Page:The American Review Volume 02.djvu/569

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1845.]
551
Its Position and Duties.

operate with you throughout. Engraft on your bill for buying the lands of Texas at a price which will extinguish her debt, the substance of Mr. Clay's bill, and we are ready to vote with you. Less than this the Whig party should not ask, and without such a provision, or some one analogous to it, they will hesitate very long about consenting to pay the debt of a foreign State, while leaving those of several of our own States wholly uncared for.

Questions will arise concerning the boundaries of Texas. These properly belong to the treaty-making power. It appears, nevertheless, that the President has, of his own mere notion and authority, undertaken, to declare, and to seize upon, the Rio del Norte, as the western boundary of Texas. If this be so, and it shall stand, the Senate, as part of the treaty-making power, is, for the second time in this matter, to be ousted of its exclusive prerogative, and Congress must determine whether or not they will sustain the Executive decision, and stand by all the consequences.

If the claim, asserted on our behalf by an army with banners, to the left bank of the Rio del Norte, on the sea-board, is to be extended upward along the course of that river to its source, a large part of what has been hitherto known and acknowledged as New Mexico, including the city of Santa Fé, will, under the name of Texas, be transferred to our dominion. However desirable such an acquisition of territory may seem, and so distinct a boundary as this great river, it will not comport with the scrupulous regard for the faith of treaties, nor with the respect for the rights of others, which distinguish the Whig party, to lend their sanction to the armed occupation and seizure thereof.

Perhaps, too, the discussion of this point may present as favorable an opportunity as is likely to occur to call public attention to, and invoke an authoritative decision upon, the true construction to be given to that clause of our Constitution which declares the Senate coordinate with the President in making treaties.

The language of the clause runs thus (Art. II., Sec. 2, Part 2):

"He [the President,] shall have power by and with the advice and consent of the Senate to make treaties, provided two-thirds of the Senate present, concur," &c. &c.

It has been contended in high quarters that in the practical working of the conjoint or coordinate power of the Executive and the Senate, the tendency to Executive encroachment has been constant, though insidious, and that the history of our government for several years, presents an unbroken series of such encroachments. It has been argued, that the relation in which the President stands te the Senate, when acting under the treaty-making power, is essentially different from the other relations prescribed by the Constitution. He has Executive duties to discharge in which the Legislature have no participation—duties, which ordinarily commence when theirs have terminated. Information in his possession, relating to that branch of his public duties, it is his right to communicate to, or withold from Congress, as in his opinion may best subserve the public interest. By the Constitution, also, the exclusive right of nomination to office is given to him, and the Senate are called on only to approve or disapprove. There, too, he acts distinct from the Senate, and possesses a discretion, though perhaps more limited, than with regard to the communication of information. But with the subject of treaties, the case is evidently different. They are to be made, by and with the consent of the Senate. Upon that subject, every step, preliminary as well as final, ought, in the spirit of the Constitution, to be submitted to the Senate.

Such, we repeat, is the interpretation given, not very long ago, by very high authority to this provision of the Constitution, and the contrary practice of conceding to the Executive the preliminary steps in a negotiation, is accounted for on the score of convenience, and by no means as establishing a right.

It is not a light confirmation of this view of the true meaning and spirit of this Constitutional provision, that the first and greatest President of the United States, George Washington, before commencing any new negotiation, laid before the Senate the views of the Executive, the instructions proposed to be given to ministers, and all the information in his possession, and then asked the benefit of their counsel.

In this singular regard to the coordinate rights of the Senate, it is believed that no succeeding President has followed the great example; but if this be the right construction, the case is not likely soon to occur, when more advantageously than now.