Mr. President, as it seems to be the wish of the Senate to pass upon
this subject without debate, it adds to the reluctance I always feel
when compelled, even by a sense of duty, to intrude on their
attention. Yet, as I feel myself obliged, under the solemn
responsibility attached to the station I hold here, to vote against
the bill under consideration--as I think, also, it is but a due
respect to the other branch of the legislature, from whom it is my
misfortune to differ, and but an act of justice to myself to state
the grounds of my opinion, I must be pardoned for departing from the
course which seemed to be desired by the Senate.
In the exercise of this privilege, with a view to promote the wishes
of the Senate as far as a sense of duty will permit, I will confine
myself to a succinct view of the most prominent objections which lie
against its passage, rather than indulge in the extensive range of
which the subject is susceptible. Before I enter into the discussion
of the merits of the question, I beg leave to call the attention of
the Senate to the course which was adopted by us in relation to this
subject. A bill, brought in by the Committee on Foreign Relations,
passed the Senate unanimously, declaring that all laws in opposition
to the convention between the United States and Great Britain,
concluded on the third of July last, should be held as null and
void. The principle on which this body acted was, that the treaty,
upon the exchange of its ratification, did, of itself, repeal any
commercial regulation, incompatible with its provisions, existing in
our municipal code; it being by us believed at the time that such a
bill was not necessary, but by a declaratory act, it was supposed,
all doubts and difficulties, should any exist, might be
removed. This bill is sent to the House of Representatives, who,
without acting thereon, send us the one under consideration, but
differing materially from ours. Far from pretending an intimate
knowledge of the course of business pursued by the two houses, I do
not say that the mode adopted in this particular case is irregular,
but if it has not the sanction of precedent, it appears to me to be
wanting in that courtesy which should be perpetually cherished
between the two houses. It would have been more decorous to have
acted on our bill, to have agreed to it if it were approved, to
reject or amend it. In the latter case, upon its being returned to
the Senate, the views of the other body would have been contrasted
with our own, and we might then have regularly passed upon the
subject. A different course, however, has been adopted; and if a
regard to etiquette had been the only obstacle to my support to the
bill, it would have been readily given; for it is the substance, and
not the shadow, which weighs with me. The difference between the two
bills is rendered important by its involving a constitutional
question.
It is my misfortune, for such I certainly esteem it, to differ from
the other branch of the legislature on that question; were it a
difference of opinion on the expediency of a measure, it might
readily be obviated, as being entirely free, or at least I hope so,
from pride of opinion. My disposition is to meet, by mutual
concession, those with whom I am in the habit of acting; but when a
principle of the constitution is involved, concession and compromise
are out of the question. With one eye on the sacred charter of our
liberties, and the other on the solemn sanction under which I act
here, I surrender myself to the dictates of my best judgment (weak
enough God knows), and fearlessly pursue the course pointed out by
these guides. My regret is certainly greatly lessened by the
reflection that there is no difference of opinion with any one on
the propriety of executing the treaty with good faith--we differ
only as to the manner in which our common purpose shall be effected.
The difference between the friends of the bill, and those opposed to
it is, as I understand it, this: the former contend, that the law of
Congress, discriminating between American and British tonnage, is
not abrogated by the treaty, although its provisions conflict with
the treaty, but that to effect its repeal, the bill in question, a
mere echo of the treaty, must pass; the latter, among whom I wish to
be considered, on the contrary say, that the law above alluded to
was annulled upon the ratification of the treaty. I hope I have
succeeded in stating the question fairly, for that certainly was my
wish, and it is also my determination to discuss it in the same
spirit.
This, then, is the issue which is made up between the friends and
the opponents of the bill; and although in its practical effects I
cannot believe it would be of consequence which way it is decided,
yet, as the just interpretation of the constitution is the pivot on
which it turns, from that consideration alone the question becomes
an interesting one.
Fortunately for us we have a written constitution to recur to,
dictated with the utmost precision of which our language is
susceptible--it being the work of whatsoever of wisdom, of
experience, and of foresight, united America possessed.
To a just understanding of this instrument, it will be essential to
recur to the object of its adoption; in this there can be no
difference of opinion. The old band of union had been literally
dissolved in its own imbecility; to remedy this serious evil, an
increase of the powers of the general government was indispensable.
To draw the line of demarcation between the powers thus granted to
the general government, and those retained by the States, was the
primary and predominating object. In conformity with this view, we
find a general enumeration of the powers assigned the former, of
which Congress is made the depository; which powers, although
granted to Congress in the first instance, are, in the same
instrument, subsequently distributed among the other branches of the
government. Various examples might be adduced in support of this
position. The following for the present will suffice: Article i., section
i, of the constitution declares, that "all legislative powers herein
granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives." Yet we
find, by the seventh section of the same article, the President
invested with a large share of legislative power, and, in fact,
constituting an integral branch of the legislature; in addition to
this, I will here barely add, that the grant of the very power to
regulate the exercise of which gave birth to this bill, furnishes,
by the admission of the friends of the bill, another evidence of the
truth of this position, as I shall show hereafter; and, therefore,
to comprehend the true meaning of the constitution, an isolated view
of a particular clause or section will involve you in error, while a
comprehensive one, both of its spirit and letter, will conduct you
to a just result; when apparent collisions will be removed, and
vigor and effect will be given to every part of the instrument.
With this principle as our guide, I come directly to that part of
the constitution which recognizes the treaty-making power. In the
second clause, second section, second article, are the following
plain and emphatic words: "He [the President] shall have power, by
and with the advice and consent of the Senate, to make treaties,
provided two-thirds of the Senators present concur." Two
considerations here irresistibly present themselves--first, there
is no limitation to the exercise of the power, save such
restrictions as arise from the constitution, as to the subjects on
which it is to act; nor is there any participation of the power,
with any other branch of the government, in any way alluded to.
Am I borne out in this declaration by the clause referred to? That
I am, seems to me susceptible of demonstration. To the President
and Senate has been imparted the power of making treaties. Well,
what is a treaty? If a word have a known signification by the
common consent of mankind, and it be used without any qualification
in a law, constitution, or otherwise, the fair inference is that the
received import of such word is intended to be conveyed. If so, the
extent of the power intended to be granted admits of no difficulty.
It reaches to those acts of courtesy and kindness, which
philanthropy has established in the intercourse of nations, as well
as to treaties of commerce, of boundaries, and, in fine, to every
international subject whatsoever. This exposition is supported by
such unequivocal authority, that it is believed it will not be
questioned. I, therefore, infer that it will be readily yielded,
that in regard to the treaty, in aid of which this bill is
exhibited, the treaty-making power has not exceeded its just limits.
So far we have proceeded on sure ground; we now come to the pith of
the question. Is the legislative sanction necessary to give it
effect? I answer in the negative. Why? Because, by the second
clause of the sixth article of the constitution, it is declared that
all treaties made or which shall be made, under the authority of the
United States, shall be the supreme law of the land. If this clause
means anything, it is conclusive of the question.
If the treaty be a supreme law, then whatsoever municipal regulation
comes within its provisions must _ipso_ _facto_ be annulled--unless
gentlemen contend there can be at the same time two supreme laws,
emanating from the same authority, conflicting with each other, and
still both in full vigor and effect. This would indeed produce a
state of things without a parallel in human affairs, unless indeed
its like might be found in the history of the Popes. In one
instance, we are told, there were three at one time roaming over the
Christian world, all claiming infallibility, and denouncing their
anathemas against all who failed to yield implicit obedience to
their respective mandates, when to comply with the one was to
disobey the other. A result like this, so monstrous in its aspect,
excludes the interpretation which produces it. It is a safe course
in attempting to ascertain the meaning of a law or constitution to
connect different clauses (no matter how detached) upon the same
subject together. Let us do it in this case. The President shall
have power, by and with the advice and consent of the Senate, to
make treaties, which treaties shall be the supreme law of the
land. I seek to gain no surreptitious advantage from the word
supreme, because I frankly admit that it is used in the
Constitution, in relation to the laws and constitutions of the
States; but I appeal to it merely to ascertain the high authority
intended to be imparted by the framers of the constitution to a
ratified treaty. It is classed in point of dignity with the laws of
the United States. We ask for no superiority, but equality; and as
the last law made annuls a former one, where they conflict, so we
contend that a subsequent treaty, as in the present case, revokes a
former law in opposition thereto. But the other side contend that it
is inferior to the law in point of authority, which continues in
full force despite of a treaty, and to its repeal the assent of the
whole legislature is necessary. Our claims rest on the expressed
words of the constitution--the opposite on implication; and if the
latter be just, I cannot forbear to say that the framers of the
constitution would but ill deserve what I have heretofore thought a
just tribute to their meritorious services. If they really designed
to produce the effect contended for, instead of so declaring by a
positive provision, they have used a language which, to my mind,
operates conclusively against it. Under what clause of the
constitution is the right to exercise this power set up? The reply
is, the third clause of eighth section, first article--Congress
shall have power to regulate commerce with foreign nations, etc. I
immediately inquire to what extent does the authority of Congress,
in relation to commercial treaties, reach? Is the aid of the
legislature necessary in all cases whatsoever, to give effect to a
commercial treaty? It is readily admitted that it is not. That a
treaty, whose influence is extra territorial, becomes obligatory the
instant of its ratification. That, as the aid of the legislature is
not necessary to its execution, the legislature has no right to
interpose. It is then admitted that while a general power on the
subject of commerce is given to Congress, that yet important
commercial regulations may be adopted by treaty, without the
co-operation of the legislature, notwithstanding the generality of
the grant of power on commercial subjects to Congress. If it be true
that the President and Senate have, in their treaty-making power, an
exclusive control over part and not over the whole, I demand to know
at what point that exclusive control censes? In the clause relied
upon, there is no limitation. The fact is, sir, none exists. The
treaty-making power over commerce is supreme. No legislative
sanction is necessary, if the treaty be capable of self-execution,
and when a legislative sanction is necessary, as I shall more at
large hereafter show, such sanction, when given, adds nothing to the
validity of the treaty, but enables the proper authority to execute
it; and when the legislature do act in this regard, it in under such
obligation as the necessity of fulfilling a moral contract imposes.
If it be inquired of me what I understand by the clause in question,
in answer I refer to the principle with which I set out: that this
was a grant of power to the general government of which Congress was
in the first instance merely the depository, which power, had not a
portion thereof been transferred to another branch of the
government, would have been exclusively exercised by Congress, but
that a distribution of this power has been made by the constitution;
as a portion thereof has been given to the treaty-making power, and
that which is not transferred is left in the possession of
Congress. Hence, to Congress it is competent to act in this grant in
its proper character by establishing municipal regulations. The
President and the Senate, on the other hand, have the same power
within their sphere, that is, by a treaty or convention with a
foreign nation, to establish such regulations in regard to commerce,
as to them may seem friendly to the public interest. Thus each
department moves in its own proper orbit, nor do they come in
collision with each other. If they have exercised their respective
powers on the same subject, the last act, whether by the legislature
or the treaty-making power, abrogates a former one. The legislature
of the nation may, if a cause exist in their judgment sufficient to
justify it, abrogate a treaty, as has been done; so the President
and Senate by a treaty may abrogate a pre-existing law containing
interfering provisions, as has been done heretofore (without the
right being questioned), and as we say in the very case under
consideration. I will endeavor to make myself understood by
examples; Congress has power, under the clause in question, to lay
embargoes, to pass nonintercourse, or nonimportation, or
countervailing laws, and this power they have frequently
exercised. On the other hand, if the nation against whom one of
those laws is intended to operate is made sensible of her injustice
and tenders reparation, the President and Senate have power by
treaty to restore the amicable relations between the two nations,
and the law directing otherwise, upon the ratification of the
treaty, is forthwith annulled. Again, if Congress should be of
opinion that the offending nation had not complied with their
engagements, they might by law revoke the treaty, and place the
relation between the two nations upon such footing as they
approved. Where is the collision here? I see none. This view of the
subject presents an aspect as innocent as that which is produced
when a subsequent law repeals a former one. By this interpretation
you reconcile one part of the constitution with another, giving to
each a proper effect, a result always desirable, and in rules of
construction claiming a precedence to all others. Indeed, sir, I do
not see how the power in question could have been otherwise
arranged. The power which has been assigned to Congress was
indispensable; without it we should have been at the mercy of a
foreign government, who, knowing the incompetency of Congress to
act, would have subjected our commerce to the most injurious
regulations, as was actually the case before the adoption of the
constitution, when it was managed by the States, by whom no regular
system could be established; indeed, we all know this very subject
was among the most prominent of the causes which produced the
constitution. Had this state of things continued, no nation which
could profit by a contrary course would have treated. On the other
hand, had not a power been given to some branch of the government to
treat, whatever might have been the friendly dispositions of other
powers, or however desirous to reciprocate beneficial arrangements,
they could not, without a treaty-making power lodged somewhere, be
realized.
I therefore contend, that although to Congress a power is given in
the clause alluded to, to regulate commerce, yet this power is in
part, as I have before endeavored to show, given to the President
and Senate in their treaty-making capacity--the truth of which
position is admitted by the friends of the bill to a certain extent.
The fact is, that the only difference between us is to ascertain the
precise point where legislative aid is necessary to the execution of
the treaty, and where not. To fix this point is to settle the
question. After the most mature reflection which I have been able
to give this subject, my mind has been brought to the following
results; Whenever the President and Senate, within the acknowledged
range of their treaty-making power, ratify a treaty upon
extraterritorial subjects, then it is binding without any auxiliary
law. Again, if from the nature of the treaty self-executory, no
legislative aid is necessary. If on the contrary, the treaty from
its nature cannot be carried into effect but by the agency of the
legislature, that is, if some municipal regulation be necessary,
then the legislature must act not as participating in the
treaty-making power, but in its proper character as a legislative
body.