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message for washington to congress, in reply to a call for papers relating to the treaty with great britain1

Draft by Hamilton.

March 20, 1796.

I have received your resolution of the ——— inst., and have considered it with the attention always due to a request of the House of Representatives. I feel a consciousness (not contradicted I trust by any part of my conduct) of a sincere disposition to respect the rights, privileges, and authorities of Congress, collectively and in its separate branches—to pay just deference to their opinions and wishes—to avoid intrusion on their province—to communicate freely information pertinent to the subjects of their deliberation. But this disposition, keeping steadily in view the public good, must likewise be limited and directed by the duty incumbent upon us all, of preserving inviolate the constitutional boundary between the several departments of the government; a duty enjoined by the very nature of a Constitution which defines the powers delegated, and distributes them among different depositories; enforced by the solemn sanction of an oath; and only to be fulfilled by a regard no less scrupulous for the rights of the Executive than for those of every other department.

When I communicated to the House of Representatives the treaty lately made with Great Britain, I did not transmit the papers respecting its negotiation, for reasons which appeared to me decisive.

It is contrary to the general practice of governments to promulge the intermediate transactions of a foreign negotiation, without weighty and special reasons. The motives for great delicacy and reserve on this point are powerful. There may be situations of a country in which particular occurrences of a negotiation, though conducted with the best views to its interest, and even to a satisfactory issue, if immediately disclosed, might tend to embarrassment and mischief in the interior affairs of that country. Confidential discussions and overtures are inseparable from the nature of certain negotiations, and frequently occur in others. Essays are occasionally made by one party to discover the views of another in reference to collateral objects; motives are sometimes assigned for what is yielded by one party to another which, if made public, might kindle the resentment or jealousy of other powers, or might raise in them pretensions not expedient to be gratified. Hence it is a rule of mutual convenience and security among nations, that neither shall, without adequate cause and proper reserve, promulge the details of a negotiation between them; otherwise, one party might be injured by the disclosures of the other, and sometimes without being aware of the injury likely to be done.

Consequently, the general neglect of this rule in the practice of a government, would naturally tend to destroy the confidence in its prudence and delicacy and that freedom of communication with it, which are so important in the intercourses between nation and nation, toward the accommodation of mutual differences and the adjustment of mutual interests.

Neither would it be likely to promote the advantage of a nation, that the agents of a foreign government with which it was at any time in treaty, should act under the apprehension that every expression, every step of theirs, would presently be exposed, by the promulgation of the other party, to the criticism of their political adversaries at home. The disposition to a liberal, and, perhaps, for that very reason, a wise policy in them, might be checked by the reflection, that it might afterward appear from the disclosures on the other side, that they had not made as good bargains as they might have made. And while they might be stimulated by this to extraordinary effort and perseverance, maxims of greater secrecy and reserve in their cabinet would leave their competitors in the negotiation without the same motive to exertion. These having nothing to fear from the indiscretion of the opposite government, would only have to manage with caution their communications to their own. The consequence of such a state of things would naturally be an increase of obstacles to the favorable close of a negotiation, and the probability of worse bargains for the nation in the habit of giving indiscreet publicity to its proceedings.

The agents of such a nation themselves would have strong inducements to extreme reserve in their communications with their own government, lest parts of their conduct might subject them in other quarters to unfriendly and uncandid constructions, which might so narrow the information they gave, as scarcely to afford sufficient light, with regard either to the fitness of their own course of proceeding, or the true state and prospects of the negotiation with which they were charged.

And thus, in different ways, the channels of information to a government might be materially obstructed by the impolitic practice of too free disclosure, in regard to its foreign negotiations.

Moreover, it is not uncommon for the instructions to negotiating agents, especially where differences are to be settled, to contain observations on the views and motives of the other party, which after an amicable termination of the business it would be contrary to decorum, unfriendly and offensive to make public. Such instructions also frequently manifest views which, if disclosed, might renew sources of jealousy and ill-will which a treaty had extinguished, might exhibit eventual plans of proceeding which had better remain unknown for future emergencies, and might even furnish occasion for suspicion, and pretext for discontent, to other powers. And in general, where more had been obtained by a treaty than the ultimata prescribed to the negotiator, it would be inexpedient to publish those ultimata; since, among other ill effects, the publication of them might prejudice the interest of the country in future negotiations with the same or with different powers.

These reasons explain the grounds of a prevailing rule of conduct among prudent governments, namely, not to promulge without weighty cause, nor without due reserves, the particulars of a foreign negotiation. It so happens indeed that many of them have no immediate application to the case of the present treaty. And it would be unadvisable to discriminate here between such as may and such as may not so apply. But it would be very extraordinary, situated as the United States were in relation to Great Britain at the commencement of the negotiation, if some of them did not operate against a full disclosure of the papers in which it is recorded.

Connected with these general reasons against the transmission of the papers with the treaty, it was proper to consider if there were any special reasons, which recommended in the particular case a departure from the rule, and especially whether there was any purpose to which the House of Representatives is constitutionally competent which might be elucidated by those papers.

This involved a consideration of the nature of the constitutional agency of that house, in regard to treaties.

The Constitution of the United States empowers the President, with the advice and consent of the Senate, two thirds concurring, to make treaties. It nowhere professes to authorize the House of Representatives or any other branch of the government to partake with the President and Senate in the making of treaties. The whole power of making treaties is therefore by the Constitution vested in the President and Senate.

To make a treaty, as applied to nations, is to conclude a contract between them obligatory on their faith: but that cannot be an obligatory contract, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Again, the Constitution declares that a treaty made under the authority of the United States shall be a “supreme law of the land,”;—let it be said “a law.” A law is an obligatory rule of action prescribed by the competent authority, but that cannot be an obligatory rule of action or a law, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Hence a discretionary right in the House of Representatives to assent or not to a treaty, or, what is equivalent, to execute it or not, would negative these two important provisions of our Constitution—1st, that the President and Senate shall have power to make treaties; 2dly, that a treaty made by them shall be a law; and in the room of them would establish this provision, “that the power of making treaties resides in the President, Senate, and House of Representatives.” For, whatever coloring may be given, a right of discretionary assent to a contract is a right to participate in the making of it.

Is there any thing in the Constitution which by necessary implication changes the force of the express terms that regulate the deposit of the power to make treaties?

If there is, it must be found in those clauses which regulate the deposit of the legislative power. Here two questions arise:

1st. Can the power of treaty reach and embrace objects upon which the legislative power is authorized to act, as the regulation of commerce, the defining of piracy, etc.; or are these objects virtually excepted out of the operation of that power?

2dly. If it can reach and embrace those objects, is there any principle which as to them gives to Congress, or, more properly, the House of Representatives, a discretionary right of assent or dissent?

The affirmative of the first question is supported by these considerations:

1. The words which establish the power of treaty are manifestly broad enough to comprehend all treaties.

2. It is a reasonable presumption that they were meant to extend to all treaties usual among nations, and so to be commensurate with the variety of exigencies and objects of intercourse which occur between nation and nation; in other words, that they were meant to enable the organ of the power to manage with efficacy the external affairs of the country in all cases in which they must depend upon compact with another nation.

3. The treaties usual among nations are principally those of peace, alliance, and commerce. It is the office of treaties of peace to establish the cessation of hostilities and the conditions of it, including frequently indemnifications, sometimes pecuniary ones. It is the office of treaties of alliance to establish cases in which nations shall succor each other in war, stipulating a union of forces, the furnishing of troops, ships of war, pecuniary and other aids. It is the office of treaties of commerce to establish rules and conditions according to which nations shall trade with each other, regulating as far as they go the external commerce of the nations in treaty. Whence it is evident that treaties naturally bear in different ways upon many of the most important objects upon which the legislative power is authorized to act; as the appropriation of money, the raising of armies, the equipment of fleets, the declaring of war, the regulation of trade. But,

4. This is no objection to the power of treaty having a capacity to embrace those objects: (First.) Because that latitude is essential to the great ends for which the power is instituted. (Second.) Because, unless the power of treaty can embrace objects upon which the legislative power may also act, it is essentially nugatory, often inadequate to mere treaties of peace, always inadequate to treaties of alliance or commerce. (Third.) Because it is the office of the legislative power to establish separate rules of action for the nation of which it is the organ, its arm being too short to reach a single case in which a common obligatory rule of action for two nations is to be established. (Fourth.) Because, inasmuch as a common rule of action for independent nations can only be established by compact, it necessarily is of the office of the power of treaty to effect its establishment. (Fifth.) Because the power of legislation being unable to effect what the power of treaty must effect, it is unreasonable to suppose that the former was intended to exclude the action of the latter. (Sixth.) Because, on the other hand, there is no incongruity in the supposition that the power of treaty in establishing a joint rule of action with another nation may act upon the same subject which the legislative power may act upon in establishing a separate rule of action for one nation. (Seventh.) Because it is a common case for the different powers of government to act upon the same subject within different spheres and in different modes. Thus the legislative power lays and provides for the collection of a particular tax; the executive power collects the tax and brings it into the treasury. So the treaty power may stipulate a pecuniary indemnification for an injury, and the legislative power may execute the stipulation by providing and designating the fund out of which the indemnification shall be made. As in the first instance the executive power is auxiliary to the legislative, so in the last the legislative power is auxiliary to the treaty powers. (Eighth.) Because this document leads to no collision of powers, inasmuch as the stipulations of a treaty may reasonably be considered as restraints upon the legislative discretion. Those stipulations operate by pledging the faith of a nation and restricting its will by the force of moral obligation, and it is a fundamental principle of social right that the will of a nation, as well as that of an individual, may be bound by the moral obligation of a contract. (Ninth.) Because the organ of the power of treaty is as truly the organ of the will of a nation as that of its legislative power; and there is no incongruity in the supposition that the will of a nation acting through one organ may be bound by the pledge of its faith through another organ. From these different views of the subject it results that the position—that the power of legislation acting in one sphere, and the power of treaty acting in another sphere, may embrace in their action the same objects—involves no interference of constitutional powers; and, of course, that the latter may reach and comprehend objects which the former is authorized to act upon; which it is necessary to suppose it does do, since the contrary supposition would essentially destroy the power of treaty: whereas the stipulations of treaties being only particular exceptions to the discretion of the legislative power, this power will always still have a wide field of action beyond and out of the exceptions.

The latitude of the power of treaty granted by analogous terms in the articles of our late confederation, as practised upon for years in treaties with several foreign powers, and acquiesced in by the government and citizens of these States, is an unequivocal comment upon the meaning of the provision of our present Constitution, and a conclusive evidence of the sense in which it was understood by those who planned and by those who adopted that Constitution—supporting fully the construction of the power here advocated. That latitude could derive no aid from the circumstance of all the powers of the confederation being vested in one body, for that body had very little legislative power, and none in several important particulars which were actually embraced by our treaties. The examples of practice under our present government, without the least question of their propriety, is a further corroboration of the intended and accepted sense of the constitutional instrument, agreeing with the foregoing construction.

The negative of the second question above stated is supported by these considerations.

First.—A discretionary right of assent in the House of Representatives (as before shown) would contradict the two important provisions of the Constitution; that the President with the Senate shall have power to make treaties; that the treaties so made shall be laws.

Secondly.—It supposes the House of Representatives at liberty to contravene the faith of the nation engaged in a treaty made by the declared constitutional agents of the nation for that purpose, and thus implies the contradiction that a nation may right-fully pledge its faith through one organ, and without any change of circumstances to dissolve the obligation, may revoke the pledge through another organ.

Thirdly.—The obvious import of the terms which grant the power of treaty can only be controlled, if at all, by some manifest necessary implication in favor of the discretionary right which has been mentioned. But it has been seen that no such implication can be derived from the mere grant of certain powers to the House of Representatives in common with the other branch of the legislative body. As there is a rational construction which renders the due exercise of these powers in the cases to which they are competent, compatible with the operation of the power of treaty, in all the necessary latitude, excluding the discretionary co-operation of the House of Representatives, that construction is to be preferred. It is far more natural to consider the exercise of those powers as liable to the exceptions which the power of treaty granted to the President and Senate may make, than to infer from them a right in the House to share in this power in opposition to terms of the grant, and without a single expression in the Constitution to designate the right. It is improbable that the Constitution intended to vest in the House of Representatives so extensive a control over treaties without a single phrase that would look directly to the object. It is the more improbable, because the Senate being, in the first instance, a party to treaties, the right of discretionary co-operation in the House of Representatives, in virtue of its legislative character, would, in fact, terminate in itself, though but a part of the legislative body—which suggests this question, Can the House of Representatives have any right in virtue of its general legislative character, which is not effectually participated by the Senate?

Fourthly.—The claim of such a right on the ground that the legislative power is essentially deliberative, that whenever its agency is in question it has a right to act or not, and that, consequently, when provision by law is requisite to execute a treaty there is liberty to refuse it, cannot be acceded to without admitting in the legislative body, and in each part of it an absolute discretion uncontrollable by any constitutional injunctions, limits, or restrictions, thereby overturning the fabric of a fixed and definite Constitution, and erecting upon its ruins a legislative omnipotence.

It would, for example, give to Congress a discretion to allow or not a fixed compensation to the judges, though the Constitution expressly enjoins “that they shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office”; and would sacrifice this solemn and peremptory command of the Constitution to the opinion of Congress respecting a more essential application of the public money. Can this be true? Can any thing but absolute inability excuse a compliance with this injunction, and does not the Constitution presuppose a moral impossibility of such inability? If there be a legal discretion in any case to contravene this injunction, what limit is there to the legal discretion of the legislative body? What injunction, what restriction of the Constitution may they not supersede? If the Constitution cannot direct the exercise of their authority in particular cases, how can it limit it in any? What becomes of the appeal to our courts on the constitutionality of a legislative act? What becomes of the power they solemnly assert to test such an act by the constitutional commission, and to pronounce it operative or null, according to its conformity with or repugnance to that commission? What, in fine, becomes of the Constitution itself?

This inquiry suggests a truth fundamental to the principles of our government, and all important to the security of the people of the United States—namely, that the legislative body is not deliberative in all cases; that it is only deliberative and discretionary where the Constitution and the laws lay it under no command nor prohibition; that where they command, it can only execute; where they prohibit, it cannot act. If the thing be commanded and the means of execution are undefined, it may then deliberate on the choice of the means, but it is obliged to devise some means. It is true that the Constitution provides no method of compelling the legislative body to act, but it is not the less under a constitutional, legal, and moral obligation to act, where action is prescribed, and in conformity with the rule of action prescribed.

In asserting the authority of laws as well as of the Constitution to direct and restrain the legislative action, the position is to be understood with this difference. The Constitution obliges always—the laws till they are annulled or repealed by the proper authority; but till then they oblige the legislative body as well as individuals, and all their antecedent effects are valid and binding. And the abrogation or repeal of a law must be by an act of the regular organ of the national will for that purpose, in the forms of the Constitution,—not by a mere refusal to give effect to its injunctions and requisitions; especially by a part of the legislative body. A legal discretion to refuse the execution of a pre-existing law is virtually a power to repeal it, and to attribute this discretion to a part of the legislative body is to attribute to it the whole, instead of a part, of the legislative power in the given case. When towards the execution of an antecedent law, further legislative provision is necessary, the past effects of the law are obligatory, and a positive repeal or suspension by the whole Legislature is requisite to arrest its future operation. The idea is essential in a government like ours, that there is no body of men or individuals above the law; not even the legislative body, till by an act of legislation they have annulled the law.

The argument from the principle of an essentially deliberative faculty in the legislative body is the less admissible, because it would result from it that the nation could never be conclusively bound by a treaty. Why should the inherent discretion of a future Legislature be more bound by the assent of a preceding one, than this was by a pledge of the public faith through the President and Senate? Even the Senate itself, after having assented to a treaty by two thirds in one capacity, might in another, by a bare majority, refuse to execute; a contradiction not to be vindicated by any just theory.

Hence it follows that 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.

The ingredient peculiar to our Constitution in that provision which declares that treaties are laws, is of no inconsiderable weight in the question. It is one thing, whether a treaty pledging the faith of the nation shall, by force of moral duty, oblige the legislative will to carry it into effect; another, whether it shall be of itself a law. The last is the case in our Constitution, which, by a fundamental decree, gives the character of a law to every treaty made under the authority which it designates. Treaties, therefore, in our government, of themselves, and without any additional sanction, have full legal perfection as laws.

Questions may be made as to the cases in which, and the authority by which, under our Constitution, a treaty consonant with it may be pronounced to have lost or may be divested of its obligatory force; a point not necessary now to be discussed. But admitting that authority to reside in the legislative body, still its exercise must be by an act of Congress declaring the fact and the consequence, or declaring war against the power with whom the treaty is. There is perceived to be nothing in our Constitution, no rule of constitutional law to authorize one branch alone, or the House of Representatives in particular, to pronounce the existence of such cases, or from the beginning to refuse compliance with such a treaty, without any new events to change the original obligation. A right in the whole legislative body (in our Constitution the two houses of Congress), by a collective act, to pronounce the non-operation or nullity of a treaty, satisfies every claim in favor of the legislative power, and gives to it all the weight and efficacy which is reconcilable with the due operation of the treaty power.

How discordant might be the results of a doctrine that the House of Representatives may at discretion execute or not a constitutional treaty! What confusion, if our courts of justice should recognize and enforce as laws treaties, the obligation of which was denied by the House of Representatives, and that on a principle of inherent discretion, which no decision of the courts could guide! We might see our commercial and fiscal systems disorganized by the breaches made in antecedent laws by posterior treaties, through the want of some collateral provisions requisite to give due effect to the principle of the new rule. Can that doctrine be true which may present a treaty operating as a law upon all the citizens of a country, and yet legally disregarded by a portion of the legislative body?

The sound conclusion appears to be, that when a treaty contains nothing but what the Constitution permits, it is conclusive upon all, and all are bound to give it effect. When it contains more than the Constitution permits, it is void either in the whole, or as to so much as it improperly contains. While I can discover no sufficient foundation in the Constitution for the claim of a discretionary right in the House of Representatives to participate in giving validity to treaties, I am confirmed in the contrary inference by the knowledge I have that the expediency of this participation was considered by the convention which planned the Constitution, and was by them overruled.

The greatness of the power of treaty under this construction is no objection to its truth. It is doubtless a great power, and necessarily so, else it could not answer those purposes of national security and interest in the external relations of a country for which it is designed. Nor does the manner in which it is granted in our Constitution furnish any argument against the magnitude which is ascribed to it, but the contrary. A treaty cannot be made without the actual co-operation and mutual consent of the Executive and two thirds of the Senate. This necessity of positive co-operation of the Executive charges him with a high responsibility, which cannot but be one great security for the proper exercise of the power. The proportion of the Senate requisite to their valid consent to a treaty approaches so near to unanimity, that it would always be very extra-ordinary if it should be given to one really pernicious or hurtful to the state. These great guards are manifest indications of a great power being meant to be deposited. So that the manner of its deposit is an argument for its magnitude rather than an argument against it, and an argument against the intention to admit with a view to security the discretionary co-operation of the House of Representatives rather than in favor of such a right in them.

Two thirds of the two houses of Congress may exercise their whole legislative power not only without but against the consent of the Executive. It is not evident on general principles that in this arrangement there is a materially greater security against a bad law than in the other against a bad treaty. The frequent absolute necessity of secrecy not only in the conduct of a foreign negotiation, but at certain conjunctures, as to the very articles of a treaty, is a natural reason why a part, and that the least numerous part, of the legislative body was united with the Executive in the making of treaties in exclusion of the other and the most numerous. But if the deposit of the power of treaty was less safe, and less well guarded than it is conceived to be, this would not be a good argument against its being in fact exclusively deposited as the terms of the Constitution, which establish it, import it to be. It would only be an argument for an amendment to the Constitution modifying the deposit of the power differently, and superadding new guards.

If the House of Representatives, called upon to act in aid of a treaty made by the President and Senate, believe it to be unwarranted by the Constitution which they are sworn to support, it will not be denied that they may pause in the execution until a decision on the point of constitutionality in the Supreme Court of the United States shall have settled the question.

But this is the only discretion of that house, as to the obligation to carry a treaty made by the President and Senate into effect, in the existence of which I can acquiesce as being within the intent of the Constitution.

Hence there was no question, in my opinion, of the competency of the House of Representatives, which I could presuppose likely to arise, to which any of the papers now requested could be deemed applicable; nor does it yet appear that any such question has arisen, upon which the request has been predicated.

Were even the course of reasoning which I have pursued less well founded than it appears to me to be, the call for papers as a preliminary proceeding of the house would still seem to be premature.

A question on the constitutionality of a treaty can manifestly only be decided by comparing the instrument itself with the Constitution.

A question whether a treaty be consistent with or adverse to the interests of the United States, must likewise be decided by comparing the stipulations which it actually contains with the situation of the United States in their internal and external relations.

Nothing extrinsic to the treaty, or in the manner of its negotiation, can make it constitutional or un-constitutional, good or bad, salutary or pernicious. The internal evidence it affords is the only proper standard of its merits.

Whatever therefore be the nature of the duty, or discretion of the House, as to the execution of the treaty, it will find its rule of action in the treaty.

Even with reference to and animadversion on the conduct of the agents who made the treaty, the presumption of a criminal mismanagement of the interests of the United States ought first, it is conceived, to be deduced from the intrinsic nature of the treaty, and ought to be pronounced to exist prior to a further inquiry to ascertain the guilt and the guilty. Whenever the House of Representatives, proceeding upon any treaty, shall have taken the ground that such a presumption exists, in order to such an inquiry, their request to the Executive to be caused to be laid before them papers which may contain information on the subject, will rest on a foundation that cannot fail to secure to it due efficacy.

But, under all the circumstances of the present request (circumstances which I forbear to particularize), and in its present indefinite form, I adopt with reluctance and regret, but with entire conviction, the opinion, that a just regard to the Constitution and to the duty of my office forbids on my part a compliance with that request.

[1]Writings of Washington, xii., 112.