to william smith 1 - Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 10 [1774]
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The Works of Alexander Hamilton, ed. Henry Cabot Lodge (Federal Edition) (New York: G.P. Putnam’s Sons, 1904). In 12 vols. Vol. 10.
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to william smith
March 10, 1796.
Dear Sir:
I observe Madison brings the power of the House of Representatives in the case of the treaty into question. Is the agency of the House of Representatives on the subject deliberative or executive? On the sophism that the Legislature, and each branch of it, is essentially deliberative, and consequently must have discretion, will he, I presume, maintain the freedom of the House to concur or not.
But the sophism is easily refuted. The Legislature, and each branch of it, is deliberative, but with various restrictions; not with unlimited discretion. All the injunctions and restrictions of the Constitution, for instance, abridge its deliberative faculty, and leave it quoad hoc, merely executive. Thus the constitution enjoins that there shall be a fixed allowance for the judges, which shall not be diminished. The Legislature cannot, therefore, deliberate whether they will make a permanent provision, and when the allowance is fixed, they cannot deliberate whether they will appropriate and pay the money. So far their deliberative faculty is abridged. The mode of raising and appropriating the money only remains matter of deliberation.
So, likewise, the constitution says that the President and Senate shall make treaties, and that these treaties shall be supreme laws. It is a contradiction to call a thing a law which is not binding. It follows that by constitutional injunction the House of Representatives quoad the stipulations of treaties, as in the case cited, respecting the judges, are not deliberative, but merely executive, except as to the means of executing.
Any other doctrine would vest the Legislature and each House with unlimited discretion, and destroy the very idea of a constitution limiting its discretion. The constitution would at once vanish.
Besides, the legal power to refuse the execution of a law is a power to repeal it. Thus, the House of Representatives must, as to treaties, concentre in itself the whole legislative power, and undertake, without the Senate, to repeal a law. For the law is complete by the action of the President and Senate.
Again. A treaty, which is a contract between nation and nation, abridges even the legislative discretion of the whole Legislature by the moral obligation of keeping its faith; a fortiori, that of one branch. In theory, there is no method by which the obligations of a treaty can be annulled but by mutual consent of the contracting parties, by ill-faith in one of them, or by a revolution of government, which is of a nature so to change the condition of parties as to render the treaty inapplicable.
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