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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.

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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