A Century of American Diplomacy. John W. Foster

      Chapter III

       Table of Contents

       One of the last acts of the expiring Continental Congress was the adoption of the following resolution in September, 1788:

      "Resolved, That no further progress be made in the negotiations with Spain by the Secretary for Foreign Affairs, but that the subjects to which they relate be referred to the Federal Government, which is to assemble in March next."

      It was the final admission by that body of its impotence respecting the conduct of the foreign relations of the country, and this was a leading motive for the creation of a new government which should be clothed with adequate powers for that purpose.

      The Constitutional Convention when it assembled was confronted with this manifest weakness of the Confederation, and it addressed itself to the task of remedying the defect; first, by conferring upon the federal government full and complete power over the relations with foreign nations; and, second, by a careful division of those powers between the executive and legislative departments of the government. The experience of the Continental Congress was most useful to the Convention. It had shown that the powers reserved to the Colonies, or States, deprived Congress of authority to enforce its international obligations, notably in the case of the treaty of peace with Great Britain, in a less degree in its commercial relations with France and other powers, in the negotiations with Spain respecting the navigation of the Mississippi, and in other matters. This experience had also made it clear that a most serious defect was in the absence of an executive, clothed with sufficient power and dignity to properly conduct intercourse with foreign sovereigns, enforce the treaties and laws of Congress, and administer the government. An attempt had been made to supply these wants by the creation of various committees or boards. For example, the conduct of the war was, in the first instance, intrusted to what was termed a "Secret Committee," then a "Cannon Committee," and a "Medical Committee"; and after a time all of these were combined in one committee termed the " Board of War and Ordnance," consisting of five members of Congress, assisted by a secretary and clerks; and to this was added a further body of officials styled the " Board of War," composed of generals of the army, acting under the Congressional Board. The management of the finances underwent a very similar experience and transformation. I have already referred to the action of Congress in the conduct of its foreign relations by the creation, first, of a committee, 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