Washington sentinel., 1854-07-15


Congress is 10 deliberate and Judge for itself In all
other cases of legislation, II IS very emphatic IN
the appropriation of money. NO money shall
be drawn from the Treasury except in conse-
auence of appropriations made By iaD," says the
Constitution. This does not mean such a law as
treaty is; indeed, with all due Difference 10 the
trainers Of the Constitution, treaty is COM
pact not strictly speaking, iar0 at all; il is an
agreement between nations, and as far as the par
ties 10 il are concerned, il becomes part of the
law of nations but treaty is not a law, in the
usual acceptaton of the term The English courts
have held that treaty is not law. When
treaty is violated, the "nhiDa ratio is the rem
edy when a law is violated court Of justice Is
the tribunal for It's vindicaton. The Constitution
means law of Congress- an act OF appropriation.
The term appropriation as used In the Constl-
tntion is a technical legislative term, with which
we are all familiar
But il is said that treaties are the supreme law
of the land. and that Congress is under the same
obligation to make an appropriation to execute
them il is TO provide Tor the payment OF the
salaries of the judges and the President, whose
| salaries by the Constitution cannot be diminished
during their continuance IN ofllce. Now. sir, Inc
great difference is the different bodies over which
| the two instruments are supreme The Consti-
| tuition is supreme in every part OF our ramIhed
| and complex system of government composed OF
| the general and State governments. Treaties are
supreme over State laws, and the supremacy OF
them refers 10 those laws alone, the latter part
of the clause shows: 'sThe judges in every State
| shall be bound thereby, anything in the Consttu-
ton or laws of any Stale to the contrary notwith-
standing" This clause of The Constitution con-
templated asconhict between State laws and those
| of the federal government, and 10 preserve har-
rnony in such cases. it declares the latter shall
prevail. But a treaty is supreme in no other re-
iation. The treaty-making power can no more
bind Congress 10 pass law than Congress can
bind il 10 make treaty. They are independent
departments, and were designed to check rather
than be subservient TO each other
was at a loss for some time, TO ascertain how
| il was that treaty was spoken of as a law and
| supreme law, too, in the Constitution. Proba-
/ bly, il arose from this fact Many of the treaties
negotiated by the federal authority confcted with
/ Stale laws, and il was anticipated others might.
| For instance. the confscation laws of the States
conflicted with the treaty OF peace and in all such
| cases, where treaty was constitutionally made,
| il was thought best by this clause TO relieve the
State judges Of all difficulty by giving them bind
| ing judicial rule.
| But il is said that TO produce this harmony be-
| tween different clauses of the Constitution, you
1 had as well make the legislative power yield TO
the treaty power as the latter TO the former. By
no means. In the first place the legislative powers
| are specific and well defined the treaty power is
| general and vague. And it is well established
| rule of construction, that powers, which are gen.
| eral, must yield 10 those which are specific. We
| do not invade the treaty power when we Judge
for ourselves in respect 10 an appropriation; Tor
| il has no power of appropriation Nor does Con-
gress claim 10 exercise part OF the treaty power
1 when il insists upon the exercise of a discretion
in all cases where its cooperation Is necessary TO
/ execute treaty Congress claims no active par
ticipation in the negotiation of treaties but when
/ called upon for cooperation claim for 1t mega
/ tive one. If Congress refuses 10 cooperate, II
| only leaves things in stGtu qno--it does nothing
1 affirmative And in this respect II is in keeping
with that general system of checks and balances
! which distinguishes our system of government.
| ! do not claim for Congress any control over
treaties except in cases where II is called upon
| 10 pass laws 10 carry them into execution. There
are many where treaties are self-eficient and
require no legislation to execute them. There are
treaties which may be made by the Executive,
| which will be conclusive, which will be binding
as the law Of the land, and requiring the concur
renee of nobody except twothrds OF the Senate.
/ Take a case, for instance, of treaty OF peace.
| Congress can declare war, and by the Constitu-
lion, il is for the executive TO wage it and carry
| it on by the aid of such appropriations as the
| House and Senate may make But when you
finally come TO the question of peace, there the
executive cen make a treaty of peace without
| consulting ANYBODY but the Senate, and without
coming to this House at all, if there be in il moth
ing requiring legislative act One party may
II make a war, but il requires too parties to make
poece; and that peace must be made by nego
iiation in the ordinary form between the two gov
ernments through their ministers. That is one o
those treaties which executes itself And il il
fortunate il is so. II is well that il should be
more difficult 10 declare war than 10 make peace
The President and the Senate may make peace
without consuming the House, and the House car
force them 10 make peace by withholding supplies
but il requires the concurrence of the House, the
Senate and the President to declare war.
But there are other treaties, in the formation o
which the cooperation Of Congress must be OBJ
tained but the cooperation is made necessary ir
order 10 barmonize the several provisions of oul
Constitution, in this case. Ii you make a treaty
: 1 wi M n a q
sary 10 execute il, then another provision Of the
Constitution of the United States comes into play
, and as Congress alone can make appropriations
the treaty cannot be executed until the appropra
| tion has been made. They have the power 4
withhold il, but whether they ought to do it o
: | not depends upon other considerations irrespec
. | tive of the mere power. Ii you could suppose
! case, where the President Of the United States
, with the concurrence Of two-hirds of the Senate
. should make a treaty palpdbly subverting the bes
interests and rights OF The American people, an,
that treaty required an appropriation Of money u
| carry il out, unquestionably the Congress Of th.
United States has not only the right, but in sucl
case would be in duty bound, 10 withhold III,
appropriation. Can any body doubt that Congress
, could with propriety withhold an appropriation
10 carry out traiiorous treaty. or one that wa
| ruinoas or disgraceful7 But hold il 10 be mat
ter Of propriety where treaty has been nego
tiated by the authority in whom the Constitution
| has vested the treaty-nIaking power-that is tn,
cooperation of Congress ought not TO be with
held, except in case Of paipa5h dsregard-I viii
not limit myself to a traitorous disregard-of th,
best interests Of the nation. In the case of
reasonable doubt, where the mind is nearly bal
anced il ought TO be turned in favor Of the treaty
making power. Our power is negative one, an,
1t ought not TO be exerted except in clear case
! am not one OF those who have ever taken IN,
ground which wiser men than some of us hav,
) taken, Mr.. Pinkney among them, who main
tanned that there was positive and moral obi
CATION upon the representatives Of the people 4
: carry out the treaties negotiated in pursuance
the Constitution. ] do not stand here TO main
tain any such doctrine. plant myself upon tn
! ground where the republican statesmen OF forme
days stood. ! have thus gone into some detai
/ Of my views as 10 the necessity Of an appropri
' alton by Congress 10 execute treaty which slip
( ulates for the payment Of money, and as 10 In,
: power Of this House over appropriations for tha
i purpose; because, in replying TO the gentleman
from Missouri, Mr.. BENToS,l who maintains ou
, right TO withhold them, 1t might seem that dill
fered with him that point But | do NOT no
does the President: for he has come here TO asl
for the appropriation, and thus admitted the neces
: slty Of an appropriation by Congress; and be ha
. sent the treaty itself and thus admitted th
4 propriety OF our looking into II to determine
! under the restrictions haye mentioned the expe
4 ,F A., ,t.