to the House all such parts of the papers requested as can be material in any event for their information and as can be communicated without impropriety. These comprehend the commissions given to our Envoy, so much of the instructions to him as shew the extent & limits of his discretion & all the material parts of his correspondence.”

(G W)

2ADf, George Washington Papers, Library of Congress; ADf, Hamilton Papers, Library of Congress; copy, in the handwriting of H and in an unknown handwriting, Hamilton Papers, Library of Congress.

The draft in the Hamilton Papers, Library of Congress, which is shorter than the other two versions, was prepared by H as a working paper for the document which he eventually sent to Washington. The draft in the George Washington Papers, Library of Congress, is the version which H sent to the President and which is printed above. Because H did not retain a copy of this document (see H to Rufus King, April 2, 1796), he wrote to Washington on April 2, 1796: “If there is time, I should like to have the paper lately sent to correct prune guard & strengthen.” H, however, did not have time to revise this draft, and he returned it to Washington on April 8. See H to Washington, April 8, 1796.

Before returning the draft to Washington on April 8, H and an assistant made a copy of it. This is the copy which is now in the Hamilton Papers, Library of Congress. It is possible that this copy was sent to Rufus King, to whom H had promised it. See H to King, April 2, 1796. If so, the following note in H’s handwriting that appears on a separate page at the end of the copy was directed to King: “If any use is made of this it must be in a way intirely consistent with the state of the thing—so that it may never appear that it has been communicated. The assistant copier knows nothing of the object ⟨&⟩ is altogether discreet.”

3Space left blank in MS. The resolution was passed on March 24, 1796. See note 1.

4The treaty was communicated on March 1, 1796 (Annals of Congress description begins The Debates and Proceedings in the Congress of the United States: with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature (Washington, 1834–1849). description ends , V, 48).

5In the draft in the Hamilton Papers, Library of Congress, this and the following three paragraphs read as follows: “IV. This is no objection to allowing the power a latitude equal to the embracing of such objects—Because that latitude is essential to the great national ends for which the power is instituted—Because the sphere of action of the legislative Power is intrinsically and inherently united to the jurisdiction of the Nation of which it is—and its arm too short to reach a single case in which a common obligatory rule of action for two nations is to be established—Because the establishment of such a rule of action, which from the independence of nations can only be by compact must be of the office of that power in the state which is charged to make treaties or compacts—Because this power acts by pledging the faith of the nation and binding its will by the obligation of a promise; while the legislative power acts by prescribing laws and enforcing them by sanctions—Because there is no incongruity or contradiction in supposing the Treaty Power in the establishment of a joint or common rule of action with another nation to act upon the same subject which the legislative power may act upon in the establishment of a separate rule of action for our own Nation—Because the stipulations of a Treaty can only be exceptions quoad hoc to the discretion of the legislative power and it will always still have a wide field of action beyond and out of the exceptions of Treaty—Because there is no difficulty in considering the stipulations of a Treaty as restraints upon the legislative discretion inasmuch as those stipulations operate by pledging the faith of a nation and laying it under a moral obligation—and the will of a nation as of an individual may be bound by the moral obligation of a contract—Because the organ of the Treaty Power is an organ of national will as well as the organ of the legislative power and there is no incongruity in supposing that its discretionary will through one organ may be bound by the pledge of its faith through the other organ: consequently the supposition that the Treaty Power acting in one sphere and the legislative Power acting in a different sphere may embrace in their action the same objects involves no collision in the theory of the constitution—but on the contrary reconciles the different parts of it and leaves a consistent and salutary latitude to each.”

6A this point in the copy in the Hamilton Papers, Library of Congress, “(the organ)” was added.

7At this point in the copy in the Hamilton Papers, Library of Congress, the following sentence was written and crossed out: “So the legislative power may prescribe a regulation of Trade by law, and the Treaty Power may establish one by agreement.”

8The remainder of the draft in the Hamilton Papers, Library of Congress, reads: “Can any thing but absolute inability excuse the compliance with this injunction & which the assent or sanction of any other power in the state is constitutionally requisite.

“A right in the House of Representatives to participate in giving validity to a treaty is a right to cooperate in the making of treaties. The power to make treaties would then not be in the President & Senate as the Constitution declares but in the President & the two houses of Congress.

“A legal discretion to refuse the execution of a law is virtually to repeal it & a power to repeal a law cannot under our constitution be claimed by either branch of Congress. The House of Representatives therefore cannot constitutionally refuse to execute a Treaty made by the President with the advice and consent of the Senate which is consistent with the Constitution.

“To say that the Legislative body & consequently each member of it is essentially deliberative and wherever its cooperation is requested is free to refuse it—is to say that there is an unlimited discretion in Congress, that there are and can be no constitutional restrictions on its discretions and consequently that there is no Constitution or fundamental law—for the very idea of a Constitution or fundamental law presupposes restraints on the Legislative discretion and that as far as those restraints extend it is not free to act, it is not deliberative but executive and ministerial. The opposite doctrine erects a legislative omnipotence upon the ruins of a limited constitution.

“The truth must then be that, each branch of the legislature is only free to act as it pleases where the constitution and the laws impose no restraint. Its legal discretion is limited by all the injunctions and prohibitions in the constitution and by all the provisions of antecedent laws until they are abrogated by the competent authority.

“The obligation of a law continues until it is repealed or annulled by the proper authority. Till then it is binding on all; for it is a vital principle of a free Government that the will of no individual or delegated body in the state shall be above the law or uncontrouled by it—except in so far as the legislature by an authentic act within the limits & in the forms of the constitution may repeal a law.

“It follows that though a Treaty made by the P with the advice & consent of the Senate containing matter not permitted by the Constitution to be contained in it may for that reason be unconstitutional and void—yet if it contains nothing but what the constitution permits it to contain, it is then valid and conclusive & can require no other consent or sanction to its perfection & complete obligation. As a Treaty it must bind the faith of the Nation, as a law it must bind the will of all, till it ceases to be a Treaty & a law by regular abrogation or repeal.

“Questions may arise as to the cases in which & the authority by which in our constitution a Treaty consonant with the Constitution once perfected may lose or be divested of its obligatory force—but nothing is discernable in the constitution to authorize one branch of the Legislature or the house of representatives in particular to pronounce the existence of such cases—still less to refuse compliance with such a Treaty from the beginning and without the pretence of any events having happened to change the intrinsic & original obligation.

“While the claim for the House of a Representatives of a right of assent or sanction to Treaties negates the two important propositions of the Constitution that the President with the Senate shall have power to make Treaties & that the Treaties so made shall be supreme laws of the land the contrary doctrine gives the Constitution its true effect leaves all the powers of Government free to act in their proper spheres.

“Tis the province of the legislative power to prescribe rules of action for the Nation of which it is to regulate the affairs of that Nation separately. Its arm is too short to reach the establishment of a common rule for its own Nation & a foreign Nation.

“Tis the province of the Treaty power to establish this common rule, which operating by way of contract binds the faith of a Nation, and binding its faith binds its will by the strongest bond of moral obligation.

“Trade P & the Treaty power are both powers to make laws. Whether one be supposed paramount to the other or both coordinate—the law made by one must at least oblige till abrogated by the other.

“Since then it is the province of the legislative power to establish rules of action for our own nation and the province of the Treaty-power to establish joint rules of action of our own and another nation, it follows that their spheres of action being different, in a constitutional sense there can be no collision.

“To avoid a collision in fact, it is only necessary to follow a very clear principle of morality to wit that the will of a nation is bound legally & morally though not physically bound by its contracts—that the legislative power which is the internal organ of the national will is bound by the Treaty power which is the external organ of its will—that a separate rule which the national will is free to abrogate ought to yield to a joint rule which is enforced by the obligation of good faith—and that both these organs of the national Will are subordinate to the constitution which creates them and is the common Commission.

“This general doctrine of morality is enforced by that provision of our constitution which ordains that treaties shall be ipso facto laws; a provision, I believe peculiar to our constitution. It is a different thing whether Treaties binding the faith of the Nation shall morally oblige the Legislative power to execute them & whether they shall have immediately & without any further sanction the force of laws. The latter is the case in our government by force of a fundamental law and is a very material ingredient in the force of our Treaties.

“A treaty being a law must of necessity abrogate all antecedent contrary laws and must legally as well as morally obey all parts of the Government.

“If we suppose the legislative Power coordinate with the Treaty power it will only follow that the Legislative Body by a legislative act may repeal or annull a Treaty; it will not follow that a part of that body by doing nothing may repeal or annull it—for the legislative power reposes in the whole body, not in any part of it.

“The proposition before stated seems to be universally true that a law must operate & oblige all till repealed or annulled by another law.

“It is another question what a Treaty may constitutionally embrace—or whether it may act upon matters which the Legislative power may also act upon.”

9At this point the following sentence is added in the copy in the Hamilton Papers, Library of Congress: “Even the Senate itself after having assented to a Treaty by two thirds in one capacity might in another by a bare majority refuse to execute; a contradiction not to be vindicated by any just theory.”

10At this point in the draft in the Hamilton Papers, Library of Congress, H wrote and crossed out the following two paragraphs: “Arguments opposed to this reasoning drawn from the practice of any other Government must be apt to mislead. If such government have not a precise written constitution delineating the powers of its several departments—if it has been subjected to frequent struggles between the prerogatives of one department & the authorities and privileges of another—if innovations on its primitive principles from time to time have been the result of those struggles—there is not sufficient analogy between that Government and ours to admit of a just inference from one to the other. It is natural to expect in such a Government a mixture and confusion of powers which are inapplicable to a Government founded on a written constitution; one main object of which is to define and distribute its power.

“But there is a peculiar ingredient in our constitution, serving as an additional source of discrimination in that provision, which makes Treaties ipso facto laws. It is one thing whether a Treaty pled[g]ing the faith of the Nation shall by the force of moral duty oblige the legislative will to carry it into effect—another whether it shall be of itself a law. The last is expressly the case of our constitution, which by the fundamental decree of the Nation, gives the full force of law to every treaty made under the authority designated in its constitution.”

11In MS, “been.”

12The copy in the Hamilton Papers, Library of Congress, ends at this point.

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