the whole treaty-making capacity of the government. For if, notwithstanding the directness and precision with which the constitution has marked out the department of the government by which it wills that treaties shall be made, and has declared that treaties so made shall have the force and dignity of law, the house of representatives can insist upon some participation in that high faculty, upon the simple suggestion that they are sharers in legislative power upon the subjects embraced by any given treaty, what remains to be done, for the transfer to congress of the entire treaty-making faculty, as it appears in the constitution, but to show that congress have legislative power, direct or indirect, upon every matter which a treaty can touch? And what are the matters within the practicable range of a treaty, which your laws cannot either mould, or qualify, or influence? Imagination has been tasked for example, by which this question might be answered. It is admitted that they must be few, and we have been told, as I think, of no more than one. It is the case of contraband of war. This case has, it seems, the double recommendation of being what is called an international case, and a case beyond the utmost grasp of congressional legislation. I remark upon it, that it is no more an international case than any matter of collision incident to the trade of two nations with each other. I remark further, that a treaty upon the point of contraband of war may interfere, as well as any other treaty, with an act of congress. A law encouraging, by a bounty or otherwise, the exportation of certain commodities, would be counteracted by an insertion into the list of contraband of war, in a treaty with England or France, any one of those commodities. The treaty would look one way, the law another; and various modes might readily be suggested in which congress might so legislate as to lay the foundation of repugnancy between its laws and the treaties of the president and senate with reference to contraband. I deceive myself greatly if a subject can be named upon which a like repugnancy might not occur. But even if it should be practicable to furnish, after laborious inquiry and meditation, a meagre and scanty inventory of some half dozen topics, to which domestic legislation cannot be made to extend, will it be pretended that such was the insignificant and narrow domain designed by the constitution for the treaty-making power? It would appear that there is with some gentlemen a willingness to distinguish between the legislative power expressly granted to congress, and that which is merely implied, and to admit that a treaty may control the results of the latter. I reply to those gentlemen, that one legislative power is exactly equivalent to another, and that, moreover, the whole legislative power of congress may justly be said to be expressly granted by the constitution, although the constitution does not

enumerate every variety of its exercise, or indicate all the ramifications into which it may diverge to suit the exigencies of the times. I reply, besides, that even with the qualification of this vague distinction, whatever may be its value or effect, the principle of the bill leaves no adequate sphere for the treaty-making power. I reply, finally, that the acknowledged operation of a treaty of peace in repealing laws of singular strength and unbending character, enacted in virtue of powers communicated in terminis to congress, gives the distinction to the winds.

And now that I have again adverted to the example of a treaty of peace, let me call upon you to reflect on the answer which that example affords to all the warnings we have received in this debate against the mighty danger of intrusting to the only department of the government, which the constitution supposes can make a treaty, the incidental prerogative of a repealing legislation. It is inconsistent, we are desired to believe, with the genius of the constitution, and must be fatal to all that is dear to freemen, that an executive magistrate and a senate, who are not immediately elected by the people, should possess this authority. We hear from one quarter that if it be so, the public liberty is already in the grave; and from another, that the public interest and honor are upon the verge of it. But do you not perceive that this picture of calamity and shame is the mere figment of excited fancy, disavowed by the constitution as hysterical, and erroneous in the case of a treaty of peace? Do you not see that if there be any thing in this high-colored peril, it is a treaty of peace that must realize it? Can we in this view compare with the power to make such a treaty, that of making a treaty of commerce? Are we unable to conjecture, while we are thus brooding over anticipated evils which can never happen, that the lofty character of our country (which is but another name for strength and power) may be made to droop by a mere treaty of peace; that the national pride may be humbled; the just hopes of the people blasted; their courage tamed and broken; their prosperity struck to the heart; their foreign rivals encouraged into arrogance, and tutored into encroachment, by a mere treaty of peace? I confidently trust, that, as this never has been so, it never will be so; but surely it is just as possible as that a treaty of commerce should ever be made to shackle the freedom of this nation, or check its march to the greatness and glory that await it. I know not, indeed, how it can seriously be thought that our liberties are in hazard from the small witchery of a treaty of commerce, and yet in none from the potent enchantments by which a treaty of peace may strive to enthral them. I am at a loss to conceive by what form of words, by what hitherto unheard-of stipulations, a commercial treaty is to barter away the freedom of United Ameri

ca, or of any the smallest portion of it. I cannot figure to myself the possibility that such a project can ever find its way into the head or heart of any man, or set of men, whom this nation may select as the depositaries of its power; but I am quite sure that an attempt to insert such a project in a commercial treaty, or in any other treaty, or in any other mode, could work no other effect than the destruction of those who should venture to be parties to it, no matter whether a president, senate, or a whole congress. Many extreme cases have been put for illustration in this debate, and this is one of them; and I take the occasion which it offers to mention, that to argue from extreme cases is seldom logical, and upon a question of interpretation, never so. We can only bring back the means of delusion, if we wander into the regions of fiction, and explore the wilds of bare possibility in search of rules for real life and actual ordinary cases. By arguing from the possible abuse of power against the use or existence of it, you may and must come to the conclusion, that there ought not to be, and is not, any government in this country, or in the world Disorganization and anarchy are the sole consequences that can be deduced from such reasoning. Who is it that may not abuse the power that has been confided to him? May not we, as well as the other branches of the government? And, if we may, does not the argument from extreme cases prove that we ought to have no power, and that we have no power? And does it not, therefore, after having served for an instant the purposes of this bill, turn short upon and condemn its whole theory, which attributes to us, not merely the power which is our own, but inordinate power, to be gained only by wresting it from others? Our constitutional and moral security against the abuses of the power of the executive government have already been explained. I will only add, that a great and manifest abuse of the delegated authority to make treaties would create no obligation any where. If ever it should occur, as I confidently believe it never will, the evil must find its corrective in the wisdom and firmness, not of this body only, but of the whole body of the people coöperating with it. It is, after all, in the people, upon whose Atlantean shoulders our whole republican system reposes, that you must expect that recuperative power, that redeeming and regenerating spirit, by which the constitution is to be purified and redintegrated when extravagent abuse has cankered it.

In addition to the example of a treaty of peace, which I have just been considering, let me put another, of which none of us can question the reality. The president may exercise the power of pardoning, save only in the case of impeachments. The power of pardoning is not communicated by words more precise or comprehensive than the power to make treaties. But to what

does it amount? Is not every pardon, pro hac vice, a repeal of the penal law against which it gives protection? Does it not ride over the law, resist its command and extinguish its effect? Does it not even control the combined force of judicature and legislation? Yet, have we ever heard that your legislative rights were an exception out of the prerogative of mercy? Who has ever pretended that this faculty cannot, if regularly exerted, wrestle with the strongest of your statutes? I may be told, that the pardoning power necessarily imports a control over the penal code, if it be exercised in the form of a pardon. I answer, the power to make treaties equally imports a power to put out of the way such parts of the civil code as interfere with its operation, if that. power be exerted in the form of a treaty. There is no difference in their essence. You legislate, in both cases, subject to the power. And this instance furnishes another answer, as I have already intimated, to the predictions of abuse, with which, on this occasion, it has been endeavored to appal us. The pardoning power is in the president alone. He is not even checked by the necessity of senatorial concurrence. He may, by his single fiat, extract the sting from your proudest enactments, and save from their vengeance a convicted offender.

Sir, you have my general notions upon the bill before you. They have no claim to novelty. I imbibed them from some of the heroes and sages who survived the storm of that contest to which America was summoned in her cradle. I imbibed them from the father of his country. My understanding approved them with the full concurrence of my heart, when I was much younger than I am now; and I feel no disposition to discard them now that age and feebleness are about to overtake me. I could say more-much more-upon this question; but I want health and strength. It is, perhaps, fortunate for the house that I do, as it prevents me from fatiguing them as much as I fatigue myself.

320

SPEECH OF WILLIAM PINKNEY,

IN THE SENATE OF THE UNITED STATES,

FEBRUARY 15, 1820,

ON

THE MISSOURI QUESTION.

The bill from the house of representatives, for the admission of Missouri into the Union, with a clause prohibiting the introduction of slaves into the new state, being under consideration, Mr. Pinkney spoke as follows :

As I am not a very frequent speaker in this assembly, and have shown a desire, I trust, rather to listen to the wisdom of others than to lay claim to superior knowledge by undertaking to advise, even when advice, by being seasonable in point of time, might have some chance of being profitable, you will, perhaps, bear with me if I venture to trouble you once more on that eternal subject which has lingered here, until all its natural interest is exhausted, and every topic connected with it is literally worn to tatters. I shall, I assure you, sir, speak with laudable brevitynot merely on account of the feeble state of my health, and from some reverence for the laws of good taste which forbid me to speak otherwise, but also from a sense of justice to those who honor me with their attention. My single purpose, as I suggested yesterday, is to subject to a friendly, yet close examination, some portions of a speech, imposing certainly on account of the distinguished quarter from whence it came-not very imposing (if I may so say, without departing from that respect which I sincerely feel and intend to manifest for eminent abilities and long experience) for any other reason.

I believe, Mr. President, that I am about as likely to retract an opinion which I have formed, as any member of this body, who, being a lover of truth, inquires after it with diligence before he imagines that he has found it; but I suspect that we are all of us so constituted as that neither argument nor declamation, levelled against recorded and published decision, can easily discover a