The Life Of Thomas Paine, Vol. 2. (of 2): With A History of His Literary, Political and Religious Career in America France, and EnglandConway, Moncure Daniel
History
The Life Of Thomas Paine, Vol. 2. (of 2): With A History of His Literary, Political and Religious Career in America France, and England
Conway, Moncure Daniel
Paine, Thomas, 1737-1809
"The second section of the 2d article of the constitution says, The
'President shall have Power by and with the consent of the senate to
make Treaties provided two thirds of the senators present concur.'
"A question may be supposed to arise on the present case, which is,
under what character is the cession to be considered and taken up in
congress, whether as a treaty, or in some other shape? I go to examine
this point.
"Though the word, Treaty, as a Word, is unlimited in its meaning
and application, it must be supposed to have a denned meaning in the
constitution. It there means Treaties of alliance or of navigation and
commerce--Things which require a more profound deliberation than
common acts do, because they entail on the parties a future reciprocal
responsibility and become afterwards a supreme law on each of the
contracting countries which neither can annull. But the cession of
Louisiana to the United States has none of these features in it It is a
sale and purchase. A sole act which when finished, the parties have no
more to do with each other than other buyers and sellers have. It has no
future reciprocal consequences (which is one of the marked characters of
a Treaty) annexed to it; and the idea of its becoming a supreme law
to the parties reciprocally (which is another of the characters of a
Treaty) is inapplicable in the present case. There remains nothing for
such a law to act upon.
"I love the restriction in the constitution which takes from the
Executive the power of making treaties of his own will: and also the
clause which requires the consent of two thirds of the Senators, because
we cannot be too cautious in involving and entangling ourselves with
foreign powers; but I have an equal objection against extending the
same power to the senate in cases to which it is not strictly and
constitutionally applicable, because it is giving a nullifying power
to a minority. Treaties, as already observed, are to have future
consequences and whilst they remain, remain always in execution
externally as well as internally, and therefore it is better to run the
risk of losing a good treaty for the want of two thirds of the senate
than be exposed to the danger of ratifying a bad one by a small
majority. But in the present case no operation is to follow but what
acts itself within our own Territory and under our own laws. We are the
sole power concerned after the cession is accepted and the money paid,
and therefore the cession is not a Treaty in the constitutional meaning
of the word subject to be rejected by a minority in the senate.
"The question whether the cession shall be accepted and the bargain
closed by a grant of money for the purpose, (which I take to be the
sole question) is a case equally open to both houses of congress, and
if there is any distinction of _formal right_, it ought according to
the constitution, as a money transaction, to begin in the house of
Representatives.
Public-domain text, read in full here on John Shaqi.
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