To William Loughton Smith1
[New York, March 10, 1796]
I observe Madison brings the power of the House of Representatives in the case of the Treaty to this Question Is the Agency of the House of Representatives on this subject deliberative or Executive?2 On the sophism that this Legislature and each Branch of it is essentially deliberative & consequently must have discretion will he, I presume, maintain the freedom of the House to concur or not.3
But this sophism is easily refuted. The Legislature & each branch of it is deliberative but with various restrictions not with unlimited discretion. All the injunctions & restrictions in the constitution for instance abrige its deliberative faculty & leave it quoad hoc merely executive. Thus the Constitution enjoins that there shall be a fixed allowance for the Judges which shall not be diminished. The Legislature cannot therefore deliberate whether they will make a permanent provision & when the allowance is fixed they cannot deliberate whether they will appropriate & pay the money. So far their deliberative faculty is abriged. The mode of raising & appropriating the money only remains matter of deliberation.
So likewise the Constitution says that the President & Senate shall make Treaties & that these Treaties shall be supreme laws. It is a contradiction to call a thing a law which is not binding. It follows that by constitutional injunction the House of Representatives quoad the stipulations of Treaties, as in the case cited respecting the Judges are not deliberative, but merely executive except as to the means of executing.
Any other Doctrine would vest the Legislature & each House with unlimited discretion & destroy the very idea of a Constitution limiting its discretion. The Constitution would at once vanish!
Besides the legal power to refuse the execution of a law is a power to repeal it. Thus the House of Representatives must as to Treaties concenter in itself the whole legislative power & undertake without the senate to repeal a law. For the law is complete by the action of the President & Senate.
Again a Treaty which is a contract between nation & nation abriges even the legislative discretion of the whole legislature by ⟨the⟩ moral obligation of keeping its faith; a fortiori that of one branch. In theory there is no method by which the obligations of a Treaty can be annulled but by mutual consent of the contracting parties—by ill faith in one of them or by a revolution of Government which is of a nature so to change the condition of parties as to render the Treaty inapplicable.4
Wm. Smith Esq
ALS, William Loughton Smith Papers, Library of Congress.
1. Smith was a Federalist member of the House of Representatives from South Carolina, a close friend of H, and one of the leading advocates in the House of the policies which H had introduced as Secretary of the Treasury.
For background to this letter, see the introductory note to H to George Washington, March 7, 1796.
2. This is a reference to a speech by James Madison on March 7, 1796, in the House of Representatives on a motion by Edward Livingston requesting that the President submit to the House papers relating to the negotiations of the Jay Treaty (see the introductory note to H to Washington, March 7, 1796). In the course of this speech Madison said: “The proposition now before the House … might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the Constitution, so as to take to the Executive all deliberative will, and leave the House only an executive and ministerial instrumental agency? He was not satisfied whether it was expedient at this time to go into a consideration of this very important question” (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, 437–38).
3. H was essentially correct in his prediction concerning the position that Madison would take. In a speech in the House on March 10, Madison considered that “construction [of the Constitution], which left with the President and Senate the power of making Treaties, but required at the same time the Legislative sanction and co-operation, in those cases where the Constitution had given express and specific powers to the Legislature.” He then said: “It was to be presumed that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislaton. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the Constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and no where expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power” (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, 493).
On March 10, 1796, Smith replied to Madison’s speech of the same day. Smith raised most of the points mentioned by H in the above letter, but he also advanced several other arguments in opposition to Livingston’s motion (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, 495–99).