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Defending the Constitution
Senate has, moreover, various and great executive powers, viz., in concurrence with the President-general, they form treaties with foreign nations,
that may control and abrogate the constitutions and laws of the several
States. Indeed, there is no power, privilege or liberty of the State governments, or of the people, but what may be affected by virtue of this power.
For all treaties, made by them, are to be the ‘‘supreme law of the land;
anything in the constitution or laws of any State, to the contrary notwithstanding.’’
And this great power may be exercised by the President and ten Senators (being two-thirds of fourteen, which is a quorum of that body).
What an inducement would this offer to the ministers of foreign powers
to compass by bribery such concessions as could not otherwise be obtained. It is the unvaried usage of all free States, whenever treaties interfere with the positive laws of the land, to make the intervention of
the legislature necessary to give them operation. This became necessary,
and was afforded by the Parliament of Great Britain, in consequence of
the late commercial treaty between that kingdom and France. As the Senate judges on impeachments, who is to try the members of the Senate for
the abuse of this power! And none of the great appointments to office can
be made without the consent of the Senate.
Such various, extensive, and important powers combined in one body
of men, are inconsistent with all freedom; the celebrated Montesquieu
tells us, that ‘‘when the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no liberty,
because apprehensions may arise, lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical manner.’’
‘‘Again, there is no liberty, if the power of judging be not separated
from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. There would be an end of everything, were the same man, or the
same body of the nobles, or of the people, to exercise those three powers;
that of enacting laws, that of executing the public resolutions, and that of
judging the crimes or differences of individuals.’’
The President general is dangerously connected with the Senate; his