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that they ought not to put it in the power of any man, or any set of men, to do so; and that the representation was defective, being not a substantial, immediate representation. He observed that, as treaties were the supreme law of the land, the House of Representatives ought to have a vote in making them, as well as in passing them.
Mr. J. M’DOWALL. Mr. Chairman : permit me, sir, to make a few observations, to show how improper it is to place so much power in so few men, without any responsibility whatever. Let us consider what number of them is necessary to transact the most important business. Two thirds of the members present, with the President, can make a treaty. Fourteen of them are a quorum, two thirds of which are ten. These ten may make treaties and alliances. They may involve us in any difficulties, and dispose of us in any manner, they please. Nay, eight is a majority of a quorum, and can do every thing but make treaties. How unsafe are we, when we have no power of bringing those to an account! It is absurd to try them before their own body. Our lives and property are in the hands of eight or nine men. Will these gentlemen intrust their rights in this manner?
Mr. DAVIE. Mr. Chairman, although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. This concurrence is founded on the reciprocal convenience and solid advantages arising from it. A due observance of treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities which tend to depopulate and ruin contending nations. It extends and facilitates that commercial intercourse, which, founded on the universal protection of private property, has, in a measure, made the world one nation.
The power of making treaties has, in all countries and governments, been placed in the executive departments. This has not only been grounded on the necessity and reason arising from that degree of secrecy, design, and despatch, which is always necessary in negotiations between nations, but to prevent their being impeded, or carried into effect, by the violence, animosity, and heat of parties, which too
often infect numerous bodies. Both of these reasons preponderated in the foundation of this part of the system. It is true, sir, that the late treaty between the United States and Great Britain has not, in some of the states, been held as the supreme law of the land. Even in this state, an act of Assembly passed to declare its validity. But no doubt that treaty was the supreme law of the land without the sanction of the Assembly; because, by the Confederation, Congress had power to make treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.
On the principle of the propriety of vesting this power in the executive department, it would seem that the whole power of making treaties ought to be left to the President, who, being elected by the people of the United States at large, will have their general interest at heart. But that jealousy of executive power which has shown itself so strongly in all the American governments, would not admit this improvement. Interest, sir, has a most powerful influence over the human mind, and is the basis on which all the transactions of mankind are built. It was mentioned before that the extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the senators, as representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion that the little state of Rhode Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts, yet the small states would not consent to confederate without an equal voice in the formation of treaties. Without the equality, they apprehended that their interest would be neglected or sacrificed in negotiations. This difficulty could not be got
It arose from the unalterable nature of things. Every man was convinced of the inflexibility of the little states in this point. It therefore became necessary to give them an absolute equality in making treaties.
The learned gentleman on my right, (Mr. Spencer,) after
saying that this was an enormous power, and that blending the different branches of government was dangerous, said, that such accumulated powers were inadmissible, and contrary to all the maxims of writers. It is true, the great Montesquieu, and several other writers, have laid it down as a maxim not to be departed from, that the legislative, executive, and judicial powers should be separate and distinct. But the idea that these gentlemen had in view has been misconceived or misrepresented. An absolute and complete separation is not meant by them. It is impossible to form a government upon these principles. Those states who had made an absolute separation of these three powers their leading principle, have been obliged to depart from it. It is a principle, in fact, which is not to be found in
be found in any of the state governments. In the government of New York, the executive and judiciary have a negative similar to that of the President of the United States. This is a junction of all the three powers, and has been attended with the most happy effects. In this state, and most of the others, the executive and judicial powers are dependent on the legislature. Has not the legislature of this state the power of appointing the judges ? Is it not in their power also to fix their compensation ? What independence can there be in persons who are obliged to be obsequious and cringing for their office and salary? Are not our judges dependent on the legislature for every morsel they eat? It is not difficult to discern what effect this may have on human nature. The meaning of this maxim I take to be this — that the whole legislative, executive, and judicial powers should not be exclusively blended in any one particular, instance. The Senate try impeachments. This is their only judicial cognizance. As to the ordinary objects of a judiciary - such as the decision of controversies, the trial of criminals, &c.— the judiciary is perfectly separate and distinct from the legislative and executive branches. The House of Lords, in England, have great judicial powers; yet this is not considered as a blemish in their constitution. Why? Because they have not the whole legislative power. Montesquieu, at the same time that he laid down this maxim, was writing in praise of the British government.
At the very time he recommended this distinction of powers, he passed the highest eulogium on a constitution wherein they were all partially blended. SO
that the meaning of the maxim, as laid down by him and uther writers, must be, that these three branches must not be entirely blended in one body. And this system before you comes up to the maxim more completely than the favorite government of Montesquieu. The gentleman from Anson has said that the Senate destroys the independence of the President, because they must confirm the nomination of officers. The necessity of their interfering in the appointment of officers resulted from the same reason which produced the equality of suffrage. In other countries, the executive or chief magistrate, alone, nominates and appoints officers. The small states would not agree that the House of Representatives should have a voice in the appointment to offices; and the extreme jealousy of all the states would not give it to the President alone. In my opinion, it is more proper as it is than it would be in either of those cases. The interest of each state will be equally attended to in appointments, and the choice will be more judicious by the junction of the Senate to the President. Except in the appointments of officers, and making of treaties, he is not joined with them in any instance. He is perfectly independent of them in his election. It is impossible for human ingenuity to devise any mode of election better calculated to exclude undue influence. He is chosen by the electors appointed by the people. He is elected on the same day in every state, so that there can be no possible combination between the electors. The affections of the people can be the only influence to procure his election. If he makes a judicious nomination, is it to be presumed that the Senate will not concur in it? Is it to be supposed the legislatures will choose the most depraved men in the states to represent them in Congress ? Should be nominate unworthy characters, can it be reasonably concluded that they will confirm it ? He then says that the senators will have influence to get themselves reëlected; nay, that they will be perpetually elected
I have very little apprehension on this ground. I take it for granted that the man who is once a senator will very probably be out for the next six years. Legislative influence changes. Other persons rise, who have particular connections to advance them to office. If the senators stay six years out of the state governments, their influence will be
greatly diminished. It will be impossible for the most influential character to get himself reelected after being out of the country so long. There will be an entire change in six years.
Such futile objections, I fear, proceed from an aver sion to any general system. The same learned gentleman says that it would be better, were a council, consisting of one from every state, substituted to the Senate. Another gentleman has objected to the smallness of this number. This shows the impossibility of satisfying all men's minds. I beg this committee to place these two objections together, and see their glaring inconsistency. If there were thirteen counsellors, in the manner he proposes, it would destroy the responsibility of the President. He must bave acted also with a' majority of them. A majority of them is seven, which would be a quorum. A majority of these would be four, and every act to which the concurrence of the Senate and the President is necessary could be decided by these four. Nay, less than a majority — even one — would suffice to enable them to do the most important acts. This, sir, would be the effect of this council. The dearest interests of the community would be trusted to two men. Had this been the case, the loudest clamors would have been raised, with justice, against the Constitution, and these gentlemen would have loaded their own proposition with the most virulent abuse.
On a due consideration of this clause, it appears that this power could not have been lodged as safely any where else as where it is. The honorable gentleman (Mr. M’Dowall) has spoken of a consolidation in this government. That is a very strange inconsistency, when he points out, at the same time, the necessity of lodging the power of making treaties with the representatives, where the idea of a consolidation can alone exist; and when he objects to placing it in the Senate, where the federal principle is completely preserved. As the Senate represents the sovereignty of the states, whatever might affect the states in their political capacity ought to be left to them. This is the certain means of preventing a consolidation. How extremely absurd is it to call that disposition of power a consolidation of the states, which must to all eternity prevent it! I have only to add the principle upon which the General Convention went — that the power of making treaties could nowhere be so safely