8547. TREATIES, Power to make.—[further continued] .
[Alexander] Hamilton
laid down this position [484]
with great positiveness:
That the Constitution having given
power to the President and Senate to make
treaties, they might make a treaty of neutrality
which should take from Congress the
right to declare war in that particular case,
and that under the form of a treaty they
might exercise any powers whatever, even
those exclusively given by the Constitution
to the House of Representatives. Randolph
opposed this position, and seemed to think
that where they undertook to do acts by
treaty (as to settle a tariff of duties), which
were exclusively given to the Legislature,
that an act of the Legislature would be necessary
to confirm them, as happens in England,
when a treaty interferes with duties established
by law. I insisted that in giving to the President
and Senate a power to make treaties,
the Constitution meant only to authorize them
to carry into effect, by way of treaty, any
powers they might constitutionally exercise.
I was sensible of the weak points in this position,
but there were still weaker in the other hypothesis; and if it be impossible to
discover a rational measure of authority to
have been given by this clause, I would rather
suppose that the cases which my hypothesis
would leave unprovided, were not thought of
by the convention, or if thought of, could
not be agreed on, or were thought on and
deemed unnecessary to be invested in the
government. Of this last description, were
treaties of neutrality, treaties offensive and
defensive, &c. In every event, I would rather
construe so narrowly as to oblige the nation
to amend, and thus declare what powers they
would agree to yield, than too broadly, and
indeed, so broadly as to enable the Executive
and Senate to do things which the Constitution
forbids.—
The Anas. Washington ed. ix, 181.
Ford ed., i, 268.
(Nov. 1793)
