Let me expostulate with gentlemen to admit, if it be only by way of supposition, and for a moment, that it is barely possible they have yielded too suddenly to their alarms for the powers of this House; that the addresses which have been made with such variety of forms and with so great dexterity in some of them, to all that is prejudice and passion in the heart, are either the effects or the instruments of artifice and deception, and then let them see the subject once more in its singleness and simplicity.
It will be impossible, on taking a fair review of the subject, to justify the passionate appeals that have been made to us to struggle for our liberties and rights, and the solemn exhortations to reject the proposition, said to be concealed in that on your table, to surrender them forever. In spite of this mock solemnity, I demand, if the House will not concur in the measure to execute the treaty, what other course shall we take? How many ways of proceeding lie open before us?
In the nature of things there are but three; we are either to make the treaty, to observe it, or break it. It would be absurd to say we will do neither. If I may repeat a phrase already much abused, we are under coercion to do one of them; and we have no power, by the exercise of our discretion, to prevent the consequences of a choice.
By refusing to act, we choose. The treaty will be broken and fall to the ground. Where is the fitness, then, of replying to those who urge upon the House the topics of duty and policy that they attempt to force the treaty down, and to compel this assembly to renounce its discretion, and to degrade itself to the rank of a blind and passive instrument in the hands of the treaty-making power? In case we reject the appropriation, we do not secure any greater liberty of action; we gain no safer shelter than before from the consequences of the decision. Indeed, they are not to be evaded. It is neither just nor manly to complain that the treaty-making power has produced this coercion to act. It is not the act or the despotism of that power—it is the nature of things that compels. Shall we, dreading to become the blind instruments of power, yield ourselves the blinder dupes of mere sounds of imposture? Yet that word, that empty word, coercion, has given scope to an eloquence that, one would imagine, could not be tired and did not choose to be quieted.
Let us examine still more in detail the alternatives that are before us, and we shall scarcely fail to see, in still stronger lights, the futility of our apprehensions for the power and liberty of the House.
If, as some have suggested, the thing called a treaty is incomplete,—if it has no binding force or obligation,—the first question is, Will this House complete the instrument, and, by concurring, impart to it that force which it wants?
The doctrine has been avowed that the treaty, though formally ratified by the executive power of both nations, though published as a law for our own by the President's proclamation, is still a mere proposition submitted to this assembly, no way distinguishable, in point of authority or obligation, from a motion for leave to bring in a bill, or any other original act of ordinary legislation. This doctrine, so novel in our country, yet so dear to many, precisely for the reason that, in the contention for power, victory is always dear, is obviously repugnant to the very terms as well as the fair interpretation of our own resolutions (Mr. Blount's). We declare that the treaty-making power is exclusively vested in the President and Senate, and not in this House. Need I say that we fly in the face of that resolution when we pretend that the acts of that power are not valid until we have concurred in them? It would be nonsense, or worse, to use the language of the most glaring contradiction, and to claim a share in a power which we at the same time disdain as exclusively vested in other departments.
What can be more strange than to say that the compacts of the President and Senate with foreign nations are treaties, without our agency, and yet those compacts want all power and obligation, until they are sanctioned by our concurrence? It is not my design, in this place, if at all, to go into the discussion of this part of the subject. I will, at least for the present, take it for granted, that this monstrous opinion stands in little need of remark, and if it does, lies almost out of the reach of refutation.
But, say those who hide the absurdity under the cover of ambiguous phrases, Have we no discretion? And if we have, are we not to make use of it in judging of the expediency or inexpediency of the treaty? Our resolution claims that privilege, and we cannot surrender it without equal inconsistency and breach of duty.
If there be any inconsistency in the case, it lies, not in making the appropriations for the treaty, but in the resolution itself (Mr. Blount's). Let us examine it more nearly. A treaty is a bargain between nations, binding in good faith; and what makes a bargain? The assent of the contracting parties. We allow that the treaty power is not in this House; this House has no share in contracting, and is not a party; of consequence, the President and Senate alone may make a treaty that is binding in good faith. We claim, however, say the gentlemen, a right to judge of the expediency of treaties; that is the constitutional province of our discretion. Be it so. What follows? Treaties, when adjudged by us to be inexpedient, fall to the ground, and the public faith is not hurt. This, incredible and extravagant as it may seem, is asserted. The amount of it, in plainer language, is this—the President and Senate are to make national bargains, and this House has nothing to do in making them. But bad bargains do not bind this House, and, of inevitable consequence, do not bind the nation. When a national bargain, called a treaty, is made, its binding force does not depend upon the making, but upon our opinion that it is good. . . .