A convention between the United States and Great Britain was signed at London, in July, 1815, and subsequently ratified by the president and senate, by which it was stipulated that the discriminating duties on British vessels and their cargoes, then subsisting under certain acts of congress, should be abolished, in return for a reciprocal stipulation on the part of Great Britain. On this occasion, a bill was brought into the house of representatives to carry the convention into effect, specifically enacting the stipulations contained in the convention itself. This bill was opposed by Mr. Pinkney in the following speech :

MR. CHAIRMAN,

I intended yesterday, if the state of my health had permitted, to have trespassed on the house with a short sketch of the grounds upon which I disapprove of the bill. What I could not do then, I am about to endeavor now, under the pressure, nevertheless, of continuing indisposition, as well as under the influence of a natural reluctance thus to manifest an apparently ambitious and improvident hurry to lay aside the character of a listener to the wisdom of others, by which I could not fail to profit, for that of an expounder of my own humble notions, which are not likely to be profitable to any body. It is, indeed, but too probable that I should best have consulted both delicacy and discretion, if I had forborne this precipitate attempt to launch my little bark upon what an honorable member has aptly termed the "torrent of debate" which this bill has produced. I am conscious that it may, with singular propriety, be said of me, that I am novus hospes here; that I have scarcely begun to acquire a domicil among those whom I am undertaking to address; and that, recently transplanted hither from courts of judicature, I ought, for a season, to look upon myself as a sort of exotic, which time has not sufficiently familiarized with the soil to which it has been removed, to enable it to

put forth either fruit or flower. However all this may be, it is now too late to be silent. I proceed, therefore, to entreat your indulgent attention to the few words with which I have to trouble you upon the subject under deliberation.

That subject has already been treated with an admirable force and perspicuity on all sides of the house. The strong power of argument has drawn aside, as it ought to do, the veil which is supposed to belong to it, and which some of us seem unwilling to disturb; and the stronger power of genius, from a higher region than that of argument, has thrown upon it all the light with which it is the prerogative of genius to invest and illustrate every thing. It is fit that it should be so; for the subject is worthy by its dignity and importance to employ in the discussion of it all the powers of the mind, and all the eloquence by which I have already felt that this assembly is distinguished. The subject is the fundamental law. We owe it to the people to labor with sincerity and diligence, to ascertain the true construction of that law, which is but a record of their will. We owe it to the obligations of the oath which has recently been imprinted upon our consciences, as well as to the people, to be obedient to that will when we have succeeded in ascertaining it. I shall give you my opinion upon this matter, with the utmost deference for the judgment of others, but, at the same time, with that honest and unreserved freedom which becomes this place, and is suited to my habits.

Before we can be in a situation to decide whether this bill ought to pass, we must know precisely what it is; what it is not, is obvious. It is not a bill which is auxiliary to the treaty. It does not deal with details which the treaty does not bear in its own bosom. It contains no subsidiary enactments, no dependent provisions, flowing as corollaries from the treaty. It is not to raise money or to make appropriations, or to do any thing else beyond or out of the treaty. It acts simply as the echo of the treaty.

Ingeminat voces, auditaque verba reportat. It may properly be called the twin-brother of the treaty; its duplicate, its reflected image, for it reenacts with a timid fidelity, somewhat inconsistent with the boldness of its pretensions, all that the treaty stipulates, and having performed that work of supererogation, stops. It once attempted something more, indeed; but that surplus has been expunged from it as a desperate intruder, as something which might violate, by a misinterpretation of the treaty, that very public faith which we are now prepared to say the treaty has never plighted in any the smallest degree. In one word, the bill is a fac simile of the treaty in all its clauses.

I am warranted in concluding, then, that, if it be any thing but an empty form of words, it is a confirmation or ratification of the treaty; or, to speak with a more guarded accuracy, is an act to

which only (if passed into a law), the treaty can owe its being. If it does not spring from the pruritas leges ferendi, by which this body can never be afflicted, I am warranted in saying, that it springs from a hypothesis (which may afflict us with a worse disease), that no treaty of commerce can be made by any power in the state but congress. It stands upon that postulate, or it is a mere bubble, which might be suffered to float through the forms of legislation, and then to burst without consequence or notice.

That this postulate is utterly irreconcilable with the claims and port with which this convention comes before you, it is impossible to deny. Look at it! Has it the air or shape of a mere pledge that the president will recommend to congress the passage of such laws as will produce the effect at which it aims? Does it profess to be preliminary, or provisional, or inchoate, or to rely upon your instrumentality in the consummation of it, or to take any notice of you, however distant, as actual or eventual parties to it? No, it pretends upon the face of it, and in the solemnities with which it has been accompanied and followed, to be a pact with a foreign state, complete and self-efficient, from the obligation of which this government cannot now escape, and to the perfection of which no more is necessary than has already been done. It contains the clause which is found in the treaty of 1794, and substantially in every other treaty made by the United States under the present constitution, so as to become a formula, that, when ratified by the president of the United States, by and with the advice and consent of the senate, and by his Britannic majesty, and the respective ratifications mutually exchanged, it shall be binding and obligatory on the said states and his majesty.

It has been ratified in conformity with that clause. Its ratifications have been exchanged in the established and stipulated mode. It has been proclaimed, as other treaties have been proclaimed, by the executive government, as an integral portion of the law of the land, and our citizens, at home and abroad, have been admonished to keep and observe it accordingly. It has been sent to the other contracting party with the last stamp of the national faith upon it, after the manner of former treaties with the same power, and will have been received and acted upon by that party as a concluded contract, long before your loitering legislation can overtake it. I protest, sir, I am somewhat at a loss to understand what this convention has been, since its ratifications were exchanged, and what it is now, if our bill be sound in its principle. Has it not been, and is it not an unintelligible, unbaptized and unbaptizable thing, without attributes of any kind, bearing the semblance of an executed compact, but in reality a hollow fiction; a thing which no man is led to consider even as the germ of a treaty, entitled to be cherished in the vineyard of the constitution; a thing which, pro26*

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fessing to have done every thing that public honor demands, has done nothing but practise delusion? You may ransack every diplomatic nomenclature, and run through every vocabulary, whether of diplomacy or law, and you shall not find a word by which you may distinguish, if our bill be correct in its hypothesis, this "deed without a name." A plain man, who is not used to manage his phrases, may, therefore, presume to say, that if this convention with England be not a valid treaty, which does not stand in need of your assistance, it is a usurpation on the part of those who have undertaken to make it; that, if it be not an act within the treatymaking capacity, confided to the president and senate, it is an encroachment on the legislative rights of congress.

I am one of those who view the bill upon the table as declaring that it is not within that capacity, as looking down upon the convention as the still-born progeny of arrogated power, as offering to it the paternity of congress, and affecting by that paternity to give to it life and strength; and as I think that the convention does not stand in need of any such filiation, to make it either strong or legitimate, that it is already all that it can become, and that useless legislation upon such a subject is vicious legislation, I shall vote against the bill. The correctness of these opinions is what I propose to establish.

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 portion 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 dip lomacy. He only, with the approbation of the senate, can ap point a negotiator, or take any step towards 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 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 first 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 advice and 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 their jurisdiction, as a portion of the lex terræ, which they are to interpret and enforce. In a word, it has communicated to them, if ratified by the department which it has specially provided for the making of them, the rank of law, or it has spoken without meaning. And if it has elevated them to that rank, it is idle to attempt to raise them to it by ordinary legislation.

Upon the extent of the power, or the subjects upon which it may act, there is as little room for controversy. The power is to make treaties. The word treaties is nomen generalissimum, and will comprehend commercial treaties, unless there be a limit upon it, by which they are excluded. It is the appellative, which will take in the whole species, if there be nothing to narrow its scope. There is no such limit. There is not a syllable in the context of the clause to restrict the natural import of its phraseology. The power is left to the force of the generic term, and is, therefore, as wide as a treaty-making power can be. It embraces all the varieties of treaties which it could be supposed this government could find it necessary or proper to make, or it embraces none. It covers the whole treaty-making ground which this government could be expected to occupy, or not an inch of it.

It is a just presumption, that it was designed to be coëxtensive