Did not Congress very lately unanimously resolve, in adopting the very
sensible letter of Mr. Jay, that a treaty when once made pursuant to
the sovereign authority, _ex vi termini_ became immediately the law of
the land? It seems to result unavoidably from the nature of the thing,
that when the constitutional right to make treaties is exercised, the
treaty so made should be binding upon those who delegated authority
for that purpose. If it was not, what foreign power would trust us?
And if this right was restricted by any such fine checks as Mr. Mason
has in his imagination, but has not thought proper to disclose, a
critical occasion might arise, when for want of a little rational
confidence in our own government we might be obliged to submit to a
master in an enemy. Mr. Mason wishes the House of Representatives to
have some share in this business, but he is immediately sensible of
the impropriety of it, and adds “where it can be done with safety.”
And how is it to be known whether it can be done with safety or not,
but during the pendency of a negotiation? Must not the President and
Senate judge whether it can be done with safety or not? If they are of
opinion it is unsafe, and the House of Representatives of course not
consulted, what becomes of this boasted check, since, if it amounts
to no more than that the President and Senate may consult the House
of Representatives if they please, they may do this as well without
such a provision as with it. Nothing would be more easy than to assign
plausible reasons, after the negotiation was over, to show that a
communication was unsafe, and therefore surely a precaution that could
be so easily eluded, if it was not impolitic to the greatest degree,
must be thought trifling indeed. It is also to be observed, that this
authority, so obnoxious in the new Constitution (which is unfortunate
in having little power to please some persons, either as containing
new things or old), is vested indefinitely and without restriction in
our present Congress, who are a body constituted in the same manner as
the Senate is to be, but there is this material difference in the two
cases, that we shall have an additional check, under the new system of
a President of high personal character chosen by the immediate body of
the people.