wards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government." It must be noted, however, that the views expressed by the Federalist in this number have not always been acquiesced in, or followed by, the Supreme Court. This will be referred to at length in a subsequent chapter on the relative effects of treaty stipulations and United States statutes.3 § 246. The Federalist, No. LXIX: the treaty-making power of the United States compared with that of Great Britain. In No. LXIX1 the treaty-making power as vested in the President and Senate is compared to the treaty-making power as exercised by the king of Great Britain and the reasons for the vesting the treaty-making power, in its widest scope in the Executive, are given as follows: "The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. § 246. 2 For views of John Jay on the treaty-making power of the confederation, see his letter to Congress referred to at length in note 4 under § 157, p. 268, et seq., ante. See note 3 under § 237, p. 378, ante, and § 313, p. 449, post. 1 Published in the New York Packet, Friday, March 14, 1788, credited by Lodge to Hamilton. 2 The Federalist here cites Blackstone's Commentaries, vol. I, p. 257. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipu lations in a new treaty; and this may have possibly given birth to the imagination, that its coöperation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can only do with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from (the exclusive possession by the Union of that part of) the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question, whether the Executives of the several States were not solely invested with that delicate and important prerogative." § 247. The Federalist, No. LXXV; advantages of the United States plan; treaties as contracts.-In Number LXXV1 the Federalist again reverts to the provision that the President "is to have power, by and with the advice and consent of the Senate to make treaties, provided two thirds of the Senators present concur.'" In support of this provision he says that although it has been assailed on different grounds with no small degree of vehemency, he does not scruple to declare his firm persuasion that it is one of the best digested and most unexceptionable parts of the plan. He discusses and shows the advantages of the system as compared with the alternative methods of placing the power in the hands of the President alone, or of the Senate alone, or of allowing the House of 3 The words in parenthesis appear in Dawson's edition of the Federalist, but are omitted in Lodge's edition. § 247. 1 Published in the Independent Journal (date not given); credited by Lodge to Hamilton. Representatives to participate therein. He demonstrates that requiring the concurrence of two thirds of the whole Senate instead of those present, would have proved an embarrassment rather than a benefit. In speaking of treaties in this number, the Federalist takes the ground that treaty-making is not either strictly executive or legislative; in this respect he says: "The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones, and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign. nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." As stated in a previous section, we shall have occasion to refer again to these views of the Federalist in a subsequent chapter. 2 § 248. The Federalist, No. LXXX; treaty-making power of National Government necessary for peace of Union.In Number LXXX1 the necessity of submitting the matters involving the peace of the Union to the national judiciary is stated as follows: "The fourth point rests on this plain proposition, that the peace of the wиOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accom panied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the 2See § 245, p. 381, ante, and §313, as being taken from McLean's p. 449, post edition of 1788 and credited to Hamilton. § 248. In Lodge's edition this is stated public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals." § 249. Authorship of the Federalist.-The author of this volume does not intend to enter into any discussion as to the authorship of the various numbers of the Federalist;1 there can be no doubt that in the various extracts given the views expressed on the treaty-making power represented the opinions of Madison, Hamilton and Jay, all of whom were thoroughly conversant with the history of confederated governments, and the general rules of political science connected therewith; the most casual examination of the records of the Federal and State Constitutional Conventions, and of the Federalist, will show that no men were better qualified to 2 express opinions upon the subjects than the three authors of the Federalist. No. LXIV which was devoted entirely to a discussion of treaty-making power, was undoubtedly the work of John Jay, who had been Secretary of Foreign Relations under the Confederation, and had represented the United States in foreign countries, and who subsequently performed the duties of Secretary of State for a brief period under President Washington, was Minister to England, and negotiated the treaty with that country, which has always borne his name, and who was also the first Chief Justice of the United States. Surely no one could be better qualified to speak upon the subject of treaty-making than that eminent jurist who had devoted so much of his life thereto and whose utterances in that regard have always been rightly considered as entitled to the greatest weight and respect.3 $250. Other publications prior to ratification.—Even at the risk of devoting too much space to this class of literature, a few other extracts from pamphlets published during the ratification contest will be given, and in order to show that it was by no means a one-sided affair some will be selected from pamphlets published with the hope, and for the purpose-fortunately unsuccessful-of defeating the ratification of the Constitution.1 § 251. Richard Henry Lee's opposition; the "Federal Farmer."-Richard Henry Lee of Virginia, a bitter opponent 2 See §§ 244-5, pp. 381, et seq., both so peculiarly needed, and so ante. especially advantageous to the See note 4, § 156, pp. 268, et seq., State of Massachusetts, that its ante. 1 A number of letters which will be found in Ford's Essays and 1 adoption was only endangered by | certain questions of local politics, which could not even enter into the discussion. They were noPamphlets were written in op- ticed, or replied to, in the Massachuposition to the adoption of the setts Gazette, December 21, 1787, Constitution in Massachusetts; of by "Charles James Fox;" Dethese, Mr. Ford states (p. 51, Essays) cember 27, 1787, and January 4, that the letters of Agrippa" 1788, by "Kempis O'Flannigan," were the ablest anti-federal pub- January 22 and January 25, 1788, lications printed in Massachusetts, by "Junius," and in the letters of and showed especial ability in ar- "Cassius," printed in the same guing the dangers and defects of a volume. plan of government which was |