326 BURR— THE TREATY-MAKING POWER [April 20, 



It is judicial utterance and judicial precedence which will de- 

 termine the validity of a treaty dealing with subjects committed to 

 the legislation of Congress, and the Supreme Court will beyond per- 

 adventure follow the long line of its recorded decisions. But if the 

 opinions of members of Congress come with such authority to some, 

 why is it not wisest to listen to one who himself signed the Constitu- 

 tion and lived among the men and the events which created it ? On 

 the floor of the House on January 10, 1816, Charles C. Pinckney 

 thus spoke : 



. " 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 part 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 diplomacy. He ouly, with the approba- 

 tion of the senate, can appoint a negotiator, or take any step towards a 

 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 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 consent of the Senate, must be followed 

 by a legislative ratification, it is a mere nonentity. It is good for all pur- 

 poses, 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 legis- 

 lative control of the President. 



