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The idea is essential in a government like ours that there is no body of men or individual 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 pledg ing 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 legisla tive 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

]manner in which it is

argument against the secontrary. A treaty

necessarily so, else it could not answer our those purposes of national security and interest in the externa notl relations of a country for which it is designed. Nor does the ey granted in our Constitution furnish any magnitude which is ascribed to it, but the cannot be made without the actual co-opera istion 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 extraordinary, 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 Sates in their internal and external relations.

Nothing extrinsic to the treaty, or in the manner of its negotiation, can make it constitutional or unconstitutional, 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 trea ty, 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 effiсасу.

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.

FAREWELL ADDRESS.

ABSTRACT OF POINTS TO FORM AN ADDRESS.*

1796.

I. The period of a new election approaching, it is his duty to announce his intention to decline.

II. He had hoped that long ere this it would have been in his power, and particularly had nearly come to a final resolution in the year 1792 to do it, but the peculiar situation of affairs, and advice of confidential friends, dissuaded.

III. In acquiescing in a further election he still hoped a year or two longer would have enabled him to withdraw, but a continuance of causes has delayed till now, when the position of our

*This endorsement, together with the whole of this paper, is copied from a draft in Hamilton's hand.-ED.

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