University of Virginia Library

JUNE 18—TREATY-MAKING POWER.

Mr. Madison.—Mr. Chairman, I am persuaded that when
this power comes to be thoroughly and candidly viewed, it will
be found right and proper. As to its extent, perhaps it will
be satisfactory to the committee, that the power is precisely in
the new constitution, as it is in the confederation. In the
existing confederacy, congress are authorized indefinitely to
make treaties. Many of the states have recognised the
treaties of congress to be the supreme law of the land. Acts
have passed within a year, declaring this to be the case. I
have seen many of them. Does it follow, because this power
is given to congress, that it is absolute and unlimited? I do
not conceive that power is given to the president and senate
to dismember the empire, or to alienate any great essential
right. I do not think the whole legislative authority have
this power. The exercise of the power must be consistent
with the object of the delegation.

One objection against the amendment proposed, is this;

that by implication, it would give power to the legislative
authority to dismember the empire—a power that ought not
to be given, but by the necessity that would force assent from
every man. I think it rests on the safest foundation as it is.
The object of treaties is the regulation of intercourse with
foreign nations, and is external. I do not think it possible to
enumerate all the cases in which such external regulations
would be necessary. Would it be right to define all the cases
in which congress could exercise this authority? The definition
might, and probably would be defective. They might
be restrained by such a definition, from exercising the authority
where it would be essential to the interest and safety
of the community. It is most safe, therefore, to leave it to
be exercised as contingencies may arise.

It is to be presumed, that in transactions with foreign
countries, those who regulate them, will feel the whole force of
national attachment to their country. The contrast being
between their own nation and a foreign nation, is it not presumable
they will, as far as possible, advance the interest of
their own country? Would it not be considered as a dangerous
principle in the British government, were the king to have
the same power in internal regulations, as he has in the
external business of treaties? Yet, as among other reasons,
it is natural to suppose he will prefer the interest of his own,
to that of another country, it is thought proper to give him
this external power of making treaties. This distinction is
well worthy the consideration of gentlemen. I think the
argument of the gentleman who restrained the supremacy of
these to the laws of particular states, and not to congress, is
rational. Here the supremacy of a treaty is contrasted with
the supremacy of the laws of the states. It cannot be otherwise
supreme. If it does not supersede their existing laws, as
far as they contravene its operation, it cannot be of any effect.
To counteract it by the supremacy of the state laws would
bring on the union the just charge of national perfidy, and
involve us in war.

Suppose the king of Great Britain should make a treaty
with France, where he had a constitutional right; if the
treaty should require an internal regulation, and the parliament
should make a law to that effect, that law would be
binding on the one, though not on the other nation. Suppose
there should be a violation of right by the exercise of this
power by the president and senate; if there was apparent
merit in it, it would be binding on the people: for where there
is a power for any particular purpose, it must supersede what
may oppose it, or else it can be no power. For instance,
where there is a power of declaring war, that power as to
declaring war supersedes every thing. This would be an unfortunate
case, should it happen; but should it happen, there
is a remedy; and there being a remedy, they will be restrained
against abuses.

But let us compare the responsibility in this government to
that of the British government. If there be an abuse of this
royal prerogative, the minister who advises him, is liable to
impeachment. This is the only restraint on the sovereign.
Now, Sir, is not the minister of the United States under restraint?
Who is the minister?—The president himself, who
is liable to impeachment. He is responsible in person. But
for the abuse of the power of the king, the responsibility is in
his advisers. Suppose the constitution had said, that this
minister alone could make treaties, and when he violated the
interest of the nation, he would be impeached by the senate;
then the comparison would hold good between the two governments.
But is there not an additional security by adding to
him the representatives and guardians of the political interest
of the states? If he should seduce a part of the senate to a
participation in his crimes, those who were not seduced would
pronounce sentence against him; and there is this supplementary
security, that he may be convicted and punished
afterwards, when other members come in the senate, one-third
being excluded every second year. So that there is a two-fold
security. The security of impeachment and conviction by

those senators that they may be innocent, should no more
than one-third be engaged with the president in the plot; and
should there be more of them engaged in it, he may be tried
and convicted by the succeeding senators, and the upright
senators who were in the senate before.

As to the case of the Russian ambassador, I shall say nothing.
It is as inapplicable as many other quotations made by
the gentleman. I conceive that as far as the bills of rights
in the states, do not express any thing foreign to the nature
of such things, and express fundamental principles essential
to liberty, and those privileges which are declared necessary
to all free people, these rights are not encroached on by this
government.

(Mr. Madison added other remarks which could not be
heard.)