8551. TREATIES, Power to make.—[further continued] .
To what subject the
treaty-making power extends, has not been
defined in detail by the Constitution; nor are
we entirely agreed among ourselves. 1. It is
admitted that it must concern the foreign na
tion, party to the contract, or it would be a
mere nullity res inter alia acta. 2. By the
general power to make treaties, the Constitution
must have intended to comprehend only
those objects which are usually regulated by
treaty, and cannot be otherwise regulated. 3.
It must have meant to except out of these the
rights reserved to the States; for surely the
President and Senate cannot do by treaty
what the whole government is interdicted
from doing in any way. 4. And also to except
those subjects of legislation in which it
gave a participation to the House of Representatives.
This last exception is denied by
some, on the ground that it would leave very
little matter for the treaty power to work on.
The less the better say others. The Constitution
thought it wise to restrain the Executive
and Senate from entangling and embroiling
our affairs with those of Europe.
Besides, as the negotiations are carried on
by the Executive alone, the subjecting to the
ratification of the Representatives such articles
as are within their participation, is no
more inconvenient than to the Senate. But
the ground of this exemption is denied as
unfounded. For examine, e. g., the treaty
of commerce with France, and it will be
found that out of thirty-one articles, there
are not more than small portions of two or
three of them which would not still remain
as subjects of treaties, untouched by these
exceptions.—
Parliamentary Manual. Washington ed. ix, 80.
