The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-03-27

guard was new, so was the latter In England and
all other monarches at the time, the treaty making
power was a kingly preregatve, ike the power to
declare war The provision In our Constitution re-
quiling the participation Of the Senateswas another
limitation OF the C-man power, and new contri-
button TO republican institutions
The Federalist in article written by Alexan-
der Hamilton, thus describes the kingy preroga-
tiye:-
representative OF the nation In all foreign transac
tions. He can OF his own accord make treaties OF
peace, commerce. alliance and OF every other de-
scuption. 1t is an established fact that the prero
gatve OF making treaties exists In the crown in It's
utmost plenituoe; and that the compacts entered
into by royal authority have the most complete legal
sanction" ttederalist, No LXIX.)
Such the wel-known kingly pre- negative
which our Constitution rejected. Here le5 the
Federdtist speak again.
power OF the President and the actual power OF the
British sovereign. The one can perform alone what
the other can only do with the concurrence OF a
branch of the legislature" (Ibidl
Then again, after showing that treaty is a con-
tract with foreign nation having the force of law,
''The history Of human conduct does not warrant
that exalted opinion of human virtue which would
make it wise In nation to commit interests OF so
delicate aud mOmentOus Kind as those which con-
Germ its intercourse with the rest OIL the world 10
the sole disposal OF magistrate created and cir
cumstanced as would be President OF the United
States [Ibid, LXXV)
Thus does this contemporary authority testify
against handing to the 's0le disposal" OF the
Pre- sdent the delicate and momentous question In
the unratined st. Domingo treaty.
Following the FederGlTst is the famous commen-
tator already cited, who insists that at is too much
to expect that a free people would connde to
single magistrate, however respectable, the sole
thority to act conclusively. well as exclusively
upon the subject OF treaties (Story, Commentaries,
sec. 1879: and that, however proper it may be In
monarchy, there Is no American statesman but must
feel that such prerogative in an American Pres-
dent would be inexpedient and dangerous; that 1t
would be inconsistent with that wholesome jealousy
which all republics ought to cherish OF all deposta-
Ies Of power, and then he adds that
''The check which acts upsn the mind, from the
consider alton that what is done is but preliminary,
and rt quires the assent OF other independent minds
to give it legal conclusveness is restraint which
awakens caution and compels to deliberation."
The learned author then dwells with pride on the
requirement OF the Constitution which, while 1t
guards it from serious abuse by placing 1t uuder the
ultimate superintendent OF select body OF high
character and high responsibility" Wbfd) and then,
author and 1nisher OF all treaties" he concludes
in decisive words that "no treaty 80 formed
receives the deliberate assent of twotnrds
of the Senate" :Qbid, sec. 1blS) Nothing
can be more positive. Therefore, even at the
pepse OF repetition, insist that, as the power to
declare war is under the safeguard OF Congress with
the concurrence of the President, so is the power
TO make treaty In the President with the concur
renee OF two-thirds OF the Senate; bat the act OF
neither becomes binding without this concurrence.
Thus, grounds of authority, as well as OF reason,
is it clear that the promise OF the President to
pioy the war powers without the authority of con-
gress void, ana every employment OF these war
powers in pursuance OF this assumption was usur-
patton.
rogatve either to declare war to make treaties,
he might do what he has done but being only Pres-
dent, with the limited powers established by the
Constitutions he do 1t. The assumption In the
st. Domingo treaty is exceptional and abnormal,
being absolutely without precedent. Ine treaty with
such assumption; nor did the treaty with Spain,
In 1s9 for the eession OF Florida nor did the treaty
with Mexico in 1s4S, by which the title to Texas and
California assured; nor did the treaty with
Mexico in 1853, by which new territory was obtained
did the treaty with Russia, In 1861, for
the cession OF her possessions in North America.
In none Of these treaties was there any such
assumption Of power The Louisiana treaty stipu-
lated that possession should be taken by the United
States immediately after the ratification OF the pre-
sent treaty by the President of the United States,
previously obtained Statutes at Large VOL VIII, p.
alter the Exchange of the ra.acation Of The trea.y
or sooner if possible" (Ibid., p. 25S.) But these
stipulatons, by which possession on our part with
after the exchange OF ratncations were simply ac-
| the requirement OF our Constitution.
The case OF Texas had two stages, first under an
unratihed tresty, and secondly under joint reso-
luton of Congress What was done under the lat
ter had the concurrence OF Congress and the Presl-
dent that the inchoate title OF the United States
created by act OF Congress, In plain contradIc-
ton to the present case, where the title whatever
may be- is under an unratlhed treaty. and Is created
by the President alone. Here is a manifest differ
| ence, not to be forgotten.
But it is not be disguised that during the pend
ency OF the treaty. and before lis ratlacaton by the
by his Secretary OF State John q. Calhoun, to com
| init the United states to the military support OF
Texas. Sufce IL to say, that there was no collision
| or belligerent Intervention, but only what 3enton
calls an "assumpsit" by Calhoun. 0n this 'ass imp
sitthe veteran Senator in The mem oirs OF his thirty
Years in the Senate " breaks forth in these indlg-
| nant terms -
GAS 10 secretly lending the army and navy OF the
| United States to Texas to fight Mexico while we
were at peace with her, 1t would be a crime against
| God and man and our own Constitution, for which
hesos might be brought to the block, II Presidents
and their Secretaries, like constitutional kings and
minister, should be held caDally responsible for
capital crimes" Denton, Thirty Years View, Vol.
| The indignant statesman, after exposing the un.
constitutional charlantry OF the attempt, pro-
| ceeds:-
| "And that no circumstance OF contradiction or
folly should by wanting 10 crown this plot OF crime
ana imbecility II so happened that on the same day
assumpsit to lead the army and navy todght Mexico
while We were at peace with her, the agent Murphy
Yas communicating 10 the Texan Government in
Texas the refusal OF Mr.. Tyler through Mr.. Nelson,
to do so, because Of its unconstitutonality" bid,
| p e4sD
A gain he says:-
| '"Ihe engagement to fight Mexico for Texas,
| while we were at peace with Mexico, was to make
war with Mexico! piece OF business which belonged
to Congress and should have been referred to them
| and which, on the contrary, was concealed from
them, though in session and present. Qbtd, p. 643
In the face of this Indignant judgment, written
more than decade after the attempt and being
already the undyng voice OF history the 'assumpsit'
OF John @. Calhoun will not be accepted proper
| example for an Executive. But there Is not word
OF thar powerful utterance by which this Rct is for
ever blasted that is not strictly applicable TO the
"assumpsit" In the OF Dominica. AS Ia the nrst
there was an engagement 70 aght Mexico for Texas
| while we were at peace with Mexico which was
| nothing ess than war with Mexico, so the present
| engagement to fight Hayti for Dominica, while we
are at peace with Hsytl, is nothing less than wal
with Hayti Nor is II any the less "a crime against
God and man and our own Consultation" IN the case
| OF Hayti than In the case OF Mexico.
ber ls46, paid homage to the true principle when he
| announced that 1.-THE moment the terms or anneXa-