Page:American Historical Review, Volume 12.djvu/601

 Ednnuid Ratidolpli on tJic British Treaty 591 condition, it is proper to be understood in what manner they intended that condition should be executed. That they intended their resolution of the 24 of July 1795, to be a final act; and that they do not expect the proposed article to be submitted to them before the treaty operates, is the plain signification of their words. The further negotiations, which are recommended, are not to precede, but follow the ratification; for these make no part of the condition; and the discussions in the Senate, which are recorded in the Executive Journal, shew, not only, that they were apprised of the distinction between precedent and subse- quent negotiations ; but that the attempts for precedent ones all failed. It was possible, that some people might hesitate upon the constitution- ality of the Senate leaving to the President alone, to see, that their condition was complied with. In answer to this it may be said, the Senate are to advise and consent that the President make the treaty: they are not to make the treaty themselves. When they advise and consent unconstitutionally [unconditionally], they rely on the integrity of the President, that he will not suffer any words to be inserted in the paper, or omitted from it. In this case they rely, that he will strictly follow their advice. If he ratifies without again consulting them, he undertakes for the accuracy with which that advice has been followed. If he ratifies what they did not agree to, their security consists in this; that the treaty will, for that cause, not be the supreme law of the Land; and it cannot be concealed from the world by any official forms, since he must set forth the whole truth of the case in the ratification. The very nature of the power, vested in the Senate, implies, that they are to act upon something not yet complete ; the completion of it is re- served to the President. Consequently the Senate may give their advice and consent without the very treaty, which is to be ratified being before them. To this it may be objected, that, according to these positions, the Senate may now advise and consent to the general matter of a treaty, which may not be formed for years to come, and thus forestall the judgment of their successors. My answer is. i. that it is not neces- sary at this moment to decide upon this objection; because it is not the general matter of a treaty which is consigned to the wording of the President; it is only the simple act of suspending part of an article; which is very little more or less, than striking it out by a pen ; and the words which the Senate have used, are apt words in themselves, for which none can be substituted, which can well create ambiguity. — 2. If it were necessary to decide upon the objection, I would say, that it can scarcely ever happen, that the Senate will submit to the President to work up the general matter of a treaty in any form, which he shall ap- prove. — 3. But still the objection recurs: can they do so constitutionally? — I think not. — How then is this distinguishable from what they have now done? In the circumstance of the amendment being nothing more than (as has been already observed) a mere suspension or striking out; in the inevitable consequence, that if any deviation be made from the