acquainted with the constitution of England. The parliament of that country enacts the statutes by

or to take it as a guide which we cannot desert with innocence or safety? But why is the treaty

cipally. 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.

It is suggested again, that the treaty-making power, (unless we are tenants in common of it with the president 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;

tend 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 arehe 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 restraits 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 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 safe-guards in the feeling 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 honour 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 here a peculiar pledge for the provident and wholesome exercise of power. There is not a consideration by which a chord 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 prudence; and the ardent instigations of sentiment and pas. sion, 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 honour, 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 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 an hereditary king, an 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 treaty-making 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 his 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 of war. 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 farther; 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 incontestable 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 favourite 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 have 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 book, expelled from the stronghold 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 shoulder 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 denegation 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 treatymaking 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 beyond its ostensible limits. The pernicious principle, of which it is at once the child and the apostle, must work onward and to the right and the left until it has exhausted itself; and it never

can exhaust itself until it has gathered into the vortex of the legislative powers of congress the whole treaty-making capacity of the government. For if, notwithstanding the directness and precision with which the constitution has marked out the department of the government by which it wills that treaties shall be made, and has declared that treaties so made shall have the force and dignity of law, the house of representatives can insist upon some participation in that high faculty upon the simple suggestion that they are sharers in legislative power upon the subjects embraced by any given treaty, what remains to be done, for the transfer to congress of the entire treaty-making faculty, as it ap pears in the constitution, but to show that congress have legislative power direct or indirect upon every matter which a treaty can touch? And what are the matters within the practicable range of a treaty which your laws cannot either mould or qualify or influence? Imagination has been tasked for examples by which this question might be answered. It is admitted that they must be few, and we have been told, as I think, of no more than one. It is the case of contraband of war -This case has, it seems, the double recommendation of being what is called an international case, and a case beyond the utmost grasp of congressional legislation. I remark upon it, that it is no more an international case than any matter of collision incident to the trade of two nations with each other. I remark further, that a treaty upon the point of contraband of war may interfere as well as any other treaty with an act of congress. A law encouraging, by a bounty or otherwise, the exportation of certain commodi