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OF PROPERTY AND PROPRIETY:
THE ROLE OF GENDER AND CLASS IN IMPERIALISM
AND NATIONALISM
Edited by Himani Bannerji, Shahrzad Mojab, and
Judith Whitehead
Unique in its approach, this collection of essays examines property
relations, moral regulations pertaining to gender, and nationalism in
India, Kurdistan, Ireland, and Finland. Structured around six case
studies, the contributors combine an analysis of gender with a dialecti-
cal examination of class and patriarchy to reveal how these relations
have become constructed in recent nationalist movements.
Offering an alternative to post-colonial and post-structuralist
formulations of gender and nationalism, the volume highlights the
connections and convergences in matters of property, propriety, and
gender among ideologically similar nationalist movements, and shows
how ideological similarities and differences need to be understood
prior to analysing the gender symbolism and patriarchal relations of
nationalist histories.
(Anthropological Horizons)
HIMANI BANNERJI is a member of the Department of Sociology, York
University.
SHAHRZAD MOJAB is a member of the Department of Adult Education,
Community Development, and Counselling Psychology, OISE/
University of Toronto.
JUDITH WHITEHEAD is a member of the Department of Anthropology,
University of Lethbridge, Alberta.

ANTHROPOLOGICAL HORIZONS
Editor: Michael Lambek, University of Toronto
This series, begun in 1991, focuses on theoretically informed ethno-
graphic works addressing issues of mind and body, knowledge and
power, equality and inequality, the individual and the collective. Inter-
disciplinary in its perspective, the series makes a unique contribution
in several other academic disciplines: women's studies, history, philos-
ophy, psychology, political science, and sociology. See page 245 for a
list of publications in the series.

Of Property and Propriety
The Role of Gender and
Class in Imperialism and
Nationalism
EDITED BY
Himani Bannerji, Shahrzad Mojab, and
Judith Whitehead
UNIVERSITY OF TORONTO PRESS
Toronto Buffalo London

University of Toronto Press Incorporated 2001
Toronto Buffalo London
Printed in Canada
ISBN 0-8020-4380-1 (cloth)
ISBN 0-8020-8192-4 (paper)
Printed on acid-free paper
National Library of Canada Cataloguing in Publication Data
Main entry under title:
Of property and propriety : the role of gender and class in
imperialism and nationalism
(Anthropological horizons)
ISBN 0-8020-4380-1 (bound) ISBN 0-8020-8192-4 (pbk.)
1. Nationalism and feminism - History. 2. Sex roles - Political
aspects. I. Bannerji, Himani. II. Mojab, Shahrzad.
III. Whitehead, Judith. IV. Series.
HQ1236.O32 2001 305.42'09 COO-933161-1
This book has been published with the help of a grant from the Humanities
and Social Sciences Federation of Canada, using funds provided by the
Social Sciences and Humanities Research Council of Canada.
University of Toronto Press acknowledges the financial assistance to its
publishing program of the Canada Council for the Arts and the Ontario
Arts Council.
University of Toronto Press acknowledges the financial support for its pub-
lishing activities of the Government of Canada through the Book Publishing
Industry Development Program (BPIDP).
www.utppublishing.com

In memoriam, Shiv Verma, Indian revolutionary and comrade,
with a promise to continue the struggle.

This page intentionally left blank

Contents
Acknowledgments ix
Contributors xi
Introduction
Judith Whitehead, Himani Bannerji, and Shahrzad Mojab 3
Pygmalion Nation: Towards a Critique of Subaltern Studies
and the 'Resolution of the Women's Question'
Himani Bannerji 34
Contesting Positions in Nationalist Ideologies in Pre-
Independence Ireland
Dana Hearne 85
Conflicting Loyalties: Nationalism and Gender Relations in
Kurdistan
Shahrzad Mojab 116
Measuring Women's Value: Continuity and Change in the
Regulation of Prostitution in Madras Presidency, 1860-1947
Judith Whitehead 153
Gender and Ethnic Overlap/p in the Finnish Kalevala
Kaarina Kailo 182
Wifehood, Widowhood, and Adultery: Female Sexuality,
Surveillance, and the State in Eighteenth-Century Maharastra
Uma Chakravarti 223

This page intentionally left blank

Acknowledgments
Himani Banner)!, Shahrzad Mojab, and Judith Whitehead join together
in a gesture of acknowledgment to those who helped and sustained us
in various ways through the process of producing this book and our
own essays. Himani wishes to thank Dorothy Smith, Jasodhara Bagchi,
Ratnabali Chatterji, and Sumit Sarkar for their interested reading and
searching comments on her essay. Shahrzad thanks Amir Hassanpour
for his input in sharpening her argument and being there for her
through the process of putting the book together. Judith would like to
thank Shiv Verma, deceased freedom fighter of India, for providing
some of the inspiration for the genesis of this volume, Connie Dono-
ghue for her early editorial work, the Social Sciences and Humanities
Research Council of Canada for funding the research on which her
chapter was based, and Sharit Bhowmik for comments on an early ver-
sion of the introduction.
The authors all thank Stephan Dobson and Michael Kuttner for their
invaluable and sustained help in the editorial process, their critical
insights, and for other forms of labour involved in the physical pro-
duction of texts. Though these are the only people named in our
acknowledgments, there were others, too many to name, with whom
we had discussions regarding politics, theories, and details of this
book. We wish to thank them as well and, of course, each other for an
involved and interesting writing and editing process which was
marked by solidarity, warmth, and forbearance.

This page intentionally left blank

Contributors
Himani Bannerji is an associate professor of sociology at York Univer-
sity, Canada, whose current research interests are nationalism, human-
ism, gender, anti-racism, and multiculturalism from the perspective of
historical sociology. Her latest publications are The Dark Side of the
Nation: Essays on Multiculturalism, Nationalism and Gender (2000), and
Inventing Subjects: Studies in Hegemony, Patriarchy and Colonialism (forth-
coming).
Uma Chakravarti is a professor at the Miranda House College for
Women, Department of History, Delhi University. Professor Chakra-
varti is a historian who combines cultural studies with historical
research to shady nationalism, gender, and religious fundamentalism.
Her most recent publication is Rewriting History: The Life and Times of
Pandita Ramabai (1998).
Dana Hearne is a professor who teaches women's studies and Irish
studies at John Abbott College, Ste. Anne de Bellevue, Quebec, and at
the Simone de Beauvoir Institute, Concordia University, Montreal. She
has written a number of articles related to the Irish context on topics
such as nationalism and feminism and feminism and militarism. She
has also edited an important historical manuscript relating to the Land
War in Ireland in the 1880s written by Anna Parnell called The Tale of
the Great Sham. Currently she is working on a book form of a study she
did on the development of Irish feminist thought from 1912-1920 and,
in addition, is conducting research on the production of sexuality in
Ireland from 1960 to the present.

xii Contributors
Kaarina Kailo is professor of women's studies and multiculturalism at
Oulu University, Finland. Her current areas of research cover circum-
polar women's healing and mythological knowledge and traditions,
with a particular focus on Finno-Ugric and indigenous women such
as the Sami of Northern Europe. She has pioneered post-colonial and
gender-sensitive research with the Sami scholar Elina Helander fo-
cused on Sami cultural practices in a book entitled No Beginning, No
End - The Sami Speak Up (1998) and Ei alkua, ei loppua, .saamelaisten
puheenvuoro (1999). Formerly acting principal and associate profes-
sor of women's studies at Simone de Beauvoir Institute, Concordia
University, Montreal, Kailo has spent 24 years studying and doing
research out of her native Finland and has now returned home to teach
and research Nordic perspectives on issues of gender, ethnicity, vio-
lence, ecofeminism, and traditional healing practices linked with the
sauna and the sweatlodge. In 1997 she edited Healing Politics: Culture,
Violence and Alternative Health (Simone de Beauvoir Institute Review)
and has also published on Jungian, Freudian, and feminist views on
multicultural transformative pedagogy.
Shahrzad Mojab is assistant professor at the Department of Adult
Education, Community Development, and Counselling Psychology,
Ontario Institute for Studies in Education at the University of Toronto.
She is the author of several articles on Kurdish women which have
appeared in Canadian Women's Studies, Simone de Beauvoir Institute Bul-
letin, Convergence, and the Women in International Development publi-
cation series of Michigan State University. Shahrzad is one of the
founding members of the International Kurdish Women's Studies Net-
work and the editor of Women of a Non-State Nation: The Kurds. (2001).
Judith Whitehead is associate professor of anthropology at the Univer-
sity of Lethbridge, Canada. She is currently studying the impact of glo-
balization and 'development' on gender relations of Bhil adivasis, or
'tribal peoples,' in western India, especially the impact of resettlement
due to large dam projects on the Bhils of Gujarat and the relation
between gender and landscape in wildlife sanctuaries in western India.
Her perspectives on gender and the independence movement in South
Asia were largely influenced by talks with Shiv Varma, the U.P. free-
dom fighter and poet, who was a comrade to Bhagat Singh in the Hin-
dustan Socialist Republican Army in the 1920s.

OF PROPERTY AND PROPRIETY:
THE ROLE OF GENDER AND CLASS IN IMPERIALISM
AND NATIONALISM

This page intentionally left blank

Introduction
JUDITH WHITEHEAD, HIMANIBANNERJI,
AND SHAHRZAD MOJAB
The abundant literature on nationalism and gender prompts us to con-
template how national identities and dominant forms of moral regula-
tion associated with national cultures have been mediated by gender
identities.1 In our view, the relationships between gender, nationalism,
and moral regulation have been inadequately analysed. Much of the
existing literature on gender and nationalism has been written from a
post-structural and post-colonial perspective in which all social rela-
tions are erased and nationalism is viewed solely as a cultural contest
between Self and Other, colonizing and colonized cultures (Whitehead
1999:128-42). This literature has therefore failed to consider a matrix of
underlying yet important social relationships that influenced the polit-
ical character of anti-colonial nationalist movements.
The lack of examination of the social relations underlying the various
projects of decolonization has especially ignored relations of property
and the differing ways in which diverse national independence move-
ments imagined future rights of women and lower classes to equal
subjecthood and property. Whether women and lower classes would be
full property-owning citizens or the objects of continuing inequality in
both economic and political realms was an important arena of ideolog-
ical difference in the various movements for national independence
examined in this volume. Hence, this book is intended as an implicit -
and often explicit - critique of post-structural and post-colonial
approaches to Third World nationalism, most of which tend to erase all
forms of social inequality except for an overarching divide between col-
onizer and colonized. These gaps in post-structural and post-colonial
approaches are especially apparent in the way that culturally mediated

4 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
class and status relations have been ignored in the constitution of gen-
der relations in the domestic sphere. Hence, the linkages between gen-
der, class, and status, and the ways that gender and caste are linked in
the Indian case, are a special focus of this volume.
We define class as constituted by culturally specific relations of pro-
duction, with relations of production defined as the culturally medi-
ated ways that major forms of property are possessed and/or owned
in specific societies. In relation to gender, then, important relations of
production include those associated with land ownership and owner-
ship of capital, as well as relations of inheritance, marriage, and
divorce. In relation to gender, some have also argued that control of
reproductive rights is an important relation of property in class-
divided societies, since the ownership of the 'body' is an important
axis of power differentiation between men and women. Hence, the first
relationships to be considered when analysing the linkages between
gender and nationalism are those which exist between the concept of
the nation and relations of property. In what ways did the modern
nation-state itself constitute the imagined community of citizens as
property-possessing subjects? If all individuals were to become, at
least formally, equal political citizens of emerging nations, then at least
relations of property-ownership in persons, as in slavery and serfdom,
would have to be made illegal. Indeed, some national independence
movements envisaged even more radical forms of equality in property.
A second set of relations which is important to unravel are the con-
nections between underlying forms of property and culturally specific
notions of propriety and respectability that are reflected in idealized
gender identities and in the socialization of both men and women.
Notions of propriety and respectability are, in turn, linked to the
nationalist construction of ideal gender identities, often, but not
always, constructed as a middle-class project. Close interrelationships
between the social relations of property and gender, and the cultural
forms of sexuality and nation, produce forms of moral regulation
which connect the propriety of women and men to underlying prop-
erty relations. Thus, gendered identities of both women and men
become legally and ideologically articulated with the identities of indi-
viduals as a sense of entitlement to citizenship in the nation. Yet
because gendered identities define and socialize individuals into
unconscious moral senses of appropriate and inappropriate behaviour
and 'a feel for the game/ they often become tied to ideals concerning
propriety. The notion that nationalist movements evoke an imaginary

Introduction 5
set of ideal male and female citizens has been much commented upon
lately.2 Yet almost entirely absent from this discussion is an awareness
of how these forms of gendered propriety have been symbolically
mapped onto the social body as a series of class identities as well.
Post-colonial, Post-structural Approaches and a
Dialectical, Practical Critique
The neglect of social relations in general and class relations in particu-
lar has given rise to a number of overgeneralized concepts in the re-
cent literature on gender and nationalism. Since these over-generaliza-
tions arise from some of the premises associated with a post-colonial
and post-structuralist framework, it is useful first to summarize that
paradigm.
Many post-colonial and post-structuralist writers, following Said,
have interpreted the past four hundred years of European and Third
World interaction through a basic cultural opposition between Self and
Other, colonizer and colonized.3 The binary logic ushering in the post-
colonial paradigm shift is condensed in Said's second and most influ-
ential definition of 'Orientalism' as a cultural phenomenon imposed by
European colonialism on the East. It reads as follows:
Orientalism is a style of thought based upon an ontological and epistemo-
logical distinction made between 'the Orient' and 'the Occident'... A very
large mass of writers... have accepted the basic distinction between East
and West as the starting point for elaborate theories, epics, social descrip-
tions and political accounts concerning the Orient, its people, customs,
'mind/ destiny, etc. (Said 1978:12)
Subsequent post-colonial writers have applied this basic opposition,
pertaining originally to literary representations of Asia by European
writers, to a vast range of cultural, political, and historical themes and
topics. It has also been extended from Asian and European relations to
subsume the geographical range of literary, cultural, and political rela-
tions between Africa, Latin America, the Caribbean, Oceania, and
Europe in the past four hundred years. As a measure of the success of
this view, the scope of post-colonial history has expanded so greatly as
to now include almost everyone, not only the peoples of formerly col-
onized nations, but also each and every diaspora which has existed
throughout history.4 While this perspective has undoubtedly opened

6 Judith Whitehead, Himani Banner)!, and Shahrzad Mojab
up new vistas of thought and perception, it has also closed off percep-
tions of other divisions and distinctions, that is, those of gender and
class. Hence, colonized and ex-colonized peoples often appear to be
constituted by the single identity of cultural colonialism rather than
by the multiple identities which realistically frame their lives and
choices.
Identifying with anti-racist and anti-ethnocentric sentiments, femi-
nist writers have been a major part of this shift in focus. This began
with anti-racist literary and visual critics such as Gayatri Spivak, Rana
Kabbani, and Trinh T. Minh-Ha,5 and with philosophical critics such as
I.M. Young, Elizabeth Spelman, and Chandra Talpade Mohanty.6 It has
now extended throughout almost the entire range of the feminist aca-
demic canon in the United States, Canada, Britain, and Australia. Such
writers specifically criticized the representation of Third World women
in feminist forums, written texts, and visual media. The post-colonial
feminists mentioned above have analysed ways in which Third World
women have been 'homogenized as a single unit' (Mohanty 1992), ste-
reotyped as 'backward/ 'passive/ or 'traditional' (Spivak 1987), or sex-
ualized as the 'available erotic other' for European male desires and
projections in European and North American representations (for
example, Kabbani 1986)7 Very often, post-colonial feminists located
the origins of early feminist ethnocentrism in the latter's uncritical and
unconscious adoption of evolutionary models of progress in 'women
in development' paradigms. The lineages of this developmentalist
thought, and its opposition between modernity and tradition, were
then traced to the rhetoric of progress associated with the culture
of colonialism. Subsequently, a number of writers have broadened
the scope of origins to include all modernist discourses, since mod-
ernist science and philosophy themselves are seen as creating and
reproducing pejorative distinctions between 'modern' and 'traditional'
societies.8
Yet the overriding theme of post-colonial studies, based on an oppo-
sition between Self and Other, through which subsequent cultural
'gender' differences are analysed, is premised on a purely linguistic
opposition. Hence post-colonial critiques, even those purporting to be
about 'real' history, remain confined to the realm of rhetorical and
symbolic analyses. As social relations have been subsumed under lin-
guistic signs, the academic focus of feminist studies has shifted from
concerns with gender inequality and racism as these are culturally
mediated to the current celebration of locally determined gender dif-
ferences. An overriding respect for cultural relativism and sensitivity

Introduction 7
to cultural 'differences' - often exhibiting themselves as 'cultural
nationalisms' - currently dominate many research agendas in gender
studies. Since social relations have been subsumed under linguistic
signs, it seems increasingly difficult for feminist academics to take a
stand on even the most basic of political and economic questions. Such
issues as domestic violence which is culturally mediated worldwide,
increasing poverty, out-migration, female-headed households as a
result of globalization, the revival of sail (widow-immolation) in parts
of India, the unequal impact of structural adjustment policies on
women, or the abrogation of women's civil liberties in Pakistan and
Afghanistan are now rarely heard in academic forums. Each of the
chapters in this volume takes up one, several, or many critical points
in the shady of gender, colonialism, and nationalism in the past cen-
tury. Each chapter directly or indirectly originates in points of criticism
of post-colonial/post-structuralist perspectives that arose from the
author's primary research. It seems timely therefore to interrogate just
where this linguistic and cultural turn in women's and gender studies
has deposited its current adherents.
A historical investigation of the relationships between feminism,
colonialism, and nationalism shows us that similar themes and debates
echoed throughout the world in the past century. Each of the positions
that we document in case studies from Ireland, India, Kurdistan, and
Finland was mapped onto a specific tendency of nationalist thought.
All were associated with anti-colonial struggles, but exhibited great
diversity between the positions taken on gender and class issues, as
well as on the question of strategies of decolonization. The direction
and outcome of these debates may at least warn us against 'history
repeating itself, first as tragedy, secondly as farce' (Marx 1869: 3). It
will also help us recover the rich tapestry of the history of colonized
women and contextualize it within the social, political, and economic
relations which framed their lives and struggles.
One of the main consequences of treating the entire history of colo-
nialism and nationalism as a symbolic opposition between the West
and the Rest is to erase any differences that might exist between vari-
ous streams of national independence movements that have emerged
from ex-colonies (Ahmed 1992). Hence, national-liberation move-
ments, which are different from nationalist movements which lack
class and gender consciousness, have been absorbed into an all-encom-
passing and imprecise concept of nationalism in general. This is due in
part to the linguistic turn of post-colonial/post-structuralist studies
which has absorbed the various practical and social histories of anti-

8 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
colonial movements into a solipsistic linguistic model, owing more to
the binary oppositions of Saussere than to in-depth appreciations of
the shifting currents of anti-colonial historiography. Paradoxically,
reading the specific histories of anti-colonial movements through the
symbolic lens of Self and Other has rendered all differences and
notions of identity more or less the same (Ebert 1996). By assuming
that all hegemonic power emanates from the West, such a reading has
also ignored the pre-colonial gender and class hierarchies and practices
of many colonized regions, especially those in Asia, from which this
volume draws many of its examples.
In Nationalisms and Sexualities (Parker 1992), diverse nationalist
movements and moments have been reduced to their signifying gener-
ality in projecting respectable national identities as a gendered con-
struct. In this text, the interconnections between bourgeois nationalism
and the propriety of women as expressed in legal codes and literary
texts have been teased out. However, the specific connections between
various nationalist movements and the question of property and pro-
duction relations as extended into class and imperialism have been
ignored. In addition, various types of nationalist movements have
been subsumed under the authors' overly general definition of nation-
alism^), while different gender projects are also conflated under a sin-
gle, all-embracing rubric.
Feminist Nationalisms, another recent volume (West 1997), equates
not only all nationalist projects with each other, but also conflates the
politics of feminism with the concept of gender. Since all social phe-
nomena in the world arguably are gendered, those movements which
promote a reinvention of traditionalist roles for women have been
equated with those that promote egalitarian social change (previously
termed 'feminist'). For example, Palestinian women's organizations
have been lumped together with the South African Inkatha movement
because both conceive of nationalism as a gendered project. These
essentializing reductions obscure the specific political directions of
various nationalist and identity movements, and divorce such move-
ments from their wider social and economic contexts. Hence the differ-
ences between nationalist and national-liberation projects in relation to
gender roles and class relations have been erased. Indeed, so have
most of the specificities of economic, class, cultural, and gender phe-
nomena of various Third World countries covered in this book (San-
gari 1987). Both the concepts of nationalism and of feminism have
expanded so greatly as to allow for the interpretation of almost any

Introduction 9
movement which expresses both cultural identity and gender differ-
ence as feminist and nationalist.
In a recent, more sophisticated variation of post-colonial themes,
women, the peasantry, and the working class have been envisioned as
'the other' of 'the other/ as fragments of the post-colonial nation.
Partha Chatterjee, in Nationalism and Its Fragments, argues that 'the
most powerful, as well as the most creative results of the nationalist
imagination in Asia and Africa are posited not on identity, but on dif-
ference with the modular forms of national society promulgated by the
West.' Hence, 'the most powerful and historically significant project of
all anti-colonial nationalisms becomes the act of fashioning a modern,
national culture that is not Western/ a point which apparently has been
missed in previous histories of independence movements. Partha
Chatterjee's basic framework that structures the rest of his work is
defined as Self versus Other, which is linked by analogy, a la Said, with
the opposition between colonizer and colonized. All his major con-
cepts, including 'derivative discourse/ 'indigenous community/ and
'fragments of the nation' derive from this binary opposition. Since this
opposition is so overwhelming, the colonized subject is totally consti-
tuted by it, robbed of any agency, and held to be capable only of 'deriv-
ative discourses' of the West.
Himani Bannerji's chapter, Tygmalian Nation/ critically situates
Chatterjee's work, which can be considered a basic post-colonial cor-
pus on gender and Third World nationalism, in current trends toward
illiberal and authoritarian nationalisms, especially in India. She shows
how this illiberal, culturally revivalist nationalism is caused by the cur-
rent conjuncture of globalized capitalism and the dismantled power of
national states in the world economic arena. As secular, liberal, or even
socialist nationalisms, with their prior economic policies of 'import
substitution/ have given way to 'free trade/ nationalist rhetoric
increasingly has taken the form of defending 'traditional cultural poli-
tics/ which include anti-feminist and inegalitarian religious and moral
injunctions.
Bannerji begins from the premise that the question of nationalism
and gender in formerly colonized countries must start from the recog-
nition that there were three distinct types of nationalism that character-
ized the process of decolonization. Two of these currents did not
critique existing notions and practices of private property. These forms,
which she terms 'revivalist' or liberal nationalist/ had their major
social bases in the petty bourgeoisie and the upper classes. The former

10 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
gave rise to illiberal authoritarian states which valorized past tradi-
tions, while the latter gave rise to liberal democracies. The third form
of anti-colonial nationalism was national-liberation movements, which
are now in disarray. Indeed, Bannerji uses this typology to critique the
current erasure of social relations in post-colonial studies. She illus-
trates how the erasure of social relations in Partha Chatterjee's work on
Third World nationalism functions to valorize a revivalist nationalism
which is concerned only with reinventing past cultural traditions,
no matter how patriarchal or inegalitarian they might be. Not only
that, but such a narrow nationalism has become the model for all anti-
colonial nationalisms, most explicitly in Chatterjee's work, but also
implicitly in others inspired by him. Thus, liberal-nationalist and
national-liberation streams are viewed by Chatterjee as 'derivative'
and 'Western-inspired'; for writers following him, they simply do not
exist. For many of the same reasons, Bannerji criticizes Dipesh Chakra-
barty's analysis of the women's question in Bengali colonialism, partic-
ularly his prioritizing of the colonial/anti-colonial division over all
others. This theoretical move allows him to romanticize pre-colonial
gender relations. This revisionist history, its mythical cast, its romanti-
cization of pre-colonial caste, class, and gender relations, and the nega-
tive implications this possesses for women and lower castes and
classes have been clearly spelled out in Bannerji's chapter.
Another recent example of post-colonialism's overgeneralizations is
found in Ashish Nandy's discussion of sati, or widow immolation, in
Deorala, Rajasthan, India, in 1987. Nandy defends its recent revival as
the expression of a 'marginal' and 'traditional' Rajput community
resisting the encroachments of the urban middle class's 'colonizing'
culture of modernity. Here, Nandy equates notions of indigenous tradi-
tion with upper-caste patriarchal practices, discounting the question of
what type of politics such 'resistance' is promoting (Nandy 1996).9 By
such logic, any patriarchal and/or feudal institution may be character-
ized as 'resistance' to a modernist culture, and all modernist cultures
and their social reform projects become equated with colonialism.
Uma Chakravarty's 'Wifehood, Widowhood, and Adultery' warns
us against romanticizing all pre-colonial gender roles and identities in
the way that Nandy, Chatterjee, and Chakrabarty do. Her chapter out-
lines the consolidation of ritual, landed, and political power by Chitpa-
van Brahmans in the pre-colonial state of seventeenth-century Maha-
rashtra (present-day western India). The privileging of Brahmans
through laws and policies of the Peshwa state was based on the sup-

Introduction 11
pression of other castes, particularly Mahars. Subjugation of other
castes was crucially dependent on valorizing Brahmanical norms regu-
lating women's chastity and fidelity such that ultimately the degree to
which the sexuality of women was controlled was the degree to which
a caste group was regarded as maintaining purity of blood and hence
its status. During this period, early marriages for girls were both
enforced and monitored by the state, upper-caste adulterous women
were imprisoned, some unchaste widows were sentenced to penal
servitude and hard labour, and all upper-caste widows were required
by both the state and the community to be tonsured. In documen-
ing these cases, Chakravarti also explicitly refutes post-colonial ap-
proaches to Indian kingship, such as those of Nicholas Dirks and
Ronald Inden, which favour a textual, Brahmanical interpretation of
kingship and ignore how pre-colonial rulers actually administered
their territories.
Because national-liberation movements, as compared to nationalist
movements per se, have laid claims to supposedly Western concepts of
justice, equality, and progress, they have frequently been ignored by
recent post-structuralist/post-colonial writers. The latter view abstract
notions of rationality, equity, and equality not as universal concepts,
but as products (or 'metanarratives') of European 'enlightenment,' and
as one of the root causes of colonialism. Here, not only nationalism but
also Enlightenment 'culture' are often conceived in an overgeneralized
and essentialist manner, as simply a reflection of an expansionary,
European cultural identity. This is projected as the ultimate cause of
colonialism, rather than the need for cheap raw materials and markets
associated with an expansionary capitalism. Concepts such as 'moder-
nity/ 'enlightenment,' 'reason/ and 'Europe' become conflated as a
series of equated metaphors, such that each is often surreptitiously
substituted for the other.
Yet, as Jasodara Bagchi has recently pointed out, the 'Enlightenment
period' often critically referred to in post-structuralist texts should
really be divided into at least two eras. The first corresponded to the
period immediately prior to and including the French Revolution,
while the second encompassed early nineteenth-century reactions
against it. According to Bagchi, the ethnic exclusiveness of Europe was
not a product of the first period. Rather, the withdrawal from rational-
ism in romantic arguments of blood and kinship in the second period
consolidated and reflected increasing European racism. This intellec-
tual withdrawal from rationalism also constituted a conservative reac-

12 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
tion against the potentially transformative politics of the earlier period
within Europe itself (Bagchi 1996: 4; Bannerji 1997: 222-42).
In criticizing a post-structuralist and post-colonial approach to gen-
der and nationalism, we are not denying that common-sense racism
was connected to the colonizing project or that ethnocentric notions
pervaded European and North American culture. We are stating that
by itself, a colonial discourse perspective which ignores internal forms
of class and gender stratification inside colonized societies is inade-
quate and often mystifying. To be sure, the political project of colonial-
ism involved the attempt to spread the culture of liberal forms of
European 'modernity' throughout much of the world, coupled hypo-
critically with the economics of dependent capitalism. Yet analyses of
the diverse anti-colonial movements for national independence and the
role of the women's question therein surely require a defter analytical
framework than oversimplified notions of totalizing European cultural
imperialism versus the Rest. Women in various colonized societies
occupied 'multiple subject positions' which were structured by histori-
cal layers of gender inequality, class, and indigenous social stratifica-
tion systems, as well as by colonialism. All these forms of inequality
were structured around relations toward, and conceptions of, property
and propriety. By unpacking the concept of nationalism-in-general, we
hope in this volume to illuminate the multi-layered positioning and
political agency of class, gender, and nationalism, as these concepts
were deployed in relation to practices of property and propriety.
We analyse the relations between gender, nationalism, and class in a
dialectical way, focusing on the interaction between the general social
and economic relations which characterized the encounters between
imperialism, colonialism, and gender, and the specific histories of each
anti-colonial movement. In seeking to understand the relation between
gender and nationalism in a socially grounded manner, both the differ-
ences which separated women on either side of the colonial divide and
the inequalities they shared as objects of class and patriarchal practices
can be brought into view.
Dialectical Similarities and Differences between
'Occident' and 'Orient'
Local cultural differences have currently been emphasized by post-
structuralist feminists as a methodological prerequisite to understand-
ing diverse gender identities of different societies. Yet, while elevating

Introduction 13
linguistic 'difference' to the status of an overarching a priori principle,
important aspects of European colonial history in Asia have been
obscured. The first attribute to be erased is the similar social forms of
gender, class, and status stratification systems that pervaded Europe
and Asia in the pre-colonial period. Relations of property, inheritance,
marriage, and divorce possessed many general convergences through-
out these regions that dated from the respective feudal formations of
each continent. These broad similarities later parted company with the
development of capitalism in western Europe, with its construction of
middle-class nuclear family forms which stressed the private nature of
the domestic sphere (Zaretsky 1976), and juxtaposed this to the newly
atomized public world of work and politics. It is because Europe and
Asia shared many gender structures associated with patrilineal inherit-
ance, class, and status that we have chosen our case studies from this
wide region, but excluded Africa and North America, where in some
cases gender and class hierarchies were introduced through colonial
practices.10
In both Asia and Europe, men and women possessed different rights
to property through inheritance and marriage laws. However, elite fam-
ilies attempted to preserve the class status of daughters, as well as sons,
through a range of social practices and institutions. These included
patrilineal inheritance patterns, the devolution of a portion of family
property as dowry, hypergamy or isogamous marriages, control over
marriage choices for both men and women, and the physical or sym-
bolic seclusion of women in some form (Goody 1976). Symbolic values
of honour and shame were linked to the moral regulation of sexuality
through equating a family's reputation with the chastity of women in
many Eurasian societies (Bannerji 1995). These patterns were codified in
various written laws and oral traditions, a part of the inheritance of
culture which became selectively reinvented in some forms of anti-
imperialist nationalisms of the nineteenth and early twentieth centuries.
In addition, in the cases under consideration in this volume, there were
pre-colonial class projects, in which practices of property and gender
inequality - although not always conceived in terms of possessive indi-
vidualism - were already normalized prior to colonial contact.
Although all Eurasian societies possessed social structures that
maintained class status for daughters as well as sons, the nature of
such relationships differed for men and women.11 While a man's class
relations were defined by relations to property, women's property rela-
tions were mediated by their sexual relationships to men who were

14 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
either propertied or propertyless. Distinctions between honourable
mothers and wives, as opposed to concubines, mistresses, and prosti-
tutes, designated both practical and symbolic relations of status and
servitude. These relations possessed a specifically familial and sexual
character which defined women's rights to wealth and inheritance.
Thus women's rights to property throughout Eurasia were mediated
by conscious and unconscious norms and practices of respectability
and familial propriety.
Judith Whitehead's 'Measuring Women's Value: Continuity and
Change in the Moral Regulation of Prostitution in Madras, 1860-1947'
outlines the similarities as well as differences between British and
Indian elites in their social attitudes towards non-marital sexuality and
prostitution in southern India. She uses the concept of habitus, which
can be defined as unconscious bodily practices of gender and class dif-
ferentiation inscribed through practice, to show how Brahmanical
codes of honour and shame possessed similarities to the middle class's
eugenicist notion of normalcy and deviance in relation to prostitution.
In terms of body politics, if upper-caste women were the symbolic gate-
keepers of a family's and caste's purity, they also became reconstituted
as medically hygienic. This contrasted with the potentially disease-
ridden and sexually deviant prostitute for emerging nationalist dis-
course and practice. Since this period was one of transition between
colonial and post-colonial India, Whitehead also criticizes post-colonial
perspectives on the Devadasi question, which idealized the institution of
temple dedication by ignoring indigenous social norms and forms of
property and propriety. There was a marginal yet auspicious social
space accorded a minority of women prior to the eighteenth century
who were trained in classical dance as temple servants married to dei-
ties. However, the immediate pre-colonial period, as well as the early
and later colonial periods, witnessed a decline in their status, a loss of
their property and autonomy, and their eventual criminalization. She
charts the convergence between Victorian missionaries and administra-
tors, liberal modernist nationalists, and social reformers during this
period. Despite their other differences, the similarities in the attitudes of
each group represented a reworking of underlying notions of honour
and shame, such that the new ideal of feminine citizenship was defined
by more strictly patrilineal inheritance patterns and strong maternalist
imagery. Thus, the specific form of patriarchy in India was reconstituted
in a new, modernist form while retaining its underlying structures
based on honour and shame, property and propriety.

Introduction 15
At the level of legal practice, many colonial administrators, such as
Maine and Lyall, recognized that broad similarities existed in Euro-
pean and Asian civil and domestic law for familial matters. However,
at a rhetorical level, other writers emphasized the supposed tradition-
alism of Asia.12 Asian traditionalism was 'normalized' in Europe
by stressing such 'different' patriarchal practices as foot-binding in
North China, sati in India, veiling in the Middle East, and the seclu-
sion of women in much of Asia. Such traditionalist imagery justified a
continuing colonial presence in the late nineteenth and early twenti-
eth centuries by symbolically pushing Middle Eastern, South Asian,
and East Asian societies 'backwards' to an evolutionary space some-
where between 'barbarism' and 'civilization.' The colonial project was
therefore portrayed, in paternalistic fashion, as that of raising the off-
spring of colonialism to the level of civilization which Europe (and
European women) had achieved. At various points in colonial his-
tory too, colonial administrators and nationalists debated various
gender norms and familial practices. In these competing claims to cul-
tural and moral superiority, differences between Asia and Europe
were highlighted, while their similarities in matters of inheritance,
marriage, divorce, and property were obscured.13 These debates, in
fact, functioned to maintain the patriarchal relations of both subconti-
nents, as nationalist elites and colonial administrators focused public
attention upon capturing the moral high ground in relation to the
women's question.
Yet it is important to differentiate between colonial rhetoric, on the
one hand, and colonial practices, on the other. In terms of legal prac-
tice, both colonial administrators and elites from colonized countries
shared many gender assumptions concerning the propriety of women.
In addition, colonial legal practice often combined both European and
indigenous forms of social control over sexuality and reproduction. In
fact, European writers such as Schopenhauer and Herder possessed
ideas on Asian womanhood remarkably similar to those of Asian
revivalists such as Bankimchandra Chatterjee and Dayanand Sara-
swati. For all these writers, the woman's place was squarely in
the domestic sphere. Yet these commonalities between conservative
nineteenth-century writers on both continents have almost never been
the object of investigation in post-colonial studies.14
Another aspect of colonialism erased through the linguistic bias of
current post-colonial studies is its economic effects on gender relations,
and the similarities and differences in the expansionary tendencies of

16 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
European capitalism throughout Asian regions. In the nineteenth cen-
tury, colonialism was not a matter of rhetoric alone. Colonies existed as
sites from which to buy handicrafts and primary materials cheaply,
and later as sources of cheap labour power and markets to dispose of
European products. These one-way economic functions, and the inter-
national division of labour which accompanied them, were spread
through the mechanisms of merchant capital (Kay 1975). By the late
nineteenth century, even after much of western Europe had industrial-
ized, merchant capital remained the dominant form of economic activ-
ity in the colonies. It usually consisted of European export houses at
the apex of a trade network, retaining monopolistic control over rural
and international markets through a complex of protectionist policies,
links with local power holders, and economic connections between
monopoly houses, local traders, and pre-capitalist forms of production
in the countryside. Because merchant capital does not transform the
sphere of production, it was articulated with a range of pre-colonial
and patriarchal forms of servitude, land tenures, and peasant produc-
tion. Its predominance in many colonies ensured that different forms
of pre-capitalist, patriarchal social relations, and modes of ruling
would be maintained - albeit in a distorted form - far longer than in
Europe or North America. In addition, the monopolistic tariff policies
levied on colonial governments by mercantile houses inhibited indus-
trialization in Asian colonies. These policies impoverished local pro-
duction systems while maintaining and sometimes intensifying those
pre-capitalist relations which could be harnessed to the logic of accu-
mulation abroad (Ray and Ray 1973; Ray 1975). Such practices often
intensified the patriarchal regulation of gender identities, especially
within rural households. There, the unpaid labour of poorer women
often became linked to the increased demands of mercantile accumula-
tion, and was read back into the household as domestic work.
Alongside the drain of wealth, there were general social-economic
forms of ruling that characterized colonialism in Asia. These included
the maintenance of feudal land tenures and social norms through indi-
rect rule and the intensification of unfree labour and forms of servitude
through strategic alliances with landed elites in the countryside. In
fact, the 'racial' regulation of colonial bodies, the colonial opposition
between civilization and barbarism, and the mind/body dualism of
'racialist' theories are connected to the super-exploitation of labour
power in the colonies, which included practices such as slavery, in-
dentured labour, and debt servitude. The denial of citizenship rights

Introduction 17
mediated these worlds of production and consciousness, both mirror-
ing and producing the legal status of colonial peoples as unfree, non-
contractual subjects.
In the case of European presence in Asia, the historical break
between pre-colonial and colonial forms of moral regulation was com-
plex, with a continuation of numerous forms of pre-colonial stratifi-
cation and patriarchal systems into the colonial and post-colonial
periods. Subjects were constituted not solely by a colonial rupture, but
also by social divisions such as gender, class, caste, and ethnicity that
pre-dated colonial rule. There were also differences between Asian
countries in terms of the periods during which they came under Euro-
pean economic and political influence. Pakistan, India, Bangladesh, the
Philippines, Indonesia, Vietnam, Malaysia, and Singapore, which came
under direct political control from the early eighteenth to late nine-
teenth centuries, were both economically and politically tied to their
metropolises through the medium of mercantile capitalism. However,
the logic of imperialism changed during the first decades of the twenti-
eth century. Turkey, Iraq, Iran, and Syria were not directly conquered,
but were economically controlled through the export of finance capital
and a political pattern of dual mandates. China, too, was not directly
conquered in toto. Rather, the creation of treaty ports controlled by
European countries after the Opium Wars (Pye 1984) enabled the
access of mercantile capitalism to the interior and the spread of West-
ern education through missionary activity. Hence, the forms of colonial
economic practices and relations of ruling varied throughout the Asian
continent, but this variation was both allowed for and limited by the
internal tendencies of mercantile capitalism itself.
Drawing from her extensive scholarship of and experience in the Kur-
dish women's movement, Shahrzad Mojab argues that Kurdish nation-
alism has ultimately proved a barrier to the democratization of gender
relations. Kurdish anti-colonial nationalism was and is perhaps unique
in terms of the number of hegemonic states it has had to confront,
including in the nineteenth century the Ottoman Empire, Britain and
France, Turkey, Iran, and Iraq. After World War I, the United States can
be included in this list. Perhaps, due to the lack of any open political
space, Kurdish nationalists had to confront religion, Turkish national-
ism, and the Ottoman state simultaneously. Kurdish nationalist cam-
paigns of both the nineteenth and twentieth centuries made many
concessions to feudal tribalism, a historical legacy which even today
poses tremendous problems for Kurdish women's organizations. Using

18 Judith Whitehead, Himani Banner)!, and Shahrzad Mojab
primary sources that were often difficult to obtain, Mojab charts the
often tortuous relations Kurdish nationalist groups have forged with
women, tribals, and the peasantry in their homelands. Mojab also doc-
uments the emotional appeal that the purity of women and of the home-
land possessed for Kurdish nationalists. When the Kurdish Democratic
Party called for the education of women, it did so as a sacrifice to their
'brothers/ The unusual suppression of the Kurdish nationalist move-
ment may partly account for the lack of a strong feminist-socialist voice.
For example, even in 1992, when a proposal was submitted to the Kur-
dish parliament demanding the abolition of polygamy and equal rights
of inheritance and divorce for women, it was overwhelmingly rejected.
As Mojab writes, 'six years of the rule of the regional government of
Kurdistan have confirmed the status of women as the property of the
nation.' This has been shown in the imposition of the veil and sexual
segregation, a new phenomenon in Kurdistan. As Mojab notes, the
future will tell if Kurdish feminists will allow the nationalist movement
to remain the 'watchdog of patriarchy/
Property and Nationalism as Social Practice
Despite the different power bases of imperial and anti-colonial na-
tionalisms, bourgeois and petit-bourgeois nationalist movements in
both Europe and its colonies utilized the ideology of respectability
and propriety to recast gender behaviour, family life, and sexual
norms into a model of national citizenship (Mosse 1985; Parker et al.
1992). The 'modern' nation-state - both colonial and imperial - was
imbued with underlying notions of private property, partly because
one of the functions of this state was to regulate the terms and condi-
tions of trade, and hence the form of commodity relations which
dominated the public sphere (MacPherson 1971). The nation-state
that arose with capitalism represented a break with the past by con-
stituting the territory of the nation as a flat, even landscape, in which
every square centimetre of space ideally was governed by laws of
contract, measurement, and commodity-form, from the most periph-
eral to the most central (Anderson 1983). It differed from feudal,
dynastic realms by virtue of the fact that these had porous bound-
aries which were legitimated through conquest and sexual politics
while the new nation-states possessed rigid boundaries consisting of
realms wherein market, property, and commodity exchanges could
legally occur.

Introduction 19
If the 'imagined community' of nationhood empowered 'peoples' to
claim home territories as their own property, then laws and notions of
property were intimately embedded in these territorial claims.15 The
concept of the nation included, then, a precise, bounded space and all
the resources and people inside that territory. At the level of everyday
thought, notions of possessive individualism linked claims of property
to the imagined idea of a national territory. In addition, nationalism
was related to commodified notions of territory through its claims to
state power. The state specified the areas to be defended and the con-
tract relations under which transfers of property might legally occur. In
turn, notions of property were connected to discourses of gender
through the legal/moral regulation of property, citizenship, marriage,
the family, and inheritance. Whether women would acquire formal
and/or real rights to property, inheritance, and citizenship was the
subject of ongoing debates in many regions in the period of their decol-
onization. In addition, in many colonized countries such as India,
modern technologies of power, such as statistical enumerations of the
population by caste, tribe, religion, and occupation, were incorporated
into regimes which were both autocratic and in negotiation with pre-
capitalist relations of ruling in the countryside.
Commodity relations associated with private property and contract
had been reinforced, introduced, and/or modified in colonized territo-
ries from the seventeenth to the twentieth centuries through the inten-
sification of privatized land tenures, agricultural commercialization,
and monetary taxation. In regions where laws of contract, property, and
commercialization already existed, these were utilized by the colonial
administration to construct a ruling apparatus which included both
agrarian-feudal and capitalist forms of legal and moral regulation.
National Liberation Movements, Liberal Anti-colonial
Nationalisms, and Revivalist Nationalisms
There were and are a number of nationalist responses to colonialism,
neocolonialism, and imperialism throughout the colonized world.
Movements for national independence differed both in terms of how
they constructed the pre-colonial past and how they envisioned the
shape of the future nation. Those anti-imperialist movements which
incorporated demands of the peasantry, working classes, and women
were quite different from those which sought to restore pre-colonial
aristocracies or pre-colonial modes of moral regulation. When examin-

20 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
ing the history of independence movements from a historical perspec-
tive, an obvious division presents itself between bourgeois anti-
colonial nationalisms and national-liberation movements. In terms of
property and propriety, national-liberation movements tried to incor-
porate critiques of relations of property, both inside the nation and
in terms of economic ties between the colony and the metropole. Bour-
geois anti-colonial nationalisms, however, accepted notions of private
and/or feudal property, and envisioned their continuation in the post-
colonial period.
While drawing a major distinction between national-liberation move-
ments and bourgeois anti-colonial nationalisms, one can also identify
two distinct tendencies in the latter category. One maybe termed 'liberal
nationalism/ in that it included so e concern with improving the posi-
tion of women, while accepting the basic pre-supposition and ideals of
a capitalist state: universal suffrage, private property, rule of contract
law, and the goal of economic progress. The second may be termed
'revivalist nationalism/ in that it rejected the ideals of modernity and
capitalism and reinvented pre-colonial (and often feudal) traditions in
an attempt to assert the cultural value of authentic, 'indigenous' tradi-
tions. The latter form of nationalism also tended to reject any projects for
improving the position of women that failed to fit an idealized and ideo-
logical construction of 'ancient' practices.16
Revivalist nationalist movements which reinvented pre-existing tra-
ditions and histories as part of a politics of self-assertion also tended to
envision an essentially proper and honourable role for 'their' female
citizens. In fact, in some revivalist streams, such as that of Bengali and
Marathi revivalist nationalism in late-nineteenth-century India, the
nation was itself conceived of as a mother. In fact, many liberal nation-
alist movements also accepted maternalist aspects of the revivalists'
program, while rejecting its historical claims to mythological or reli-
gious certainty. The prevalence of motherhood imagery in cultural or
revivalist nationalist movements throughout the world during this
period bears evidence of this tendency. Women in such nationalist
movements often were represented as icons of the nation. The ideal
feminine figure, then, encapsulated key aesthetic values of linguistic
and ethnic groups, signalling both desire and repression: desire as
equated with the independence of the nation, and repression of the
feminized colonial culture. Women thus tended to become equated
with the nation's patrimony, as were children, architecture, music, sci-
ence, and mythology. In this role, they often became glorified objects of

Introduction 21
nationalist movements, while also occupying roles as active subjects
in anti-colonial movements. Yet because of the imagery of mother-
hood promoted during independence struggles, they could be, and
often were, pushed back into the domestic sphere once independence
was achieved.
In relation to notions and practices of property, male nationalist
elites in colonized countries occupied a dual role. As colonized sub-
jects, they lacked claims to full citizenship, but as upper- and middle-
class individuals, they were often men of wealth and property in their
own societies. As propertied persons within a colonial society, they
retained a great deal of formal power within the family. They were
pushed from behind, as it were, by ongoing anti-landlord and tribal
struggles in their home bases, while simultaneously confronting their
working worlds as places of subservience and domination. Due to sys-
temic discrimination in colonial administration, in many colonized
societies even those men born into an aristocratic or semi-aristocratic
status were limited to the lower rungs of the colonial administration.17
Women in anti-colonial nationalist movements also occupied subject
positions that were multiply determined by notions and practices of
gender, class, racism, and ethnicization. As potential citizens of emerg-
ing nations, they possessed plausible claims to political, legal, and
social equality with men. As women in patriarchal and class-based
societies, however, they were often legally defined as the property of
husbands and fathers. In all such societies, the legal possession of a
child was the inalienable right of the man, and the common custodial
definition of woman was as a nurturer of children. Since nationalism
was and is linked to territory and notions of property related to citizen-
ship, women were often subsumed within nationalist movements
through pre-existing notions of property and propriety. In addition, all
the societies under consideration in this volume maintained relations
of servitude for lower-class women and men.
Due to different political responses to imperialism and colonialism,
the pre-independence periods of many emerging countries were char-
acterized not by a monolithic anti-colonial response, but by critical fer-
ment and contesting positions in which nationalist identities were
linked in both explicit and implicit ways to a variety of class, caste, and
gender subjectivities. In terms of national-liberation movements, the
claims to equality entailed in decolonization were extended to an inter-
nal critique of the emerging national state. How the nation would be
constituted, who would be included and how, were integral questions

22 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
in these projects of nation-building. Unlike bourgeois nationalist
movements, which adopted existing notions of property and propriety
without question, national-liberation movements recognized multiple
forms of inequality in colonized societies: between men and women,
landlord and tenant, employer and worker, colonized and colonizer,
upper and lower castes. Many national-liberation movements envis-
aged new social relations that transcended and transformed existing
property relations and social identities in all these fields in the post-
colonial period.
Dana Hearne's 'Contesting Positions in Nationalist Ideologies in
Pre-Independence Ireland' charts the diversity of debates on the status
of women from 1908 to 1922. This was not only a key period in the for-
mation of Irish nationalist thought; it also marked the beginnings of
Irish decolonization. Drawing mainly from primary sources, Hearne
shows how the varieties of Irish feminist-nationalist thought, includ-
ing a socialist-feminist-internationalist nationalism, were eclipsed dur-
ing the latter part of this period by an increasingly conservative
nationalism aligned with the Catholic Church. De Valera's 1937 Second
Constitution, then, can be interpreted as the eclipse of socialist femi-
nism and national-liberationist thought. Nationalism under De Valera
became identified with the hegemony of a conservative form of
national identity closely aligned with the Catholic Church. This nation-
alism was posited partly on the control of Irish women's sexuality as
national citizens. A key plank in the ascendancy of this conservative
nationalism was the abortion debate, which firmly placed the issue of
control over women's sexuality within the confines of a patriarchal
state. Yet it remained a dormant issue, one that has continued to haunt
'post-colonial' Irish politics to the present day.
Conclusions and Future Debates
As has been stressed, once post-colonial/post-structuralist writers
located the entire source of hegemonic power in a European colonial-
ism, any differences in nationalist responses to colonialism were lev-
elled, and all anti-colonial statements were made to appear uniform by
default (T. Sarkar 1993). Hence, the distinctions between national-
liberation, liberal-nationalist, and revivalist-nationalist philosophies
have been suppressed in post-structuralist/post-colonial studies. Na-
tionalist thinkers as diverse as Mao Zedong, Mohandas Gandhi,
E.G. Tilak, Kamaladevi Chattopadhyay, Kalpana Dutt, Sukarno, and

Introduction 23
Frantz Fanon have been conflated, despite the different views they
possessed on issues other than that of cultural nationalism, and partic-
ularly in relation to class (Ahmed 1992: 204) and gender. The fact that
Fanon, a national-liberationist writer par excellence, devoted a sub-
stantial portion of Wretched of the Earth to analysing 'the pitfalls of
national consciousness/ warning of potential forms and processes of
class repression inside the emerging Algerian state, has been
neglected, perhaps tellingly, in recent post-colonial writing.18 In fact,
Fanon himself noted the dangers inherent in generalizing his conclu-
sions regarding colonial relationships to areas other than the Antilles,
his natal homeland, and Algeria, his chosen country.
Since I was born in the Antilles, my observations and my conclusions are
valid only for the Antilles - at least concerning the black man at home.
Another book could be dedicated to explaining the differences that sepa-
rate the Negro of the Antilles from the Negro of Africa (Fanon 1976:14).19
When national-liberationist thinkers such as Bhagat Singh of India
declared at his 1929 conspiracy trial that 'independence for India did
not mean just replacing a white sahib with a brown one, but also the
ending of exploitation of man by man [sic]/ he saw this secular and
socialist ideal as integral to nation-building per se and not just a prod-
uct of European cultural hegemony. The fact that a Nehruvian concept
of the Indian nation became dominant in 1947, or that Maoism was vic-
torious over the Koumintang in 1949, or that Sukarno's vision was
hegemonic in Indonesia in 1950, was not just a product of linguistic
signifiers of identity and exclusion between colonial administrators,
nationalist elites, and the rest of the population. Rather, it was a pro-
cess of social struggle between competing political visions of how vari-
ous national subjects would be related to one another within the
nation-state. These internal debates and struggles over visions of the
post-independence state characterized the national independence
projects of these regions. Such political contestations and their lin-
eages of power have shaped emerging nation-states in profound ways,
continuing to influence gender relations in the post-colonial period.
For example, feminist debates in post-colonial countries have often
revolved around the extent to which national-liberation and socialist
projects realized their potential in transforming family and domestic
relations. Hence a major question for feminists in post-colonial coun-
tries has not been whether national liberation and/or independence

24 Judith Whitehead, Himani Banner)!, and Shahrzad Mojab
was a desired goal, but the extent to which women's organizations
should be linked to socialist and/or communist parties or whether
autonomous women's organizations would be better vehicles for pro-
moting equality and equity for women (Whitehead 1990). To a greater
extent than in western Europe and North America, women's organiza-
tions in Asia, emerging from the contested history of anti-colonial
movements, recognized multiple interlinkages between gender, class,
and national liberation.20
A recognition of the role that social practice plays in shaping and
constructing nationalisms has profound implications for understand-
ing the logic of cultural nationalism. Even consciousness of identity
and difference is not the product of timeless metaphoric oppositions
translated endlessly into one another. It is a profoundly social, practical
affair: Awareness of identity is often formed through similarly posi-
tioned subjects communicating with one another in some form (Ander-
son 1983), and, through this social interaction, coming to awareness
that there is shared oppression and/or exploitation. Oppression,
whether it be through class, gender, racialization, casteism, or ethnici-
zation, is therefore a social category and not merely a linguistic binary
opposition.
We hope that this volume will initiate a debate concerning the differ-
ent forms that identity and nationalist politics may take in the present
and immediate future. We believe that a re-territorialization of identity
and history is necessary for groups of women who have been previ-
ously marginalized by or negatively stereotyped in dominant histori-
cal and social scientific paradigms. The way women of colonized
nations were unnamed or misnamed is not the same way elite Euro-
pean males remained unnamed in humanist texts. Relying on their
centrality in actual relations of ruling, their status as universal repre-
sentatives of all humans projected in their appropriation of the term
'mankind,' elite Euro-American male writers were not aware that their
deployment of a singular 'human' identity was a device of control,
erasing their own particularities and conditions of knowledge produc-
tion (Bannerji 1995: 20). Hence, the renaming of identities in the terms
'black,' 'women of colour,' or 'women of the colonies' has recast his-
tory from the standpoint of the margins, remapping what had previ-
ously been excluded and/or stereotypically represented.
However, the history of the role played by gender and class in colo-
nialism and nationalism shows us that simply renaming identities
while accepting notions of property and propriety has not necessarily

Introduction 25
led to more egalitarian gender outcomes. The history of policies for
women in various anti-colonial-nationalist and national-liberation
movements illustrates that gender and national identities can be con-
nected in many different ways with nationalist and other political
movements following the achievement of independence. These differ-
ences depend on the specific political articulation between nationalism
and other political projects, such as feminism, liberalism, and social-
ism. Hence, the consciousness of national identities was and is, by def-
inition, linked in crucial ways to civil society and the state. In addition,
the character of the state and its relation to civil society also influenced
the position of women and gender relations within national or ethnic
communities. Hence, gender, 'difference/ 'nation/ and family are not
essentialist entities, but coexist as social practices in a continuous pro-
cess of interaction and potential transformation.
Just as three different streams of nationalist anti-colonial movements
can be identified, so too are there a number of streams of current cul-
tural nationalisms. Within a liberal-democratic framework, this politics
of identity of minority groups can lead to the recognition of 'formal'
rights of equality, centred now on the community, rather than on the
individual. In this type of polity, where state and civil society are ideo-
logically separated, minority group nationalism can lead to interest-
group pluralism and not to the reorganization of gender and 'race'
relations inside each 'cultural' community. In addition, the recasting of
political/cultural relations between communities cannot proceed
much beyond formal equality.21 However, where nationalist or identity
movements also recognize the influence of state and property on gen-
der, class, and identity, a more liberatory project for women and lower
classes can emerge. From this perspective, which might be termed
'socialist-feminist identity politics/ the transformation of gender iden-
tities becomes as important as the recognition of gendered cultural
identities. By definition, this transformative process requires a concern
with the relations between state and civil society just as much as it
requires a concern for the recognition of cultural identities per se.
Within a liberal-pluralist framework, where formerly marginalized
populations remain numerically and/or economically subordinate, a
defensive collective identity has sometimes been constructed to resist
practices of 'ethnicization' or 'racism/ Minority communities refused
an equal identity within the liberal nation-state, having to find some
other base on which to stand, may impose patriarchal controls within
their own community as a defence against external threats. They then

26 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
often demand community-based rights from within a liberal state
framework. Although they share much in common with the history of
revivalist nationalisms within an anti-colonial struggle, such move-
ments nonetheless are more limited in scope due to their minority
character.
On the negative side of nationalism, revivalist forms of cultural
nationalism have also been known to lead to forms of fascism. How-
ever, identity and nationalist politics have only eventuated in fascism
given certain social and political conditions. First, fascism implied the
subsumption of ideological notions of difference within a romantic ide-
alization of pre-capitalist, patriarchal ethnic communities and a con-
joining of ethnicity and culture in a racialized way. It also required the
existence of a majoritarian, revivalist cultural nationalism. Finally, the
ascendance of fascism depended on an authoritarian state, the devel-
opment of corporatist institutions subsuming labour and business, and
a close relationship between the state and monopoly capital. The dif-
ferent historical outcomes of national and identity movements show us
the importance of distinguishing analytically between their ideological
articulations in relation to property and propriety, gender, and class.
An analysis of various anti-colonial, nationalist movements in Eur-
asia from a critical standpoint of women and the lower classes must
take account of the multiple layers of class, patriarchy, and colonialism
which structured daily lives and the horizons of possible responses.
Women's subject positions are 'the concentration of multiple determi-
nations/ as are those of the colonizing 'man,' although the latter has
had his subject position constructed in official histories as the invisible
and universal observer and actor.
Kaarina Kailo's chapter, 'Gender and Ethnic Overlap/p in the Finn-
ish Kalevala/ highlights the similarities among bourgeois nationalisms
with regard to the question of patriarchy between Asian and European
regions. It shows how the construction of the major Finnish national
epic, the Kalevala, depended on a series of cultural exclusions of others.
Unlike the homogenized mainstream version of the Kalevala, these
variants were rooted in the lives and livelihoods of other ways of life.
Kailo focuses on the Sami in particular, a society in which 'women pos-
sessed equal rights to property, inheritance and economic activities
based on reindeer hunting/ As a result of the consolidation of bour-
geois Finnish and Norwegian nationalism in the early twentieth cen-
tury, 'Sami women have lost many equality-based rights/ a process
mirrored in the patriarchal and exclusionist tendencies of the construe-

Introduction 27
tion of the Kalevala itself. Kailo's paper, the most explicitly cultural of
the book's chapters, nevertheless connects the homogenizing tenden-
cies of national myth-making to the middle-class, patriarchal, and
urban character of Finnish nationalism.
To pay attention to these multiple-subject positions brings the lives
of women in both colonized and colonizing locations into the same
universe of discourse without reducing the specific geopolitical posi-
tions of, and hence the different power relations between, them. In
addition, by recognizing that multiple social relations of gender, class,
and 'race' enter into the constitution of anti-colonial-nationalist move-
ments, we hope that national-liberation movements which incorporate
emancipatory ideals, at least, for the lower classes and women will be
restored to their rightful claim to historical relevance. If the recognition
of cultural identity is considered dialectically and historically, then we
can see that symbolic constructs of the 'nation' and 'identity' are con-
tinually being formed and re-formed through their articulation with
changing social practices of property, propriety, gender, and class
(Mouffe 1992). We hope that the recognition of different political
projects within the politics of identity might clarify significant future
lines of research. On a more practical level, we also wish that socialist,
feminist, and democratic trends within identity movements, which
recognize the influence of multiple social relations upon the political
trajectories of cultural nationalism, will be strengthened in the future.
Notes
1 Some of this recent literature includes A. McLintock (1995), V. Moghadam,
ed. (1994), A. Parker et al., eds. (1992), L. West, ed. (1997).
2 The notable early work in this regard is G. Mosse's Nationalism and Sexuality
(1985).
3 This is not to ignore the fact that subsequent writers have provided
'nuances' and 'shadings' to Said's binary opposition, e.g., H. Babha's notion
of 'hybridity' (Babha 1986; 1990).
4 A point made by K. Sangari (1987).
5 See G. Spivak (1987); R. Kabbani (1986: Ch. 1-3); T.T. Minh-Ha (1989; 1991).
6 See I.M. Young (1990); E. Spelman (1988); C. Mohanty (1992).
7 There is now a body of literature on this topic. One of the earliest and
clearest exponents of the relation between cultural relations of power and
stereotypes of 'available and lascivious' other women is found in R. Kab-
bani (1986: Ch. 1-3).

28 Judith Whitehead, Himani Bannerji, and Shahrzad Mojab
8 An example of this conflation of concepts is found in the work of some
Subaltern Histories volumes; see R. Guha, ed. (1985-1998).
9 In fact, subsequent judicial investigations showed that Roop Kanwar,
whom Nandy ingeniously refers to simply as Roop, was drugged and
coerced into her supposedly voluntary immolation. For an in-depth discus-
sion of this case and of the history of political mobilization by the Bhartiya
Janata Party which lead to increases in sati in the 1980s, see K. Sangari
and S. Vaid (1996: 240-99). Vaid and Sangari's account also counters the
factual errors in Nandy's interpretation, e.g., his claim that feminist organi-
zations in South Asia were unconcerned with issues of violence against
women and sati until a traditional, rural community started practising
them.
10 In carving out Eurasia as a social block, we are following in the work of var-
ious authors who have focused on the relation between property and gen-
der as important to understanding the historical development of gender
inequality in this region. Most recently, the work of Jack Goody in anthro-
pology, who analyses the similarities in Eurasian forms of class, status,
inheritance, and dowry, has been an inspiration. See J. Goody (1976); J.
Goody and S. Tambiah (1973); J. Goody (1990). F. Engels's early work, The
Origin of the Family, Private Property and the State (1884) also makes similar
connections, as does G. Lerner's (1986) feminist refinement of his position.
11 See J. Goody (1976); L. Davidoff and C. Hall (1987).
12 Indeed, this traditionalism often was consciously maintained through
colonial policies of indirect rule.
13 An apt example of how colonial and nationalist contestations obscured
gender convergences between Asia and Europe is to be found in the much-
discussed 'age of consent' debate in India, as well as the debates on the
abolition of sati (see Mani 1990). The age of consent debate in colonial India
in 1891 and the age of marriage debate in 1929 also witnessed similar kinds
of contestation (see Sarkar 1993; Whitehead 1996a; 1996b).
14 An exception is the early work by R. Schwab (1959); see also F. Conlon (1993).
15 This introduction is too brief to discuss the large literature on whether
private property existed in pre-colonial Asia, and to address the critiques of
the concept of Asiatic mode of production (Marx), or patrimonial bureau-
cracies of the Middle East (Weber). However, it is clear that forms of capital-
ism had begun to emerge in the Middle East, South Asia, China, and
Southeast Asia by the sixteenth and seventeenth centuries. It is also impor-
tant to note that Marx was highly influenced in the development of his con-
cept of the 'Asiatic mode of production' and his views on the lack of private
property in India - which were wrong - by his reading of James Mill's

Introduction 29
History of British India (1817). James Mill, the father of John Stuart Mill, was
also the Chief Examiner of India House, and the object of his book was to
promote British rule in India.
16 For an excellent discussion of this reinvented construction of the 'ancient'
ideal of womanhood, see U. Chakravarti (1990).
17 Indeed, this was the issue surrounding the Ilbert Bill controversy in India in
1881, when the Calcutta English community reacted strongly against
attempts to allow Indian-born and British-trained barristers to become
judges empowered to try English defendants. The dual role of Indian-born
male elites, being both oppressor and oppressed, was starkly revealed in
this controversy, which some historians have credited with sparking the
formation of the Indian National Congress in 1885.
18 This neglect is perhaps a luxury that only anti-racist discourses inside
North America can afford, where the equation between Fanon, Gandhi,
Malcolm X, and C.L.R. James carries much less political weight and reper-
cussion than it does inside the post-colonial country.
19 We owe this insight to Stephan Dobson, our copy editor.
20 Autonomous women's organizations have been in a better tactical position
to foreground women's concerns, but they suffer from a greater lack of
society-wide organizational support and hence are more easily suppressed.
Women's organizations linked to left parties often found their feminist
issues neglected while nationalist or class issues took precedence, but
nevertheless appear to be longer-lasting, especially when faced with state
repression.
21 For an example of a discussion of legal pluralism and community identity,
see I.M. Young (1991).
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Introduction 33
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and Row.

Pygmalion Nation: Towards a
Critique of Subaltern Studies
and the 'Resolution of the
Women's Question7
HIMANIBANNERJI
Men make their own history, but they do not make it just as they please;
they do not make it under circumstances chosen by themselves, but under
circumstances directly found, given and transmitted from the past. The
tradition of all the dead generations weighs like a nightmare on the brain
of the living. And just when they seem engaged in revolutionising them-
selves and things, in creating something entirely new, precisely in such
epochs of revolutionary crisis they anxiously conjure up the spirits of the
past to their service and borrow from them names, battle slogans and cos-
tumes in order to present the new scene of world history in this time-
honoured disguise and this borrowed language.
Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (1972: 437)
It is in consciousness, let us remember, that people make sense of the
world in which they live; it is in consciousness again that they make their
judgements on how to change it.
Partha Chatterjee, 'Caste and Subaltern Consciousness' (1989b: 178)
Introduction
Any discussion of nationalism in countries that were colonized by
European powers must begin with the problem of decolonization and
how it has been politically addressed.1 In this regard we may speak
broadly of three major ways in which the politics of decolonization has
been undertaken, all of which have an element of nationalism, insofar
as they seek to achieve a sovereign state within some social and cul-
tural definition of a nation. But in spite of these common elements, we
can still speak of multiple nationalisms, as does Aijaz Ahmad in his

Pygmalion Nation 35
Lineages of the Present. Refusing a single ideological articulation for all
nationalisms, or their outright rejection, Ahmad reminds us of nation-
alism's 'diverse histories' and its 'pluralities' in terms of 'typologies.'2
Speaking 'typologically' then, I would like to point out that of these
three types of nationalism, two consist of anti-colonial ideological
articulations and politics which accept private property and class soci-
ety both nationally and internationally, while differing in polity
towards cultural/social forms of power and moral regulations that
emanate from such proprietal social organizations. Thus practices and
ideologies of caste, patriarchy, or gender and 'race' are viewed differ-
ently by them, and this difference gives rise to governments which are
either liberal democracies or illiberal authoritarian national states. The
third type of nationalism, whose primary class base, unlike the first
two, extends beyond the petty bourgeoisie into the working class and/
or the peasantry, is anti-imperialist in the marxist sense. It views colo-
nialism as an integral aspect of international, specifically European,
capitalism. Its reading of 'the nation' is marked by a critique of private
property, of capital and class. Its politics, therefore, is based on a more
complex social analysis and ideological formulation than demanded
by a univocal anti-colonialism. We may call this type of nationalism
'national liberation.'3 Beginning with a premise of socio-economic
equality, it can logically include struggles against patriarchy/gender,
caste, 'race/ and other sociocultural inequalities.
These different national projects imply different ideological and
epistemological premises which entail their own particular organiza-
tional processes and political consequences. Currently, as national lib-
eration projects are in a state of disarray, and even liberal democracies
of the Third World are being dismantled, an illiberal or authoritarian
nationalism is increasingly gaining ground.4 As noted above, its polity
obliterates liberal democratic provisions for constitutionally enshrined
formal equality manifested in individual rights as entailed by secular
citizenship. It accepts the economic dictates of local and global capital-
ism, while seeking to dismantle existing left and secular progressive
organizations. It speaks in the name of a singular national tradition or
culture, and of an authentic national identity based on this cultural
essence. By reducing national culture to religion and fixed traditions it
naturalizes inegalitarian or hierarchical socio-moral injunctions.5 Thus
this illiberal nationalism manipulates the project of anti-colonialism by
promising an identification with a pre- or an anti-modernist and anti-
humanist national identity which confuses simple inversions of mod-

36 Himani Bannerji
ernist cultural forms with anti-colonialism. This gives rise to a right-
wing cultural nationalism which is constructed with a content of
reworked colonial discourse, including orientalism.6 The epistemology
of this cultural nationalism relies upon anti-marxist, anti-democratic,
and generally anti-egalitarian (including anti-feminist) conceptual
frameworks. Sumit Sarkar, in Writing Social History (1997b), while dis-
cussing the dependence of current historiography on non-materialist
cultural theories and its political implications, remarks on this phe-
nomenon in the Indian context. Commenting on the historiography
of the subaltern studies group, Sarkar notices in their writings a theo-
retically engineered separation between class and culture, history
and social organization, leading to a cultural overdetermination. This
amounts to dehistoricization or a mythicization of history.7
Sarkar's observations on subaltern studies are coherent with critics
who have spoken to the influence of post-structuralism and postmod-
ernism in social sciences and history. They have noted the use of inter-
pretive philosophies, anti-materialist cultural theories, and relativist
cultural anthropology in accomplishing the task of dehistoricization
and culturalization of politics.8 This theoretical practice has reduced
power to a discursive phenomenon, and anti-colonialism to cultural
nationalism. An exploration of post-colonial studies provides us with
examples of this type of theorization.9 Sarkar refers to this when he cri-
tiques the theoretical 'stimulation' provided by Edward Said and
Michel Foucault in South Asian historiography (1997b: 4). He points to
the swing from economic reductionism to cultural reductionism
through a process that starts with a critique. Speaking of the historiog-
raphy of subaltern studies, he says:
What had started as an understandable dissatisfaction with the economis-
tic reductionism of much 'official' marxism is now contributing to another
kind of narrowing of horizons, one that conflates colonial exploitation
with western cultural domination. Colonial discourse analysis abstracts
itself, except in the most general terms, from histories of production and
social relationships. A 'culturalism' now further attenuated into readings
of isolable texts has become, after the presumed demise of marxism,
extremely nervous of all 'material' histories: the spectre of economic
reductionism looms everywhere. (Sarkar 1997a: 4)
What Sarkar says of subaltern studies' theoretical manoeuvres is
consistent with the simple cultural critique of post-colonial studies.

Pygmalion Nation 37
From this epistemological position, social organization, relations, and
institutions are either erased or deeply subordinated, while the culture
of the colonized is periodized as pre-colonial, colonial, and post-
colonial in a parody of history.10 This cultural interpretation relies on
the paradigm of tradition and modernity, attributing tradition or pre-
modernity as a cultural characteristic to the colonized. Anti-colonial
politics, therefore, becomes one of recovery of the premodern or the
traditional. It is the necessary step for 'imagining' the nation. In the
case of India, this premodern traditional culture translates into one of
brahmanical hinduism, thus presenting us with the proprieties implied
in a patriarchal, casteist national identity securely resting on practices
of private property and class. The curious thing about subaltern stud-
ies is that this is done in the guise of radical politics by implanting the
Gramscian language of subalternity within the nationalist project of
hindu Bengali middle classes.11
My critique of Chatter] ee will focus on his culturalist presentation of
both colonial hegemony and the counter-hegemonic task of national-
ism. I will concentrate primarily on his formulation of culture or moral
propriety as divorced from relations of property by focusing on certain
topics which are persistently present in his theorization. This should
enable us to get a clearer view of his (and the subaltern studies
group's) version of subalternity and its politics. As such I will explore
the topics of subjectivity and agency of Bengali hindu middle-class
women as reflected in Chatterjee's mirror of nineteenth-century Ben-
gali nationalist thought.12 Chatterjee (1990) has phrased these themes
in an essay in Recasting Women: Essays in Colonial History (Sangari and
Vaid 1990) in terms of what he has called 'the nationalist resolution of
the women's question (the title of his essay). This so-called women's
question, current in the language of various types of male social
reformers, including the reforming colonial state in search of legiti-
macy and hegemony, refers to the socio-economic and cultural status
of women and the issue of substantiveness of women's legal and
political personhood. Even though this question signalled different
understandings of social mores and politics coming from different
standpoints, Chatterjee makes no distinction between colonial and
indigenous social reformers. The notion of 'resolution' refers, accord-
ing to Chatterjee, to a successful solution found by the nationalist
thinkers of his choice, thereafter rendering the social content relating to
'the question' unimportant.
That Chatterjee introduces the question of women in a study of

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When the motion was first proposed, he thought it innocent at least,
and was in doubt whether it might not be proper, because he was in
doubt how far these papers might be necessary for enabling the
House to exercise that discretion on the subject of Treaties, which he
admitted it to possess; but on a more accurate and extensive view of
the subject, and after carefully attending to the discussion which had
already taken place, he was thoroughly persuaded that these papers
were no way necessary, and, that being unnecessary, to call for
them was an improper and unconstitutional interference with the
Executive department. Could it be made to appear that these papers
are necessary for directing or informing the House on any of those
Legislative questions respecting the Treaty which came within its
powers, he should propose to change the milk-and-water style of the
present resolution. The House, in that case, would have a right to
the papers; and he had no idea of requesting as a favor what should
be demanded as a right. He would demand them, and insist on the
demand. But, being persuaded that no discretion hitherto contended
for, even by the supporters of the resolution themselves, made these
papers necessary to the House, to call for them would be an
unconstitutional intermeddling with the proper business of the
Executive.
It had been said, that this motion was of little consequence; that it
was only a request which might be refused, and that the privileges
of that House were narrow indeed, if it could not request information
from the Executive department. But it would be observed, he said,
that requests from bodies like that, carry the force of demands, and
imply a right to receive. Legislative bodies often make the most
formidable expressions of their will in the shape of requests. It
would be further observed, that an honorable member from
Pennsylvania, (Mr. Gallatin,) after declaring that this indeed was only
a request which might be refused, had added, that in case it were
refused, it would then be proper to consider how far we ought to
make the demand, and insist on receiving these papers as a matter
of right. After this avowal of the system, after this notice that the
present request is no more than a preliminary measure, a

preparatory step, and in case of a refusal, is to be followed up by a
demand, could it be wondered that they who think the measure
improper, should oppose it in the threshold?
Mr. Gallatin conceived that, whether the House had a discretionary
power with respect to Treaties, or whether they were absolutely
bound by those instruments, and were obliged to pass laws to carry
them fully into effect, still there was no impropriety in calling for the
papers. Under the first view of the subject, if the House has a
discretionary power, then no doubt could exist that the information
called for is proper; and, under the second, if bound to pass laws,
they must have a complete knowledge of the subject, to learn what
laws ought to be passed. This latter view of the subject, even, must
introduce a discussion of the Treaty, to know whether any law ought
to be repealed, or to see what laws ought to be passed. If any
article in the instrument should be found of doubtful import, the
House would most naturally search for an explanation, in the
documents which related to the steps which led to the Treaty. If one
article of the Treaty only be doubtful, the House would not know
how to legislate without the doubt being removed, and its
explanation could certainly be found nowhere with so much
propriety as in the correspondence between the negotiating parties.
Gentlemen had gone into an examination of an important
constitutional question upon this motion. He hoped this would have
been avoided in the present stage of the business; but as they had
come forward on that ground, he had no objection to follow them in
it, and to rest the decision of the constitutional powers of Congress
on the fate of the present question. He would, therefore, state his
opinion, that the House had a right to ask for the papers proposed
to be called for, because their co-operation and sanction was
necessary to carry the Treaty into full effect, to render it a binding
instrument, and to make it, properly speaking, a law of the land;
because they had a full discretion either to give or to refuse that co-
operation; because they must be guided, in the exercise of that
discretion, by the merits and expediency of the Treaty itself, and

therefore had a right to ask for every information which could assist
them in deciding that question.
One argument repeatedly used by every gentleman opposed to the
present motion was, "That the Treaty was unconstitutional or not; if
not, the House had no agency in the business, but must carry it into
full effect; and if unconstitutional, the question could only be
decided from the face of the instrument, and no papers could throw
light upon the question." He wished gentlemen had defined what
they understood by a constitutional Treaty; for, if the scope of their
arguments was referred to, it would not be found possible to make
an unconstitutional treaty. He would say what he conceived
constituted the unconstitutionality of a treaty. A treaty is
unconstitutional if it provides for doing such things, the doing of
which is forbidden by the constitution; but if a treaty embraces
objects within the sphere of the general powers delegated to the
Federal Government, but which have been exclusively and specially
granted to a particular branch of Government, say to the Legislative
department, such a Treaty, though not unconstitutional, does not
become the law of the land until it has obtained the sanction of that
branch. In this case, and to this end, the Legislature have a right to
demand the documents relative to the negotiation of the Treaty,
because that Treaty operates on objects specially delegated to the
Legislature. He turned to the constitution. It says that the President
shall have the power to make Treaties, by and with the advice and
consent of two-thirds of the Senate. It does not say what Treaties. If
the clause be taken by itself, then it grants an authority altogether
undefined. But the gentlemen quote another clause of the
constitution, where it is said that the constitution, and the laws
made in pursuance thereof, and all Treaties, are the supreme law of
the land; and thence, they insist that Treaties made by the President
and Senate are the supreme law of the land, and that the power of
making Treaties is undefined and unlimited. He proceeded to
controvert this opinion, and contended that it was limited by other
parts of the constitution.

The power of making Treaties is contended to be undefined, then it
might extend to all subjects which may properly become the
subjects of national compacts. But, he contended, if any other
specific powers were given to a different branch of the Government,
they must limit the general powers; and, to make the compact valid,
it was necessary that, as far as those powers clashed with the
general, that the branch holding the specific should concur and give
its sanction. If still it is insisted that Treaties are the supreme law of
the land, the constitution and laws are also; and it may be asked,
which shall have the preference? Shall a Treaty repeal a law or a law
a Treaty? Neither can a law repeal a Treaty, because a Treaty is
made with the concurrence of another party—a foreign nation—that
has no participation in framing the law: nor can a Treaty made by
the President and Senate repeal a law, for the same reason, because
the House of Representatives have a participation in making the law.
It is a sound maxim in Government, that it requires the same power
to repeal a law that enacted it. If so, then it follows that laws and
Treaties are not of the same nature; that both operate as the law of
the land, but under certain limitations; both are subject to the
control of the constitution; they are made not only by different
powers, but those powers are distributed, under different
modifications, among the several branches of the Government. Thus
no law could be made by the Legislature giving themselves power to
execute it; and no Treaty, by the Executive, embracing objects
specifically assigned to the Legislature without their assent.
To what, he asked, would a contrary doctrine lead? If the power of
making Treaties is to reside in the President and Senate unlimitedly:
in other words, if, in the exercise of this power, the President and
Senate are to be restrained by no other branch of the Government,
the President and Senate may absorb all Legislative power—the
Executive has, then, nothing to do but to substitute a foreign nation
for the House of Representatives, and they may legislate to any
extent. If the Treaty-making power is unlimited and undefined, it
may extend to every object of legislation. Under it money may be
borrowed, as well as commerce regulated; and why not money

appropriated? For, arguing as the gentlemen do, they might say the
constitution says that no money shall be drawn from the Treasury
but in consequence of appropriations made by law. But Treaties,
whatever provision they may contain, are law; appropriations,
therefore, may be made by Treaties. Then it would have been the
shortest way to have carried the late Treaty into effect by the
instrument itself, by adding to it another article, appropriating the
necessary sums. By what provision of the constitution is the Treaty-
making power, agreeably to the construction of the gentlemen,
limited? Is it limited by the provisions with respect to appropriations?
Not more so than by the other specific powers granted to the
Legislature. Is it limited by any law past? If not, it must embrace
every thing, and all the objects of legislation. If not limited by
existing laws, or if it repeals the laws that clash with it, or if the
Legislature is obliged to repeal the laws so clashing, then the
Legislative power in fact resides in the President and Senate, and
they can, by employing an Indian tribe, pass any law under the color
of Treaty. Unless it is allowed that either the power of the House
over the purse-strings is a check, or the existing laws cannot be
repealed by a Treaty, or that the special powers granted to Congress
limit the general power of Treaty-making, there are no bounds to it,
it must absorb all others, repeal all laws in contravention to it, and
act without control.
To the construction he had given to this part of the constitution, no
such formidable objections could be raised. He did not claim for the
House a power of making Treaties, but a check upon the Treaty-
making power—a mere negative power; whilst those who are in
favor of a different construction advocate a positive and unlimited
power.
He read a quotation from Blackstone, page 257, vol. i., to show that
the power of Treaty-making in England is as extensively vested in
the King, as it can possibly be said to be here in our Executive.
The following is the passage alluded to:

"II. It is also the King's prerogative to make Treaties, leagues, and
alliances with foreign States and Princes. For it is, by the law of
nations, essential to the goodness of a league, that it be made by
the sovereign power, and then it is binding upon the whole
community; and, in England, the sovereign power, quo ad hoc, is
vested in the person of the King. Whatever contracts, therefore, he
engages in, no other power in the kingdom can legally delay, resist,
or annul."
After such a latitude as this clause gives, it would be supposed that
there could be no check reserved upon this power; yet it will be
found that Parliament have a participation in it. And the apparent
inconsistency is easily reconciled, by observing that the power given
generally to the Executive of making contracts with other nations,
does not imply that of making Legislative regulations, but that when
the contract happens to embrace Legislative objects, the assistance
of the Legislature becomes necessary to give it effect.
He proceeded to show the operation of this limitation of the Treaty-
making power in England by the practice of Parliament. It was
always considered as discretionary with Parliament to grant money
to carry Treaties into effect or not, and to repeal or not to repeal
laws that interfere with them. In citing instances of the exercise of
this power, he should not go further back than their Revolution.
He then read several extracts from Anderson's History of Commerce,
vol. iii. pages 269, '70, '71, '72. They are so much in point that we
transcribe the most material passages:
"But we could not omit our animadversions on the eighth and ninth
articles, as they were so extraordinary in themselves, and as they
occasioned so great a stir and uneasiness at that time, as to have
brought the whole Treaty of Commerce to miscarry then and ever
since.
"Art. IX. That within the space of two months after a law shall be
made in Great Britain, whereby it shall be sufficiently provided that
not more customs or duties be paid for goods and merchandise

brought from France into Great Britain than what are payable for
goods and merchandise of the like nature, imported into Great
Britain from any other country in Europe; and that all laws made in
Great Britain since the year 1664 for prohibiting the importation of
any goods or merchandise coming from France, which were not
prohibited before that time, be repealed, the general tariff in France,
on the 18th of September, in the said year 1664, shall take place
there again, and the duties payable in France by the subjects of
Great Britain for goods imported and exported, shall be paid
according to the tenor of the tariff above mentioned.
"When the said two articles came to be known by the merchants of
Great Britain, they were received with the utmost surprise and
indignation, and the clamor was loud and universal.
"That the complying with those two articles would effectually ruin
the commerce we carried on to Portugal—the very best branch of all
our European commerce. That the said eight articles did, in general
terms, put France on an equal footing with Portugal or any other of
our best allies, in point of commerce."
"This is, in brief, the sum of this mercantile controversy, which when
brought into Parliament, it was so apparent that our trade to France
had ever been a ruinous one, and that if, in consequence of
accepting the said eighth and ninth articles, the British Parliament
should consent to reduce the high duties and take off the
prohibitions so prudently laid on French commodities, it would
effectually ruin the very best branches of our commerce, and would
thereby deprive many hundred thousand manufacturers of their
subsistence; which was also supported by petitions from many parts
of the kingdom: that, although a great majority of that House of
Commons was in other respects closely attached to the ministry, the
bill for agreeing to the purport of the said two articles was rejected
by a majority of nine voices, after the most eminent merchants had
been heard at the bar of that House, to the great joy of the whole
trading part of the nation, and of all other impartial people."

Thus it must be clearly seen, that the consent of Parliament was not
only deemed necessary to the completion of the Treaty, but that that
consent was refused, and that in consequence the Treaty fell to the
ground, and was not revived for a period of near eighty years, and
all notwithstanding the plenitude of the Treaty-making power, said
by the best English authority, Blackstone, to be vested in the King;
which was, however, he repeated, necessarily checked by the special
powers vested in Parliament; for none but they could grant money,
or repeal the laws clashing with the provisions of Treaties.
He cited another instance of the exercise of this controlling power in
Parliament of even a later date, viz: in the year 1739, in the case of
a Treaty between Spain and Great Britain, which was sanctioned by
a very small majority indeed in Parliament. He cited a third example
from Anderson, vol. vi., page 828, in the case of the Treaty of
Commerce between France and Great Britain, to show that the
practice of the Parliament's interfering in Treaties is not obsolete.
The following is an article of the said Treaty, which Mr. Gallatin read:
"XIV. The advantages granted by the present Treaty to the subjects
of His Britannic Majesty shall take effect, as far as relates to the
kingdom of Great Britain, as soon as laws shall be passed there, for
securing to the subjects of His Most Christian Majesty the reciprocal
enjoyment of the advantages which are granted to them by the
Treaty.
"And the advantages by all these articles, except the tariff, shall take
effect with regard to the kingdom of Ireland, as soon as laws shall
be passed there, for securing to the subjects of His Most Christian
Majesty the reciprocal enjoyment of the advantages which are
granted to them by this Treaty: and, in like manner, the advantages
granted by the tariff shall take effect in what relates to the said
kingdom, as soon as laws shall be passed there for giving effect to
the said tariff."
Upon this principle, founded on almost immemorial practice in Great
Britain, did the Minister of that kingdom, when introducing the late

Treaty with Prussia into Parliament, tell the House that they will have
to consider the Treaty and make provision for carrying it into effect.
On the same principle, when the debate took place on that
instrument, it was moved to strike out the sum proposed to be
voted, which would have defeated it, and afterwards to strike out
the appropriation clause, which would have rendered the bill a mere
vote of credit, and would also have caused the Treaty to fall to the
ground. On the same principle, the King of Great Britain, when he
mentioned the American Treaty, promised to lay it before them in
proper season, that they might judge of the propriety of enacting
the necessary provisions to carry it into effect.
It remains to be examined, said Mr. G., whether we are to be in a
worse situation than Great Britain; whether the House of
Representatives of the United States, the substantial and immediate
Representatives of the American people, shall be ranked below the
British House of Commons; whether the Legislative power shall be
swallowed up by the Treaty-making authority, as contended for here,
though never claimed even in Great Britain?
In Great Britain, he remarked, the Treaty-making power is as
undefined as in America. The constitution here, declares that the
President and Senate shall make Treaties; there, custom says as
loudly, that the King shall make them. In Great Britain, however, the
power is limited, by immemorial custom, by the exercise of the
Legislative authority by a branch distinct from the regal; in the same
manner is it limited here, not however merely by custom and
tradition, but by the words of the constitution, which gives
specifically the Legislative power to Congress; and he hoped this
authority would be exercised by the House with as much spirit and
independence as any where.
If this doctrine is sanctioned, if it is allowed, that Treaties may
regulate appropriations and repeal existing laws, and the House, by
rejecting the present resolution declare, that they give up all control,
all right to the exercise of discretion, it is tantamount to saying, that
they abandon their share in legislation, and that they consent the

whole power should be concentred in the other branches. He did not
believe such a doctrine could be countenanced by the House. If
gentlemen should insist upon maintaining this doctrine, should deny
the free agency of the House, and their right to judge of the
expediency of carrying the Treaty into effect, the friends to the
independence of the House will be driven to the necessity to reject
the Treaty, whether good or bad, to assert the contested right. If the
gentlemen abandoned this ground, then the policy of the measure
could be weighed on fair ground, and the Treaty carried into affect,
if reconcilable to the interests of the United States.
March 10.—In Committee of the Whole, on Mr. Livingston's resolution,
Mr. Hartley delivered his sentiments as follows:
As I was not present when this subject was first introduced, it
cannot be expected that I should take any great share in the debate;
but some observations I have heard, chiefly from the gentleman last
up yesterday from Pennsylvania, have induced me to show a few
grounds for my vote.
That gentleman has strongly combined this resolution with the
Treaty, and wishes that every one who holds that there should be a
co-operation of this House respecting that instrument, should vote
for the resolution. I think differently.
The gentlemen who contend for the mighty power of the Executive
and Senate, as well as those who argue for the great authority of
this House, perhaps are on extremes; but the Treaty ought not now
to be so largely under consideration. I am willing, if it is thought
proper, to take it up at an early day, and, after a full hearing, will
vote as I hold right.
The gentleman I referred to, from Pennsylvania, argued most
strenuously that the laws and customs of Great Britain and the
Constitution of the United States were analogous—nay, that the
powers were precisely the same.
The gentlemen who hold this doctrine have made researches, and
have quoted several authorities; but why have not those ingenious

gentlemen discovered a single instance where the British House of
Commons have had the instructions given by the Executive to the
negotiating Minister laid before them. If there was such a power, no
doubt that body would at some period have exercised it; for no men
on earth have extended the power of privileges which they had
further than the members of the House of Commons of Britain.
As those gentlemen who contend for the likeness—indeed, sameness
of the Treaty-making powers of both countries—can show no
precedent, it may be fairly contended, that no such right exists as is
contemplated by the resolution.
Treaties are made under the Executive in almost all countries, and
when the Ministers have gone through their part of the business, the
Treaty is commonly laid before the nation. If any national act is
further necessary, it would pass in conformity to the principles of
good faith; if any thing is necessary (consistent with the
constitution) on the part of the House, it will be the discussion of
another day.
Mr. Griswold said, that the resolution on the table appeared at first
view to be perfectly innocent, and, he might add, of very little
importance. It amounted to no more than a request to the President
to furnish the House with papers relating to the negotiation with
Great Britain, which he might either satisfy or reject. But the
discussion which had taken place in the committee, had given the
subject a very serious aspect, and involved a question of the first
importance; and although some gentlemen had thought that the
committee had prematurely involved itself in the examination of the
question, he could not see how the discussion could have been
avoided. For gentlemen would not say that any resolution—more
particularly a resolution calling on the President for documents
belonging to the Executive Department—was to pass the House
without a conclusive reason, much less without any reason for its
passing. On this principle gentlemen had been called on at an early
period for the reasons on which they grounded the resolution. They
had attempted to assign reasons, but those reasons had been

generally abandoned; and it could not at that time be seriously
contended that the objects of general information or publicity, which
had been first mentioned, could justify the House in calling on the
President for papers relating to the British Treaty, or that those
papers were necessary to enable the House to judge of the
constitutionality of the Treaty. The friends of the resolution, aware of
this, had at last come forward and assigned a new and a very
important reason. It had been now said, that the House of
Representatives have a right to judge over the heads of the President
and Senate on the subject of Treaties; that no Treaty can become a
law until sanctioned by the House; and, in fine, that the House of
Representatives is a constitutional part of the Treaty-making power.
If these facts and the principles which grow out of them are true, he
could not say that the resolution was improper; and although he did
not know to what part of the Treaty the papers would particularly
apply, yet, if the House were to take this extensive view of the
Treaty, and ultimately to sanction or reject it, it would seem that the
papers relating to the negotiation ought to be laid before them. But
if these facts are not true, and the House is not a constitutional part
of the Treaty-making power, and the Treaty is already a law without
its sanction, then the reason falls to the ground, and the resolution
ought to be rejected.
This inquiry into the powers of the House of Representatives must
be confined, and the question arising out of it must be decided by a
fair construction of the constitution. The powers of each branch of
the Government are there limited and defined, and an accurate
understanding of that instrument would enable gentlemen to decide
the question.
In comparing these questions with the constitution, gentlemen were
not, however, to inquire whether that constitution was a good or a
bad one; whether too much power had been given to this or to that
branch of the Government. The question will only be, what powers
has the constitution given, and to what departments have the same
been distributed?

To render the subject as clear and distinct as possible, he thought it
would not be improper to take an abstract view of those two powers
in all governments having foreign relations which are immediately
connected with the inquiry, viz: the Legislative and the Treaty-
making power. And if gentlemen can clearly fix in their minds the
limits of each, they will become better enabled to see their
operation, and to decide on the powers of the House in the exercise
of them.
The Legislative power in all governments is extremely broad; it
occupies the most extensive ground; it extends to every object
which relates to the internal concerns of the nation; it regulates the
life, the liberty, and the property of every individual living within its
jurisdiction; it can control commerce within its jurisdiction; govern
the conduct of the nation towards aliens, in whatever capacity they
may appear; and, in short, as certain English writers have said of the
British Government, its power is almost omnipotent. Thus broad and
extensive are the general powers of legislation, subject, however, to
such particular restrictions as are prescribed by forms of
government, or which occasionally arise from the nature of
government itself, and limit the objects of its operation.
It is easy to see, that in the exercise of these Legislative powers, it
will frequently happen that laws are enacted, which, in their
operation, will embarrass the intercourse of two nations. Such are
always the effect of retaliating laws, and aliens within the limits of a
foreign jurisdiction are frequently, by those regulations, subjected to
great and unreasonable embarrassments.
The Treaty-making power operates in a very different manner; its
power is limited and confined to the forming of Treaties with foreign
nations; its objects are to facilitate the intercourse between nations;
to remove by contract, those impediments which embarrass that
intercourse, and to place the same on a fair and just foundation. In
the exercise of this power, it will unavoidably happen that the laws of
the Legislature are sometimes infracted. The Legislature, for certain
causes,—perhaps to compel a foreign nation to form a treaty on

terms of reciprocity,—may prohibit all intercourse, or embarrass that
intercourse with regulations so burdensome as to produce the same
effect; the foreign nation finally becomes willing to treat, and to
establish an intercourse on equitable terms. If, in this case, the
Treaty power cannot touch the laws of the Legislature, the object
which gave rise to those very laws can never be attained; no Treaty
can be formed, because it will oppose existing laws; those laws
cannot be repealed, because the object for which they were enacted
has not been attained. Such a construction of the Treaty power
would defeat every object for which that power was established; and
instead of possessing an authority to remove embarrassments in a
foreign intercourse, it cannot touch them; and, although expressly
created for the attainment of a single object, it can never attain it.
From these considerations, he contended that, in the exercise of that
power which related to the intercourse with foreign nations, the
Treaty-making was paramount to the Legislative power; and that the
positive institutions of the Legislature must give place to compact.
On this construction, a perfect harmony is introduced into the
departments of Government. Both the Legislative and the Treaty
power are necessary, on many occasions, to accomplish the same
objects. The Legislative power to establish regulations, or declare
war, for the purpose of compelling a nation to agree to a reasonable
compact; and the Treaty power, when that nation is compelled to
agree to such reasonable compact, to remove by Treaty those very
regulations, and the war itself, on fair and equitable terms.
Mr. Madison said, that the direct proposition before the House, had
been so absorbed by the incidental question which had grown out of
it, concerning the constitutional authority of Congress in the case of
Treaties, that he should confine his present observations to the
latter.
The true question, therefore, before the committee, was, not
whether the will of the people expressed in the constitution was to
be obeyed, but how that will was to be understood; in what manner
it had actually divided the powers delegated to the Government; and

what construction would best reconcile the several parts of the
instrument with each other, and be most consistent with its general
spirit and object.
On comparing the several passages in the constitution, which had
been already cited to the committee, it appeared, that if taken
literally, and without limit, they must necessarily clash with each
other. Certain powers to regulate commerce, to declare war, to raise
armies, to borrow money, &c., are first specially vested in Congress.
The power of making Treaties, which may relate to the same
subjects, is afterwards vested in the President and two-thirds of the
Senate; and it is declared in another place, that the constitution and
the Laws of the United States, made in pursuance thereof, and
Treaties made, or to be made under the authority of the United
States, shall be the supreme law of the land. And the judges, in
every State, shall be bound thereby, any thing in the constitution or
laws of any State to the contrary notwithstanding.
The term supreme, as applied to Treaties, evidently meant a
supremacy over the State constitutions and laws, and not over the
Constitution and Laws of the United States. And it was observable,
that the judicial authority, and the existing laws, alone of the States,
fell within the supremacy expressly enjoined. The injunction was not
extended to the Legislative authority of the States, or to laws
requisite to be passed by the States for giving effect to Treaties; and
it might be a problem worthy of the consideration, though not
needing the decision of the committee, in what manner the requisite
provisions were to be obtained from the States.
It was to be regretted, he observed, that on a question of such
magnitude as the present, there should be any apparent
inconsistency or inexplicitness in the constitution, that could leave
room for different constructions. As the case, however, had
happened, all that could be done was to examine the different
constructions with accuracy and fairness, according to the rules
established therefor, and to adhere to that which should be found
most rational, consistent, and satisfactory.

He stated the five following, as all the constructions, worthy of
notice, that had either been contended for, or were likely to occur:
I. The Treaty power, and the Congressional power, might be
regarded as moving in such separate orbits, and operating on such
separate objects, as to be incapable of interfering with, or touching
each other.
II. As concurrent powers relating to the same objects; and operating
like the power of Congress, and the power of the State Legislatures,
in relation to taxes, on the same articles.
III. As each of them supreme over the other as it may be the last
exercised; like the different assemblies of the people, under the
Roman Government, in the form of centuries, and in the form of
tribes.
IV. The Treaty power may be viewed, according to the doctrine
maintained by the opponents of the proposition before the
committee, as both unlimited in its objects, and completely
paramount in its authority.
V. The Congressional power may be viewed as co-operative with the
Treaty power, on the Legislative subjects submitted to Congress by
the constitution, in the manner explained by the member from
Pennsylvania (Mr. Gallatin) and exemplified in the British
Government.
The objection to the first construction is, that it would narrow too
much the Treaty power, to exclude from Treaties altogether the
enumerated subjects submitted to the power of Congress; some or
other of this class of regulations being generally comprised in the
important compacts which take place between nations.
The objection to the second is, that a concurrent exercise of the
Treaty and Legislative powers, on the same objects, would be
evidently impracticable. In the case of taxes laid both by Congress
and by the State Legislatures on the same articles, the constitution
presumed, that the concurrent authorities might be exercised with
such prudence and moderation as would avoid an interference

between their respective regulations. But it was manifest that such
an interference would be unavoidable between the Treaty power and
the power of Congress. A Treaty of Commerce, for example, would
rarely be made, that would not trench on existing legal regulations,
as well as be a bar to future ones.
To the third, the objection was equally fatal. That it involved the
absurdity of an imperium in imperio, of two powers, both of them
supreme, yet each of them liable to be superseded by the other.
There was, indeed, an instance of this kind found in the government
of ancient Rome, where the two authorities of the comitia curiata, or
meetings by centuries, and the comitia tributa, or meetings by
tribes, were each possessed of the supreme Legislative power, and
could each annul the proceedings of the other. For, although the
people composed the body of the meetings in both cases, yet, as
they voted in one, according to wealth, and in the other, according
to numbers, the organizations were so distinct as to create, in fact,
two distinct authorities. But it was not necessary to dwell on this
political phenomenon, which had been celebrated as a subject of
curious speculation only, and not as a model for the institutions of
any other country.
The fourth construction, is that which is contended for by the
opponents of the proposition depending; and which gives to the
Treaty power all the latitude which is not necessarily prohibited by a
regard to the general form and fundamental principles of the
constitution.
In order to smooth the way for this doctrine, it had been said that
the power to make Treaties was laid down in the most indefinite
terms; and that the power to make laws, was no limitation to it,
because the two powers were essentially different in their nature. If
there was ingenuity in this distinction, it was all the merit it could
have; for it must be obvious that it could neither be reduced to
practice, nor be reconciled to principles. Treaties and laws, whatever
the nature of them may be, must, in their operation, be often the
same. Regulations by Treaty, if carried into effect, are laws. If

Congress pass acts relating to provisions in a Treaty, so as to
become incorporated with the Treaty, they are not the less laws on
that account. A Legislative act is the same whether performed by
this or that body, or whether it be grounded on the consideration,
that a foreign nation agrees to pass a like act, or on any other
consideration.
It must be objected to this construction, therefore, that it extends
the power of the President and Senate too far, and cramps the
powers of Congress too much.
He did not admit that the term "Treaty" had the extensive and
unlimited meaning which some seemed to claim for it. It was to be
considered as a technical term, and its meaning was to be sought
for in the use of it, particularly in governments which bore most
analogy to our own. In absolute governments, where the whole
power of the nation is usurped by the governments, and all the
departments of power are united in the same person, the Treaty
power has no bounds; because the power of the sovereign to
execute it has none. In limited governments, the case is different;
the Treaty power, if undefined, is not understood to be unlimited. In
Great Britain, it is positively restrained on the subjects of money and
dismembering the empire. Nor could the Executive there, if his
recollection was right, make an alien a subject by means of a Treaty.
But the question immediately under consideration, and which the
context and spirit of the constitution must decide, turned on the
extent of the Treaty power in relation to the objects; specifically and
expressly submitted to the Legislative power of Congress.
It was an important, and appeared to him to be a decisive, view of
the subject, that if the Treaty power alone could perform any one act
for which the authority of Congress is required by the constitution, it
may perform every act for which the authority of that part of the
Government is required. Congress have power to regulate trade, to
declare war, to raise armies, to levy, to borrow, and to appropriate
money, &c. If, by Treaty, therefore, as paramount to the Legislative
power, the President and Senate can regulate trade, they can also

declare war, they can raise armies to carry on war, and they can
procure money to support armies. These powers, however different
in their nature or importance, are on the same footing in the
constitution, and must share the same fate. A member from
Connecticut (Mr. Griswold ) had admitted that the power of war was
exclusively vested in Congress; but he had not attempted, nor did it
seem possible, to draw any line between that and the other
enumerated powers. If any line could be drawn, it ought to be
presented to the committee; and he should, for one, be ready to
give it the most impartial consideration. He had not, however, any
expectation that such an attempt could succeed; and, therefore,
should submit to the serious consideration of the committee, that,
although the constitution had carefully and jealously lodged the
power of war, of armies, of the purse, &c. in Congress, of which the
immediate Representatives of the people formed an integral part,
yet, according to the construction maintained on the other side, the
President and Senate, by means of a Treaty of Alliance with a nation
at war, might make the United States parties in the war. They might
stipulate subsidies, and even borrow money to pay them; they might
furnish troops to be carried to Europe, Asia, or Africa; they might
even attempt to keep up a standing army in time of peace, for the
purpose of co-operating, on given contingencies, with an ally, for
mutual safety or other common objects. Under this aspect the Treaty
power would be tremendous indeed.
The force of this reasoning is not obviated by saying, that the
President and Senate would only pledge the public faith, and that the
agency of Congress would be necessary to carry it into operation.
For, what difference does this make, if the obligation imposed be, as
is alleged, a constitutional one; if Congress have no will but to obey,
and if to disobey be treason and rebellion against the constituted
authorities? Under a constitutional obligation with such sanctions to
it, Congress, in case the President and Senate should enter into an
alliance for war, would be nothing more than the mere heralds for
proclaiming it. In fact, it had been said that they must obey the
injunctions of a Treaty, as implicitly as a subordinate officer in the

Executive line was bound to obey the Chief Magistrate, or as the
Judges are bound to decide according to the laws.
As a further objection to the doctrine contended for, he called the
attention of the committee to another very serious consequence
from it. The specific powers, as vested in Congress by the
constitution, are qualified by sundry exceptions, deemed of great
importance to the safe exercise of them. These restrictions are
contained in section 9 of the constitution, and in the articles of
amendment which have been added to it. Thus, the "migration or
importation of such persons as any of the States shall think proper
to admit, shall not be prohibited by Congress." He referred to several
of the other restrictive paragraphs which followed, particularly the
5th, which says, that no tax shall be laid on exports, no preference
given to ports of one State over those of another, &c. It was
Congress, also, he observed, which was to make no law respecting
an establishment of religion, or prohibiting the free exercise thereof,
or abridging the freedom of speech, or of the press; or of the right
of the people peaceably to assemble, &c. Now, if the Legislative
powers, specifically vested in Congress, are to be no limitation or
check to the Treaty power, it was evident that the exceptions to
those powers could be no limitation or check to the Treaty power.
Returning to the powers particularly lodged in Congress, he took
notice of those relating to war, and money, or the sword and the
purse, as requiring a few additional observations, in order to show
that the Treaty power could not be paramount over them.
It was well known that, with respect to the regulation of commerce,
it had long remained under the jurisdiction of the States; and that in
the establishment of the present Government the question was,
whether, and how far, it should be transferred to the general
jurisdiction. But with respect to the power of making war, it had,
from the commencement of the Revolution, been judged and
exercised as a branch of the general authority, essential to the public
safety. The only question, therefore, that could arise, was whether
the power should be lodged in this or that department of the Federal

Government. And we find it expressly vested in the Legislative, and
not in the Executive department; with a view, no doubt, to guard it
against the abuses which might be apprehended, from placing the
power of declaring war in those hands which would conduct it when
declared; and which, therefore, in the ordinary course of things,
would be most tempted to go into war. But, according to the
doctrine now maintained, the United States, by means of an alliance
with a foreign power, might be driven into a state of war by the
President and Senate, contrary both to a sense of the Legislature,
and to the letter and spirit of the constitution.
On the subject, also, of appropriating money, particularly to a
military establishment, the provision of the constitution demanded
the most severe attention. To prevent the continuance of a military
force for a longer term than might be indispensable, it is expressly
declared, that no appropriation for the support of armies shall be
made for more than two years. So that, at the end of every two
years, the question, whether a military force ought to be continued
or not, must be open for consideration; and can be decided in the
negative, by either the House of Representatives or the Senate's
refusing to concur in the requisite appropriations. This is a most
important check and security against the danger of standing armies,
and against the prosecution of a war beyond its rational objects; and
the efficacy of the precaution is the greater, as, at the end of every
two years a re-election of the House of Representatives gives the
people an opportunity of judging on the occasion for themselves.
But if, as is contended, the House of Representatives have no right
to deliberate on appropriations pledged by the President and Senate,
and cannot refuse them, without a breach of the constitution and of
their oaths, the case is precisely the same, and the same effects
would follow, as if the appropriation were not limited to two years,
but made for the whole period contemplated, at once. Where would
be the check of a biennial appropriation for a military establishment
raised for four years, if, at the end of two years, the appropriation
was to be continued by a constitutional necessity for two years
more? It is evident that no real difference can exist between an

appropriation for four years at once, and two appropriations for two
years each, the second of which, the two Houses would be
constitutionally obliged to make.
It had been said that, in all cases, a law must either be repealed, or
its execution provided for. Whatever respect might be due to this
principle in general, he denied that it could be applicable to the case
in question. By the provision of the constitution, limiting
appropriations to two years, it was clearly intended to enable either
branch of the Legislature to discontinue a military force at the end of
every two years. If the law establishing it must be necessarily
repealed before an appropriation could be withheld, it would be in
the power of either branch to keep up an establishment by refusing
to concur in repeal. The construction and reasoning, therefore,
opposed to the rights of the House, would evidently defeat an
essential provision of the constitution.
The constitution of the United States is a constitution of limitations
and checks. The powers given up by the people for the purposes of
Government, had been divided into two great classes. One of these
formed the State Governments; the other, the Federal Government.
The powers of the Government had been further divided into three
great departments; and the Legislative department again subdivided
into two independent branches. Around each of these portions of
power were seen also exceptions and qualifications, as additional
guards against the abuses to which power is liable. With a view to
this policy of the constitution, it could not be unreasonable, if the
clauses under discussion were thought doubtful, to lean towards a
construction that would limit and control the Treaty-making power,
rather than towards one that would make it omnipotent.
He came next to the fifth construction, which left with the President
and Senate the power of making Treaties, but required at the same
time the Legislative sanction and co-operation, in those cases where
the constitution had given express and specific powers to the
Legislature. It was to be presumed, that in all such cases the
Legislature would exercise its authority with discretion, allowing due

weight to the reasons which led to the Treaty, and to the
circumstances of the existence of the Treaty. Still, however, this
House, in its Legislative capacity, must exercise its reason: it must
deliberate; for deliberation is implied in legislation. If it must carry all
Treaties into effect, it would no longer exercise a Legislative power;
it would be the mere instrument of the will of another department,
and would have no will of its own. Where the constitution contains a
specific and peremptory injunction on Congress to do a particular
act, Congress must, of course, do the act, because the constitution,
which is paramount over all the departments, has expressly taken
away the Legislative discretion of Congress. The case is essentially
different where the act of one department of Government interferes
with a power expressly vested in another, and nowhere expressly
taken away: here the latter power must be exercised according to its
nature; and if it be a Legislative power, it must be exercised with
that deliberation and discretion which is essential to the nature of
Legislative power.
Mr. W. Smith (of South Carolina) said, he would not at that time go
into an extensive review of the arguments of the gentleman from
Virginia, (Mr. Madison ,) but would only notice some points which he
had dwelt on. Before he went into a consideration of the subject, he
would call the attention of the committee to the true question now
before them; for though it was originally only a call for papers, it had
now assumed a very important shape, and was nothing less than
this, Whether that House had a concurrent power with the President
and Senate in making Treaties? The gentleman last up had followed
others in referring to the practice under the British constitution; but
had concluded his remarks on that argument with allowing, that,
after all, our own constitution must be our sole guide. He heartily
joined in that sentiment, and was satisfied that the merits of the
question should be tested by that alone. In order to show that the
Treaty power was solely delegated to the President and Senate by
the constitution, Mr. S. said, he should not confine himself to a mere
recital of the words, but he should appeal to the general sense of
the whole nation at the time the constitution was formed, before any

Treaty was made under it, which could, by exciting passion and
discontent, warp the mind from a just and natural construction of
the constitution. By referring to the contemporaneous expositions of
that instrument, when the subject was viewed only in relation to the
abstract power, and not to a particular Treaty, we should come at the
truth. He would then confidently appeal to the opinions of those
who, when the constitution was promulgated, were alarmed at the
Treaty power, because it was by the constitution vested in the
President and Senate, and to its advocates, who vindicated it by
proving that the power was safely deposited with these branches of
the Government. The discussions which took place at the time of its
adoption by the Convention of the several States, proved, beyond a
doubt, that the full extent of the power was then well understood,
and thought, by those who approved of the constitution, to be
sufficiently guarded. He would further appeal to the amendments
which had been proposed by the discontented. The Convention of
Virginia had proposed an amendment, which of itself overturned all
the reasonings of the gentleman. It was, "that no commercial Treaty
should be valid, unless ratified by two-thirds of all the Senators."
This was the only check which that State required, and was a
conclusive evidence of their opinions: had that State conceived that
the check which is now contended for existed in the constitution,
they could not have been guilty of such an absurdity as the
amendment would involve. All the possible dangers which might
ensue from the unlimited nature of the Treaty power were well
considered before the constitution was adopted, and Virginia
required no further check than the one above recited. All, therefore,
that they required had, in the present case, been done, for the
Treaty was ratified by two-thirds of all the Senators.
Mr. S. said, he could refer to many further proofs derived from a
similar source. He would not, however, fatigue the committee at this
time with reading them. He would only recall the recollection of
some gentlemen present to the protest of the Pennsylvania minority,
where the same ideas and amendments were contained, and to the
proceedings of a meeting at Harrisburg, which the gentleman from

Pennsylvania (Mr. Gallatin) must well remember, (having been one of
the meeting,) where, after stating objections to the extensive
powers delegated by the constitution, the following amendment was
proposed, as necessary to limit and restrain the powers: "Provided
always, that no Treaty which shall hereafter be made, shall be
deemed or construed to alter or affect any law of the United States,
or of any particular State, until such Treaty shall have been laid
before and assented to by the House of Representatives in
Congress." This amendment was the most satisfactory evidence that
the proposers of it did then believe that, without that amendment,
such Treaty would be valid and binding, although not assented to by
this House, and that they had, at that day, no idea that there existed
in the constitution the check which is now discovered by this ex post
facto construction.
Having stated the general opinion of the public, as manifested by the
friends as well as the enemies of the constitution, Mr. S. said he
would proceed to show that the practice of Congress had, from the
commencement of its existence, been conformable to that opinion.
Several treaties had been concluded with Indian tribes under the
present constitution. These Treaties embraced all the points which
were now made a subject of contest—settlement of boundaries,
grants of money, &c.; when ratified by the President and Senate,
they had been proclaimed by the Executive as the law of the land;
they had not even been communicated to the House; but the House,
considering them as laws, had made the appropriations as matters
of course, and as they did in respect to other laws. The Treaties
were never discussed, but the requisite sums, as reported in the
annual estimates, were included, as matters of course, in the
general mass of moneys voted for the War Establishment in the item
of Indian Department. It was not pretended that the constitution
made any distinction between Treaties with foreign nations and
Indian tribes; and the clause of the constitution which gives to
Congress the power of regulating commerce with foreign nations,
and on which the modern doctrine is founded, includes as well
Indian tribes as foreign nations.

That this House considered a Treaty, when ratified by the President
and Senate, as the law of the land, was further evident from a
resolve of the House, of the 4th of June, 1790, in these words;

"Resolved, That all Treaties made, or which shall be made and
promulged under the authority of the United States, shall from time
to time be published and annexed to their code of laws, by the
Secretary of State."
In consequence of this resolution, the several Secretaries of State
had annexed the Treaties which had been made to the code of laws,
as soon as they were ratified by the President and Senate, and
promulged by the President .
Mr. S. repeated his former assertion, that there were cases where
that House had not the right of withholding appropriations; if they
had the power, indeed, they might stop the proceedings of
Government altogether; and so, individuals had the power of
resisting the laws. Gentlemen had said, that if this doctrine
prevailed, the House would lose its capacity of judging. He denied it;
they would still retain, in such cases, a discretion, guided by
morality, good faith, and the constitution; the members were as
much bound by the laws in their Legislative, as in their individual
capacity; if an existing law (or Treaty, which was a law of the highest
nature) prescribed a certain duty, they were bound to perform it,
and their discretion could only be called in to regulate the mode and
circumstances of discharging that duty; it could not be a matter of
discretion whether or not they should perform that duty. Thus,
unless they intended to arrest the operations of Government, their
discretion could not be requisite to determine whether they should
appropriate the moneys necessary for its support; but out of what
fund, and when the moneys shall be paid, and other matters of
detail. So, when a Treaty was concluded, and became a compact
binding the nation, the discretion of the House (unless it was
intended to violate our faith) could not determine whether the
moneys contracted for should be paid, but the mode, the fund, and
such questions of detail, would alone be considered. The distinction,
which was an obvious one, between power and right, had not been
attended to. The House had certainly the power to do many things
which they had not the right to do; they had the power to do wrong,

but they certainly had not the right to do wrong; and whether the
wrong was committed by acting where they ought not to act, or
refusing to act where they ought, was immaterial; both were equally
reprehensible. It had been boldly said, that there was no case which
could possibly come before them, where they would not be at liberty
to answer aye or no: he would produce a case—by the constitution,
on the application of a certain number of States, wishing for
amendments, Congress must call a Convention; where is this
boasted discretion, of which so much has been said? Could the
House, in this case, exercise its discretion, whether or no a
Convention should be called? Why not? Because the constitution
says it must call a Convention: and does not the constitution say,
"Treaties made by the President and Senate are laws, and that laws
must be obeyed?" The same injunctions of the constitution are
imposed in both cases; and as in the first, all this House could do,
would be to regulate the time and place of holding the Convention;
so, in the latter, their discretion would be limited to the mode, and
fund, and other details. The gentleman had mentioned the article in
the constitution respecting appropriations for military services—they
were to be limited to two years; this article proved itself that
appropriations might be unlimited in every other case. When a
Military Establishment was instituted, it was known that an
appropriation law for that purpose could not be in force more than
two years; no inconvenience, then, could result. But there was no
such limitation in respect to any other branch of expenditure; from
custom, appropriations for the support of Government were annual;
appropriations even for pensions were annual, and yet no one
doubted that, as the pension was a contract, the appropriation for it
was always a thing of course; no discretion could be exercised, in
respect to the payment, without a breach of faith.
March 11.—In Committee of the Whole, on Mr. Livingston's resolution.
Mr. Giles said, he expected, when the present motion was made,
that it would not be opposed. The expected agency of the House
respecting the Treaty, or some subjects relating to it, made him
imagine that the propriety of having the papers called for could not

be denied. The Treaty has been referred to a Committee of the
Whole, surely in order to act on it in some shape or other. Indeed,
the President , in his Speech, at the opening of the session, expressly
says, that he will lay the subject before them. This he considered as
full evidence, that the President conceived it must come under the
notice of the House. If the papers could serve to explain any point
relative to that instrument, surely the possession of them was
desirable.
The right of the House to consider of the expediency of Treaties, so
far as the provisions of them clash with their specific powers, had
been indirectly brought in in considering the present motion. He
regretted that this important constitutional question should be about
to be decided indirectly; but, this being the situation of the debate,
he should state his reasons why he conceived the argument on this
ground ought not to be considered as of sufficient strength to cause
a negative of the motion before the committee.
The question is, whether there be any provisions in the constitution
by which this House can in any case check the Treaty-making power;
and, of consequence, whether it can question the merits of Treaties
under any circumstances?
Various considerations had been advanced to show that the House
cannot question the merits of a Treaty. Some of these considerations
had grown out of the subject extrinsically, others from the provisions
of the constitution. Though at first he had intended to have stated
simply his own opinion of the constitution on the important question
now in view, yet, as gentlemen had gone fully into the question in
that shape, and others had stated a variety of objections to the
construction the friends of the motion contended for, he should
proceed to answer them, and suffer his opinion of the meaning of
the constitution to be incidental.
The gentleman from South Carolina had referred to the opinions of
the Conventions of the States at the time of adopting the
constitution. As to Virginia, the gentleman had stated that that State
had considered the checks as provided by the constitution as

inadequate, and proposed an amendment, purporting to require
two-thirds of the whole number of Senators, instead of two-thirds of
the number present. This was true, he believed; but how would it
apply in the sense the gentleman wished? The objection of that
State was, that the check in the Senate, provided in the Treaty-
making power, was not sufficient, and they proposed a greater: from
which he would argue that they conceived the Treaty-making power
to be a subject of extreme delicacy, and that they wished additional
checks consequently added. How this was to prove that the
Convention of Virginia did not construe the present clauses of the
constitution under debate as the friends of the present motion did,
he was at a loss to determine. The gentleman who cited this
instance had not quoted any part of the proceeding on the subject,
or of the reasons that led to the amendment. He had merely
mentioned the result to the House.
The practice of the House had been referred to yesterday by the
member last up, (Mr. Smith, of South Carolina.) He had remarked
that the House had passed a general resolution directing the Clerk to
place in the code of laws of the United States Treaties made under
the authority of the United States. Was this, he asked, an exposition
of the meaning of the constitution? He believed the resolution a very
proper one, and would vote now for its adoption, if it was yet to be
passed. It is certainly proper, when a Treaty is concluded under the
authority of the United States, that it should be annexed to their
code of laws; but this could not weigh against the exercise of
discretion in the House on important Legislative subjects.
The practice of the House, with respect to appropriation laws, in the
cases of Indian Treaties, had been mentioned by the member from
South Carolina. In the first place, observing upon this, he would
remark, that he always conceived there was a distinction between an
Indian Treaty and a Treaty with a foreign nation. The English had
always made a distinction when we were Colonies. The constitution
establishes an express difference. He should not, however, found his
objections to the inference of the gentleman upon this, but would
examine it unconnected with this distinction. Provisions had been

made by this House to carry Indian Treaties into effect; but why? No
doubt because the House conceived it wise so to do, not because
they had not a right to use their discretion in the business. Suppose,
on any of those occasions, a motion had been made to strike out the
sum proposed to be appropriated, would it have been said that the
motion was out of order? A similar motion was made lately with
respect to the Mint, and it was not considered as out of order. If, on
that occasion, it had been the opinion of the House that the Mint
was an improper establishment, by refusing the appropriation they
could have defeated the law. It was certainly the opinion of the
House that they could exercise their discretion in the business, for it
was not even hinted that the motion for striking out was out of
order.
On another head the gentleman appeared to plume himself much.
He had asked, why, since the President had proclaimed a Treaty as
the law of the land, which was not the law of the land, why he was
not impeached? This question, the member exultingly remarked, had
not been answered, because, he imagined, it could not be answered.
Suppose I should tell the gentleman, said Mr. G., that I could not
now give him an answer, would it show that the House had not the
authority contended for by the friends of the present motion? Why
was the subject mentioned? Not with a view, I believe, to the
discovery of the truth. I fear it is calculated to produce an opposite
effect—to check investigation. It is too often the case that the
names of persons are brought into view, not to promote the
development of principles, but as having a tendency to destroy
freedom of inquiry. I will go further with the gentleman, and admit
for a moment (a position, however, I shall by and by controvert) that
the President conceived that he had a right, after the exchange of
ratifications, to promulgate the Treaty as the supreme law of the
land; what would this amount to? Why, only that this was his
opinion; but is that authority here? In any other case rather than the
present, I should be inclined to pay a greater respect to opinions
from that source; but now, when the question is about the division
of powers between two departments, are we to be told of the

opinions of one of those departments, to show that the other has no
right to the exercise of power in the case. Such appeals are not
calculated to convince, but to alarm.
Having examined the objections to the construction contended for
by the friends of the motion, drawn from collateral sources, he
should turn his attention next, he said, to the intrinsic meaning of
the constitution. He would attempt to interpret the constitution from
the words of it. It was a misfortune the clauses were not more clear
and explicit, so far as to force the same meaning upon every mind,
however they might differ in opinion in other respects. However,
from the imperfection of language, it was no wonder, he observed,
that on an instrument providing for so many different objects, and
providing such a variety of checks, various opinions as to
construction should arise; but he considered the present clauses of
as plain import as any part of the instrument. The construction
contended for by the opposers of the motion is, beyond denial, the
most dangerous in its effects, and the least probable, as he thought,
in its meaning. It is contended by them that the Treaty-making
power is undefined in its nature, unlimited as to its objects, and
supreme in its operation; that the Treaty-making power embraces all
the Legislative powers; operates by controlling all other authorities,
and that it is unchecked. When he had asserted this power, as
contended by the gentlemen to be unlimited in its objects, he
meant, however, that they had confined it only within the limits of
the constitution; but even admitting it in that extent, is certainly a
doctrine sufficiently alarming. When the gentlemen contend for its
supremacy, they also admit in this point some qualifications;
according to their doctrine, it is not to be supreme over the head of
the constitution, but in every other respect they contend that it shall
be unlimited, supreme, undefined. Gentlemen who insist that
Treaties are supreme, next to the constitution, must also grant that
there is no necessity for the House to trouble themselves with
making laws.
The construction contended for by the friends of the resolution is
derived from two sources—from the constitution, and the nature of

things. The constitution says, the President , with the advice and
consent of two-thirds of the Senators present, shall make Treaties.
Perhaps, if there was no other clause, the Treaty-making power
might be considered as unlimited. Another clause declares that the
constitution, the laws made under it, and Treaties, shall be the
supreme law of the land. Here the gentlemen, when they quote this
clause, stop, as if there were no other words in it; and from all this it
would appear that the people had, in fact, delegated an unchecked
power. But, if we go on, it will be found that the last-mentioned
clause adds that the judges in the respective States shall cause them
to be executed, any thing in the constitution or laws of the individual
States to the contrary notwithstanding. From the jealousy which
individual States showed under the Old Confederation for the
preservation of their powers, and the inconveniences which were
experienced in consequence, it was found necessary, when
organizing a new Government, to declare, explicitly, that their
constitutions and laws must yield to the Constitution, laws and
Treaties of the United States, and for this purpose this clause was
introduced.
The checks on the Treaty-making power he considered as divisible
into two classes; the first, consists in the necessary concurrence of
the House to give efficacy to Treaties; which concurrent power they
derive from the enumeration of the Legislative powers of the House.
Where the Treaty-making power is exercised, it must be under the
reservation, that its provisions, so far as they interfere with the
specified powers delegated to Congress, must be so far submitted to
the discretion of that department of the Government. The President
and Senate, by the constitution, have the power of making Treaties,
Congress the power of regulating commerce, raising armies, &c.;
and these, he contended, must form so many exceptions to the
general power. Gentlemen had said that the constitution was the
exposition of the will of the people, and, as such, that they would
obey its injunctions. There could be no difference of opinion on this
ground; for his own part, he confessed if he adored any thing on
earth, it is that will. But the question is, what is that will, as

expressed in the constitution? That instrument, to his mind,
explained this question very clearly. It enumerates certain powers
which it declares specifically vested in Congress; and where is the
danger to be apprehended from the doctrine laid down by the
friends of the resolution? The contrary construction must produce
the most pernicious consequences; agreeably to that, there would
remain no check over the most unlimited power in the Government.
The gentlemen contend, that the House must remain silent
spectators in the business of a Treaty, and that they have no right to
the exercise of an opinion in the matter; they must then abandon
their constitutional right of legislation; they must abandon the
constitution and cling to Treaties as supreme.
The other check over the Treaty-making power, he noticed, was the
power of making appropriations, the exercise of which is specifically
vested in Congress. He begged leave to call the particular attention
of the committee to this part of the subject. The constitution says,
that no money shall be drawn from the Treasury, but in consequence
of appropriations made by law. This is no doubt intended as a check
in addition to those possessed by the House. It is meant to enable
the House, without the concurrence of the other branches, to check,
by refusing money, any mischief in the operations carrying on in any
department of the Government. But what is a law? It is a rule
prescribed by competent authority. The word law in the clause of the
constitution he had last noticed, was not meant in reference to the
Treaty-making power; but in reference to Congress. A law prescribes
a rule of conduct; it is the expression of the will of the proper
authority; it is the result of discretion. Legislation implies
deliberation. If a law is the expression of the will, must not an
appropriation law be equally so? But gentlemen had found out a
new-fashioned exposition of the word discretion, and, according to
their definition in fact, it was no discretion at all. They had
mentioned a part of the constitution which provides that the salaries
of the Judicial Department shall be fixed; and asked, whether the
House should conceive itself at liberty to use a discretion in
appropriations for that department? Before he could consider this

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Of Property And Propriety The Role Of Gender And Class In Imperialism And Nationalism Himani Bannerji

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Of Property And Propriety The Role Of Gender And Class In Imperialism And Nationalism Himani Bannerji

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