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as you can know, the temper and intelligence of those for whom he acts, and to whom he is amenable. He cannot hope that they will be blind to the vices of his administration on subjects of high concernment and vital interest; and in proportion as he acts upon his own responsibility, unrelieved and undiluted by the infusion of ours, is the danger of ill-advised conduct likely to be present to his mind.
Of all the powers which have been entrusted to him, there is none to which the temptations to abuse belong so little as to the treaty-making power in all its branches; none which can boast such mighty safeguards in the feelings and views, and passions which even a misanthrope could attribute to the foremost citizen of this republic. He can have no motive to palsy, by a commercial or any other treaty, the prosperity of his country. Setting apart the restraints of honor and patriotism, which are characteristic of public men in a nation habitually free, could he do so without subjecting himself, as a member of the community, (to say nothing of his immediate connexions,) to the evils of his own work? A commercial treaty, too, is always a conspicuous measure. It speaks for itself. It cannot take the garb of hypocrisy, and shelter itself from the scrutiny of a vigilant and well instructed population. If it be bad, it will be condemned, and if dishonestly made, be execrated. The pride of country, moreover, which animates even the lowest of mankind, is bere a peculiar pledge for the provident and wholesome exercise of power. There is not a consideration by which a cord in the human breast can be made to vibrate that is not in this case the ally of duty. Every hope, either lofty or humble, that springs forward to the future; even the vanity which looks not beyond the moment; the dread of shame and the love of glory; the instinct of ambition ; the domestic affections; the cold ponderings of pru. dence; and the ardent instigations of sentiment and passion, are all on the side of duty. It is in the exercise of this power that responsibility to public opinion,
which even despotism' feels and truckles to, is of gigantic force. If it were possible, as I am sure it is not, that an American citizen, raised, upon the credit of a long life of virtue, to a station so full of honor, could feel a disposition to mingle the little interests of a perverted ambition with the great concerns of his country, as embraced by a commercial treaty, and to sacrifice her happiness and power by the stipulations of that treaty, to flatter or aggrandize a foreign state, he would still be saved from the perdition of such a course, not only by constitutional checks, but by the irresistible efficacy of responsibility to public opinion, in a nation whose public opinion wears no mask, and will not be silenced. He would remember that his political career is but the thing of an hour, and that when it has passed he must descend to the private station from which he rose, the object either of love and veneration, or of scorn and horror. · If we cast a glance at England, we shall not fail to see the influence of public opinion upon a hereditary king, a hereditary nobility, and a house of commons, elected, in a great degree, by rotten boroughs, and overflowing with placemen. And if this influence is potent there against all the efforts of independent power and wide spread corruption, it must in this country be omnipotent.
But the treaty-making power of the President is further checked by the necessity of the concurrence of two thirds of the senate, consisting of men selected by the legislatures of the states, themselves elected by the people. They too must have passed through the probation of time, before they can be chosen, and must bring with them every title to confidence. The duration of their office is that of a few years; their numbers are considerable ; their constitutional responsibility as great as it can be; and their moral responsibility beyond all calculation.
The power of impeachment has been mentioned as a check upon the President, in the exercise of the treatymaking capacity. I rely upon it less than upon others
of, as I think, a better class; but as the constitution places some reliance upon it, so do I. It has been said, that impeachment has been tried and found wanting. Two impeachments have failed, as I have understood, (that of a judge was one,)—but they may have failed for reasons consistent with the general efficacy of such a proceeding. I know nothing of their merits, but I am justified in supposing that the evidence was defective, or that the parties were innocent as they were pronounced to be. Of this, however, I feel assured, that if it should ever happen that the President is found to deserve the punishment which impeachment seeks to inflict, (even for making a treaty to which the judges have become parties,) and this body should accuse him, in a constitutional way, he will not easily escape. But, be that as it may, I ask if it is nothing that you have power to arraign him as a culprit? Is it nothing that you can bring him to the bar, expose his misconduct to the world, and bring down the indignation of the public upon him and those who dare to acquit him.
If there be any power explicitly granted by the constitution to Congress, it is that of declaring war; and if there be any exercise of human legislation more solemn and important than another, it is a declaration
For expansion it is the largest, for effect the most awful of all the enactments to which Congress is competent; and it always is, or ought to be, preceded by grave and anxious deliberation. This power, too, is connected with, or virtually involves, Others of high import and efficacy; among which may be ranked the power of granting letters of
marque and reprisal, of regulating captures, of prohibiting intercourse with, or the acceptance of protections or licenses from the enemy. Yet further; a power to declare war implies, with peculiar emphasis, a negative upon all power, in any other branch of the government, inconsistent with the full and continuing effect of it. A power to make peace in any other branch of the government, is utterly inconsistent with that full
and continuing effect. It may even prevent it from having any effect at all, since peace may follow almost immediately, (although it rarely does so follow,) the commencement of a war. If, therefore, it be undeniable that the President, with the advice and consent of the senate, has power to make a treaty of peace, available ipso jure, it is undeniable that he has power to repeal, by the mere operation of such a treaty, the highest acts of congressional legislation. And it will not be questioned, that this repealing power is, from the eminent nature of the war-declaring power, less fit to be made out by inference than the power of modifying by treaty the laws which regulate our foreign trade. Now the President, with the advice and consent of the senate, has an incontestible and uncontested right to make a treaty of peace, of absolute inherent efficacy, and that too in virtue of the very same general provision in the constitution which the refinements of
political speculation, rather than any known rules of construction, have led some of us to suppose excludes a treaty of commerce.
By what process of reasoning will you be able to extract from the wide field of that general provision the obnoxious case of a commercial treaty, without forcing along with it the case of a treaty of peace, and along with that again the case of every possible treaty ? Will you rest your distinction upon the favorite idea that a treaty cannot repeal laws competently enacted, or, as it is sometimes expressed, cannot trench upon the legislative rights of Congress ? Such a distinction not only seems to be reproached by all the theories, numerous as they are, to which this bill has given birth, but is against notorious fact and recent experience. We Lave lately witnessed the operation in this respect of a treaty of peace, and could not fail to draw from it this lesson; that no sooner does the President exert, with the consent of the senate, his power to make such a treaty, than your war-denouncing law, your act for letters of marque, your prohibitory statutes as to intercourse and licenses, and all the other concomitant and dependent statutes, so far as they affect the national relations with a foreign enemy, pass away as a dream, and in a moment are • with years beyond the flood.' Your auxiliary agency was not required in the production of this effect; and I have not heard that you even tendered it. You saw your laws departing as it were from the statute books, expelled from the strong hold of supremacy by the single force of a treaty of peace; and you did not attempt to stay them; you did not bid them linger until you should bid them go; you neither put your shoulders to the wheel of expulsion, nor made an effort to retard it. In a word, you did nothing. You suffered them to flee as a shadow, and you know that they were reduced to shadow, not by the necromancy of usurpation, but by the energy of constitutional power. Yet, you had every reason for interference then which you can have now. The power to make a treaty of peace stands upon the same constitutional footing with the power to make a commercial treaty. It is given by the same words. It is exerted in the same manner. It produces the same conflict with municipal legislation. The ingenuity of man cannot urge a consideration, whether upon the letter or the spirit of the constitution, against the existence of a power in the President and senate to make a valid commercial treaty, which will not, if it be correct and sound drive us to the negation of the power exercised by the President and senate, with universal approbation, to make a valid treaty of peace.
Nay, the whole treaty-making power will be blotted from the constitution, and a new one, alien to its theory and practice, be made to supplant it, if sanction and scope be given to the principles of this bill. This bill may indeed be considered as the first of many assaults, not now intended perhaps, but not therefore the less likely to happen, by which the treaty-making power, as created and lodged by the constitution, will be pushed from its place, and compelled to abide with the power of ordinary legislation. The example of this bill is bevond its ostensible limits. The perni