“In certain limited or constitutional monarchies the consent of the legislative power of the nation is in some cases required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases it is consequently an implied condition, in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the fundamental laws of the State.”
The Chief Magistrate can pledge the national faith only according to the Constitution.
Now I turn to another place in this same authoritative work, being page 718,[264] and read as follows:--
“A treaty of peace binds the contracting parties from the time of its signature.”
Then follows an emphatic note from the very able commentator, Mr. Dana:--
“It would be more exact to say, ‘from the time at which the treaty is concluded.’ If the political constitution of a party to the treaty requires ratification by a body in the State, the treaty is conditional until so ratified.”
The treaty, therefore, had no effect until ratified by the Senate; and I repeat, every attempt at jurisdiction in those waters was a usurpation and an act of violence; I think I should not go too far, if I said it was an act of war. If a commodore leaves his quarter-deck, pulls ashore, and, with his guns commanding a town, threatens to blow it down, is not this an act of war?
In Great Britain the exclusive prerogative of making treaties is in the Crown, and so in most other countries it is in the Executive; but I need not remind you that in our country it is otherwise. The exclusive prerogative here is not in the Executive; it is in the President by and with the advice and consent of the Senate; and until that advice and consent have been given he can exercise no power under that treaty. Those waters were as sacred as the waters about France or about England. He might as well have penetrated the ports of either of those countries and launched his menace there as have penetrated the waters of this weak power and launched his menace.