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PRELIMINARY REMARKS. CONFEDERATION, &c.
Powers of First Congress as to Foreign Relations defective-Adoption of Confederation-Powers of Constitution of '89-Powers of House of Representatives as to Treaties-Foreign business first done by Secret Committees, very laborious-Department for Foreign Affairs established-First Secretary-Salary-Department under the Constitution-One of the Cabinet-Right of President to remove— United States never sent or received an “ Ambassador"—Rules for reception -Diplomatic Agents of the Confederation-Expenses of the Diplomatic Corps under the Confederation--Salaries &c. under the Consti tution-Ceremonial of first Minister very difficult to arrange-Somewhat ludicrous--Extract from Secret Journals--Present mode of accrediting.
We propose, in this chapter, briefly to recite the power of Congress under the confederation of '78, and of the government under the constitution of '89, in regard to the relations of the country with foreign states, together with such circumstances, as properly belong to the management of foreign affairs. It is well known, that the first assembly of delegates from the thirteen colonies, or parts of colonies, was held in Philadelphia, in September, "74. The meeting was convened on the proposition of the Province of Massachusetts Bay; and it was annually renewed by a vote of the Congress itself till the
year 1778, when the different colonies or provinces, having instructed their delegates to sign the articles of “Confederation and perpetual Union," agreed on by Congress in the preceding November; an organized government, usually known by the name..of the Confederation, was established. Before this period, the delegates to the Congress acted by the special instructions of the Province Legislatures, or of the committees of the people by whom they were chosen. These instructions were of various import. Some delegates, indeed, were not furnished with any powers whatever. Their discretion was unlimited. But in general the representatives of the colonies were authorized to consult for the public good and general welfare, either by securing the liberties of the provinces, or by establishing a just and safe commercial arrangement with the mother country. A Congress, thus composed, was not invested with constitutional authority. Even, if the instructions of the delegates had been binding on their respective legislatures, the different legislatures would not have been bound in an equal degree; for some delegates were without instructions, and to those who were furnished with them a great variety of powers were given. The colonies, or provinces, were not parties to any instrument; they did not jointly agree to support any one measure; much less the great system of measures by which the revolution war was conducted. But the exigency of the case, the danger of the country, the necessity of preservation, supplied the deficiencies of form. The Congress of '74 did not appear to believe, that a war would take place—they did not expect a separation from the mother country-they took no direct immediate measures to resist, by force, the unjust pretensions of the British government. This Congress remained in session six weeks with closed doors. They adopted a non-importation, non-exportation, and nonconsumption agreement-they prepared a petition to the king -and an address to the people of Great Britain ;-public documents, which will always be admired, as long as good writing, manly sense, and just practical notions, both of civil and
political liberty, merit applause. The Congress of '75 entered upon the war, and, from the time General Washington was appointed to command the continental forces to the confederation in '78, they levied men, borrowed money, sent ministers, concluded treaties, and performed most of the acts of a sovereign government. In '78, the confederation* was adopted by the thirteen colonies, under the title of the "United States of America." This is the date of a constitutional government in this country. Whether as parties to this instrument, or to the act of Union of '89, the states severally and mutually pledged their faith, in as solemn a manner as could be done, to abide by the determination of the United States in Congress assembled on all questions that, by the confederation or the constitution, were subjected to their deliberation and control. This was a regular contract, obligatory in an equal manner, and to a defined extent. We shall only mention the provisions of the first "Union" that relate to the subject of this work.
"The United States, in Congress assembled, shall have the sole and exclusive right and power-Of determining on peace and war, except in the cases mentioned in the sixth article-Of sending and re
* The idea of a confederacy was not altogether new. A scheme of this sort was discussed in a meeting of delegates at Albany in 1754, though for a very different purpose. The king in council rejected the application. In July, '75, a year before the Declaration of Independence, Congress took the matter of a confederacy and union into consideration, the inconvenience and even fatal danger of their actual condition being abundantly apparent. The first sketch was proposed by Dr. Franklin, a member from Pennsylvania. This did not differ materially from the articles afterwards agreed on, though America could, by no means, at that period, be considered as separated from England. An amended copy of this scheme was afterwards reported by a committee in July, '76. This is said to be in the handwriting of Mr. Dickinson, the well known author of the Farmers' Letters. It is very evident, that Congress did not think it important to adopt articles of perpetual union till a reconciliation with Great Britain became utterly hopeless. The articles were extremely discussed. They were finally accepted in November, 1777.
ceiving ambassadors-Entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legis. lative power of the respective states shall be restrained from imposing such imports and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever" To borrow money or emit bills on the credit of the United States, transmitting every half year to the respective states an account of the sums of money, so borrowed or emitted"-" The United States, in Congress assembled, shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy-unless nine states assent to the same."
Each state had one vote; but no state could have more than seven delegates in the Congress.
Peace having been made, the nation was speedily convinced that the confederation was altogether inadequate in all matters of trade, for all purposes of revenue and commerce, and of intercourse of every d~cription with foreign states. The present constitution was adopted, and went into operation on the 4th of March, 1789. Under this constitution, Congress has power to "lay and collect taxes"-"to borrow money on the credit of the United States"-" to regulate commerce :" but the "President has power, by and with the advice and consent of the Senate, to make treaties provided two thirds of the Senators present concur, and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers," &c. This is the mode in which the constitution directs that foreign intercourse shall now be maintained. Treaties are the supreme law of the land. All courts must take notice of them.
The judiciary cannot declare a treaty to have been violated and therefore void. This power belongs solely to Congress. But it is not settled, whether the courts have not power to declare an article of a treaty unconstitutional.
"In the year 1796, after the treaty with Great Britain was ratified by the President and Senate, and was proclaimed by the President, it became a question how far, under the constitution, a treaty was binding on Congress as a legislative body. In the discussion of this question, in the House of Representatives, it was contended on the one hand, that a treaty was a contract between two nations, which, when made by the President by and with the advice and consent of the Senate, was binding on the nation, and that a refusal by the House of Representatives to carry it into effect, was breaking the treaty and violating the faith of the nation. On the other hand it was contended, that a treaty which required an appropriation of money, or any act of Congress to carry it into effect, was not, in that respect, obligatory till Congress had agreed to carry it into effect, and they were at full liberty to make or withhold such appropriation or act, without being chargeable with violating the treaty, or breaking the full faith of the nation. Accordingly the House of Representatives passed a resolution calling on President Washington to lay before them the instructions to the Minister, (Mr. Jay), who had negotiated the treaty with Great Britain, and the correspondence and documents, except so far as on account of the pending negotiation, they were improper to disclose. The President declined a compliance with the request, stating, among other reasons, that a treaty duly made by the President and Senate, became the law of the land and was obligatory; that the assent of the House of Representatives was not necessary to the validity of a treaty, and therefore the papers requested could not come under the cognizance of the House of Representatives, except for the purpose of impeachment, which was not stated to be their object. The House of Representatives thereupon passed resolutions, disclaiming the power to interfere in making treaties, but asserting their right whenever stipulations were made on subjects committed to Congress by the constitution, to deliberate on the expediency of carrying them into effect; and in legislating on several treaties then before them, they struck out the words "that provi