THAT the treaty with Britain has acquired the sanction of the American constitution, and our national faith is pledged to the word, that it shall be fairly carried into execution.

2. That a refusal of the House of Representatives of the United States, to exercise their powers for its execution, would exhibit to the world a specta­cle of a government at war with itself, one branch defeating the acts and purposes of another, the whole deprived of all energy and exertion, and in a state of real or approaching dissolution.

1. I am of opinion that the treaty with Britain, having been approved by two thirds of the Senate, and ratified by the President, has acquired the sanction of the American constitution, and, being so accepted and ratified by the King of Bri­tain, our national faith is pledged to the world, that it shall be fairly carried into execution.

My position is, that a treaty approved by two thirds of the Senate, and ratified by the President, and accepted by the other nation, has all the force of a law. As to some treaties, this is admitted: but it seems to be contended that there are treaties which need a subsequent law to give them effect, and that where a treaty either opposes a former law or needs a subsequent law to give it effect, it is not valid, till, the former law be repealed, or the law to give it effect be enacted; and that it is discreti­onary with the House of Representatives, to repeal or enact the laws necessary for the effect of the treaty. The difference of opinion arises therefore out of the subject of the treaty. The constitution is the test of the true opinion; and the question here is, not what the constitution ought to be, but what the constitution is.

The constitution declares, "that the President of the United States shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators pre­sent coucur;^* and that all treaties made, or which [Page 6]shall be made, under the authority of the United States, shall be the supreme law of the land."

From the expression of "treaties made under the authority of the United States," it cannot be inferred, that there may be treaties to which the sanction of the House of Representatives as well as of the President and Senate, is necessary. The true construction of the words will not justify this inference. It was not intended to make all trea­ties the law of the land, but only treaties made under the authority of the United States. The President is the agent of the United States for making treaties, his authority is theirs, and treaties made by him are made under the authority of the United States. As it was intended to declare treaties made under the confederation the law of the land, as well as treaties under the constitution, it would have been absurd to have said treaties made by the President, for this would not have applied to the past treaties made by the former Congress.

Neither do I think, that the authority given to Congress by the Constitution "to regulate com­merce with foreign nations, and among the several states, and with the Indian tribes,"^† excludes, by implication, the authority of the President to make comercial treaties, or renders the assent of the House of Representatives necessary to the validity of a commercial treaty. The exclusion is not ex­pressed, nor, as without it a plain use of the words appears, is it necessary to be implied. The great defect of the confederation was that Congress had not authority to make laws for the regulation of trade binding on all the states in their foreign and mutual trade. This authority was in the several state legislatures, and they would not agree to any uniform regulation. To supply this defect, the constitution gave Congress authority to regulate trade with foreign nations and among the several states; but it does not therefore follow that the President could not also regulate trade with foreign nations by treaties. The end to be accomplished [Page 7]was not an equality of each foreign nation but of each of the United States. A regulation made by the President being uniform throughout the states as well accomplished the end in view, as any regu­lation made by Congress: and being by way of contract with a foreign nation, might be more ad­vantageous, by mutual concessions. If regulations made by the President could be more advantageous than regulations made by Congress; it is not to be inferred, that the authority of Congress to re­gulate excluded the authority of the President to regulate. Nor did the authority of the President to regulate, supercede the necessity of an authority in Congress to regulate. For all nations might not be disposed to treat. It was therefore necessary to give Congress an authority to regulate by law which would be compulsory on the foreign traders as well as on the several states. Thus, at all events, an uniform regulation would be established. The regulation by treaty operates by the consent of the foreign nation. The regulation by law operates without consent. The one is a contract, the other a constraint. The treaty may be more advantage­ous. The law secures, in every case, uniformity throughout the states, though perhaps a less bene­ficial uniformity than that established by treaty. It may therefore be proper, that both authorities subsist, and the expression of the one does not ex­clude the other. How stands the case then on the face of the constitution. The President has autho­rity to conclude treaties, treaties are laws; as the authority of the President, to make commercial treaties, did not supersede the necessity of an au­thority in Congress, to make commercial laws, which would operate on nations that would not treat, neither did this authority of Congress to make commercial laws, supersede the authority of the President to make commercial treaties, for they may be more advantageous by means of mu­tual concessions. They are separate subsisting au­thories, each operating without the aid of the other.

If this be the plain meaning of the constitution, it is not to be controverted by precedents from [Page 8]Britain, where there is no constitution, but a col­lection of usages and incroachments; where the King is hereditary, his council is appointed by him­self, and removable at his pleasure, and the parli­ament is at his devotion, and where there is no resemblance to our President, our Senate, and our House of Representatives.

If there were any doubt, on the face of the con­stitution, that its meaning is as I have stated, the statement made by the President, in his answer to the demand for the papers must intirely remove it. But as the disclosure which he there makes, that the general convention had explicitly rejected the proposition, that "no treaty should be binding on the United States, which was not ratified by law," could not have dictated to us the terms of our pe­tition; it may be proper to enter into a more mi­nute detail of the history of this authority.

All governments have two relations, from each of which certain duties arise, a relation to their own citizens, and a relation to foreign nations.— The duties arising out of the relation to their own citizens are pointed out by laws, enacted by the legislature, and carried into effect by the executive and the judiciary. The duties arising out of the relation to foreign nations are pointed out by the general law of nations, and by the conventional law of nations, or treaties, which are special laws binding those nations which enter into them; and the declaration and execution of these duties are generally committed to the executive only or chiefly, as the proper organ of communication with foreign nations^‡ It is the duty of every na­tion to establish in it an organ of communication [Page 9]with other nations: and to the executive it is ge­nerally consided, to ascertain what is the law of nations, and to form treaties, which are special laws of the treating nations, altering, enlarging, diminishing, or otherwise modifying, the general law of nations, with respect to the treating nations. These treaties create new rights and duties, of a positive nature, between the treating nations, the violation of which is a violation of a perfect right, and, therefore, an injury, and a cause of war.

Previous to the revolution, we had no relation to any foreign nation; we were colonies, provin­ces, or appendages to Britain, and we could form no treaty with any nation. The Congress, which met at Philadelphia in 1774, was a Congress of colonies. Each colony had one vote in Congress. Engaged in a common cause, and abandoning all hope of reunion with Britain, Congress, without any express authority, but as the result of the ge­neral trust, considered itself as a proper organ of a joint communication of all the colonies with fo­reign nations. Accordingly, after they had ap­pointed a committee for preparing a declaration of independence, they resolved on the appoint­ment of a committee, to prepare a form of confe­deration, and a committee to prepare a plan of treaties to be proposed to foreign powers. In pursuance of this, Congress proposed treaties with France and with Spain; and a treaty of alliance, and a treaty of amity and commerce between France and the United States of New-Hampshire, &c. were concluded by their commissioners at Pa­ris, in February 1778, and ratified by Congress in May 1778, before the ratification of the articles of confederation.

Though the declaration of independence put these colonies in a capacity of treating, by declar­ing them free and independent states; they were thirteen free and independent states; each of which, though all connected in a general cause, like the Swiss Cantons, or the German Princes, might enter into a separate treaty with any foreign nation. The confederation gave no authority to [Page 10]Congress to regulate trade. [...], with all pow­ers not delegated, remained with the several states. But, though it declared, that each state retained its sovereignty and independence, it ordained, "that no state should, without the consent of the United States in Congress assembled, send any em­bassy to, or receive any embassy from, or enter into conference or agreement, alliance or treaty with, any king, prince or state,^* and that the United States in Congress assembled should have the sole and exclusive right and power of entering into treaties and alliances, provided that no treaty of commerce should be made, whereby the legisla­tive power of the respective states should be re­strained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods whatsoever:^† but they were to enter into no treaties or alliances, without the assent of nine of the states."^‡ It was also or­dained, "that no state should lay any imposts or duties, which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince or state, in pursuance of any treaties already proposed by Congress, to the courts of France and Spain."^¶

Before the confederation, Congress concluded their treaty of alliance, and treaty of amity and commerce with France, by virtue of their general implied authority, as proper organs of communi­cation with foreign nations.

Under the confederation, Congress concluded a treaty of amity and commerce with Holland, a treaty of peace with Britain, a treaty of amity and commerce with Sweden, a treaty of amity and commerce with Prussia, a treaty of peace and friendship with the Emperor of Morocco, and six Indian treaties.

Congress concluded these treaties by virtue of the express authority of the confederation, to en­ter into treaties on the assent of nine of the states. This assent of nine states was of nine states in Con­gress [Page 11]assembled. For this was a Congress of states. Each state might have not less than two nor more than seven representatives; but each state had but one vote. If all the representatives of any state agreed in opinion, the votes of all made but one vote; if they differed in opinion, and were une­qually divided, the vote of the majority was the vote of the state; if they differed in opinion, and were equally divided, the state was confidered as not voting. So that if all the representatives, or a majority of the representatives, of each of nine states in Congress, assented to atreaty, it was ratified.

The authority given to Congress by the confe­deration to enter into treaties included an authority to enter into commercial treaties; and, by com­mercial treaties, to restrain the state legislatures otherwise there would have been no need for the provision that no treaty of commerce should re­strain the state legislatures from imposing such du­ties on foreigners as on their own people.

Though Congress had not authority to regulate trade by law, for this authority remained in the state legislatures, it had authority to regulate trade by treaty, which, except in the excluded case, restrained the authority of regulating by law, and rendered void all contrary laws, except in the case reserved. The external relation was committed to the care of Congress, the internal to the state legislatures. A treaty is a contract between two nations, and binds both, as a law which neither of them has authority to repeal without the assent of the other. The confederation provided for the validity of the treaties entered into before; because the states had not before given Congress any ex­press authority to make treaties. But the confe­deration says nothing, as to treaties to be made under its authority, not supposing it necessary to provide for their validity; because the authority given to make treaties necessarily implied their obligation when made. No law of any state there­fore was necessary for confirming a treaty: for a treaty made under the authority given by the con­federation was from its nature a law of all the states, and could not be made [...] [Page 12]superaddition of any other nor could it be con­trouled by the law of any state; but was the su­preme law of the land. This was a settled princi­ple, and wherever it did not operate in practice, it was not because its authority could be denied, but from collateral causes. This is clearly established by Mr. Jefferson in his admirable letter to Mr. Hammond.

So stood the authority of treaties under the con­federation. The constitution vested in Congress the power, formerly retained by the several states, to regulate commerce; and in the President by and with the advice and consent of the Senate, the power to make treaties, provided two thirds of the Senators present concur; and expressly declared all treaties, made and to be made, the supreme law of the land. This arrangement substituted the legislature of the United States in place of the le­gislatures of the several states, for the purpose of making laws to regulate trade; and the President of the United States with the concurrence of two thirds of the Senators present, in place of nine of the thirteen states in Congress assembled, for the purpose of making all treaties. The first was charged with the internal, the last with the exter­nal relation. The effect or validity of treaties, when made, is only declared, it is not enlarged, And the declaration was probably made to remove all pretence of objection, which Britain could make to our inexecution of the treaty of 1783.

The constitution gave to the President, with two thirds of the Senate, the same power which the confederation gave to the whole Congress of mak­ing treaties, and more, for it does not annex the provision, annexed by the confederation, that no treaty of commerce should restrain a state legisla­ture, from imposing the same duties on foreigners, as on its own people. The power of Congress to make treaties was sole and exclusive of the state legislatures; the power of the President and two thirds of the Senate is sole and exclusive of the House of Representatives. The power of Congress to make treaties, included a power to make com­mercial [Page 13]treaties, notwithstanding the power to regulate trade was not given to Congress, but re­mained in the state legislatures; the power of the President and two thirds of the Senate, to make treaties includes a power to make commercial trea­ties, notwithstanding the power to regulate com­merce is vested in Congress. Congress had power to make all treaties, subject to one exception, the President and two thirds of the Senate have power to make all treaties, without any exception. The constitution was framed as a substitute for the con­federation, and its framers must have had the con­federation in view; and as the confederation dis­tinguishes commercial from other treaties, and the constitution does not, it is evident that the framers of the constitution meant no distinction; but gave to the President and two thirds of the Senate, the power of making all treaties. Under the confede­ration, nine states made two thirds of the number of states then existing in Congress. The framers of the constitution forsaw an increase of the num­ber of states, when nine would not be two thirds; the constitution therefore fixes the same proportion, without naming the number, and makes the concur­rence of two thirds of the Senate necessary to the validity of a treaty.

Prejudices, habits, and local interests, are not easily subdued. Each of the states was a sovereign state, and all sovereigns are equal. Under the confederation therefore they all met with an equal voice in Congress. The large states had long complained of this, and claimed votes in proporti­on to the number of their citizens. The small states asserted their sovereignty, and consequent equality, and considered this as entirely drowning their voice in Congress. On this principle, Virgi­nia alone would now have more votes than New-Hampshire, Vermont, Rhode-Island, New Jersey, Delaware, Kentuckey and Georgia put for other; and Massachusetts, New-York, Pennsylvania and Virgina would have more votes, than all the other eleven states in the Union. It was not to be sup­posed, that the small states would agree to this; [Page 14]and, in the Convention, the claims on both sides were so compromised, that votes should be accord­ing to numbers in the House of Representatives, and according to states in the Senate, in other words that each state should send two Senators, and representatives in proportion to its number; and that every member should have one vote. Thus each of the small states retained its equal voice in the Senate; and, as a further sacrifice to the small states, that branch alone in which they were all equal was permitted to concur in treaties. Thus the matter was put, as nearly as possible, on the footing on which it stood, under the confeder­ation. Under the confederation, treaties were made with the concurrence of two thirds of the states in Congress assembled; each state had one vote and its delegates to Congress were chosen by its own legistatures. Under the constitution, treaties are made with the concurrence of two thirds of the Senate; each state has two Senators, and they are chosen by its own legislature. Under the consederation a law of a state could neither increase nor diminish the validity of a treaty. Under the constitution, a law of Congress can neither encrease nor diminish the validity of a commercial treaty. A law is the act of one party only, a treaty is on mutual stipulations with another.

Under the confederation, congress concluded ele­ven treaties, some of which were commercial trea­ties, some settled limits, some stipulated for the payment of money, some defined pliacy &c. Must not the framers of the Constitution have had these in their view: in examining the treaty pow­er of the confederation, must they not have exa­mined the manner and objects of its exercise; and it they had meant that it should be abridged, un­der the constitution would they not have done so expressly? If they gave it generally, as it had been given by the confederation; must we not suppose, that they meant it should be exercised, as [...] had been under the consederation: and that they did not trean that the concurrence of the House of Representatives was necessary to the validity of [...] [Page 15] [...] convention explicitly rejected such concurrence.

When the constitution, previous to its adopti­on, became a subject of public disputation, its op­ponents attacked and its advocates defended, but all admitted this extent of power of the President with two thirds of the Senate in making treaties.

When the state conventions met to ratify the constitution, it was there considered with all this extent of power, and, in this shape, was censured, defended, and ratified. Some of these conventi­ons proposed amendments to it. The seventh amendment proposed by the convention of Virginia is "That no commercial treaty shall be ratified, without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty, ceding, contracting, restraining or suspending the territorial rights or claims of the United States or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified, without the concurrence of three fourths of the whole number of the members of both houses res­pectively." The seventh amendment proposed by the convention of North Carolina is in the same words. The twenty-third amendment proposed by that convention recommends, that no treaty, which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such law shall be repealed, or made conform­able to such treaty.

These amendments shew that the conventions understood the effect of a treaty made by the Pre­sident with the concurrence of two thirds of the Senators present, in its full extent; that they be­lieved, that unless the first amendment was made, the President, had power with the concurrence of two thirds of the Senators present to make a com­mercial treaty, or any other treaty, without the concurrence of any of the members of the House of Representatives, that every treaty so made had the [Page 16]force of a law, notwithstanding any previous, exist­ing, contrary law. So far I think, they understood the Constitution truly; and gave treaties no more force than with the exception of the cases reserved, they had under the confederation. In pursuance of the propositions of amendment, by several of the conventions, Congress afterwards recommend­ed some of them to the consideration of the sever­al states; but neither of the amendments respect­ing treaties was among the number; and the con­stitution remains without those amendments.

I could pursue this unvaried construction of the constitution down to the present session of Con­gress; but I confider the constitution itself, with those previous and cotemporary elucidations, so clear and decisive, that they who will not be per­suaded by those, would not be persuaded though one rose from the dead.

By virtue of this constitutional authority, the President has concluded a consular convention with France, relative to commerce and navigation, various treaties with Indian nations, a treaty with Britain, a treaty with Algiers, and a treaty with Spain.

No law of any state was ever necessary, for the validity of any treaty made under the confedera­tion; though the state legislatures had then, as congress has now, the power to regulate trade with foreign nations And it would be difficult to point out any principle in the British treaty, which is not to be found in some, in several, or in each of the former and subsequent treaties. I therefore believe, that it, like them, has acquired the sanc­tion of the American constitution.

To bring the preceding points into one view, I recapitulate. Every nation has an external and internal relation; and ought to provide conductors of both. Under our confederation, Congress was charged with external relation. Congress had not power to regulate trade by law; but it had pow­er to make treaties, and by treaties to regulate trade, and all treaties under their authority were laws without any aid of state laws; though the [Page 17]state legislatures alone had power to regulate trade by law. Congress did make treaties to regulate trade. The constitution charges the President with the external relation, gives him authority, with the concurrence of two thirds of the Senate, to make treaties. This, without limitation, must mean all such treaties, as Congress, before had au­thority to make; and they had authority to make, and did make, commercial treaties. All treaties, made under the authority of the United States, are the supreme law of the land. Nothing can add to the obligation of a law; for that would signify, that a law is not binding. Therefore, though Con­gress be charged with the internal relation to regu­late, not being exclusively charged with the regu­lation of trade, a commercial treaty needs no law of Congress, to make it binding on the nation. Every agent, who exceeds not his authority, binds his principal. The President is the agent of the nations for making all treaties, commercial trea­ties included, with the concurrence of two thirds of the Senate; other nations treat with him, as out agent, in confidence of this; and the faith of the United States is pledged to the world, that all treaties so made by him, under their authority, shall be fairly carried into execution.

The principle contended for, that a law may be necessary to give relidity to a treaty, and the prin­ciple rejected by the convention, that a treaty be not binding till it be ratified by law, are precisely the same. If it be admitted, that the house of representatives claim no agency in making, it must be admitted, that a treaty is made, when, with the concurrence of two thirds of the Senate, it is ratified by the President; and if a treaty made be a law; what can be added to its validity? Can it be made more than a law?—No law can add to the validity of a treaty made under the authority of the United States, for the constitution declares it the supreme law of the land.

That a law may be necessary, as, in the case of the British treaty, a law is necessary, to carry a treaty into execution, is a principle altogether [Page 18]different, and proceeds from a part of the constitu­tion not at all connected with treaties, and equally applicable to the execution of every act of Con­gress, which requires money for its execution. It is declared by the constitution, that no money shall be drawn from the treasury, but in conse­quence of appropriations made by law. A law making an appropriation of money for this pur­pose, is therefore necessary for obtaining the mo­ney, and obtaining the money is necessary for the execution of the treaty.

A treaty is a contract between two nations, by which both are bound, and every branch and indi­vidual of both. Like every other contract, its execution is the end in view on either side. If this be not accomplished, the end of the contract is de­feated, the contract is broken. The contract esta­blishes positive rights and duties, on either side, which neither is at liberty to frustrate or evade. A law, in which none but the nation itself is con­cerned, may be repealed or neglected, at the plea­sure of the nation. But a treaty is a law in which two nations are concerned, and a breach or inex­ecution of it is a violation of a positive right, and a just cause of war, if the other party choose to make it so. A treaty made under the authority of the United States engages the faith of the United States to a foreign nation, that every branch or individual of our government shall assist in carry­ing it into execution; and a breach of this engage­ment is a breach of national faith, and a stain on national honour. The President is the agent of the United States for making this engagement, he acts under their authority, a treaty made by him, with the concurrence of two thirds of the Senate, is a treaty made under the authority of the United States, and a law of the United States, in which the interests of another nation are concerned, and which therefore no branch of the government of the United States is justifiable in refusing its au­thority to execute, unless it can be justifiable in violating the positive right of another nation, and giving just cause of war. The only discretion, [Page 19]therefore, that I can perceive, in any branch of this government, in refusing appropriations for the execution of a valid treaty, is a discretion of doing injustice and injury. The people, by their con­stitution, have made the President their agent for the purpose of making treaties. Whether in any treaty, he makes the best bargain for them they have submitted to the judgment of the Senate only, to enquire If two thinds of the Senate concur, that he has, and approve the treaty, and he ratifies it; it has the sanction of the American constitution, and the House of Representatives are bound by na­tional justice, and national faith, to concur, if necessary, in carrying it into execution.

I suppose the treaty to be valid, that is, I sup­pose, the President in making it, has not exceeded the authority given to him, by the United States. Ours is a government of departments, or branches, the authority of each of which is prescribed by the constitution; if any branch exceed its authority, its act is void; if it exceed not its authority, its act, though not so good as it might be, is binding; for the people, by their constitution, gave this autho­rity to its discretion. To the discretion of the Pre­sident, with the check only of two thirds of the Senate, the people of the United States has sub­mitted the authority of making treaties. Whether in making a treaty, he has made as good a bargain as the House of Representatives could have made, the constitution permits them not to enquire; but only whether he has exceeded his authority. Be­sides the constitutional limits, the President, in the exercise of his authority in making treaties, is like every other national agent for this purpose, bound by what may be called the common law of nations on this point. There is a supreme law, the safety of the nation, which no treaty agent can violate; and in all nations, without any written constitution, a treaty endangering the existence and safety of the nation is void; and the nation to be injured by it, may, without any breach of the law of nations, explain this danger to the other nation, and decline the execution of the treaty. Shylock's bargain [Page 20]with the merchant of Venice was clearly void. I conceive therefore that, the House of Representa­tives, in their deliberations on the expediency of carrying the British treaty into effect, can enquire only whether the President has exceeded his con­stitutional, or general authority to make treaties; if he has not, it has acquired the sanction of the American constitution, and they are bound by it, while this constitution subsists. Whether the A­merican people are dissatisfied with this part of their constitution, and desire a change in it, cannot come into view on this question, but may after­wards be ascertained, in a regular and constituti­onal way.

2. I conceive also, that a refusal of the House of Representatives of the United States, to exercise their powers for the execution of the British trea­ty, would exhibit to the world, the spectacle of a government at war with itself, one branch defeat­ing the acts and purposes of another, the whole deprived of all energy and exertion, and in a state of real or approaching dissolution.

I have said, that the treaty, appearing to have been constitutionally concluded, and to be advan­tageous to this nation, is the supreme law; that this being a government of branches, each branch is bound to exercise its authority for the execution of laws; and this being a law to which another nation is a party, all the branches of government are bound by it.

There is a department of external, and a depart­ment of internal relations. The departments are not established to obstruct each other in the exer­cise of their constitutional authority, but to check the usurpation of unlawful power by any. While one department exercises its own discretion within its constitutional limits it is not discretionary with any other, whether it will exert its constitutional authority to give effect to the acts of the first; un­less it be discretionary to stop the operations of the government, and defeat the provisions of the con­stitution. Each department, called on to decide on the complete acts of another, may examine its [Page 21]authority, not its discretion. Where there is au­thority, mutual co-operation, not mutual obstruc­tion, becomes the duty. When a law is complete­ly made, every branch of government, whose au­thority is necessary for its execution, is bound to interpose its authority for its execution, while it subsists. Suppose instead of a British, this had been a French treaty, as much applauded, as this has been censured; and having been, with great dif­ficulty, approved in the Senate, by twenty votes against ten, it had received the President's ratifica­tion, and nothing remained, but an appropriating law, for its complete operation. But before this law passed, six of the twenty went out, and six new Senators succeeded, who all hated the treaty, and were determined to defeat it. Here now the twenty sink to fourteen, and the ten rise to sixteen. An appropriating bill comes up from the House of Representatives, which had passed there unani­mously. The Senate reject it. In my opinion, the rejection by the Senate would be contrary to duty, and the principles of our government. I think their discretion expired, when they concur­red in the treaty: and as to appropriation, I think it a thing of course, an act of positive duty, and the refusal a violation of constitutional principles. To give a power to defeat, is in fact requiring an assent to establish. Refusing appropriation is a power to defeat. And to say that it is discretionary with the House of Representatives, by refusing an appropriation, to defeat the execution of a treaty, is to say, that they have, what the consti­tution has refused them, an authority to confirm or reject a treaty. Any branch the exercise of whose discretion is necessary to make a law, may use its discretion, in either making or rejecting it. But when a law is made, no branch, whose inter­position is necessary for its execution, has any dis­cretion in refusing its interposition. A valid treaty is made without any interposition of the House of Representatives. A valid treaty is a law. Ap­propriation is its execution. Appropriation can­not be made without the interposition of the House [Page 22]of Representatives. It therefore becomes an act of duty in them, to make the appropriation, and they have no discretion to resuse it; unless they have a discretion to refuse to perform a positive duty. The refusal exhibits a government at war with it­self. Infult to one branch might provoke retalia­tion. The genuine dictates of the constitution would be disregarded by all; one branch would defeat the acts of another; and the government would be deprived of all energy and exertion, and in a state of real or approaching dissolution.

The judiciary department has authority to say, whether a law is constitutional or not but if con­stitutional, they cannot refuse to execute it, how­ever strong their conviction may be, that it is inex­pedient. On this point they have no discretion: that lay with the legislature. If they should assume this power, and have influence to support it, the judiciary would swallow up the other departments, and the government would be dissolved. I think the cases precisely similar.

Instead of a treaty, suppose an act of the legisla­ture, for the execution of which an appropriation is necessary. The session in which this law is made expires, and a new House or Representatives is elected, who do not approve the law. The Se­nate sends down an appropriation bill, the House of Representatives reject it; the law cannot be executed, it is, in fact, repealed. But, by the constitution, a law cannot be repealed but by the consent of both branches of the legitlature; here then is a violation, in fact, of the constitution. The constitution requires a President of the United States, and a Supreme Court; suppose either branch of the legislature to think those or all the other officers of government unneccessary. How shall they get rid of them. They cannot alter the constitution; they cannot repeal the law establish­ing the offices without the consent of the other branch. But they can do it, in an incidental way, by refusing an appropriation. If there be no ap­propriation, no salary can be drawn from the trea­sury; if no salary, there will be no officers, or on­ly [Page 23]the creatures of the refusing branch; thus the refusing branch will stand alone in the government, swallow up all power, and the government will be dissolved. The same thing may be done, by making appropriations so inconsiderable, as to af­ford only salaries, which none but their creatures will accept.

Our government may be called a government of checks; but these are not checks, but death and dissolution. If a valid treaty has been made, by the President and Senate, it must either be altered by them, with the consent of the other nation; or the House of Representatives are bound by the constitution to make the necessary appropriations. If a law has been made, any branch afterwards, disapproving it, must come forward directly, with a proposal of repeal, and if not, or if they fail in repealing it, they are bound to make the necessary appropriations. They have no discretion.

Though I can easily see a variety of difficulties, in any other constitutional disposition of the power of making treaties, or in a just limitation of their objects; yet I confess, a strong impression, that the subjects of this treaty authority are not suffici­ently defined by the constitution; and perhaps the constitution may admit amendment in this respect. But, at present, it appears to me clear. And no political evil is to be more deprecated, than any one branch of the government making the consti­tution different in practice, from what it really is. This is altering the constitution, at their pleasure, and, in fact, making it a piece of blank paper. If the constitution is to be altered, let it be done by the whole nation in a constitutional way. But if usurpations begin, they will end only with the dissolution of our government. Doubtful usurpa­tions will produce plain usurpations; till all checks are removea, and the constitution prostrat­ed before one branch. Of all usurpations, those are most to be dreaded, which are made by the House of Representatives. That branch is numer­ous, spread through all parts of the nation, and with the popularity and imposing name of the [...] [Page 24]representatives of the people. their usur­pations of power are approved, as advanced of liberty; what is acquared by them, is supposed to be gaihed by the people, till, by degrees, they have stript the other branches of all their authori­ty, and standing alone amidst the wreck of the constitution, they are assailed by the passion or misled by the demagogue, of the day; the guil­lotine falls on the head of any victim of their un­restrained resentment, and confiacation grasps the propert of any object of suspicion.

The British constitution has been appealed to. What is the British constitution? Whatever the House of Commons chooses to make it. The King is but the pageant of state. The principle, that the King is not answerable for any of his conduct, shows that he has no real authority, and that the minister alone has all the power. In fact the mi­nister is king. The minister must be the favourite or the master of the House of Commons. He must he able either to please or to command them.—Whenever he becomies the object of their contempt, resentment, or indifference he must retire from office. Neither the King, nor the House of Lords, can shelter him from their attacks, or support him in office. When a minister is driven out, we may say the King is dethroned; and every change of a minister, we may call a new reign. And if the King had no more influence on the House of Com­mons, than what he derives from the constitution, he would soon sink under their weight, his head would be brought to the block, and his office abolished; the House of Lords would become in­significant, and cease with him; and all power would be vested in the House of Commons.

And we too, if we do not protect each branch of our government, in its just authority, will soon see them sink under one, and it raised into a po­pular tyranny, whirled about with every storm, and bearing destruction in its course.