to it as they may require. The senate may wholly reject it, or they may ratify it in part, or recommend additional or explanatory articles, which, if the president approves of them, again become the subject of negotiation between him and the foreign power; and finally, when the whole receives the consent of the senate, and the ratifications are exchanged between the respective governments, the treaty becomes obligatory on both nations.

The proceedings of the senate during this process are with closed doors, and the contents of the treaty and the information connected with it ought in good policy to be kept secret. But the Constitution does not in express terms require it, and, in one particular instance, when the public mind was greatly agitated, disclosures, not only of the contents of the treaty itself, but of some of the proceedings of the senate in regard to it took place, the propriety of doing which was admitted or denied according to the opposing opinions of the day.*

The nature and extent of this constitutional power underwent full examination,t in the state conventions. The most general terms are used in the Constitution. The powers of congress in respect to making laws we shall find are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less immediately delegated by the people than the house of representatives; the president constitutionally and the senate both constitutionally and practically, two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may eventually affect important interests at home. To define them in the Consti

* Relative to the British treaty of 1794.

† See particularly the debates of the Virginia convention.

tution would have been impossible, and therefore a general term could alone be made use of, which is, however, to be scrupulously confined to its legitimate interpretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the Constitution from which alone the power proceeds.

In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those matters which are generally the subjects of compact between independent nations. Such subjects are peace, alliance, commerce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which disabled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude itself from the international equality which its own interests require it to preserve, and thus in many respects commit an injury on itself. In modern times and among civilized nations, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confederation it was given with some restrictions, proceeding from the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present Constitution no limitations were held necessary. The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president conjunctly with them or one of them, or in the president alone.

The formation of a treaty often requires secrecy and dispatch, neither of which could be found in the first or second mode, and a contrary plan would be inconsistent with the

usages of most nations. It remained then either to vest it in the president singly, or to unite one of the other bodies with him. The latter was obviously preferable, and all that remained was to select that one whose conformation appeared most congenial to the task. The senate is a smaller body, and therefore whenever celerity was necessary, the most likely to promote it-it was a permanent body; its members, elected for a longer time, were most likely to be conversant in the great political interests which would be agitated, and perhaps it was supposed, that as representatives in one point of view, rather of the states than of the people, a federative quality appertained to them not wholly unconnected with the nature of a foreign compact.

From these and other considerations, the power was vested where we find it; and whenever objections are raised against the extensive operations of a treaty, on account of the source from which it springs, we must remember that it was the will of the whole body of the people to place it there.

The legal effect of a treaty constitutionally made is, that next to the Constitution itself, it prevails over all state laws, state constitutions, and acts of congress.

This is expressed in the following words—

This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

There is a variance in the words descriptive of laws and those of treaties-in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.

The explanation is, that at the time of adopting the Consti

tution, certain treaties existed, which had been made by congress under the confederation,* the continuing obligations of which it was proper to declare. The words "under the authority of the United States," were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be "under the authority of the United States," unless they are conformable to its Constitution.

It has been observed, that it is not distinctly declared whether treaties are to be held superior to acts of congress, or whether the latter are to be co-equal with or superior to the former. The mere collocation of the words would tend to give the superiority to the laws, but higher ground must be taken for the decision of the question.

Having felt the necessity of the treaty making power, and having fixed on the department in which it shall be vested, the people of course excluded from all interference with it, those parts of the government which are not described as partaking of it. The representation held out by our Constitu tion to foreign powers, was, that the president with the advice and consent of the senate, could bind the nation in all legiti mate compacts: but if pre-existent acts, contrary to the treaty, could only be removed by congress, this representation would be fallacious; it would be a just subject of reproach, and would destroy all future confidence in our public stipula tions. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions.

But this is not inconsistent with a power to pass subsequent

• With France, the United Netherlands, and particularly the treaty of peace with Great Britain.

electors publicly pledge themselves to vote for a particular individual, and thus the whole foundation of this elaborate system is destroyed.

Another innovation has also been introduced. Members of congress, entrusted only with the power of ordinary legislation, have frequently formed themselves into a regular body at the seat of government, and undertaken to point out to the people certain persons as proper objects of their choice. Although the mild and plausible garb of recommendation is alone assumed, yet its effect is known and felt to have been often great and sometimes irresistible.

If the Constitution, as originally proposed, had contained a direct provision that the president and vice president should be chosen by a majority of the two houses of congress, it is not probable that this part of it would have been adopted.

That the chief executive magistrate should be the creature of the legislature; that he should view in them the source from which he sprung, and by which he was to be continued, would at once destroy the dignity and independence of his station, and render him no longer what the Constitution intended,—an impartial and inflexible administrator of the public interests. To the people alone he would no longer consider himself responsible, but he would be led to respect, and would be fearful to offend, a power higher than the people.

Such principles cannot be found in the Constitution; and it is wholly inconsistent with its spirit and its essence, to effectuate indirectly, that which directly is not avowed or intended. These instances fully prove that the safety of the people greatly depends on a close adherence to the letter and spirit of their excellent Constitution; but it is probable that a late failure will prevent a renewal of the last mentioned attempt. And in reference to the election of 1828, it has not been renewed, but, with a strict adherence to the forms prescribed,