and, near the close of the war, of a Secretary of Foreign Affairs. The experience of the Confederation with its various boards was most unsatisfactory, and sometimes pathetic.
The result of the careful deliberations of the Constitutional Convention, with respect to the division of powers as to international affairs, was to confer upon Congress two important duties; first, " to regulate commerce with foreign nations," and, second, " to declare war." Other subordinate matters were also intrusted to Congress, to wit, legislation respecting naturalization of aliens, and the punishment of piracy and felonies committed on the high sea, and offenses against the laws of nations. The President was made commander-in-chief of the army and navy; he was given "power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur;" it was made his duty to "nominate, and by and with the advice and consent of the Senate, … appoint ambassadors, public ministers, and consuls;" and he was authorized to "receive ambassadors and other public ministers."
These conclusions of the Convention were reached after many lengthy and exhaustive deliberations, involving the executive and legislative prerogatives. The ancient and modern history of nations and systems of government, and the opinions of publicists, were laid under contribution; but probably the most trustworthy and controlling authority in these discussions was Blackstone, who then, even more than now, possibly, was held in high esteem by American lawyers. His treatment of the royal powers in Book I., chapter vii., was especially helpful, and the evidences of his influence are seen particularly in Articles I. and II. of the Constitution, which relate to the legislative and executive departments. At the date of the Convention, the power to declare war and to make peace was almost universally exercised by the king, the executive head of the goveminent. The provision of the Constitution giving to Congress the power to declare war was one of the most marked departures from the existing order. The power to make peace, however, was conferred upon the President and the Senate jointly, under the treaty-making clause, as war between two nations can only be brought to a close by a convention or agreement, which must eventually take the shape of a treaty.
The provisions of the Constitution above cited were adopted not only after much debate, but they evoked strong opposition among the people of the States, to whom that instrument was submitted for ratification. A very heated discussion was carried on throughout the country, in which the ablest and most effective defenders of the Constitution were John Jay, Alexander Hamilton, and James Madison. They prepared a series of papers which were published in the periodicals of the day under assumed names, and they were afterwards collected in a volume under the title of the "Federalist," which has become a standard authority upon the object and intent of the various provisions of this organic act. As indicating the style of these papers, and the character of the discussion of the period on the subjects under review, I give a few extracts from the "Federalist."
John Jay was not a member of the Constitutional Convention, being at the time Secretary of Foreign Affairs under the Confederation; but his experience in the diplomatic service in Spain and at Paris, and his duties as secretary, specially fitted him for the discussion of the provisions of the new Constitution affecting foreign relations. The following is a quotation from his article on the clause of that instrument relating to the negotiation and ratification of treaties:
"Some are displeased with the Constitution, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts and the commissions constitutionally given by our governor [of New York], are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judiciary. It surely does not follow that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.
" 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 would 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 only by 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 afterward 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."
In answer to the objection that the President and Senate may not make treaties in the interest of all the States, or may act corruptly, Mr. Jay wrote :
" As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appoint- ing proper persons, and to assist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of
ORGANIZATION OF DEPARTMENT OF STATE. 109
attention; and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be in the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and having no private inter- ests distinct from that of the nation, they will be under no temptations to neglect the latter.
" As to corruption, the case is not supposable. He must either have been very unfortunate in his inter- course with the world, or possess a heart very suscepti- ble of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.
"With respect to their responsibility, it is difficult to conceive how it should be increased. Every con- sideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of coun- try, and family affections and attachments, afford se- curity for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents and integrity, we have reasons to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate,
110 .
that motive to good behavior is amply afforded by the article on the subject of impeachments." l
Alexander Hamilton had no experience in diplomatic service; and, although a member of the Constitutional Convention, circumstances had prevented him from tak- ing an active and continuous part in the framing of that instrument. His colleagues from the State of New York opposed the creation of a new form of govern- ment, and
