When we advert to the constitution, we shall find that the President, by and with the advice and consent of the Senate, may make treaties. Now, say gentlemen, this power is undefined, and one gentleman says, it is unlimited.
True, there is no definition in words of the extent and nature of the treaty-making power. Two modes of ascertaining its extent have been mentioned: one is, by ascertaining the extent of the same power among the monarchs of Europe, and making that the standard of the treaty-making power here; and the other is, to limit the power of the President and Senate, in respect to treaties, by the constitution and the nature and principles of our Government.
Upon the first criterion, it is obvious that we cannot obtain any satisfactory definition of the treaty-making power, as applicable to our Government.
The paragraph in the constitution, which says that “new States may be admitted by Congress into this Union,” has been quoted to justify this treaty. To this, two answers may be given, either of which are conclusive in my favor. First, if Congress have the power collectively of admitting Louisiana, it cannot be vested in the President and Senate alone. Secondly, Congress have no power to admit new foreign States into the Union, without the consent of the old partners. The article of the constitution, if any person will take the trouble to examine it, refers to domestic States only, and not at all to foreign States; and it is unreasonable to suppose that Congress should, by a majority only, admit new foreign States, and swallow up, by it, the old partners, when two-thirds of all the members are made requisite for the least alteration in the constitution. The words of the constitution are completely satisfied by a construction which shall include only the admission of domestic States, who were all parties to the Revolutionary war, and to the compact; and the spirit of the association seems to embrace no other. But I repeat it, if the Congress collectively has this power, the President and Senate cannot, of course, have it exclusively.
I think, sir, that, from a fair construction of the constitution, and an impartial view of the nature and principles of our association, the President and Senate have not the power of thus obtruding upon us Louisiana.
The seventh article admits for twelve years the ships of France and Spain into the ceded territory, free of foreign duty. This is giving a commercial preference to those ports over the other ports of the United States; because it is well known that a duty of forty-four cents on tonnage, and ten per cent. on duties, are paid by all foreign ships or vessels in all the ports of the United States. If it be said we must repeal those laws, and then the preference will cease, the answer is, that this seventh article gives the exclusive right of entering the ports of Louisiana to the ships of France and Spain, and if our discriminating duties were repealed this day, the preference would be given to the ports of the United States against those of Louisiana, so that the preference, by any regulation of commerce or revenue, which the constitution expressly prohibits from being given to the ports of one State over those of another, would be given by this treaty, in violation of the constitution. I acknowledge, if Louisiana is not admitted into the Union, and that if there is no promise to admit her, then this part of our argument will not apply; but, in declaring these to be facts, my opponents are driven to acknowledge that the third article of this treaty is void, which answers every purpose which I wish to establish, that this treaty is unconstitutional and void, and that I have, consequently, a right to withhold my vote from any bill which shall be introduced to carry it into effect. I acknowledge, sir, that my opinion ever has been, and still is, that when a treaty is ratified by the constituted authorities, and is a constitutional treaty, every member of the community is bound by it, as a law of the land; but not so by a treaty which is unconstitutional. The terms of this treaty may be extravagant and unwise, yet, in my legislative capacity, that can form no excuse for an opposition; we may have no title, we may have given an enormous sum, we may have made a silly attempt to destroy the discriminating duties, yet, if the treaty be not unconstitutional, every member of the Government is bound to carry it into effect.
Mr. Breckenridge observed, that he little expected a proceeding so much out of order would have been attempted, as a re-discussion of the merits of the treaty on the passage of this bill; but as the gentlemen in the opposition had urged it, he would, exhausted as the subject was, claim the indulgence of the Senate in replying to some of their remarks.
No gentleman, continued he, has yet ventured to deny, that it is incumbent on the United States to secure to the citizens of the western waters, the uninterrupted use of the Mississippi. Under this impression of duty, what has been the conduct of the General Government, and particularly of the gentlemen now in the opposition, for the last eight months? When the right of deposit was violated by a Spanish officer without authority from his Government, these gentlemen considered our national honor so deeply implicated, and the rights of the western people so wantonly violated, that no atonement or redress was admissible, except through the medium of the bayonet. Negotiation was scouted at. It was deemed pusillanimous, and was said to exhibit a want of fellow-feeling for the western people, and a disregard to their essential rights. Fortunately for their country, the counsel of these gentlemen was rejected, and their war measures negatived. The so much scouted process of negotiation was, however, persisted in, and instead of restoring the right of deposit, and securing more effectually for the future our right to navigate the Mississippi, the Mississippi itself was acquired, and every thing which appertained to it. I did suppose that those gentlemen, who at the last session so strongly urged war measures for the attainment of this object, upon an avowal that it was too important to trust to the tardy and less effectual process of negotiation, would have stood foremost in carrying the treaty into effect, and that the peaceful mode by which it was acquired would not lessen with them the importance of the acquisition. But it seems to me, sir, that the opinions of a certain portion of the United States with respect to this ill-fated Mississippi, have varied as often as the fashions. [Here Mr. B. made some remarks on the attempts which were made in the old Congress, and which had nearly proved successful, to cede this river to Spain for twenty-five years.] But, I trust, continued he, these opinions, schemes, and projects will for ever be silenced and crushed by the vote which we are this evening about to pass.
Permit me to examine some of the principal reasons which are deemed so powerful by gentlemen as to induce them to vote for the destruction of this treaty. Unfortunately for the gentlemen, no two of them can agree on the same set of objections; and what is still more unfortunate, I believe there are no two of them concur in any one objection. In one thing only they seem to agree, and that is to vote against the bill. An honorable gentleman from Delaware (Mr. White) considered the price to be enormous. An honorable gentleman from Connecticut, who has just sat down, (Mr. Tracy,) says he has no objection whatever to the price; it is, he supposes, not too much. An honorable gentleman from Massachusetts (Mr. Pickering) says that France acquired no title from Spain, and therefore our title is bad. The same gentleman from Connecticut (Mr. Tracy) says he has no objection to the title from France; he thinks it a good one. The gentleman from Massachusetts (Mr. Pickering) contends that the United States cannot under the constitution acquire foreign territory. The gentleman from Connecticut is of a different opinion, and has no doubt but that the United States can acquire and hold foreign territory; but that Congress alone have the power of incorporating that territory into the Union. What weight, therefore, ought all their lesser objections to be entitled to, when they are at war among themselves on the greater one?
The same gentleman has told us, that this acquisition will, from its extent, soon prove destructive to the confederacy.