to the effects of treaties with foreign powers, as contracts and as laws.3 § 238. Treaty-making power referred to in the Federalist and in other publications.-The treaty-making power vested by the Constitution in the Central Government was equally prominent as a factor in this National discussion as it had been in the several State conventions to which reference has been made in the preceding chapter. It would require too much space to quote all that appears in the Federalist and other pamphlets, published at that time, on the subject of treaties, and the treaty-making power; the few selections quoted in the text and the notes show that the people at large, as well as the delegates to the conventions, thoroughly understood what a far-reaching power it was, how exclusively it was lodged in the Central Government, and how necessary this was to the future peace and happiness of the Union. The authors of the Federalist seem to have considered these propositions elementary principles for the government of confederated Republics. $239. The Federalist, No. XXII, reference to treaties. -Referring to treaties the author of No. XXII,' says: "A circumstance which crowns the defects of the Confederation remains yet to be mentioned,-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final $237. 8 See § 320, p. 460, post. For views of Chief Justice MARSHALL as to the Federalist and Alexander Hamilton, see Cohens vs. Virginia, U. S. Sup. Ct., 6 Wheaton, 264, MARSHALL, Ch. J. § 239. And 1 Published in the New York Packet, Friday, December 14, 1787; credited by Lodge to Hamilton. jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?" 240. The Federalist, No. XXIII, the treaty-making power should have no constitutional shackles.-The author of No. XXIII,' gives his reasons for believing that the powers entrusted to the federal government, in which that of treatymaking is included, "ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them? The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defence." 2 Refers to Articles of Confedera- | 1787; credited by Lodge to Hamiltion. ton. § 240. 1 Published in the New York Packet, Tuesday, December 18, 2 The italics are so in Lodge's edition. § 241. The Federalist, No. XXXIX; duality of the Central Government.-A strong exposition of the duality of the Federal-National Government will be found in No. XXXIX,1 in which the author declares, in the final sentence, in support of his point that the proposed Constitution is not, strictly speaking, either National or Federal, but is a composition of both, that: "In its foundation it is federal, not national; in the sources from which the ordinary powers of the gov ernment are drawn, it is partly federal, and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national." $242. The Federalist, No. XLII; treaties with foreign nations. In No. XLII1 the power to make treaties with foreign nations is again referred to, and the author of that number makes these concise remarks made in regard thereto : "This class of powers forms an obvious and essential branch of the federal administration. If we are to be one nation in any respect, it clearly ought to be in respect to other nations. "The powers to make treaties and to send and receive ambassadors, speak their own propriety. Both of them are comprised in the articles of Confederation, with this differerence only, that the former is disembarrassed, by the plan of the convention, of an exception, under which treaties might be substantially frustrated by regulations of the States." $243. The Federalist, No. XLV; enlargement of congressional powers.-In No. XLV1it is stated that the change from the articles of Confederation to the Constitution consisted much less in the addition of new powers to the Union than invigoration of its original powers. Continuing, the Federalist says: "The regulation of commerce, it is true, is a new power; but that seems to be an addition which few § 241. 1 Published in the Independent Journal (date not given); credited by Lodge to Madison. $242. Packet, Tuesday, January 22, 1788; 1 Published in the Independent Journal (date not given); credited 1 Published in the New York by Lodge to Madison. oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them." § 244. The Federalist, No. LXIV; importance of treatymaking power.-In No. LXIV,' after quoting the section giving power to the President to make treaties by and with the consent of the Senate, provided that the requisite number concur, the author says: "The power of making treaties. is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appears to have been attentive to both these points: they have directed the President to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors." $245. The Federalist, No. LXIV; same subject continued. The author again says, in the same number: "It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them." Continuing, he says: "It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch § 244. Packet, Friday, March 7, 1788; Published in the New York credited by Lodge to Jay. are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest." After showing the wisdom of confiding the treaty-making power to the Executive, and to the Senate, that being the smaller body of Congress and therefore better fitted for the purpose on account of the secrecy and despatch requisite in the negotiation of treaties, the Federalist answers those who had objected to the provision making treaties the supreme law of the land by saying, in the same number:1 "Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever after$ 245. 1 No. LXIV. |