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The power of Congress to regulate our foreign trade, is a power of municipal legislation, and was designed to operate as far as, upon such a subject, municipal legislation can reach. Without such a power, the government would be wholly inadequate to the ends for which it was instituted. A power to regulate commerce by treaty alone, would touch only a portion of the subject. A wider and more general power was therefore indispensable, and it was properly devolved on Congress, as the legislature of the union.

On the other hand, a power of mere municipal legis lation, acting upon views exclusively our own, having no reference to a reciprocation of advantages by arrangements with a foreign state, would also fall short of the ends of government in a country of which the commercial relations are complex and extensive, and liable to be embarrassed by conflicts between its own interests and those of other nations. That the power of Congress is simply legislative in the strictest sense, and calculated for ordinary domestic regulation only, is plain from the language in which it is communicated. There is nothing in that language which indicates regulation by compact or compromise, nothing which points to the co-operation of a foreign power, nothing which designates a treaty-making faculty. It is not connected with any of the necessary accompaniments of that faculty; it is not furnished with any of those means, without which it is impossible to make the smallest progress towards a treaty.

It is self-evident, that a capacity to regulate commerce by treaty, was intended by the constitution to be lodged somewhere. It is just as evident, that the legislative capacity of Congress does not amount to it; and cannot be exerted to produce a treaty. It can produce only a statute, with which a foreign state cannot be made to concur, and which will not yield to any modifications which a foreign state may desire to impress upon it for. suitable equivalents. There is no way in which Congress, as such, can mould its laws into treaties, if it respects the constitution. It may

legislate and counter-legislate; but it must forever be beyond its capacity to combine in a law, emanating from its separate domestic authority, its own views with those of other governments, and to produce a harmonious reconciliation of those jarring purposes and discordant elements which it is the business of negotiation to adjust.

I reason thus, then, upon this part of the subject. It is clear that the power of Congress, as to foreign commerce, is only what it professes to be in the constitution, a legislative power, to be exerted municipally without consultation or agreement with those with whom we have an intercourse of trade; it is undeniable that the constitution meant to provide for the exercise of another relatively to commerce, which should exert itself in concert with the analogous power in other countries, and should bring about its results, not by statute enacted by itself, but by an international compact called a treaty; that it is manifest, that this other power is vested by the constitution in the President and senate, the only department of the government which it authorizes to make any treaty, and which it enables to make all treaties; that if it be so vested, its regular exercise must result in that which, as far as it reaches, is law in itself, and consequently repeals such municipal regulations as stand in its way, since it is expressly declared by the constitution that treaties, regularly made, shall have, as they ought to have the force of law. In all this, I perceive nothing to perplex or alarm us. It exhibits a well digested and uniform plan of government, worthy of the excellent men by whom it was formed. The ordinary power to regulate commerce by statutory enactments, could only be devolved upon Congress, possessing all the other legislative powers of the government. The extraordinary power to regulate it by treaty, could not be devolved upon Congress, because from its composition, and the absence of all those authorities and functions which are essential to the activity and effect of a treaty-making power, it was

not calculated to be the depository of it. It was wise and consistent to place the extraordinary power to regulate commerce by treaty, where the residue of the treaty-making power was placed, where only the means of negotiation could be found, and the skilful and beneficial use of them could reasonably be expected.

That Congress legislates upon commerce, subject to the treaty-making power, is a position perfectly intelligible; but the understanding is in some degree confounded by the other proposition, that the legislative power of Congress is an exception out of the treaty-making power. It introduces into the constitution a strange anomaly-a commercial state, with a written constitution, and no power in it to regulate its trade, in conjunction with other states, in the universal mode of convention. It will be in vain to urge, that this anomaly is merely imaginary, for that the President and senate may make a treaty of commerce for the consideration of Congress. The answer is, that the treaties which the President and senate are entitled to make, are such, as when made, become law; that it is no part of their functions simply to initiate treaties, but conclusively to make them; and that where they have no power to make them, there is no provision in the constitution, how or by whom they shall be made.

That there is nothing new in the idea of a separation of the legislative and conventional powers upon commercial subjects, and of the necessary control of the former by the latter, is known to all who are acquainted with the constitution of England. The parliament of that country enacts the statutes by which its trade is regulated municipally. The crown modifies them by a treaty. It has been imagined, indeed, that the parliament is in the practice of confirming such treaties; but the fact is undoubtedly otherwise. Commercial treaties are laid before parliament, because the king's ministers are responsible for their advice in the making of them, and because the vast range and

complication of the English laws of trade and revenue, render legislation unavoidable, not for the ratification, but the execution of their commercial treaties.

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It is suggested again, that the treaty-making power, (unless we are tenants in common of it with the Presi dent and senate, to the extent at least of our legislative rights,) is a pestilent monster, pregnant with all sorts of disasters! It teems with Gorgons and Hydras and Chimeras dire!' At any rate, I may take for granted, that the case before us does not justify this array of metaphor and fable; since we are all agreed. that the convention with England is not only harmless but salutary. To put this particular case, however, out of the argument, what have we to do with considerations like these? Are we here to form, or to submit to the constitution as it has been given to us for a rule by those who are our masters? Can we take upon ourselves the office of political casuists, and because we think that a power ought to be less than it is, compel it to shrink to our standard? Are we to bow with reverence before the national will as the constitution displays it, or to fashion it to our own, to quarrel with that charter, without which we ourselves are nothing; or to take it as a guide which we cannot desert with innocence or safety? But why is the treatymaking power, lodged, as I contend it is, in the President and senate, likely to disaster us, as we are required to apprehend it will? Sufficient checks, have not, as it seems, been provided, either by the constitution or the nature of things, to prevent the abuse of it. It is in the House of Representatives alone, that the amulet, which bids defiance to the approaches of political disease, or cures it when it has commenced, can in all vicissitudes be found. I hold that the checks are sufficient, without the charm of our legislative agency, for all those occasions which wisdom is bound to foresee and to guard against; and that as to the rest, (the eccentricities and portents which no ordinary checks can deal with,) the occasions must provide for themselves.

It is natural, here, to ask of gentlemen, what security they would have? They cannot take a bond of fate; and they have every pledge which is short of it. Have they not, as respects the President, all the security upon which they rely from day to day for the discreet and upright discharge of the whole of his other duties, many and various as they are? What security have they that he will not appoint to office the refuse of the world; that he will not pollute the sanctuary of justice by calling vagabonds to its holy ministry, instead of adorning it with men like those who now give to the bench more dignity than they receive from it: that he will not enter into a treaty of amnesty with every conspirator against law and order, and pardon culprits from mere enmity to virtue? The security for all this, and infinitely more, is found in the constitution and in the order of nature; and we are all satisfied with it. One should think that the same security, which thus far time has not discredited, might be sufficient to tranquillize us upon the score of the power which we are now considering.

We talk of ourselves as if we only were the representatives of the people. But the first magistrate of this country is also the representative of the people, the creature of their sovereignty, the administrator of their power, their steward and servant, as you are-he comes from the people, is lifted by them into place and authority, and after a short season returns to them for censure or applause. There is no analogy between such a magistrate and the hereditary monarchs of Europe. He is not born to the inheritance of office; he cannot even be elected until he has reached an age at which he must pass for what he is; until his habits have been formed, his integrity tried, his capacity ascertained, his character discussed and probed, for a series of years, by a press, which knows none of the restraints of European policy. He acts, as you do, in the full view of his constituents, and under the consciousness that on account of the singleness of his station, all eyes are upon him. He knows, too, as well