legislative 2iCt to give it operation, we contend that the legislative sanction must be given before it is complete. Until then it is not a binding contract, and the rights of the third party (the foreign power) do not exist. Is it not the petitio principii, or—if the gentleman will permit me to use the vulgar translation—is it not begging the question, to contend that before the legislative sanction the contract is binding, when the very question before us is, whether that sanction be necessary to make it binding?
Mr. PINCKNEY. I lay it down as an incontrovertible truth, that the Constitution has assumed, (and indeed how could it do otherwise?) that the government of the United States might and would have occasion, like the other governments of the civilized world, to enter into treaties with foreign powers, upon the various subjects involved in their mutual relations; and further, that it might be and was proper to designate the department of the government in which the capacity to make such treaties should be lodged. It has said, accordingly, that the President, with the concurrence of the Senate, shall possess this part of the national sovereignty. It has, furthermore, given to the same magistrate, with the same concurrence, the exclusive creation and control of the whole machinery of diplomacy. He only, with the approbation of the Senate, can appoint a negotiator, or take any step towards a negotiation. The Constitution does not, in any part of it, even intimate that any other department shall possess either a constant or an occasional right to interpose in the preparation of any treaty, or in the final perfection of it. The President and the Senate are explicitly pointed out as the sole actors in that sort of transaction.
The prescribed concurrence of the Senate—and that, too, by a majority greater than the ordinary legislative majority—plainly excludes the necessity of congressional concurrence. If the consent of Congress to any treaty had been intended, the Constitution would not have been guilty of the absurdity of putting a treaty for ratification to the President and Senate exclusively, and again to the same President and Senate as portions of the legislature. It would have submitted the whole matter at once to Congress; and the more especially as the ratification of a treaty by the Senate, as a branch of the legislature, may be by a smaller number than a ratification of it by the same body as a branch of the executive government. If the ratification of any treaty by the President, with the consent of the Senate, must be followed by a legislative ratification, it is a mere nonentity. It is good for all purposes, or for none. And if it be nothing, in effect, it is a mockery by which nobody would be bound. The President and Senate would not themselves be bound by it; and the ratification would at last depend, not upon the will of the President and two thirds of the Senate, but upon the will of a bare majority of the two branches of the legislature, subject to the qualified legislative control of the President.
Upon the power of the President and Senate, therefore, there can be no doubt. The only question is as to the extent of it; or, in other words, as to the subject upon which it may be exerted. The effect of the power, when exerted within its lawful sphere, is beyond the reach of controversy. The Constitution has declared that whatsoever amounts to a treaty made under the authority of the United States, shall immediately be supreme law. It has contradistinguished a treaty as law, from an act of Congress as law. It has erected treaties, so contradistinguished, into a binding judicial rule. It has given them to our courts of justice, in defining the jurisdiction, as a portion of the lex terræ, which they are to interpret and
vol. iv.59
