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it what you will, with a foreign power. This House may be, and often is, called on to carry out a treaty already made, by the appropriation of money or otherwise; and gentlemen may differ as to how far we have any discrètion in such cases, and how far our obligation is specific and positive to fulfil the provisions of a treaty. But, so far as the making of the treaty is concerned, the whole power is with the President and Senate. "The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur." This is the language of the Constitution.

And what are treaties? "A treaty," says Thomas Jefferson, in his manual," is a law of the land. It differs from other laws only, as it must have the consent of a foreign nation, being but a contract with respect to that nation."

"The essence of the legislative authority," says Alexander Hamilton in the Federalist, "is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enactment of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign." Such is the constitutional provision, and such is its interpretation by the leaders of the two great parties to which the adoption of the Constitution gave rise. It is thus the Senate alone, the body in which the States have an equal suffrage, guaranteed to them forever, which can alone advise and consent to the ratification of any compact with a foreign nation; and that body must do so by a two thirds vote, or not at all. The doctrine of the Constitution is, that one third of the States, though the smallest in the Union, if they can obtain a single vote from any other State, may forbid any alliance or compact

whatever with other governments. The doctrine of the Consti tution is, also, that the functions of this House, and of the Legislative Congress of which it is a branch, begin and end with domestic legislation, and reach not one inch beyond our own established national boundaries. There is no other partition line which can be drawn between the legislative power and the treaty-making power; and, if that line be once overthrown, all distinction between the two departments is at an end. Yet here we have before us the plain and undisguised proposition to enter into a compact with another nation; a compact which has already been submitted to the Senate as a treaty, and which has been rejected by them as such. The Chairman of the Com. mittee on Foreign Affairs has, indeed, erased the word treaty from his resolutions, and has substituted the word settlement. The honorable member from Ohio, too, in his amendment, has omitted the word settlement, and has substituted the parentheti cal phrase "Texas consenting." But neither words, nor the omis sion of words, can alter things. Nor can consent give jurisdic tion. Both resolutions relate to lands, to laws, to property, to persons, out of our own territory; and both attempt to do that i which cannot be done without the consent of another govern ment. No man pretends that this is not a transaction to which there are two parties; one of them, the United States of Ame rica; the other, an independent foreign nation. No man pretends that both these parties must not agree together, and make a compact or bargain, in order to render the transaction complete. The Chairman of Foreign Affairs has expressly said, in his opening speech: "As it is a bargain or contract with another country, it seems to me that an arrangement, carefully digested, with the agents of that country, authorized ad hoc, must be the best mode, if not the only one." This admission determines the whole question. It makes the transaction & treaty; a treaty, it is true, anomalous in its character; anni hilating one of its parties; transcending the powers of the other; but still a treaty in form, a treaty if any thing. And i gives to these resolutions the character of a bold and unblush ing attempt to break down the barriers of the Constitution b overthrowing the legitimate authority of the Senate.

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And, Mr. Chairman, when the Senate of the United States is thus about to be despoiled of its peculiar prerogative, for the accomplishment of this particular act, it may not be amiss to recall for a moment, in the language of one of the Fathers of the Constitution, the views with which that body was constituted, and that prerogative conferred upon it.

“A fifth desideratum, (said James Madison,) illustrating the utility of a Senate, is the want of a due sense of national character. An attention to the judgment of other nations, is important to every government, for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy: the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world, may be the best guide that can be followed. What has not America lost by her want of character with foreign nations? And how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind."

Again, says the same eminent statesman and patriot, in the same connection,

"As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs, when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind."

Such were the views with which the Senate of the United States was established, and such the views with which it was intrusted with the treaty-making power; and if there were ever an occasion which illustrated the wisdom of this feature of the Constitution, and commended it to the respect and support of all good citizens, this, this is it.

When was there ever exhibited a greater want of a due sense of national character, than in the course of this Texan negotiation? When was there ever manifested a more wanton disposition to defy the judgment of other nations, to outrage the opinion of the civilized world, and to shut the eyes to the light in

which the acts of this government must appear to the unbiased part of mankind, than in the means by which this measure has been pursued, and in the motives in which it avowedly origin. ated? When were irregular passions, illicit advantages, and artful misrepresentations of interested men, more plainly at work than now, in stimulating the clamor with which the imme diate annexation of Texas is demanded? When was the intervention of some conservative body more needed, until reason, justice, and truth can regain their authority over the public mind? Sir, these passages have seemed to me to savor of an almost prophetic application to the service which the Senate are called on to discharge at the present crisis. Let me rather say, to the service which they have already and nobly dis charged, and for which that body deserves other recompense, than to be so rudely stripped of its hitherto unquestioned constitutional prerogative!

The honorable member from Alabama, (Mr. Belser,) denies, however, that this proceeding is any encroachment on the authority of the Senate, and has made an effort to produce some precedents of what he calls legislative treaties. One class of cases to which he referred was that of compacts with our own States for the cession of lands. Who can pretend that these are treaties? The whole idea of a treaty under our Constitution, as I have already proved, is a compact with a foreign power. And the States of this Union have never been called foreign in relation to the General Government, or even foreign in relation to each other, unless in certain recent resolutions of South Carolina, of which possibly something may be heard from Massachusetts hereafter, but to which I shall make no allusion now. The General Government, I presume, may pur chase lands of a State, as well as of any other corporation or individual, for constitutional purposes; but such a purchase is no more a treaty in one case than in the other.

The honorable member referred us next to a law of which he was particular in giving us the volume and page. (Laws of the United States, 3d volume, page 562.) Why, Sir, this is an act for taking possession of Louisiana, after the ratification of the treaty!

His next illustration of legislative treaties was a resolution of 15th January, 1811-a resolution which was passed by both branches in secret session, and which was withheld from publication for a long period after its passage. This resolution, Mr. Chairman, contains interesting and edifying matter, and with the leave of the Committee, I will read it.

Resolution.

Taking into view the peculiar situation of Spain, and of her American provinces, and considering the influence which the destiny of the territory adjoining the Southern border of the United States may have upon their security, tranquillity, and commerce: therefore,

"Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States, under the peculiar circumstances of the existing crisis, cannot, without serious inquietude, see any part of the said territory pass into the hands of any foreign power; and that a due regard to their own safety compels them to provide, under certain contingencies, for the temporary occupation of the said territory; they, at the same time, declare that the said territory shall, in their hands, remain subject to future negotiation."

I am at a loss to perceive, Sir, in what part of this resolution any thing of the character of a treaty is to be found, legislative or otherwise. I am glad it has been alluded to, however, as it affords the best possible illustration of what the Congress of 1811 understood by that law of necessity, that right of selfpreservation, which has been so often appealed to in justifica tion of the measure before us. The resolution provides only for a temporary occupation of the Florida territory, and, instead of setting Spain at defiance, expressly declares that the said territory shall remain subject to future negotiation.

But the honorable member from Alabama alluded, lastly, to cases of commercial regulation. These cases undoubtedly are somewhat peculiar in their character, but they are clearly distinguishable from treaties. Congress, in the passage of such acts, undertakes to do nothing to which the consent of another government is necessary. We impose certain duties, for instance, or open certain ports, conditionally upon the action of foreign governments. We can impose the same duties, or open the same ports, without any such condition. We can make the same regulations, subject to any other condition of time or of circumstance, as well as subject to the legislation of a foreign