Front Page Titles (by Subject) no. xxxvii - The Works of Alexander Hamilton, (Federal Edition), vol. 6
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no. xxxvii - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 6 
The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 6.
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It shall now be shown that the objections to the treaty, founded on its pretended interference with the power of Congress, tend to render the power of making treaties, in a very great degree, if not altogether, nominal. This will be best seen by an enumeration of the cases of pretended interference.
1st.—The power of Congress to lay taxes is said to be impaired by those stipulations which prevent the laying of duties on particular articles; which also prevent the laying of higher or other duties on British commodities than on the commodities of other countries; and which restrict the power of increasing the difference of duties on British tonnage and on goods imported in British bottoms.
2d.—The power of Congress to regulate trade is said to be impaired by the same restrictions respecting duties, inasmuch as they are intended, and operate, as regulations of trade; by the stipulations against prohibitions in certain cases; and, in general, by all the rights, privileges, immunities, and restrictions in trade, which are contained in the treaty; all which are so many regulations of commerce, which are said to encroach upon the legislative authority.
3d.—The power of Congress to establish a uniform rule of naturalization, is said to be interfered with by those provisions of the treaty which secure to the settlers, within the precincts of the British posts, the right of becoming citizens of the United States, and those which, in certain cases, remove the disability of alienism as to property.
4th.—The power of Congress “to define and punish piracies and felonies, committed on the high seas, and offences against the law of nations,” is said to be contravened by those parts of the treaty which declare that certain acts shall be deemed piracy, which constitute certain other things offences, and stipulate the reciprocal punishment of them by each.
5th.—It is also said that the Constitution is violated in relation to that provision which declares, that “no money shall be drawn from the treasury but in consequence of appropriations made by law”; by those parts of the treaty which stipulate compensations to certain commissioners, and indemnifications to Great Britain, in certain cases to be adjusted and pronounced by the commissioners; and, generally, by all those parts which may involve an expenditure of money.
6th.—The Constitution is said to be violated in that part which empowers Congress to dispose of, and make all needful rules and regulations respecting, the territory, or other property of the United States, by those provisions of the treaty which respect the adjustment of boundary in the cases of the rivers St. Croix and Mississippi.
Lastly.—The Constitution is said to be violated, in its provisions concerning the judiciary department, by those parts of the treaty which contemplate the confiding to the determination of commissioners certain questions between the two nations.
A careful inspection of the treaty, with these objections in view, will discover that of the twenty-eight articles which compose it, at least seventeen are involved in the charge of unconstitutionality; and that these seventeen comprise all the provisions which adjust past controversies, or establish rules of commercial intercourse between the parties. The other eleven, which are the 1st, 9th, 10th, 17th, 18th, 19th, 20th, 22d, 23d, 24th, and 28th, except the 1st, are made up of provisions which have reference to war; the first merely declaring that there shall be peace between the parties. And it is a question, even with respect to all of these, except the first and tenth, whether they also are not implicated in the charge; inasmuch as some of their dispositions have commercial relations. Is not this alone sufficient to bring under a strong suspicion the validity of the principles which impeach the constitutionality of the instrument?
It must have been observed that the argument in the last number is applicable to all the legislative powers of Congress, as well as to that of regulating trade, which was selected, by way of illustration, on the ground of its being common to all. Indeed the instance of the regulations of trade is that which is most favorable to the opposite doctrine, since foreign nations are named in the clause; the true intent of which, however, has been explained.
The same reasoning, too, would extend the power of treaties to those objects which are consigned to the legislation of individual States; but here the Constitution has announced its meaning in express terms, by declaring, that the treaties which have been and shall be made under the authority of the United States, shall be the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding. This manifestly recognizes the supremacy of the power of treaties over the laws of particular States, and goes even a step further.
The obvious reason for this special provision, in regard to the laws of individual states, is, that there might otherwise have been room for question—whether a treaty of the Union could embrace objects, the internal regulation of which belonged to the separate authorities of the States. But with regard to the United States there was no room for a similar question.
The power of treaty could not but be supposed commensurate with all these objects to which the legislative power of the Union extended, which are the proper subjects of compacts with foreign nations.
It is a question among some theoretical writers—whether a treaty can repeal pre-existing laws? This question must always be answered by the particular form of government of each nation. In our Constitution, which gives, ipso facto, the force of law to treaties, making them equal with the acts of Congress, the supreme law of the land, a treaty must necessarily repeal an antecedent law contrary to it; according to the legal maxim that “leges posteriores priores contrarias abrogant.”
But even in those forms of government, in which there may be room for such a question, it is not understood that a treaty containing stipulations which require the repeal of antecedent laws, is, on that account, unconstitutional and null. The true meaning is, that the antecedent laws are not, ipso facto, abrogated by the treaty; but the Legislature is, nevertheless, bound in good faith, under the general limitation stated in another place, to lend its authority to remove obstacles which previous laws might oppose to a fair execution of a treaty.
One instance of the inconsistency prevailing in the arguments against the treaty negotiated by Mr. Jay, is observable in this point. To get rid of the infractions of our treaty of peace with Great Britain by certain laws of particular States, it is strenuously maintained that treaties control the laws of States. To impeach the constitutionality of the treaty under consideration, it is objected that, in some points, it interferes with the objects of State legislation. The express provision of the Constitution in this particular, quoted above, has not been sufficient to check the rage for objection.
The absurdity of the alleged interferences will fully appear, by showing how they would operate upon the several kinds of treaties usual among nations. These may be classed under three principal heads: 1, treaties of commerce; 2, treaties of alliance; 3, treaties of peace.
Treaties of commerce are, of course, excluded; for every treaty of commerce is a system of rules devised to regulate and govern the trade between contracting nations; invading directly the exclusive power of regulating trade which is attributed to Congress.
Treaties of alliance, whether defensive or offensive, are equally excluded, and this on two grounds: 1. Because it is their immediate object to define a case or cases in which one nation shall take part with another in war, contrary, in the sense of the objection, to that clause of the Constitution which gives to Congress the power of declaring war; and 2. Because the succors stipulated, in whatever shape they may be, must involve an expenditure of money—not to say, that it is common to stipulate succors in money, either in the first instance or by way of alternative. It will be pertinent to observe incidentally, in this place, that even the humane and laudable provision in the seventeenth article, which all have approved, is within the spirit of the objection; for the effect of this is to restrain the power and discretion of Congress to grant reprisals, till there has been an unsuccessful demand of justice. Nothing can better illustrate the unreasonable tendency of the principle.
Treaties of peace are also excluded, or, at the least, are so narrowed as to be in the greatest number of cases impracticable. The most common conditions of these treaties are restitutions or cessions of territory, on one side or on the other, frequently on both sides—regulations of boundary—restitutions and confirmations of property—pecuniary indemnifications for injuries or expenses. It will, probably, not be easy to find a precedent of a treaty of peace, which does not contain one or more of these provisions, as the basis of the cessation of hostilities, and they are all of them naturally to be looked for in an agreement which is to put an end to the state of war between conflicting nations.
Yet they are all precluded by the objections which have been enumerated: pecuniary indemnifications, by that which respects the appropriations of money; restitutions or cessions of territory or property, regulations of boundary, by that which respects the right of Congress to dispose of, and make all needful rules and regulations concerning the territory and property of the United States. It is to be observed, likewise, that cessions of territory are almost always accompanied with stipulations in favor of those who inhabit the ceded territory, securing personal privileges and private rights of property; neither of which could be acceded to on the principles of that objection, which relates to the power of naturalization; for this power has reference to two species of rights, those of privilege and those of property. An act allowing a foreigner to hold real estate is so far an act of naturalization; since it is one of the consequences of alienism, not to be able to hold real estate.
It follows, that if the objections which are taken to the treaty, on the point of constitutionality, are valid, the President, with the advice and consent of the Senate, can make neither a treaty of commerce nor alliance, and rarely, if at all, a treaty of peace. It is probable, that on a minute analysis, there is scarcely any species of treaty which would not clash, in some particular, with the principle of those objections; and thus, as was before observed, the power to make treaties, granted in such comprehensive and indefinite terms, and guarded with so much precaution, would become essentially nugatory.
This is so obviously against the principles of sound construction; it, at the same time, exposes the Government to so much impotence in one great branch of political power, in opposition to a main intent of the Constitution; and it tends so directly to frustrate one principle object of the situation of a general government, the convenient management of our external concerns, that it cannot but be rejected by every discerning man who will examine and pronounce with sincerity. It is against the principles of sound construction; because these teach us, that every instrument is so to be interpreted, as that all the parts may, if possible, consist with each other, and have their effect. But the construction which is combated would cause the legislative power to destroy the power of making treaties. Moreover, if the power of the executive department be inadequate to the making of the several kinds of treaties which have been mentioned, there is, then, no power in the Government to make them; for there is not a syllable in the Constitution which authorizes either the legislative or judiciary departments to make a treaty with a foreign nation. And our Constitution would then exhibit the ridiculous spectacle of a government without a power to make treaties with foreign nations; a result as inadmissible as it is absurd; since, in fact, our Constitution grants the power of making treaties, in the most explicit and ample terms, to the President, with the advice and consent of the Senate. On the contrary, all difficulty is avoided, by distinguishing the province of the two powers, according to ideas which have been always familiar to us, and which were never exposed to any question till the treaty with Great Britain gave exercise to the subtilties of party spirit.
By confining the power to make laws within its proper sphere, and restricting its actions to the establishment of rules for our own nation and those foreigners who come within our jurisdiction, and by assigning to the power of treaty the office of concerting those rules of mutual intercourse and connection, between us and foreign nations, which require their consent as well as our own, allowing to it the latitude necessary for this purpose, a harmonious agreement is preserved between the different powers of the Government—that to make laws, and that to make treaties; between the authority of the legislative and the authority of the executive department. Hence—
Though Congress, by the Constitution, have power to lay taxes, yet a treaty may restrain the exercise of it in particular cases. For a nation, like an individual, may abridge its moral power of action by agreement; and the organ charged with the legislative power of a nation may be restrained in its operation by the agreements of the organ of its federative power, or power to contract. Let it be remembered, that the nation is the constituent, and that the executive, within its sphere, is no less the organ of its will than the Legislature.
Though Congress are empowered to make regulations of trade, yet they are not exclusively so empowered; but regulations of trade may also be made by treaty, and, where other nations are to be bound by them, must be made by treaty.
Though Congress are authorized to establish a uniform rule of naturalization, yet this contemplates only the ordinary cases of internal administration. In particular and extraordinary cases, those in which the pretensions of a foreign government are to be managed, a treaty may also confer the rights and privileges of citizens; thus the absolute cession and plenary dominion of a province or district possessed by our arms in war may be accepted by the treaty of peace on the condition that its inhabitants shall, in their persons and property, enjoy the privileges of citizens.
The same reasoning applies to all the other instances of supposed infraction of the legislative authority: with regard to piracies and offences against the laws of nations, with regard to expenditures of money, with regard to the appointment of officers, with regard to the judiciary tribunals, with regard to the disposal and regulation of the national territory and property. In all these cases, the power to make laws and the power to make treaties are concurrent and co-ordinate. The latter, and not the former, must act, where the co-operation of other nations is requisite.
As to what respects the commissioners agreed to be appointed, they are not, in a strict sense, officers. They are arbitrators between the two countries. Though in the Constitutions, both of the United States and of most of the individual States, a particular mode of appointing officers is designated, yet, in practice, it has not been deemed a violation of the provision to appoint commissioners or special agents for special purposes in a different mode.
As to the provision, which restricts the issuing of money from the treasury to cases of appropriation by law, and which, from its intrinsic nature, may be considered as applicable to the exercise of every power of government, it is, in no sort, touched by the treaty. In the constant practice of the Government, the cause of an expenditure, or the contract which incurs it, is a different thing from the appropriation for satisfying it. Thus the salary of a public officer is fixed by one law, the appropriation for its payment by another. So, the treaty only stipulates what may be a cause of expenditure. An appropriation by law will still be requisite for actual payment.
As to the disposal and regulation of the territory and property of the United States, this will be naturally understood of dispositions and regulations purely domestic, and where the title is not disputed by a foreign power. Where there are interfering claims of foreign powers, as neither will acknowledge the right of the other to decide, treaty must directly or indirectly adjust the dispute.
So far then it is from being true, that the power of treaty can extend to nothing upon which, in relation to ourselves, the legislative power may act, that it may rather be laid down as a general rule, that a treaty may do between different nations whatever the legislative power of each may do with regard to itself. The exceptions to this rule are to be deduced from the unfitness and inconvenience of its application to particular cases, and are of the nature of abuses of a general principle.
In considering the power of legislation in its relations to the power of treaty, instead of saying that the objects of the former are excepted out of the latter, it will be more correct, indeed it will be entirely correct, to invert the rule, and to say that the power of treaty is the power of making exceptions, in particular cases, to the power of legislation. The stipulations of treaty are, in good faith, restraints upon the exercise of the last-mentioned power. Where there is no treaty, it is completely free to act. Where there is a treaty, it is still free to act in all the cases not specially excepted by the treaty. Thus, Congress are free to regulate trade with a foreign nation, with whom we have no treaty of commerce, in such manner as they judge for the interest of the United States; and they are also free so to regulate it with a foreign nation with whom we have a treaty, in all the points which the treaty does not specially except. There is always, therefore, great latitude for the exercise of the legislative power of regulating trade with foreign nations, notwithstanding any treaties of commerce which may be formed.
The effects of a treaty to impose restraints upon the legislative powers may, in some degree, be exemplified by the case of the compacts which the Legislature itself makes, as with regard to the public debt. Its own compacts are, in good faith, exceptions to its power of action. Treaties with foreign powers, for obvious reasons, are much stronger exceptions.