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will recommend to Congress the passage of such laws as will produce the effect at which it aims ? Does it profess to be preliminary, or provisional, or inchoate, or to rely upon your instrumentality in the consummation of it, or to take any notice of you, however distant, as actual or eventual parties to it? No, it pretends upon the face of it, and in the solemnities with which it has been accompanied and followed, to be a pact with a foreign state, complete and self-efficient, from the obligation of which this government cannot now escape, and to the perfection of which no more is necessary than has already been done. It contains the clause which is found in the treaty of 1794, and substantially in every other treaty made by the United States under the present constitution, so as to become a formula, that, when ratified by the President of the United States, by and with the advice and consent of the senate, and by his Britannic majesty, and the respective ratifications mutually exchanged, it shall be binding and obligatory on the said states and his majesty.

It has been ratified in conformity with that clause. Its ratifications have been exchanged in the established and stipulated mode. It has been proclaimed, as other treaties have been proclaimed, by the executive government, as an integral portion of the law of the land, and our citizens, at home and abroad, have been admonished to keep and observe it accordingly. It has been sent to the other contracting party with the last stamp of the national faith upon it, after the manner of former treaties with the same power, and will have been received and acted upon by that party as a concluded contract, long before your loitering legislation can overtake it. I protest, sir, I am somewhat at a loss to understand what this convention has been, since its ratifications were exchanged, and what it is now, if our bill be sound in its principle. Has it not been, and is it not an unintelligible, unbaptized and unbaptizable thing, without attributes of any kind, bearing the semblance of an executed compact, but in reality a hollow fiction: a thing which no man is led to consider even as the germ of a treaty, entitled to be cherished in the vineyard of the constitution; a thing which, professing to have done every thing that public honor demands, has done nothing but practise delusion? You may ransack every diplomatic nomenclature, and run through every vocabulary, whether of diplomacy or law, and you shall not find a word by which you may distinguish, if our bill be correct in its hypothesis, this deed without a name.' A plain man, who is not used to manage his phrases, may, therefore, presume to say, that if this convention with Eng. land be not a valid treaty, which does not stand in need of your assistance, it is a usurpation on the part of those who have undertaken to make it; that if it be not an act within the treaty-making capacity, confided to the President and senate, it is an encroachment on the legislative

rights of Congress. I am one of those who view the bill


the table, as declaring that it is not within that capacity, as looking down upon the convention as the still-born progeny of arrogated power, as offering to it the paternity of Congress, and affecting by that paternity to give to it life and strength; and as i think that the convention does not stand in need of any such filiation, to make it either strong or legitimate, that it is already all that it can become, and that useless legislation upon such a subject is vicious legislation, I shall vote against the bill. The correctness of these opinions is what I propose to establish.

I lay it down as an incontrovertible truth, that the constitution has assumed, (and, indeed, how could it do otherwise ?) that the government of the United States might and would have occasion, like the other governments of the civilized world, to enter into treaties with foreign powers, upon the various subjects involved in their mutual relations; and further, that it might be, and was proper to designate the department of the government in which the capacity to make such treaties should be lodged. It has said, accordingly, that the President, with the concurrence of the senate,

The pre


possess this portion of the national sovereignty It has, furthermore, given to the same magistrate, with the same concurrence, the exclusive creation and control of the whole machinery of diplomacy. He only, with the approbation of the senate, can appoint a negotiator, or take any step towards negotiation. The constitution does not, in any part of it, even intimate that any other department shall possess either a constant or an occasional right to interpose in the preparation of any treaty, or in the final perfection of it. The President and senate are explicitly pointed out as the sole actors in that sort of transaction. scribed concurrence of the senate, and that too by a majority greater than the ordinary legislative majority, plainly excludes the necessity of congressional concurrence. If the consent of Congress to any treaty had been intended, the constitution would not have been guilty of the absurdity of first putting a treaty for ratification to the President and senate exclusively, and again to the same President and senate as portions of the legislature. It would have submitted the whole matter at once to Congress, and the more especially, as the ratification of a treaty by the senate, as a branch of the legislature, may be by a smaller number than a ratification of it by the same body, as a branch of the executive government. If the ratification of any treaty by the President, with the advice and consent of the senate, must be followed by a legislative ratification, it is a mere nonentity. It is good for all purposes, or for none. And if it be nothing in effect, it is a mockery by which nobody would be bound. The President and senate would not themselves be bound by it; and the ratification would at last depend, not upon the will of the President and two thirds of the senate, but upon the will of a bare majority of the two branches of the legislature, subject to the qualified legislative control of the President.

Upon the power of the President and senate, therefore, there can be no doubt. The only question is as to the extent of it; or, in other words, as to the sub

ject upon which it may be exerted. The effect of the power, when exerted within its lawful sphere, is beyond the reach of controversy. The constitution has declared, that whatsoever amounts to a treaty, made under the authority of the United States, shall immediately be supreme law. It has contradistinguished a treaty as law from an act of Congress as law. It has erected treaties, so contradistinguished, into a binding judicial rule. It has given them to our courts of justice, in defining their jurisdiction, as a portion of the lex terre, which they are to interpret and enforce. In a word, it has communicated to them, if ratified by the department which it has specially provided for the making of them, the rank of law, or it has spoken without meaning. And if it has elevated them to that rank, it is idle to attempt to raise them to it by ordinary legislation.

Upon the extent of the power, or the subjects upon which it may act, there is as little room for controversy. The power is to make treaties. The word treaties is nomen generalissimum, and will comprehend commercial treaties, unless there be a limit upon it, by which they are excluded. It is the appellative, which will take in the whole species, if there be nothing to narrow its scope. There is no such limit. There is not a syllable in the context of the clause to restrict the natural import of its phraseology. The power is left to the force of the generic term, and is, therefore, as wide as a treaty-making power can be. It embraces all the varieties of treaties which it could be supposed this government could find it necessary or proper to make, or it embraces none. It covers the whole treaty-making ground which this government could be expected to occupy, or not an inch of it.

It is a just presumption, that it was designed to be co-extensive with all the exigencies of our affairs. Usage sanctions that presumption ; expediency does the same. The omission of any exception to the power, the omission of the designation of a mode by which a treaty, not intended to be included within it,



It may

might otherwise be made, confirms it. That a commercial treaty was, above all others, in the contemplation of the constitution, is manifest. The immemorial practice of Europe, and particularly of the nation froin which we emigrated, the consonance of enlightened theory to that practice, prove it. It be said, indeed, that at the epoch of the birth of our constitution, the necessity for a power to make commercial treaties was scarcely visible, for that our trade was then in its infancy. It was so; but it was the infancy of another Hercules, promising, not indeed a victory over the lion of Nemæa, or the boar of Ery

nthus, but the peaceful conquest of every sea which could be subjected to the dominion of commercial enterprize. It was then as apparent as it is now, that the destinies of this great nation were irrevocably commercial; that the ocean would be whitened by our sails, and the ultima Thule of the world compelled to witness the more than Phænician spirit and intelligence of our merchants. With this glorious anticipation dawning upon them—with this resplendent Aurora gilding the prospect of the future; nay, with the risen orb of trade illuminating the vast horizon of American greatness, it cannot be supposed that the framers of the constitution did not look to the time when we should be called upon to make commercial conventions. It needs not the aid of the imagination to reject this disparaging and monstrous supposition. Dullness itself, throwing aside the lethargy of its character, and rising for a passing moment to the rapture of enthusiasm, will disclaim it with indignation.

It is said, however, that the constitution has given to Congress the power to regulate commerce with foreign nations; and that, since it would be inconsistent with that power,

that the President, with the consent of the senate, should do the same thing, it follows, that this power of Congress is an exception.out of the treatymaking power. Never were premises, as it appears to my understanding, less suited to the conclusion.

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