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sideration which ought to induce the two houses, whenever it is possible, to prepare matters of importance in either shape, for the consideration of the president, at least ten days before the time of their adjournment, otherwise, and particularly when the duration of the session is limited, measures of high interest may be frustrated for a season.
We might here draw a comparison much to our advantage between our system and those of the European monarchies, where the absolute negative of the king depends solely on his own will and pleasure, or on the other hand, with those ancient republics in which the chief executive magistrates did not in the smallest degree participate in the legislative power. Our scheme judiciously steers a middle course. Laws do not originate with the president, although it is his duty to recommend subjects to their consideration when the public good requires it; but as laws may be unad, visedly and too precipitately passed even by a double legislature, it may be often salutary to call them to a reconsideration of their measures, and by requiring the objections to be entered on the journal, and the yeas and nays to be recorded, the people, who are the ultimate judges are enabled to decide on the soundness of conduct on the part of all. The remedy takes place at the next election. ·
Of the Treaty making Power.
WE will now proceed to consider the legislative powers vested in these bodies.
Treaties being next to the constitution, the supreme law of the land, properly fall into this class. They are laws, in making which the house of representatives has no original share; whether their subsequent concurrence in any shape is necessary will hereafter be examined.
The language of the constitution is, that “he, [the president,] “shall have power by and with the advice "and consent of the senate to make treaties, provided 6 two-thirds of the senators present concur."
This, at first view, would imply that a treaty, like an act of congress, should in its progress be the subject of joint deliberation, but the practice has necessarily been otherwise. Treaties, if made abroad, are effected through the medium of our ministers to foreign courts under instructions from the president.
If made here, the business is transacted by the secretary of state, under like instructions, with the ministers from foreign courts. T'he senate is not consulted in the first process; when the treaty is agreed on, the president submits it to the senate, in whose deliberations he takes no part, but he renders to them, from time to time, such information relative to it as they may require. The senate may wholly reject it, or they may ratify it in part, or recommend additional or explanatory articles, which, if the president approves of them,
again become the subject of negociation between him and the foreign power; and finally, when the whole receives the consent of the senate, and the ratifications are exchanged between the respective governments, the treaty becomes obligatory on both nations.
The proceedings of the senate during this process are with closed doors, and the contents of the treaty and the information connected with it ought in good policy to be kept secret. But the constitution does not in express terms require it, and, in one particular instance, when the public mind was greatly agitated, disclosures, not only of the contents of the treaty itself, but of some of the proceedings of the senate in regard to it took place, the propriety of doing which was admitted or denied according to the opposing opinions of the day (13)
The nature and extent of this constitutional power underwent full examination, (14) in the state conventions. The most general terms are used in the constitution. The powers of congress in respect to making laws we shall find are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less immediately delegated by the people than the house of representatives, the president constitutionally and the senate both constitutionally and practically two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may eventually affect important interests at home. To define them in the constitution would have been impossible, and therefore a general term could alone be made use
(13) Relative to the British treaty of 1794. (14) See particularly the debates of the Virginia convention.
of, which is, however, to be scrupulously confined to its legitimate interpretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the constitution from which alone the power proceeds.
In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those matters which are generally the subjects of compact between independent nations. Such subjects are peace, alliance, commerce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which disabled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude itself from the international equality which its own interests require it to preserve, and thereby in many respects commit an injury on itself. In modern times and among civilized nations, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confederation it was given with some restrictions, owing to the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present constitution no limitations were beld necessary. The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president conjunctly with them or one of them, or in the president alone.
The formation of a treaty often requires secrecy and dispatch, neither of which could be found in the first or second plan, and would be inconsistent with the
66 authority of the United States, shall be the supreme
usages of most nations. It remained then either to vest it in the president singly, or to unite one of the other bodies with him. The latter was obviously preferable, and all that remained was to select that one whose conformation appeared most congenial to the task. The senate is a smaller body, and therefore whenever celerity was necessary, the most likely to promote it-it was a permanent body; its members, elected for a longer time, were most likely to be conversant in the great political interests which would be agitated, and perhaps it was supposed, that as representatives in one point of view, rather of the states than of the people, a federative quality appertained to them not wholly unconnected with the nature of a foreign compact.
From these and other considerations, the power was vested where we find it, and whenever objections are raised against the extensive operations of a treaty, on account of the source from which it springs, we must remember that it was the will of the whole body of the people to place it there.
The legal effect of a treaty constitutionally made is, that next to the constitution itself, it prevails over all state laws, state constitutions, and acts of congress.
This is expressed in the following words
6 This constitution and the laws of the United States “ which shall be made in pursuance thereof, and all treaties made or which shall be made under the
“ law of the land, and the judges in every state shall 66 be bound thereby, any thing in the constitution or “ laws of any state to the contrary notwithstand“ing."(15)
There is a variance in the words descriptive of laws
(15) Article VI.