The Defence No. XXXVIII1
[New York, January 9, 1796]
The manner in which the power of Treaty as it exists in the Constitution was understood by the Convention, in framing it, and by the people in adopting it, is the point next to be considered.
As to the sense of the Convention, the secrecy with which their deliberations were conducted does not permit any formal proof of the opinions and views which prevailed in digesting the power of Treaty. But from the best opportunity of knowing the fact, I aver, that it was understood by all to be the intent of the provision to give to that power the most ample latitude to render it competent to all the stipulations, which the exigencies of National Affairs might require—competent to the making of Treaties of Alliance, Treaties of Commerce, Treaties of Peace and every other species of Convention usual among nations and competent in the course of its exercise to controul & bind the legislative power of Congress. And it was emphatically for this reason that it was so carefully guarded; the cooperation of two thirds of the Senate with the President being required to make a Treaty. I appeal for this with confidence to every member of the Convention—particularly to those in the two houses of Congress. Two of these, are in the House of Representatives, Mr. Madison & Mr. Baldwin.2 It is expected by the adversaries of the Treaty that these Gentlemen will in their places obstruct its execution. However this may be, I feel a confidence that neither of them will deny the assertion I have made. To suppose them capable of such a denial were to suppose them utterly regardless of truth.
But though direct proof of the views of the Convention on the point cannot be produced—yet we are not wholly without proof on this head. Three Members of the Convention dissented from the Constitution, Mr. Mason, Mr. Gerry & Mr. Randolph.3 Among the reasons for his dissent published by Mr. Mason,4 we find this clause “By declaring all Treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation, which might have been avoided by proper distinctions with respect to Treaties, and requiring the assent of the House of Representatives where it could be done with safety.” This shews the great extent of the power in the conception of Mr. Mason—that in many cases it amounted to an exclusive power of legislation; nor did he object to the extent, but only desired that it should have been further guarded, by certain distinctions and by requiring in certain cases the assent of the House of Representatives.
Among the objections to the constitution addressed by Mr Gerry to the legislature of Massachusettes5 we find one to have been “that Treaties of the highest importance might be formed by the President with the advice of two thirds of a quorum of the Senate.” This shews his idea of the magnitude of the power; and impliedly admitting as well as Mr Mason the propriety of this, he seems only to have desired that the concurrence of the senate should have embraced two thirds of the whole body instead of two thirds of a quorum. But how small and how insignificant would the power of Treaty be, according to the doctrine lately advanced with regard to its constitutional limit?
As to the sense of the Community, in the adoption of the Constitution6 this can only be ascertained from two sources, the writings for and against the Constitution and the debates in the several state Conventions.7
I possess not at this moment materials for an investigation which would enable me to present the evidence they afford. But I refer to them, with confidence, for proof of the fact, that the organisation of the power of Treaty in the Constitution was attacked and defended, with an admission on both sides of its being of the character which I have assigned to it. Its great extent & importance—its effect to controul by its stipulations the legislative authority were mutually taken for granted—and, upon this basis, it was insisted by way of objection—that there were not adequate guards for the safe exercise of so vast a power—that there ought to have been reservations of certain rights, a better disposition of the power to impeach, and a participation, general or special, of the House of Representatives. The reply to these objections, acknowleging the delicacy and magnitude of the power, was directed to shew that its organisation was a proper one and that it was sufficiently guarded.*
The manner of exercising a similar power under the Confederation shall now be examined.
To judge of the similarity of the provision it will be useful to quote the terms in which it is made. They are these “The U States in Congress assembled shall have the sole and exclusive right & power of entering into Treaties and Alliances, provided that no Treaty of Commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to or from prohibiting the importation or exportation of any species of commodities whatsoever.” (Article IX)
It will not be disputed that the words “Treaties and alliances” are of equivalent import and of no greater force than the single word Treaties. An alliance is only a species of Treaty, a particular of a general. And the power of “entering into Treaties,” which terms confer the authority under which the former Government acted, will not be pretended to be stronger than the power “to make Treaties,” which are the terms constituting the authority under which the present Government acts. It follows that the power respecting treaties under the former and that under the present Governt. are similar.
But though similar, that under the present Government is more comprehensive; for it is divested of the restriction in the proviso cited above—and is fortified by the express declaration that its acts shall be valid notwithstanding the constitution or laws of any state. This is evidence, (as was the fact) of a disposition in the Convention to disembarrass and reinforce the power of making Treaties.
It ought not to pass unnoticed, that an important argument results from the proviso which accompanies the power granted by the Confederation as to the natural extent of this power. The declaration, that no Treaty of Commerce shall be made restraining the legislative power of a state from &c [imposing such duties and imposts on foreigners as their own people are subject to, or from prohibiting the importation or exportation of any species of commodities whatsoever]11 is an admission 1 that the general power of entering into Treaties includes that of making Treaties of Commerce, and 2 that without the limitation in the proviso, a Treaty of Commerce might have been made which would restrain the legislative authority of the State in the points interdicted by that proviso.
Let it not be said that the proviso by implication granted the power to make Treaties of Commerce; for besides that this is inconsistent with the more obvious meaning of the clause—the first article of the Confederation leaves to the States individually every power not expressly delegated to the U States in Congress assembled. The power of Congress therefore to make a Treaty of Commerce and every other Treaty they did make—must be vindicated on the ground that the express grant of power to enter into Treaties & alliances is a general, which necessarily includes as particulars, the various treaties they have made & the various stipulations of those Treaties.
Under this power thus granted & defined, the alliance with France was contracted; guaranteeing in the case of a defensive War her West India possessions, and when the casus fœderis occurs obliging the U States to make War for the defence of those possessions and consequently to incur the expences of War.12
Under the same power, Treaties of Commerce were made with France, the U Netherlands, Sweden and Prussia.13 Besides that every Treaty of Commerce is necessarily a regulation of Commerce between the parties—it has been shewn in the antecedent comparison14 of those Treaties15 with the one lately negotiated, that they produce the specific effects of restraining the legislative power from imposing higher or other duties on the articles of those nations than on the like articles of other nations and from extending prohibitions to them which shall not equally extend to other nations the most favoured; and thus abrige the exercise of the legislative power to tax, and the exercise of the legislative power to regulate Trade. These Treaties likewise define & establish the same case of piracy which is defined in the Treaty with G Britain.16 Moreover the Treaty with France17 as has been elsewhere18 shewn with regard to rights of property naturalizes the whole French Nation.
The Consular Convention with France,19 negotiated likewise under the same power grants to the Consuls of that Country various authorities and jurisdictions, some of the judicial nature, which are actual transfers to them of portions of the internal jurisdiction and ordinary judiciary power of the Country the exercise of which our Government is bound to aid with its whole strength. It also grants exemptions to French Consuls from certain kinds of taxes & to them and French Citizens from all personal services; all which are very delicate interferences with our internal police and ordinary jurisdiction.
Under the same Power the Treaty with Morrocco20 was formed, which besides various other regulations relative to War and several relative to Trade, contains the rule that neither party shall make War, without a previous demand of reparation, in restraint of the general discretionary power of Congress to declare war.
Under the same power, the Treaty of Peace with Great Britain21 was made. This treaty contains the establishment of a boundary line between the parties which, in part, is arbitrary and could not have been predicated upon precise antecedent right. It prohibits the future confiscation of the property of adherents to G Britain, declares that no person shall on account of the part he took in the war suffer any future loss or damage in his person liberty or property and provides for the release of such persons from confinement & the discontinuance of prosecutions against them. It is difficult to conceive a higher act of controul both of the legislative & judiciary authority than by this article. These provisions are analogous in principle to those stipulations which in the [second and ninth]22 articles of the Treaty under examination have given occasion to a constitutional objection.
Under the same power, various Treaties with Indians inhabiting the Territory of the U States have been made establishing arbitrary lines of boundary with them; which determine the right of soil on the one side and on the other. Some of these Treaties proceed on the principle of the U States having conquered the Indian Country and profess to make gratuitous concessions to them of the lands which are left to their occupation. There is, also, a feature of importance common to these Treaties, which is the withdrawing of the protection of the U States from those of their Citizens who intrude on Indian lands23 leaving them to be punished at the pleasure of the Indians.
Hence it appears, that except as to the stipulation for appointing Commissioners, the Treaties made under the confederation contain all the features identically or by analogy which are topics of Constitutional objection to the Treaty before us. They restrain in certain instances the legislative power to lay taxes. They make numerous and equivalent regulations of Trade—they confer the benefits of naturalization as to property. They define cases of piracy—They create causes of Expenditure. They direct and modify the power of war. They erect within the country tribunals unknown to our Constitutions & laws in cases to which they are competent, whereas the Treaty with G B only provides for the appointment of arbitrators in cases to which our Tribunals & laws are incompetent. And They make dispositions concerning the Territory & property of the U States.
It is true, that some of the Treaties made under the former Government, though subsequent to the proposing of the articles of Confederation to the States, were prior to the final adoption of these Articles; but still it is presumeable that the Treaties were negotiated with an eye to the powers of the pending National Compact. Those with Great Britain Sweden Prussia & Morrocco & the convention with France were posterior to the completion of that Compact.
It may perhaps be argued that a more extensive construction of the power of Treaty in the confederation than in our present constitution was countenanced by the Union in the same body of legislative powers, with the power of Treaty. But this argument can have no force when it is considered that the principal legislative powers with regard to the objects embraced by the Treaties of Congress were not vested in that body but remained with the individual states. Such are the power of specific taxation, the power of regulating Trade, the power of naturalization &c.
If in theory, the objects of legislative power are excepted out of the power of Treaty, this must have been equally, at least, the case with the legislative powers of the state Governments, as with those of the U States. Indeed the argument was much stronger for the exception, where distinct Governments were the depositories of the legislative power than where the same Government was the depository of that power and of the power of Treaty. Nothing but the intrinsic force of the power of Treaty could have enabled it to penetrate the separate spheres of the State Governments. The practice under the confederation, for so many years acquiesced in by all the states is therefore a conclusive illustration of the Power of Treaty and an irresistible refutation of the novel and preposterous doctrine which impeaches the Constitutionality of that lately negotiated. If the natural import of the terms used in the Constitution were less clear and decisive, than they are, that practice is a commentary upon them and fixes their sense. For the sense, in which certain terms were practiced upon a prior Constitution of Government, must be presumed to have been intended in using the like terms in a subsequent Constitution of Government for the same Nation.
Accordingly, the practice under the present Govt. before the late Treaty has corresponded with that sense.
Our treaties with several Indian Nations regulate and change the boundaries between them & the U States—and in addition to compensations in Gross they stipulate the payment of certain specific & pepetual annuities.24 Thus a Treaty in August 1790 with the Creeks25 (Article 4th)26 promises them the yearly sum of One thousand five hundred Dollars. And similar features are found in subsequent Treaties with the Six Nations,27 the Cherookees28 and the North Western Indians. This last has just been ratified by the unanimous voice of the Senate.29 It stipulates an annuity of 9500 Dollars, and relinquishes to the Indians a large tract of land which they had by preceding treaties ceded to the U States.
Hence we find that our former Treaties under the present Government as well as one subsequent to that under consideration contradict the doctrine set up against its constitutionality—in the important particulars of making dispositions concerning the Territory and property of the U States—and binding them to raise and pay money. These Treaties have not only been made by the President and ratified by the Senate, without any impeachment of their constitutionality but the House of Representatives has heretofore concurred and without objection in carrying them into effect by the requisite appropriation of money.
The consular convention with France stands in a peculiar predicament. It was negotiated under the former government, and ratified under the present; and so may be regarded as a treaty of both governments, illustrative of the extent of the power of Treaty in both. The delicate and even the extraordinary nature of the provisions it contains have been adverted to. Though all reflecting men have thought ill of the propriety of some of them, as inconveniently breaking in upon our interior administration, legislative, executive and judiciary; only acquiesing in them from the difficulty of getting rid of stipulations entered into by our public agents under competent powers, yet no question has been heard about their constitutionality. And Congress have by law assisted their execution by making our judicial tribunals and the public force of the country auxiliary to the decrees of the foreign tribunals which they authorize within our territory.
If it should be said, that our constitution by making all former treaties and engagements as obligatory upon the United States under that constitution, as they were under the confederation, rendered the ratification of the convention a matter of necessity—the answer is that either the engagements which it contracted were already conclusive or they were not—if the former, there was no need of a ratification, of the latter, there was no absolute obligation to it. And in every supposition, a ratification by the President with the consent of the Senate could have been predicated only upon the power given in the present constitution in relation to treaties; and to have any validity must have been within the limit of that power.
But it has been heretofore seen that the inference from this instrument is no less strong, if referred to the power under the confederation, than if referred to the power under the present Constitution.30
How happens it that all these Invasions of the Constitution if they were such were never discovered, and that the departments of the Government & all parties in the public councils should have cooperated in giving them a sanction. Does it not prove that All were convinced that the power of Treaty applied in our exterior relations to objects which in the ordinary course of internal administration & in reference to ourselves were of the cognizance of the legislative power? and particularly that the former was competent to bind the latter in the delicate points of raising and appropriating money? If competent to this, what legislative power can be more sacred, more out its reach?
Let me now ask (and a very solemn question it is, especially for those who are bound by oath to support the Constitution)—Has it not been demonstrated that the provisions in the Treaty are justified by the true & manifest interpretation of the Constitution sanctioned by the practice upon a similar power under the Confederation, and by the practice in other instances under the present government?31
If this has been demonstrated, what shall we think of the candor & sincerity of the objections which have been erected on the basis of a contrary supposition? Do they not unequivocally prove that the adversaries of the Treaty have been resolved to discredit it by every artifice they could invent? That they have not had truth for their guide & consequently are very unfit guides for the public Opinion, very unsafe guardians of the public weal?
It is really painful & disgusting to observe sophisms so miserable as those which question the constitutionality of the Treaty retailed to an enlightened people and insisted upon with so much seeming fervency & earnestness. It is impossible not to bestow on sensible men who act this part—the imputation of hypochrisy. The absurdity of the doctrine is too glaring to permit even Charity itself to suppose it sincere. If it were possible to imagine that a majority in any branch of our Government could betray the Constitution and trifle with the Nation so far as to adopt and act upon such a doctrine—it would be time to despair of the Republic.32
There would be no security at home, no respectability abroad. Our Constitutional Charter would become a dead letter & The Organ of our Government for foreign Affairs would be treated with derision whenever he should hereafter talk of negotiation or Treaty. May the Great Ruler of Nations avert from our Country so greivous a calamity!*
ADf, Hamilton Papers, Library of Congress; The [New York] Herald; A Gazette for the Country, January 9, 1796.
1. For background to this document, see the introductory note to “The Defence No. I,” July 22, 1795. The material within brackets in this essay has been taken from the newspaper.
2. Abraham Baldwin, member of the House of Representatives from Georgia.
3. George Mason, Elbridge Gerry, and Edmund Randolph.
4. This is a reference to George Mason’s “Objections to This Constitution of Government,” dated September, 1787, and later printed in pamphlet form and in various Virginia newspapers. It is published and annotated in Robert A. Rutland, ed., The Papers of George Mason, 1725–1792 (Chapel Hill, 1970), III, 991–94.
5. Gerry’s letter to the Massachusetts General Court, October 18, 1787, is printed in Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, Held in the Year 1788, and Which Finally Ratified the Constitution of the United States (Boston, 1856), 24–26.
6. In the draft H mistakenly wrote “Treaty.” In the newspaper the word appears correctly as “Constitution.”
7. At this point in the draft H wrote and crossed out the following: “I have not leisure at this time for a research into these; but I trust my memory with assurance, when I assert, that upon examination it will be found that the manner of depositing the Power of Treaty was attacked and defended, until mutual admission of its being of the character which I have ascribed to it as in the view of the General Convention. Its great extent, its effect to controul by its stipulations the legislative power were urged, not by way of objection to the quantum of the power, but by way of argument for further guards, by reservations of particular rights, by a better organization of the power to impeach by letting the House of Representatives into a participation in the authority to make Treaties. The reply to the objection acknowleging the magnitude of the Power, was directed to shew that its deposit was properly made and adequately guarded.
“Without going into detail on this part of the subject, I may refer to the numbers of the Fœderalist and to the debates of the several conventions particularly that of Virginia. In the latter, the assailants of the constitution dwelt particularly on the danger that the power of Treaty might be exercised to alienate our right to the navigation of the Mississippi and insisted that some special provision ought to have been inserted for its security.”
8. In the draft H omitted the remainder of this footnote, and it appears only in the newspaper.
9. The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania, to their Constituents … December 12, 1787 (Philadelphia: Printed by E. Oswald, at the Coffee-House, 1787). This “proposition,” which is the thirteenth, continues with the following statement: “… neither shall any treaties be valid which are in contradiction of the constitution of the United States, or the constitutions of the several states.”
10. Debates and Other Proceedings of the Convention of Virginia, Convened at Richmond, on Monday the 2d day of June, 1788, for the purpose of deliberating on the Constitution recommended by the Grand Federal Convention to Which is prefixed, the Federal Constitution (Petersburg: Printed by William Prentis, 1789), II. H is referring to page numbers.
11. Space left blank in MS. The words in brackets have been taken from the newspaper.
12. This is a reference to the Treaty of Alliance between the United States and France, signed at Paris on February 6, 1778. Articles 1 and 7 of this treaty read: “Art. 1. If War should break out betwan france and Great Britain, during the continuence of the present War betwan the United States and England, his Majesty and the said united States, shall make it a common cause, and aid each other mutually with their good Offices, their Counsels, and their forces, according to the exigence of Conjunctures as becomes good & faithful Allies.…
“Art. 7. If his Most Christian Majesty shall think proper to attack any of the Islands situated in the Gulph of Mexico, or near that Gulph, which are at present under the Power of Great Britain, all the said Isles, in case of success, shall appertain to the Crown of france.” (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 36, 38.)
13. For these treaties, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 3–29, 59–95, 123–49, 169–83.
15. At this point in the newspaper the following note appears: “Articles 2d, 3, and 4th of treaty with France 2d, 3d, and 20th of treaty with Russia 2d, and 3d, of treaty with Holland 3d, and 4th of Treaty with Sweaden.” See note 13.
16. See Article 16 (originally 18) and Article 21 (originally 23) of the Treaty of Amity and Commerce between the United States and France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 16, 19); Articles 15 and 19 of the Treaty of Amity and Commerce between the United States and the Netherlands, October 8, 1782 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 72–73, 76–77); Articles 17 and 23 of the Treaty of Amity and Commerce between the United States and Sweden, April 3, 1783 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 136–37, 142); Articles 17 and 20 of the Treaty of Amity and Commerce between the United States and Prussia, September 10, 1785 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 174–77); Articles 20 and 21 of the Treaty of Amity, Commerce, and Navigation between the United States and Great Britain, November 19, 1794 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 260–61). See also “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 70.
17. This is a reference to the Treaty of Amity and Commerce between the United States and France, February 6, 1778 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 3–29).
19. The consular convention with France was signed at Versailles on November 14, 1788. For the text, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 228–44.
20. The Treaty of Peace and Friendship between Morocco and the United States was signed on June 28 and July 15, 1786. For the text, see Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 185–227.
21. This is a reference to the definitive treaty of peace, signed at Paris on September 3, 1783.
23. In the newspaper this word is “laws.”
24. In the margin opposite this sentence H wrote and crossed out: “unconstitutional appoint of Mr. Jay.”
25. The treaty of peace and friendship between the United States and the Creeks was signed on August 7, 1790. For the text, see ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Indian Affairs, I, 81–82.
26. In the newspaper this is incorrectly cited as “Article 5th.”
27. The Senate agreed to this article of agreement with the Iroquois League on March 26, 1792 (Executive Journal, I description begins Journal of the Executive Proceedings of the Senate (Washington, 1828), I. description ends , 116).
28. For the treaty of peace and friendship with the Cherokees, dated July 2, 1791, see ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Indian Affairs, I, 124–25.
29. On August 3, 1795, Major General Anthony Wayne concluded a treaty with the Indians in the Northwest Territory at Greenville. It was approved by the Senate on December 22, 1795 (Executive Journal, I description begins Journal of the Executive Proceedings of the Senate (Washington, 1828), I. description ends , 197). For the text, see Carter, Territorial Papers description begins Clarence E. Carter, ed., The Territorial Papers of the United States (Washington, 1934– ). description ends , II, 525–35.
30. The three preceding paragraphs do not appear in the draft and have been taken from the newspaper.
31. In the margin opposite the end of this paragraph H wrote and crossed out: “Note Treaty with France &ca. made prior to final ratification of Confed.”
At this point in the draft H wrote and crossed out: “It is certain also that they are conformable with the sense of the Convention who digested the plan of that Government and that they are supported by the sense of the Nation for the long period of Eighteen years.”
32. In the margin opposite this paragraph H wrote and crossed out “Algerines.”
33. See note 20. The Treaty of Peace and Amity between the United States and Algiers had been signed on September 5, 1795. It was submitted to the Senate on February 16, 1796, and consented to by the Senate on March 2, 1796 (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 275). Article 22 of the treaty reads: “Should any disturbance take place between the Citizens of ye United States & the Subjects of this Regency or break any Article of this Treaty War shall not be Declared immediately but every thing shall be Searched into regularly. the Party Injured shall be made Reparation.…” A similar provision was made in Article 24 of the Treaty of Peace and Friendship between the United States and Morocco (Miller, Treaties, II description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, 1931), II. description ends , 217).