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A Constitutional History of the United States
Chapter XVIII - The Establishment of the Authority of the Executive in Foreign Affairs
by McLaughlin, Andrew C.
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The provision in the Constitution concerning the power to make treaties
was the product of considerable discussion in the Federal Convention. The
problem of determining where this important power should rest presented serious
difficulty. At that time the fisheries and our relations with Spain were
matters of immediate interest; there was anxiety, especially in some portions
of the south, lest the navigation of the Mississippi be surrendered and lest
the government be too complaisant in dealing with Spanish claims and
ambitions.[1] One cannot say just how much the anxieties or
misgivings of the moment influenced the delegates; but they probably did
influence them to some extent. However that may be, checks upon the free
exercise of the treaty-making power were inevitable.[2] The
committee of detail, reporting August 6, bestowed the power upon the Senate
alone; but this provision was at length changed, and the power was granted to
the president by and with the concurrence of two-thirds of the Senate. This
provision was placed in the second article of the Constitution, the article
dealing with the executive authority. That the Senate should serve as a guard
or check upon the president, lest he act ignorantly or corruptly, is plain; to
what extent he was expected to treat the Senate as an advisory council, which
he should continually consult and which he should at all times keep informed of
the progress of negotiations, is not so evident.
It is common now to think of the Senate's right to concur or to refuse
when a treaty is laid before it. The extent to which the president may take the
Senate, or more usually the committee on foreign relations, into his
confidence, formally or informally, during the processes of negotiations,
depends upon circumstances and, indeed, upon the president's inclination. The
president carries on diplomatic correspondence; and this duty necessarily
involves the power of communicating with foreign governments during all the
proceedings preliminarv to the formal concurrence of the Senate. He discusses
with the foreign government, a party to the proposed treaty, any modifications
which the Senate may have insisted upon, in case he consents to renew
negotiations after such modifications are proposed. Ratification, when the
terms of the treaty are agreed upon, is also a presidential prerogative. It is
hardly necessary to add that the negotiations with foreign governments are, in
practice, carried on by the secretary of state, or by a minister or a
commission, all of whom are the president's servants. These practices and
principles, which we now accept as part of the constitutional system, are the
products of interpretation as the necessity for interpretation and action
arose. The main principles came out fairly clearly during Washington's
presidency.
At the beginning Washington believed oral communications with the Senate
indispensable; but his first attempt brought forth difficulties. In the summer
of 1789 he appeared before the Senate, accompanied by the Secretary of War. He
wished to advise with them on the terms of the treaty to be negotiated with the
southern Indians, which the Secretary was prepared to explain. William Maclay,
a Senator from Pennsylvania, on whose Journal we are largely dependent
for our knowledge of the activities of the Senate in the early days, says that
Washington "told us bluntly that he had called on us for our advice and
consent.
..." Just what the bluntness consisted in we do not know, but probably
it was a product of Maclay's own suspicions. He and presumably some others who
were not so critical and so absurdly sensitive were fearful lest they be
trodden upon. Some portions of the treaty were postponed for later
consideration. Robert Morris, at the suggestion of Maclay, moved reference of
the matter to a committee, and that method of procedure the Senate decided
upon. Washington, so Maclay records, "started up in a violent fret" and said,
"This defeats every purpose of my coming here" — which was indeed the
fact. He therefore soon withdrew "with a discontented air. Had it been any
other man than the man whom I wish to regard as the first character in the
world, I would have said, with sullen dignity." [3] Two days later
the discussion was continued and the business was concluded. But thereafter
neither Washington nor any of his successors undertook to obtain advice and
consent by personal consultation.
If the senators wished to follow legislative methods, to appoint a
committee, and in fact refuse to consult with the President for fear lest their
own dignity be infringed upon, there was nothing to be done about it; and if
they must make speeches, nothing could prevent them. But as a result,
presidents have been left free to carry forward the whole process of
negotiations and of treaty-making until the finished document is laid before
the Senate for its concurrence. Maclay, cherishing a super-heated fear of
executive power, would have been surprised probably, had he been told that the
Senate was in fact surrendering in considerable measure its right to be
consulted at various stages, and that the president was to be left a large
amount of unhampered freedom. After this encounter with the Senate, Washington
endeavored, by sending communications, though not appearing in person, to treat
the Senate as an advisory body in the ordinary sense of the word. But
conditions were making against the establishment of the practice as a formal
necessity. The most critical treaty of his administration, the Jay treaty of
1794, seems to have been submitted without previous consultation or
communication.[4] The conditions of that eventful year were fraught
with peril; and the danger of war and internal commotion was too imminent to
admit of long delay, interminable harangues, and ill-natured strife.
When war between France and Britain broke out in 1793, grave problems
arose. The treaties with France, which had been made during the Revolution,
contained embarrassing commitments. If they should be carried out with
scrupulous regard for all their obligations, the country would find itself at
war with Britain, the main result of which, we may justly assume, would be
ruin. We do not need to consider at any length the ethical propriety of
disregarding a treaty; it is not a question for constitutional history; but
anyone knowing the plans brought by Genet, the French minister, will realize
that conditions prevailed which appeared, and appear even more strongly now, to
relieve the administration from any reasonable accusation of bad faith and
stubborn ingratitude.
In reaching a decision concerning the stand to be taken by the
administration, differences arose in the cabinet. Sympathies with one combatant
or the other were too intense to allow complete objective and unimpassioned
consideration of the problem. But as a matter of fact, despite differences,
there was substantial agreement on certain essentials. The cabinet unanimously
agreed that a minister from the French Republic should be received and that a
proclamation, now commonly called a proclamation of neutrality, should be
issued; that was the heart of the matter. Jefferson put forward an able
statement of the inviolability of treaties; he cited plentiful authorities; but
even he confessed that "if performance becomes self-destructive to the
party, the law of self-preservation overrules the laws of obligation to
others." [5] He believed renunciation or open disregard of the
French treaties should be postponed at least until actual peril was manifest.
Hamilton believed the United States would be justified in ignoring the treaties
on sundry grounds, especially because the government of France was quite
different from the one with which the treaties had been made, and because the
French were quite plainly the aggressive combatants. At first he did not
advocate the complete and open renunciation of the treaties, but desired that
before the French minister should be received, he should be apprised of the
intention to reserve for future consideration the question whether the
operation of the treaties should be suspended.[6] The Constitution
expressly gives the president authority to receive ambassadors, and though this
might not necessarily be construed to include the authority to receive, when
reception in fact constitutes the recognition of a new government, such has
been the established interpretation, and it probably depends in part on
Washington's reception of the French minister. Genet was received and
immediately proceeded to make himself disagreeable — not to the more
excited populace, but to those anxious lest the country be thrown into war as a
companion in arms of the French Republic; [7] such a possibility had
already affrighted the souls of the conservatives. But the conduct of the
French minister eased the situation by the middle of the summer, and the
cabinet decided to request his recall.
Regarding the actual position to be taken when the question first arose
concerning the treaties, there was, as we have said, no really critical
diversity between the two secretaries, though they do not appear to have been
quite calm and merely placidly argumentative. The truth is, a decision to
remain neutral and announce the fact settled the matter, if all the inevitable
consequences of neutrality were to be adhered to. But Jefferson seems to have
objected to the word "neutrality" [8] as indicating a decision of
the executive concerning the future, and because the authority of Congress to
declare war should not be encroached upon by a declaration that there was to be
no war. And the proclamation when issued did not contain the word "neutral" or
"neutrality".
Washington's proclamation is considered to-day an important document in
the history of international law. The discussions that arose concerning the
President's authority are important in constitutional history. Despite what
seems to have been a degree of superficial harmony in the cabinet, there was
bitterness underneath, and the public was more than uneasy.[9] Still
the constitutional controversy might, we may suppose, have been kept to some
extent under cover, had not Hamilton, always combative, decided to show his
whole hand. He published articles in the press under the pen name of
"Pacificus", and spread out his doctrines for popular consumption. With
customary ability and incisiveness, he defended the President's right to issue
the proclamation. But why he should have thought it necessary to add to the
public indignation by outlining at length his full theory of the executive
power, is not plain. He was no friend of halfway measures and he probably
believed it was time that the people should know the scope of the president's
power; if they were shocked by the picture, they would recover.
One statement in defense of the proclamation was of crushing force, and
had it stood alone, it might be held conclusive; possibly it might have
silenced opposition, or, if that were quite impossible, it might have had a
quieting effect: "If, on the one hand, the Legislature have a right to declare
war, it is on the other, the duty of the executive to preserve peace till the
declaration is made". But Hamilton did not content himself with this assertion.
The executive was, he declared, the department to which the Constitution
intrusted intercourse with foreign nations; the legislature was "charged
neither with making nor interpreting treaties." The authority to
issue a proclamation of neutrality belonged to the executive: "As the organ
of intercourse between the nation and foreign nations; as the
interpreter of the national treaties, in those cases in which the
judiciary is not competent — that is, between government and government;
as the power which is charged with the execution of the laws, of which
treaties form a part; as that which is charged with the command and disposition
of the public force."
Such assertions as these, while they seem to us quite ordinary and
orthodox, were not likely to be received joyfully by the Jeffersonians and the
crowds then shouting for France and liberty; but Hamilton did not stop there;
he proceeded to lay down statements concerning the scope and character of the
executive powers which were certain to awaken resentment and dismay. He quoted
from the Constitution: "the EXECUTIVE POWER shall be
vested in a President of the United States"; and he referred to certain
presidential powers which the Constitution specially mentioned. This
enumeration of specified powers was, however, "merely to specify the principal
articles implied in the definition of executive power; leaving the rest to flow
from the general grant of that power, interpreted in conformity with other
parts of the Constitution, and with the principles of free government. The
general doctrine of our Constitution, then, is, that the executive power
of the nation is vested in the President; subject only to the exceptions
and qualifications which are expressed in the instrument." These
exceptions he mentioned: the participation of the Senate in the appointment of
officers and in the making of treaties, and the right of Congress to declare
war and grant letters of marque and reprisal. "With these exceptions, the
executive power of the United States is completely lodged in the
President." He took occasion also to dwell on the president's power to receive
ambassadors and other public ministers: "This right includes that of judging,
in the case of a revolution of government in a foreign country, whether the new
rulers are competent organs of the national will, and ought to be recognized or
not".
Here was the picture of no supine official, humbly awaiting the public
behests or meekly carrying legislative orders into execution. One cannot wonder
at the consternation produced by these pronouncements, as men, fearful of
executive power and dreading the group whom Jefferson called the "monocrats",
looked upon the large outlines of the sturdy figure of the presidency, even
though at that moment Washington himself held the office.[10]
Hamilton's words are of interest because it would be nearly impossible even now
to draw the outlines of the executive in more sweeping and comprehensive terms
than those he laid down. Especially in very recent decades, the leadership of
the president in legislative matters has greatly grown; but it is difficult to
say just how much of Hamilton's view of the scope of the executive office has
been substantiated by the passing years.
As in many cases, the propriety of a statement depends on the
interpretation of a word or two; if "executive" meant what Hamilton declared it
meant, then for his argument that was enough.[11] He had in his
mind, whether quite conscious of the fact or not, many of the lineaments of the
executive as that figure appeared in the British system; consequently, under
our constitutional system, whatever might be justly, perhaps traditionally,
considered executive power belonged, with few explicit exceptions, to the
president, who was a constitutional reproduction of a monarchical prototype.
The executive had all "executive" power not by the Constitution denied him! We
may still find it difficult to acquiesce in all these broad and unrestrained
assertions of executive authority, and we may perchance especially question
Hamilton's assumption that full power is granted subject only to a few express
limitations; but whether we acquiesce or not, Hamilton drew the outlines of a
vigorous and competent official, and the influence of this opinion and of
Washington's general attitude were doubtless of effect.
But the men who feared the development of autocratic authority in
America were not content. "For God's sake, my dear Sir, take up your pen,"
Jefferson wrote to Madison, "select the most striking heresies and cut him to
pieces in the face of the public." Madison, writing under the pseudonym
"Helvidius", entered upon a long (and one might justly say tiresome) attack,
and his criticism of the pronouncements of "Pacificus" frustrates any attempt
at successful condensation. He naturally objected to Hamilton's method of
argument; and we must acknowledge that in one respect his animadversions were
pertinent: whence, he asks, can the propounder of the theories of executive
power under the Constitution have borrowed his ideas? "There is but one answer
to this question. The power of making treaties and the power of declaring war,
are royal prerogatives in the British government, and are
accordingly treated as executive prerogatives by British
commentators." [12] This statement cannot be fairly considered
as a purely partisan attack intended to quicken the animosity of the multitude.
Once admit, Madison said, the theories of the executive put forth by
"Pacificus", and you admit inferences and consequences against which no
constitutional ramparts could defend the public liberty; "no citizen could any
longer guess at the character of the government under which he lives".
What would have happened if Congress had been in session during that
anxious spring and summer when mobs were grumbling in the
streets,[13] we cannot know and fortunately do not need to imagine.
In August, the President wrote asking the opinion of his advisers as to whether
Congress should be summoned. Differences of opinion appeared. "Knox s[ai]d we
sh[oul]d have had fine work if Congress had been sitting these two last months.
The fool thus let out the secret. Hamilton endeavored to patch up the
indiscretion of this blabber, by saying 'he did not know; he rather thought
they would have strengthened the Executive arm.' " This is Jefferson's story.
But if Knox, like an enfant terrible, had let the cat out of the bag,
how fortunate for Hamilton that he had been able to get his ideas of the
executive authority put into public expression without congressional
uproar.
The year 1793, as we have seen, was replete with perplexities that
sorely distressed Washington and his advisers; but the following year was more
difficult still. Had there been a united nation, or had the politicians been
fairly reasonable, the situation would still have been perilous. But the
country was sharply divided in its sympathies for the warring nations of
Europe; politicians were loquacious and contentious; and under such conditions
Washington had to meet difficulties that would have tested the wisdom and the
courage of any government. The country, just accustoming itself to its new
institutions, was in no condition for a conflict, which almost surely would
have included civil tumult. In addition to the discord among the people and the
inflammatory declarations of the "democratic societies", there were four
serious problems needing solution, to be solved peaceably if possible; for,
however much some bold people might speak of American prowess, Washington must
have seen that a foreign war would be disastrous, (1) Spain had not acquiesced
in the treaty of 1783, but insisted on claiming territory north of the
thirty-first parallel; a claim coupled with control of the southern Mississippi
was especially obnoxious to the men in the new settlements beyond the
mountains, and there were a few miscreants in that region who were not above
plotting with Spaniards and receiving bribes from the Spanish treasury. (2) The
Excise Act was openly flouted in western Pennsylvania where men bitterly
resented a tax upon their customary beverage. (3) Great Britain, retaining the
frontier posts within the American border and retaining also the fur trade with
the northern Indians, was believed to be encouraging the red men in their
warfare against the western settlers.[14] (4) The war upon the sea
had opened to Britain opportunities for harassing American commerce, which were
peculiarly irritating.
The settlement of these problems — the weathering of the storms of
that perilous year, probably the most menacing time between the treaty of peace
and the war of 1861 — we must pass over hastily; but they belong in
constitutional history because upon their wise solution depended the character,
perhaps the very existence, of the new government. A treaty was made with
Spain, fixing the southern boundary (1795). A force much larger than Washington
had had at his command many times during the Revolution was sent against the
insurgents in western Pennsylvania, and the insurrection ceased. Washington
appears to have believed that the lawlessness was a natural result of the
activities of "self-created societies", those imitation Jacobin clubs which had
been making so much vocal disturbance for some little time.[15] He
doubtless welcomed the opportunity of testing the strength of the new
government and finding whether it could enforce its laws; if he were
successful, he would demonstrate to the public that they had a government whose
behests must be obeyed. Fortunately, the fervor of the "democratic societies"
was nearly burning out; though perils were not yet passed, the emotional
tumults were beginning to subside; common sense was reasserting itself. The end
of that eventful year marked the decline of the kind of declamation and parade
which in its essence endangered the stability or even the existence of the
government — at all events the existence of the kind of government
Washington was seeking to strengthen.[16]
In 1794, the Indians of the northwestern region were for the time
thoroughly beaten, and the next year a treaty with them settled the major
difficulties. But the relations with Britain were serious in the extreme; in
the spring of 1794 war appeared to be imminent; Congress provided for an
embargo and other measures of defense were taken. Washington decided to send
Jay to Britain to make a treaty that would preserve the peace. The result was
the famous treaty of 1794, which, whatever its defects and however heated the
demonstration by the ardent friends of France, at least saved America from war.
But the fury of the malcontents, when the treaty was known, was unbounded; no
other government than one under the direction of George Washington could have
stood the strain.
The President called a special session of the Senate (June,
1795)[17] and submitted the treaty for acceptance; there was no
previous conference or discussion between the Senate and the President; advice
and counsel were limited in practice to assent or dissent. The Senate decided
for acceptance on condition that there be added to the treaty an article
suspending the operation of a clause concerning the trade with the British West
Indies. But the trouble was not yet over; the House had something to say when a
bill was introduced for carrying the treaty into effect. The debate was long
and earnest. Inasmuch as the treaty, when once made, was "the supreme law of
the land", was the House under legal obligation to take the necessary step to
make it in all respects operative? Could the House inquire into the merits of
the treaty and, for that purpose, must it be furnished with information from
the Executive? A resolution passed the House asking for Jay's instructions and
for the correspondence and other papers relative to the treaty, "excepting such
of said papers as any existing negotiation may render improper to be
disclosed." The President refused the request, denying the right of the House
"to demand, and to have, as a matter of course, all the papers respecting a
negotiation with a foreign Power". The power of making treaties, he asserted,
is exclusively vested in the president by and with the advice and consent of
the Senate, provided two-thirds of the senators present concur; every treaty so
made and promulgated is the law of the land. It naturally follows from
Washington's assertion that the House is under constitutional obligation to
pass the necessary measures for making a treaty effective. Hamilton, in a
communication to Washington, had declared "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."
Though disavowing any claim to a share in the making of treaties, the
House, by a very decided majority, asserted, after Washington's refusal, its
full right and duty to deliberate on the expediency of carrying a treaty into
effect, when it "stipulates regulations on any of the subjects submitted by the
Constitution to the power of Congress" and its execution depends on the passage
of a law or laws. The bill carrying the appropriation for the execution of the
treaty was finally passed by the House. It thus appears that Washington
carefully guarded the executive power, and the House recognized the validity of
his position in certain respects. But it did not admit that its sole duty was
to stand blindfolded and pass any or every act necessary for the execution of a
treaty. The theory of the matter, if treated abstractly, may give some room for
dispute, and has indeed been subjected to minute consideration at various times
in the past.
One or two things are now fairly well established: a treaty may be
self-executing, that is to say, it may need no congressional act to bring it to
full execution; but if it does require such an act, the House cannot be
coerced; and to declare as a general principle that the House is legally bound
to pass necessary legislation is a principle which the House has many times
rejected. Probably no one would assert that, if a treaty be manifestly
unconstitutional, the House must nevertheless pass legislation to make it
operative; and furthermore, if it be founded on bribery or some other form of
rascality, the House cannot be expected to ignore the fact. In other words,
there are some limits on the obligation of the House. There may seem to
be a certain degree of folly in asserting, when a political body is
independent, that it cannot use discretion in the exercise of its power. But
there are doubtless both moral and legal obligations upon Congress which it
cannot properly ignore. Naturally, as a matter of practical fact, there must be
reasonable accommodation; for when all is said, it takes common sense, quite as
much as acute logic and forensic argument, to make a constitutional system
actually work. In the course of years, there have appeared certain practices
indicative of an appreciation of the sensitiveness of the House and a readiness
to recognize the rights and duties of the House, especially in fiscal
matters.[18]
During the debates on the Jay treaty, Albert Gallatin, defending the
rights of the House, as he conceived them, made an exceedingly able
speech,[19] in the course of which he referred to some especially
interesting and perplexing questions. He discussed the constitutional extent of
the treaty-making power: "A Treaty is unconstitutional if it provides for doing
such things, the doing of which is forbidden by the Constitution; but if a
treaty embraces objects within the sphere of the general powers delegated to
the Federal Government, but which have been exclusively and specially granted
to a particular branch of Government, say to the legislative department, such a
Treaty, though not unconstitutional, does not become the law of the land until
it has obtained the sanction of that branch." He declared that a law could not
repeal a treaty or a treaty repeal a law; but this is a statement which we must
now say is not sound; the exact reverse is the accepted constitutional
principle.[20] In some respects his most interesting remarks bore
upon the question as to whether or not there were any limits upon the authority
of the treaty-making power. His chief purpose was to defend the legislative
branch of the House in particular, but if he had mentioned the possibility of
the treaty-making power's so acting as to rob the states of their reserved
constitutional rights, he would - have touched upon a subject more disturbing
and more perplexing than encroachment on the particular functions of either
house or both houses of Congress.
On this general subject a few words may be appropriate here, though the
principles involved were by no means made clear in 1796. The right to make a
treaty which will affect the field of state legislative authority, and even
take from the state a right and freedom which it might otherwise freely
exercise, was early upheld by the Supreme Court.[21] Only a moment's
attention is needed to convince anyone that, if every power in the hands of the
states were to be immune from the slightest encroachment by the treaty-making
power, the scope of that power would be slender indeed. If a state, which
normally has control of internal police in a very full sense of the word, could
continue to enforce its regulations without reference to any treaty
stipulations, some of the most important matters commonly dealt with in
international agreements could not be handled at all.
Unquestionably, therefore, the domain of states' rights cannot be
considered as bounded by an impassable wall; but the question remains to what
extent or under what circumstances can the barrier be passed.
It may now be accepted as established, that if a treaty requires
legislation for its execution, Congress has constitutional authority to pass
such legislation, even if without the treaty there should be no such authority.
The fact that such a treaty interferes with the powers commonly exercised by
the states, and considered to be within their sphere of reserved power, does
not make the treaty or the law for its execution unconstitutional. In a recent
case (1920)[22] these principles are clearly laid down. "We do not
mean to imply", said Justice Holmes, giving the opinion of the Court, "that
there are no qualifications to the treaty-making power;" but the opinion does
not, naturally, tell us what the qualifications or limits are.[23]
"No doubt the great body of private relations usually fall within the control
of the State, but a treaty may override its power." The opinion contains one
statement which is very illustrative of the broad interpretation of the
Constitution with which we are now familiar, and though it is specially
inapplicable to the days of 1796, when the Jay treaty was discussed, it may
well be given here: "... when we are dealing with words that also are a
constituent act, like the Constitution of the United States, we must realize
that they have called into life a being the development of which could not have
been foreseen completely by the most gifted of its begetters. It was enough for
them to realize or to hope that they had created an organism; it has taken a
century and has cost their successors much sweat and blood to prove that they
created a nation. The case before us must be considered in the light of our
whole experience and not merely in that of what was said a hundred years ago.
The treaty in question does not contravene any prohibitory words to be found in
the Constitution. The only question is whether it is forbidden by some
invisible radiation from the general terms of the Tenth Amendment. We must
consider what this country has become in deciding what that Amendment has
reserved." [24]
[1] See, for example, the speeches of Gouverneur Morris and
Hugh Williamson on September 8, 1787. See also, Charles Warren, The Making
of the Constitution, p. 656 ff.
[2] A grant of this exceedingly important power to the
president alone was, for that time, quite impossible. There was too much fear
of one-man power. In the Convention James Wilson even proposed joining the
House with the Senate. He also declared that the requirement of a two-thirds
vote in the Senate would put it into the power of a minority to control the
will of a majority, and that the same provision would allow a minority to
perpetuate war (September 7, 8). In the state conventions there was
considerable contention over the treaty-making provision. "In view of the
sentiment which has developed in recent years against requiring more than a
majority of the Senate to ratify a treaty, it is interesting to notice that, in
1788, much of the opposition to the treaty clause was based on the feeling that
the two thirds requirement was too small." Warren, op. cit., p. 658.
Virginia proposed an amendment requiring for certain kinds of treaties "the
concurrence of three fourths of the whole number of the members of both Houses
respectively."
[3] Journal of William Maclay, pp. 128-131. Italics of
the original omitted.
[4] A brief treatment of the treaty-making power may be found
in J. M. Mathews, The Conduct of American Foreign Relations. See
especially pp. 140-148. In later years, the president in a few instances
communicated with the Senate before negotiations were completed, and even
consulted the Senate, though not personally present. President Wilson went
before the Senate to give a formal address July 10, 1919. Congressional
Record, 66 Cong., 1 sess., p. 2336 ff. See, for examples of consultation,
S. B. Crandall, Treaties, Their Making and Enforcement (Columbia
University Studies in History, etc., XXI, no. 1), p. 59 ff.
[5] Works (federal ed.), VII, p. 286. "The danger
which absolves us must be great, inevitable & imminent." Ibid., p.
287.
[6] "Jefferson ... disapproved of connecting the reception of
the minister with any reservation on the treaties, even if it should be decided
to make such a reservation. In the latter case he thought the suspension should
be a separate act. He denied that the reception of the minister had anything to
do with the applicability of the treaties, and that such a qualified reception
was necessary to protect the interest of the United States." C. M. Thomas,
American Neutrality in 1793, pp. 72-73. It is worthy of note that
Washington decided to receive the French minister without any qualifications.
"We are not permitted to know the relative influence which the various
arguments had in determining this decision; whether it was due entirely to a
conviction that a suspension of the treaties was unwise, or whether it was due
partly to a persuasion that there was no reason for joining such an
announcement to the reception of a minister, and this being the case, that the
announcement could well await the development of events. Whatever reasons may
have appealed to the President, it is clear that he accepted the position of
the Secretary of State and rejected the advice of the Secretary of the
Treasury." Ibid., p. 76. The treaties were formally declared no longer
legally obligatory in 1798. This was done by act of Congress. The
constitutional authority of the president to interpret a treaty and to
determine its application in a given instance is passed over intentionally in
the text above without comment. For the termination of treaties, denunciation
and abrogation by Congress, and denunciation by the president, etc., see Quincy
Wright, The Control of American Foreign Relations, pp. 256-262.
[7] Jefferson wrote to Monroe (July 14, 1793) declaring
Genet's "conduct is indefensible by the most furious Jacobin." Jefferson,
WorksI(federal ed.), VII, p. 449.
[8] "The proclamn as first proposed was to have been a
declaration of neutrality. It was opposed on these grounds. 1. That a
declaration of neutrality was a declaration there should be no war, to which
the Executive was not competent. 2. That it would be better to hold back the
declaration of neutrality, as a thing worth something to the powers at war,
that they would bid for it, & we might reasonably ask a price... ," Letter
from Jefferson to Madison, June 23, 1793, in Ibid., VII, pp.
407-408.
[9] "Every Gazette I see (except that of the U. S.) exhibits
a spirit of criticism on the anglified complexion charged on the Executive
politics.... The proclamation was in truth a most unfortunate error.... It
wounds the popular feelings by a seeming indifference to the cause of liberty.
And it seems to violate the forms & spirit of the Constitution, by making
the executive Magistrate the organ of the disposition the duty & the
interest of the Nation in relation to War & peace, subjects appropriated to
other departments of the Government." Letter from Madison to Jefferson, June
10, 1793. See Madison, Writings (Gaillard Hunt, ed.), VI, p. 127 note.
Madison thought it "mortifying" to the real friends of the President to see his
fame and influence unnecessarily made to depend on "political events in a
foreign quarter of the Globe...." We can scarcely refrain from the conclusion
that the usually cautious Madison was not thinking very soberly in some
particulars.
[10] "How far the President considers himself as
committed with respect to some doctrines. He is certainly uneasy at those
grasped at by Pacificus...." Letter from Jefferson to Madison, August 3,
1793, in Jefferson, Works (federal ed.), VII, p. 464.
[11] Hamilton may have had in mind the statements of
Montesquieu and Locke. Montesquieu spoke of three sorts of power: "the
legislative; the executive, in respect to things dependent on the law of
nations; and the executive in regard to things that depend on the civil law."
Locke distinguished executive, legislative, and federative powers. He said that
though the executive and federative powers are distinct, they are hardly to be
placed in the hands of distinct persons. See Wright, op. cit., pp.
141-142.
[12] Madison, Writings (Gaillard Hunt, ed.), VI, p.
150.
[13] "You certainly never felt the terrorism excited by Genet
in 1793 when ten thousand, people in the streets of Philadelphia day after day
threatened to drag Washington out of his house and effect a revolution in the
government to compel it to declare war in favor of the French Revolution and
against England." Letter from John Adams to Jefferson, many years afterwards,
quoted in C. D. Hazen, Contemporary American Opinion of the French
Revolution (John Hopkins Univ. Studies in Hist. and Pol. Science,
extra volume XVI), p. 186. Italics of the original omitted. We may credit the
figures, "ten thousand", probably to Adams's flowing pen. But the situation was
serious.
[14] In this year Lord Dorchester made a speech to the
Indians which our government naturally and properly resented. This subject of
the frontier posts is a large one. See S. F. Bemis, Jay's Treaty; A. C.
McLaughlin, "The Western Posts and the British Debts", Am. Hist. Asso.
Report for 1894, pp. 413-444; Theodore Roosevelt, The Winning of the
West, especially IV.
[15] In his address to Congress, November 19, 1794, he spoke
of "certain self-created societies". The Senate's address of November 21, is
unmistakable. "Our anxiety arising from the licentious and open resistance to
the laws in the Western counties of Pennsylvania, has been increased by the
proceedings of certain self-created societies, relative to the laws and
administration of the Government; proceedings, in our apprehension, founded in
political error, calculated, if not intended, to disorganize our Government,
and which, by inspiring delusive hopes of support, have been influential in
misleading our fellow citizens in the scene of insurrection." The address of
the House on the President's speech, adopted after long discussion, is
significant. The House felt, with the President, "the deepest regret at so
painful an occurrence in the annals of our country"; it had learned with the
greatest concern of misrepresentations of the government and its proceedings;
but the crisis had demonstrated to a candid world that the great body of the
American people were "attached to the luminous and vital principle of our
Constitution, which enjoins that the will of the majority shall prevail".
Annals of Congress, 3 Cong., 2 sess., cols, 788, 794, 947-948.
[16] The prominent fact is that the American people did keep
their heads. As one reads of the silly extravagances of the populace he may
forget that the world was on fire, and that the American people, though they
had just passed through a Revolution and a succeeding period of uncertainty and
disorder, went forward without devastating insurrection, and, under the
guidance of wise architects, built up a substantial government. Those days in
America can be understood only by remembering conditions in England and in
Europe generally. One may well recall how deeply the intellectuals of Britain
— many of them — were stirred as nothing before or perhaps since has
stirred that class of the people; those were the days when, as Wordsworth tells
us, it was bliss to be alive, but to be young were very heaven.
[17] Called March 3, 1795 to convene June 8.
[18] Cf. Mathews, op. cit., pp. 201-212, and
references there cited. "Resolved, That it is the sense of this House that the
negotiation by the Executive Department of the Government of a commercial
treaty whereby the rates of duty to be imposed on foreign commodities entering
the United States for consumption should be fixed would, in view of the
provision of section 7 of article I of the Constitution of the U. S. be an
infraction of the Constitution and an invasion of one of the highest
prerogatives of the House of Representatives." Hinds, Precedents, II,
989, quoted in Ibid., p. 204, note 2. "It thus appears that in the case
of treaties relating to certain matters which, under the Constitution, are
delegated to the legislative control of Congress, the treaty-making power has
conceded that a treaty should not be put into effect until it has been approved
by Congress. This has been agreed to particularly in relation to the regulation
of customs revenue...." Mathews, op. cit., p. 211. See also, as an
indication of the position of the House, Statutes at Large, XXXIII, ch.
I, sec. I. The act in question declared that nothing herein contained "shall be
held or construed as an admission on the part of the House of Representatives
that customs duties can be changed otherwise than by an Act of Congress,
originating in said House."
[19] Annals of Congress, 4 Cong., 1 sess., col. 464
ff.
[20] "... it is well settled that in case of a conflict
between an act of Congress and a treaty — each being equally the supreme
law of the land — the one last in date must prevail in the courts."
Justice Harlan in Hijo v. United States, 194 U. S. 315, 324 (1904).
[21] "We do not have to invoke the later developments of
constitutional law for this proposition...." Justice Holmes giving the opinion
of the Court in Missouri v. Holland, 252 U. S. 416, 434 (1920). He cites
among other cases, Hopkirk v. Bell, 3 Cranch 454; Ware v. Hylton,
3 Dallas 199; Chirac v. Chirac, 2 Wheaton 259 — all fairly early
cases.
[22] Missouri v. Holland, 252 U. S. 416. This is the
"migratory bird case" involving the constitutionality of an act of Congress
carrying into effect a treaty for the protection of migratory birds. The fact
that game laws and similar legislation have been considered within the police
power of the state, and would be within such power in the absence of treaty
regulations, did not make the treaty or the act for its execution
unconstitutional. So the principle holds that the treaty-making power justifies
Congress in passing legislation which without a treaty would be
unconstitutional.
[23] The Court in some instances has said that there are
limits. "The treaty power ... is in terms unlimited except by those restraints
which are found in that instrument [the Constitution] against the action of the
government or of its departments, and those arising from the nature of the
government itself and of that of the States." Geofroy v. Riggs, 133 U.
S. 258, 267 (1890). See, for a discussion of this principle, W. W. Willoughby,
Principles of the Constitutional Law of the United States (2nd ed.), p.
241. This author believes that dicta of the Supreme Court which would
appear to restrict the treaty-making power from infringing upon the reserved
rights of the states will sooner or later be finally repudiated by the
Court.
[24] For a discussion of the extent of the treaty-making
power, see E. S. Corwin. National Supremacy, especially ch. VI,
"Treaty-Power Versus Police Power".
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