by Ray Raphael
Though several writers on the subject of government place that power [making treaties] in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other.
The power to make treaties, he concluded, “seems therefore to form a distinct department,” partly executive and partly legislative. The executive was “the most fit agent” to negotiate a treaty, “while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” This applied not only to making treaties but also to all “foreign negotiations.” A president, who served for a limited time and would then have to return to the private sector, could be influenced by avarice or ambition, he admitted. It was therefore “utterly unsafe and improper … to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States” (emphasis added).
This was not far from the argument Helvidius was presenting in 1793, and Madison even closed his first essay by quoting Hamilton’s Federalist 75 verbatim. That argument, unlike Hamilton’s later Pacificus argument, “was made at a time when no application to persons or measures” could lead to “bias,” Madison stated. In a sense, Madison had it backward. Now, when Hamilton expressed unqualified support for executive power, he was revealing his true views, as he had outlined in his daylong speech at the Federal Convention; in the Federalist, by contrast, he had been playing to an audience, giving his readers the words he thought they should hear in order to support ratification, even though those words contradicted his deeply held preference for the primacy of executive power.22
That Madison and Hamilton could hold such differing interpretations of the Constitution should come as no surprise. In fact, there was no easy answer to the conundrum of who, in a republican form of government, should control the nation’s relations with “the rest of the world.” Delegates had found that out at the Federal Convention. From the outset, when Wilson first proposed a single executive, they resisted giving him the powers of “peace & war &c.,” to use Charles Pinckney’s language, as summarized by Madison in his notes. When the Committee of Detail allocated powers early in August, it allowed the president to “receive ambassadors,” but that was the extent of executive involvement in foreign policy. It entrusted the Senate with the power to “make treaties” and “appoint ambassadors,” and it gave the shared power to “make war” to the Senate and the House. According to that draft, the Senate would likely take the lead in shaping foreign policy.23
Not until Gouverneur Morris and the Committee of Eleven reported to the convention floor on September 4 did the president acquire the power to make treaties and appoint foreign officers, and even then he would need Senate approval on both counts. If James Wilson had had his way, treaties negotiated by the president would have required ratification by the House as well. Other laws needed approval from both houses of Congress, and “as treaties are to have the operation of laws,” he argued, “they ought to have the sanction of laws also.” Wilson’s motion for House ratification, though based on sound logic, failed by a vote of ten states to one. Delegates believed that since House members stood for election every two years, that body lacked the permanency necessary to establish a stable foreign policy, and even Wilson admitted that the House, because it was the larger branch of Congress, might compromise the “secrecy” appropriate to international negotiations.24
That left the House of Representatives, the only body directly elected by the people, with a limited role in shaping foreign policy: it could declare and fund war, but these were its only specified powers. This was something of an embarrassment for a republican government, but when Pierce Butler and Elbridge Gerry moved “to give the Legislature power of peace, as they were to have that of war,” their motion failed to garner the support of a single state delegation. The motion was not even discussed.25
Who, then, did hold the “power of peace”? The president, with the concurrence of two-thirds of the Senate, could negotiate a treaty to end a war, but that was only the most literal aspect of the “power of peace.” More broadly, who had the responsibility of keeping the nation out of war? This large and fundamental question was never fully explored at the Federal Convention. Even after two critical powers—making treaties and appointing ambassadors—were switched by the Committee of Eleven from one branch to another, delegates failed to address the issue of who would formulate an overall foreign policy, one that encompassed the possibilities of both war and peace. This allowed Hamilton, writing as Pacificus six years later, to proclaim, by his own interpretation, that while Congress had the “right to make war,” it was the duty of the president “to preserve peace till war is declared.” While that sounded like a tidy solution, it begged the larger question: Who was really in charge, anyway? Did the president command foreign policy during times of peace, while Congress assumed it during wartime? If so, then authority shifted in an instant, the moment war was declared, and this made little sense. In truth, the complex web of authority allowed no easy answers.26
The Constitution did not allocate the direction of foreign policy to one branch or the other, and because it didn’t, future government officials would be left to work out the details, case by case, argument by argument, crisis by crisis. Both the president and Congress, at different times, could and did take the lead in claiming special powers. In 1793, Washington decided, simply by doing so, that the president could issue what amounted to a proclamation of neutrality, but the following year Congress decided, also by doing so, that it could issue a proclamation of neutrality. For better or worse, the framers’ failure to address the general issue of foreign policy has resulted in a more evolutionary assignment of governmental powers than the presence of a written constitution would seem to imply.
Ironically, attempts to avoid the hostilities between Britain and France led to increased political hostilities here in America. Late in 1793 and early in 1794, acting on official orders, British ships seized almost 250 American ships and reportedly mistreated many of the captured seamen. Britain justified these seizures by claiming, correctly, that the United States was trading with France through the West Indies, but that justification did nothing to quell the popular outrage in America. Inhabitants of eastern seaports seethed at the British seizures, while some westerners, seeking access to and control over the Mississippi River, threatened to violate Washington’s neutrality order by joining a French expeditionary force to take the Mississippi region from Spain. Anti-British sentiment reached a fever pitch when newspapers reported that Lord Dorchester (formerly Guy Carleton), the governor-general of Canada, had told an assembly of Native Americans that Britain would be their ally if they waged war against the United States. Responding to popular pressure, Congress had to take some action to counter what Americans perceived as British aggression on both land and sea. Acting contrary to Washington’s proclamation, which enjoined Americans to remain “friendly and impartial” to both Britain and France, the House passed overwhelmingly a nonimportation bill designed to punish Britain by inhibiting its commerce. Step-by-step, the nation seemed to be moving toward war.
Just before that bill arrived at the Senate, Hamilton and a caucus of Federalist senators proposed to Washington that he dispatch a special mission to London to address American grievances. The
president agreed, and using his constitutional power of appointment, he tapped John Jay, chief justice of the Supreme Court, to head the mission, but Jay was a political liability. Back in 1786 he had tried to bargain away American access to the Mississippi in return for favorable trade arrangements and stabilized boundaries with Spain, but his proposed treaty met with great resistance in the South and the West and was rejected by Congress. Now, when his nomination came before the Senate on April 19, 1794, opponents moved that it be shelved on constitutional grounds: “To permit Judges of the Supreme Court to hold at the same time any other office or employment, emanating from and holden at the pleasure of the Executive, is contrary to the spirit of the Constitution, and, as tending to expose them to the influence of the Executive, is mischievous and impolitic,” they argued. While that case would seem compelling to us today, Federalists in the Senate defeated the measure and confirmed the nomination.27
Jay’s appointment changed the political landscape, at least for the time being. Federalists argued persuasively that any measure intended to stifle British commerce would undermine Jay’s ability to reach an accord, and the nonimportation bill crumbled in the Senate without serious debate.
On the diplomatic front, Washington’s decision to send an envoy to Britain might well have prevented (or at least delayed) a war, but he paid a political price. Due to Jay’s unpopularity, whatever treaty he negotiated would be suspect from the start, and when Jay did return home with a paper in hand, wanting only ratification by the Senate, that paper raised a nationwide political storm.
On the surface, the treaty appeared to have accomplished some goals. Britain agreed to withdraw its posts south of the Canadian border and submit border disputes to arbitration. Further, Britain promised to repay American merchants for recently seized ships and merchandise, but there was a price. The treaty established a process to arbitrate the claims of British merchants for unpaid debts, which Americans worried would allow Loyalists to be compensated for property confiscated during the war. There was an intangible price as well. Citizens of neither the United States nor Britain would be permitted to join the services of a nation at war with the other, nor could one nation harbor, supply, or trade with privateers from an enemy nation. So much for attempts by private American citizens to aid the French cause.
The central thrust of the treaty, though, was to normalize trade relations between the two nations, excellent news for pro-British merchants in the United States. The nuts and bolts of the twenty-eight provisions ensured that importers and exporters on both sides would not suffer from any disagreements between the two governments. Trade restrictions were eased or lifted. Merchants, even privateers, were guaranteed safe haven in each other’s ports, and no goods could be confiscated without due process. Article 10 stipulated that in the event of war between Britain and the United States, no money deposited in any bank could be sequestered, “it being unjust and impolitick that debts and engagements contracted and made by individuals having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority, on account of national differences and discontents.” Article 26 struck a similar chord: “If at any time a rupture should take place (which God forbid) between His Majesty and the United States, the merchants and others of each of the two nations, residing in the dominions of the other, shall have the privilege of remaining and continuing their trade so long as they behave peaceably and commit no offence against the laws.”28
The favors and securities offered to merchants pleased one group of Americans but angered others, who argued that the treaty violated the spirit of neutrality by favoring Britain over France. It prohibited the United States from honoring the 1778 “perpetual” alliance with France, they noted. Further, while it ensured that merchants would be paid for seized ships, it failed to return the actual seamen, nor did it promise that seamen would not be taken and impressed into British service in the future. Finally, one additional group focused on what the treaty did not accomplish: slave owners were upset that Jay, who opposed slavery, failed to obtain payment for the enslaved men and women who had escaped or been carried away during the Revolutionary War.
Opponents of the treaty started to mobilize even before the precise terms were known, and as they did, they raised several procedural and constitutional issues:
• How could the chief executive command the services of the chief judicial officer in a matter that overlapped legislative jurisdiction? This seemed a clear contradiction of the Constitution’s separation of powers.
• The Constitution required not only the consent of the Senate but also its advice, yet the Senate was never queried. True, that body confirmed Jay’s nomination, but it played no role in determining his instructions or negotiating the treaty.
• The treaty was submitted to the Senate for ratification even before its contents were known to the public. Anti-Federalists had always been worried that the president-Senate nexus would cut citizens out of the loop, and here was a case in point.
• Several articles of the treaty regulated commerce, which, according to Section I, Article 8, should be the purview of Congress. This meant the House, as well as the Senate, should be included in the ratification process.
It is difficult to determine whether these complaints contributed significantly to the treaty’s unpopularity or were simply used as arguing points to justify a position taken on other grounds, but in either case constitutional issues were raised, and treaty opponents in the nation’s largest state acted on them. The Virginia legislature proposed four constitutional amendments it wished its representatives and senators to present in Congress. The first stipulated that any treaty “containing any stipulation upon the subject of the powers vested in Congress by the eighth section of the first article” of the Constitution—including, of course, the regulation of commerce—must gain the approval of both houses of Congress before taking effect. The next two weakened the influence of senators, one by lessening their terms from six to three years, the other by taking away their power to try impeachments, thereby preventing any collusion between the Senate and the president. Finally, the Virginia legislature demanded that federal judges be forbidden to hold “any other office or appointment whatever.” These were the sorts of amendments that had been proposed during the ratification debates, and they met the same fate. No state legislature other than Virginia’s was willing to challenge the very structure of the fledgling Constitution so directly at this time.29
Still, even after Jay’s Treaty was ratified by the Senate and signed by the president, opponents continued to fight against it. The arbitration commissions established by the treaty required funding, so the agreement could not take effect until the House appropriated some money. That meant the House needed first to approve the purpose of the appropriations, and with this in mind it began to address the merits of Jay’s Treaty. What did it intend? How was it negotiated? Seeking answers, it requisitioned the instructions given to Jay and other relevant documents from President Washington. Claiming what we now call executive privilege, Washington immediately and forcefully refused to deliver any papers.
Two arms of government were at an impasse, and the Supreme Court, which today we would expect to decide the matter, had not yet asserted its authority to step in. Possession being nine-tenths of the law, Washington held on to the documents. Still, the House continued to debate whether to fund the treaty, and the outcome was not predetermined. The key vote in the Committee of the Whole resulted in a dead heat, 49 to 49; Chairman Frederick Muhlenberg, who had formerly been allied with the treaty’s opponents, then broke the tie and voted for funding. A few days later Muhlenberg was stabbed by his brother, a fierce foe of the treaty.30
The Federalist victory over Jay’s Treaty completed a clean sweep for Washington and the powers of the presidency. First, Congress conceded that the president could remove executive officers on his own accord, without congressional approval. Then one of Washington’s key appointees,
Secretary of the Treasury Hamilton, took the lead in domestic legislation, and when Congress approved Hamilton’s measures, which included strengthening the central government by the assumption of state debts, the nation’s credit was salvaged—a key item on the president’s agenda. When westerners resisted central authority and even flirted with secession, Washington quelled the disturbances with a show of military force. With his proclamation of 1793 he established a lead role for the presidency in shaping foreign policy; then, using his constitutional power of appointment, he dispatched an envoy to Britain to normalize commercial relations and keep war at bay. The resultant treaty was confirmed by a two-thirds vote of the Senate, exactly as specified in the Constitution. When House members tried to assert authority that Washington believed was not covered by the Constitution—demanding executive documents and withholding funds from a legal treaty—they failed. Every contested power was decided in the president’s favor. In the waning days of the Federal Convention, at Gouverneur Morris’s instigation, the executive office had begun to expand, and that trajectory continued on the ground during the first eight years of the early Republic. By the time Washington left office, it seemed clear that the president was no longer Congress’s junior partner.
Yet politically, Washington failed to accomplish one of his overarching goals: unite the nation. Although the Bill of Rights had gone a long way toward healing old wounds, Hamilton’s financial plan and the disputes over foreign policy opened new ones. By the mid-1790s, patriotic Americans of opposing persuasions were celebrating the Fourth of July with parallel parades and competitive street theater, complete with burning effigies. As the political field polarized, rhetoric became more extreme, and in the closing years of Washington’s second term the president himself became an object of scorn. Some critics even called for his impeachment.31