LECTURE II. THE EXTERNAL RIGHT AND DUTY OF THE FEDERAL GOVERNMENT, AS SHOWN IN ITS TREATY-MAKING POWER. INTERVENTION. NEUTRALITY THE POLICY OF THE UNITED STATES. NEUTRAL RIGHTS. THE adoption of the federal constitution constituted a new era in the science of political economy. The internal character of the institutions of every country, although having no extra-territorial force, must and do operate, to some extent, upon the character of the institutions of other countries. The institutions of a country are the indices, the result of the character, the habits of its people. This influence is not and cannot rightfully be exercised by any direct, forcible intervention of one country in the affairs of another; it arises from their contracts, association, intercourse with each other. The right of suffrage, the elective franchise, recognized in all our constitutions as the right of the citizen, is a fact or principle calculated to excite the fears and doubts, to disturb the hopes of foreign governments in which it is not recognized, to encourage the hopes of those who exercise it; in fact, it exercises a moral power upon the destiny of kingdoms, of people, more potent and effectual to the accomplishment of good or of evil, than any other single fact can which has occurred in connection with our political history. The most essential, the most important powers and duties of the federal government, are external. The articles of confederation adopted by the several states before the adoption of the federal constitution, were supposed to have been inadequate, and insufficient to protect the country and its rights from foreign interference and aggression. A number of distinct states or sovereignties could not so readily unite in hostile operations, or command the means for their support. The interests of the several states might not be influenced in the same manner, or to the same extent; hence the necessity of a more perfect bond of amity, a more perfect union, so as thereby to repel and to resist every improper intervention with our domestic affairs from abroad. The territorial position of the country, isolated somewhat from other countries, favored one system so far as foreign relations were to be regarded. Under a national government, treaties, the law and usages of nations, must be expounded in the same manner; whereas, adjudications on the same questions in thirteen or more states, or in three or more confederacies, might not, and probably would not, be consistent with each other. A diversity of opinion would result from the variety of independent courts and judges appointed by different governments, operated upon and influenced more or less by local laws and interests, by peculiar and conventional modes of thought. A similar difficulty and cause for disquietude would arise in and from the existence of thirteen or more different treaties made by the several states with foreign nations, each state acting for itself upon its own sovereignty. Treaties so made would not contain the same provisions, and our intercourse with other nations would not be harmonious. The wisdom of the convention in committing such questions to the jurisdiction and judgment of courts appointed by, and respon sible only to one national government cannot be too much commended.* It was also reasonable to suppose, that the habits and pursuits of this country, judging from facts then existing, would be of a peaceful, quiet nature; that the political convulsions which European institutions had frequently sustained might be avoided. From these and similar considerations, which will readily occur from your reflection upon the subject, the foreign relations of the country, including the power to make and construe treaties, were confided to the federal government. Under the articles of confederation, the sole and exclusive right and power of determining on peace and war was vested in the United States, in congress assembled, except in certain specified cases of supposed imminent danger, which would not admit of delay until the United States in congress assembled could be consulted; in such case, the state in danger was authorized to act upon its own motion and responsibility. The power of entering into treaties and alliances, under certain limitations of power resulting from the legislative power of the several states, was also conferred upon the United States, in congress assembled.† Under the federal constitution the treaty-making power is not subject to the same disabilities, although it is limited, and, in some emergencies, may be liable to difficulty and embarrassment. By this instrument, the power to make treaties is vested in the president of the United States, acting by and with the advice and consent of the senate, two thirds of the senators present concurring. The adoption of this instrument was advocated by many distinguished and patriotic individuals, who, subsequent to *The Federalist, No. 3. † Articles of Confederation, arts. vi. and xi. its adoption, entertained views different from each other in relation to the extent and construction of its powers. John Jay said, upon the subject under consideration, "The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions as will afford the highest security, that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good. The convention appear to have been attentive to both these points; they have directed the president to be chosen by select bodies of electors, to be deputed by the people for that express purpose; and they have committed the appointment of senators to the state legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal taking advantage of the supineness, the ignorance, the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors. As the select assemblies for choosing the president, as well as the state legislatures who appoint the senators, will, in general, be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only, who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The constitution manifests very particular attention to this object. This course of reasoning by Mr. Jay was approved by some, disapproved by others; it was adopted by the people, by their ratification of the instrument. The treaty-making power is indispensable to the due exercise of national sovereignty; * The Federalist, No. 64. that it should belong to the national government would seem to be irresistibly established by every argument deduced from experience, from public policy, and a close survey of the objects of government. It embraces all sorts of treaties for peace or war, for commerce or territory, for alliance or succors, for indemnity, for injuries or payment of debts, for the recognition or enforcement of principles of public law, and for any other purposes which the policy or interests of independent sovereigns may dictate in their intercourse with each other.* A treaty, made and approved in this form by the president, with the concurrence of the senate, is regarded as obligatory upon the nation, if it does no violence to the constitution. Notwithstanding the clear language in which this power is expressed, the house of representatives on one occasion claimed a right to participate in some way, to some extent, in the exercise of the power, to be consulted and advised with in relation to treaties. This sup'posed right was resisted by President Washington, and the grounds of his objection to the claim so set up, were ably and satisfactorily stated by him in a message to the house of representatives, presented March 30th, 1796, in which, after discussing the general reasons applicable to the subject, he says:-"It is a fact declared by the general convention, and universally understood, that the constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known, that under this influence the smaller states were admitted to an equal representation in the senate with the larger states, and this branch of the government was invested with great powers, for on the equal participation of these powers the sovereignty and political safety of the smaller * Story on Con. U. S., book 3, ch. 37, sections 777, 778. |