Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the Constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the Constitution.

The Constitution of the United States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.

[H. OF R.

mount to all other acts of Government, because all power resided in the people; and the PRESIDENT and Senate, in making a Treaty, being the Constitutional organs of the people for that purpose, a Treaty, when made, was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the PRESIDENT and Senate can be in making Treaties; and laws, when made, are as much the acts of the people, as any acts whatever can be.

It had been objected, that the Treaty power would be in fact frustrated, if Treaties were to depend, in any degree, on the Legislature. He thought there was no such danger. The several powers vested in the several departments, form but one Government; and the will of the nation may be expressed through one Government, operating under certain checks on the subject of Treaties, as well as under other checks on other subjects. The objection would have weight, if the voluntary co-operation of the different States was to be obtained.

Another objection was, that no Treaty could be made at all, if the agency of Congress were to concur; because Congress could not treat, and their agency would not be of a Treaty nature. He would not stop to inquire how far a loan of money from a foreign Government, under a law of Congress, was or was not of the nature of a public contract or Treaty. It was more proper to observe, that the practice in Great Britain was an evidence that a Legislative agency did not vitiate a Treaty. Nay, if the objection were solid, it was evident that the Treaty lately entered into with that nation, could never be binding on this; because it had been laid before the Parliament for its Legislative agency, as necessary to effectuate the Treaty: and if that agency was to vitiate and destroy the nature of the Treaty on that side, the obligation, on the principle of all contracts, would be dissolved on both sides.

He came next to the fifth construction, which left with the PRESIDENT and Senate the power of making Treaties, but required at the same time the Legislative sanction and co operation, in those cases where the Constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this He did not see the utility in this case of urging, House, in its Legislative capacity, must exercise as had been done, a particular distrust of the House of Representatives. He thought the PRESits reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Trea-IDENT and Senate would be as likely to make a ties into effect, it would no longer exercise a Le- would be to throw obstructions in the way of a bad Treaty, as this branch of the Government gislative power; it would be the mere instrument of the will of another department, and good one, after it was made.

would have no will of its own. Where the Con

stitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and no where expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.

It was said, yesterday, that a Treaty was para

No construction might be perfectly free from difficulties; that which he had espoused was subject to the least, as it gave signification to every part of the, Constitution; was most consistent with its general spirit, and was most likely, in practice, to promote the great object of it, the public good. The construction which made the Treaty power in a manner omnipotent, he thought utterly inadmissible in a Constitution marked throughout with limitations and checks.

He should not enter any further into the subject. It had been brought before the House rather earlier than he had expected, or than was perhaps necessary; and his observations, therefore, might not have been as full, or as well digested, as they ought to have been. Such as they were, he sub

mitted them to the candid attention of the Com

mittee.

Mr. W. SMITH (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, [Mr. MADISON.] but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the Committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the PRESIDENT and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British Constitution; but had concluded his remarks on that argument with allowing, that, after all, our own Constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the PRESIDENT and Senate by the Constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the Constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the Constitution. By referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth. He would then confidently appeal to the opinions of those who, when the Constitution was promulgated, were alarmed at the Treaty power, because it was by the Constitution vested in the PRESIDENT and Senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the Government. The discussions which took place at the time of its adoption by the Convention of the several States, proved, beyond a doubt, that the full extent of the power was then well understood, and thought by those who approved of the Constitution to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the Constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might ensue from the unlimited nature of the Treaty power were well considered before the Constitution was adopted, and Virginia required no further check than the one above recited. All.

[MARCH, 1796

therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators.

Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the Committee at this time with reading them. He would only recal the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania [Mr. GALLATIN] must well remember (having been one of the meeting) where, after stating objections to the extensive powers delegated by the Constitution, the following amendment was proposed, as necessary to limit and restrain the powers: Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the Constitution the check which is now discovered by this ex post facto construction.

Having stated the general opinion of the public, as manifested by the friends as well as the enemies of the Constitution, Mr. S. said he would proceed to show that the practice of Congress had, from the commencement of its existence, been conformable to that opinion. Several Treaties had been concluded with Indian tribes under the present Constitution. These Treaties embraced all the points which were now made a subject of contest-settlement of boundaries, grants of money, &c.; when ratified by the PRESIDENT and Senate, they had been proclaimed by the Executive as the law of the land; they had not even been communicated to the House; but the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian department. It was not pretended that the Constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the Constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations.

That this House considered a Treaty, when ratified by the PRESIDENT and Senate, as the law of the land, was further evident from a resolve of the House, of the 4th of June, 1790, in these words:

made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made, to the code of laws, as soon as they were ratified by the PRESIDENT and Senate, and promulged by the PRESIDENT.

[H. of R.

members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not Mr. S. then drew the attention of the Commit- they should perform that duty. Thus, unless they intended to arrest the operations of Government, tee to the various applications to the PRESIDENT last Summer,, requesting him to withhold his their discretion could not be requisite to determine whether they should appropriate the moneys nesignature from the Treaty, all of which proceeded on the idea (and the generally received idea cessary for its support; but out of what fund, and throughout the Union) that the Treaty would be when the moneys shall be paid, and other matters the law of the land, as soon as sanctioned by the of detail. So, when a Treaty was concluded, and PRESIDENT. Was the language, then, that this became a compact binding the nation, the discreHouse might interfere and defeat the Treaty?tion of the House (unless it was intended to violate our faith) could not determine whether the No, the language then was, "We look up to the PRESIDENT alone for preservation from the fatal moneys contracted for should be paid, but the instrument; if he signs it, nothing can save us alone be considered. The distinction, which was mode, the fund, and such questions of detail, would from it but war-we are left without resource." an obvious one, between power and right, had The idea of applying to this House was never dreamt of; it was an after-thought, devised by the not been attended to. The House had certainly ingenious subtlety of the few, and considered al- the right to do; they had the power to do wrong, the power to do many things which they had not most universally as a desperate attempt. In the but they certainly had not the right to do wrong; language of the New York meeting, the proceed- and whether the wrong was committed by acting ings of which were drawn up by men supposed to where they ought not to act, or refusing to act, understand the Constitution, the Treaty-making where they ought, was immaterial; both were power is called altogether an Executive power; equally reprehensible. It had been boldly said, they did not then suppose that this House could that there was no case which could possibly come at all interfere. To come still nearer to the pre- before them, where they would not be at liberty to sent period, Mr. S. referred to the late act of Virginia, proposing an alteration to the Constitution answer aye or no: he would produce a case-by the Constitution, on the application of a certain on this subject. This amendment was a conclusive proof that the Legislature of that State did number of States, wishing for amendments, Connot conceive that this House possessed any powered discretion, of which so much has been said? gress must call a Convention; where is this boastin relation to Treaties, for it expressly proposes to Could the House, in this case, exercise its discrechange the existing Constitution, by vesting such tion, whether or no a Convention should be called? a power in this House. The fate of that amend- Why not? Because the Constitution says it must ment was demonstration no less conclusive, that call a Convention: and does not the Constitution the public sentiment was opposed to such a change; for in every Legislature in which that amendment say," Treaties made by the PRESIDENT and Senate are laws, and that laws must be obeyed?" The had been discussed, notwithstanding the prejusame injunctions of the Constitution are imposed dices excited against the Treaty, it had been rein both cases; and as in the first, all this House jected; and the arguments which had appeared could do, would be to regulate the time and place on those occasions, show the ideas of the several of holding the Convention, so, in the latter, their Legislatures to have been, that the PRESIDENT and discretion would be limited to the mode, and fund, Senate now possess exclusively the Treaty power; and other details. The gentleman had mentioned those in favor of the amendment having advo- the article in the Constitution respecting approcated it, on the ground that it was dangerous to priations for military services-they were to be leave such power with those two branches alone; limited to two years; this article proved itself that and those against it having opposed it on the appropriations might be unlimited in every other ground that the power was properly and safely case. When a Military Establishment was instilodged, and that this House was illy qualified to tuted, it was known that an appropriation law for participate in a power of that nature. that purpose could not be in force more than two Mr. S. repeated his former assertion, that there years; no inconveniences, then, could result. But were cases where that House had not the right of there was no such limitation in respect to any withholding appropriations; if they had the power, other branch of expenditure; from custom, approindeed they might stop the proceedings of Govern- priations for the support of Government were anment altogether; and so, individuals had the pow-nual; appropriations even for pensions were annuer of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the Constitution; the

al, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith.

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

without the intervention of the PRESIDENT, and yet, by the Constitution, the Treaty-making power is classed with the Executive powers, and is expressly delegated to the PRESIDENT and Senate. Again, two-thirds of the Senate must sanction a Treaty, but a majority may pass a law; hence, it would follow, that, after it had been necessary that two-thirds should, in the first instance, ratify a Treaty, a majority would be sufficient in the second instance to give validity to the instrument. Further, the PRESIDENT concludes the Treaty, submits it to the Senate, who approves, and then it is laid before the House for information; but, according to the new doctrine, the act giving validity to the Treaty must pursue an inverted course; it must be commenced in the House, go to the Senate, and from thence to the PRESIDENT. By adhering to the Constitutional distinction, all these inconveniences are avoided; the PRESIDENT and Senate made the compact; Congress are to execute it.

Mr. S. said, he would conclude his observations on this important subject, by recalling the recollection of the House to a law, which fully confirmed the doctrine he had contended for.

The gentleman from Virginia had said, that this House might repeal a law by withholding the necessary appropriation. But this was a new doctrine; he had always understood it to be a fundamental principle in legislation, that it requires the same power to repeal a law, as to make one; to say that one branch could, by refusing to act, repeal a law which had received the sanction of the three, was a solecism in Government; as well might it be said, that the refusal of an officer to execute, or of a citizen to obey, a law, would be a repeal of such law. Much had been said of the power of this House, in originating money bills; this House alone, it was true, could, by the Constitution, originate bills for raising revenue, but the Senate could originate bills for appropriating money; the necessary appropriations for carrying the Treaty into effect may originate in the Senate as well as in this House; the Senate may alter or reject any appropriation bill which does not contain such appropriations as they may deem necessary for the public service. From the observations of some gentlemen, it would be supposed that this House had a general censorship over all the other parts of the Government, and an exclusive control over all their proceedings; It must be remembered, that, in March, 1794, a but this control was reciprocal; this House was law passed, laying a general embargo on all vesonly a part of the Legislative power, and possessed sels. After the law had taken effect, and all vesnone of the Executive. In Great Britain, the sels had been detained in pursuance of it, our House of Lords could not alter in the least any Treaty with Sweden was construed by the Execubill, even for appropriating moneys; he could not tive to exempt the vessels of that nation from the see with what view the practice of that country embargo; orders were accordingly issued to the had been resorted to, for there was not the smalí- Collectors to suffer them to depart; and they did est analogy between the two countries in this re- depart, notwithstanding the act of Congress, which spect. A gentleman had said, that we might re- laid a general embargo, and under which those peal a Treaty by law; but other gentlemen on vessels had been detained. In that case, no law that side of the question had been of a contrary was deemed requisite to repeal the existing act, in opinion; the fact was, that a Treaty could only respect to Swedish ships; the Executive alone be annulled by the consent of the contracting par- construed the Treaty, and finding that, by Treaty, ties, by a breach of faith, or by war. It had been such vessels were not liable to embargo, ordered admitted, that the PRESIDENT was justifiable in their release, although the act of Congress exissuing his proclamation respecting the Treaty, pressly included all foreign vessels; this circumbecause a part of the Treaty was binding; but stance was known at the time to Congress, and what that part was, gentlemen had not been pleased the conduct of the PRESIDENT considered as conto designate; the citizens were, therefore, left to dis-sistent with his duty. He saw no material disobey it at their peril; the PRESIDENT had made no such distinction; he had proclaimed the whole instrument as a binding compact; the public are now, however, told, that a part of it remained to be sanctioned by Congress. This novel doctrine was, that certain parts had no binding force till acts of Congress were passed, giving them efficacy; but even here gentlemen were not agreed among themselves what those parts were. Their idea of making parts of the Treaty over again by act of Congress was a very extraordinary one indeed; it involved a curious inconsistency, he had almost said, an absurdity. By the Constitution the PRESIDENT negotiates a Treaty, and lays it before the Senate, two-thirds of which approve. By the Constitution, a law is made by a majority of both Houses, and the approbation of the PRESIDENT, but two-thirds of both Houses may make a law, without the PRESIDENT. Thus, according to this new doctrine, a law, giving a binding force to a compact with a foreign Power, might be made

tinction between this case and the question now in discussion; here was an act of the Executive, without the intervention of Congress, in relation to a commercial regulation, in which a Treaty was deemed paramount to an existing law; the only difference between the cases was, that the Treaty with Sweden was made under the Old Confederation: but that could not weaken the principle, for it would not be denied, that the present Constitution meant to give the PRESIDENT and Senate at least as much power in relation to Treaties, as had been possessed by Congress under the Old Government.

MARCH 11.-In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. GILES said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has

been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the PRESIDENT, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the PRESIDENT conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable. He declared that he felt unfavorably towards the Treaty from the face of it; and that he believed the House had a right, and, if it was a right, it must also be their duty to oppose its execution by all the Constitutional means in their power as legislators, if they found it, upon mature deliberation, contrary to the interest of the people and the honor of the nation. He was sensible of the great responsibility which rested upon the House, and himself as a member of it, at the present important crisis. Under the weight of that responsibility, he felt it necessary to shape his conduct under the fullest information that could be obtained. But, while he acknowledged the importance of the final issue of the present question, he should not be induced by the weight of responsibility to swerve from his opinion; but he wished to form that opinion on the best information, and on the most mature consideration. This was the general motive that weighed on his mind in favor of the proposed call.

[H. of R.

own opinion of the Constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the Constitution to be incidental.

The gentleman from South Carolina had referred to the opinions of the Conventions of the States at the time of adopting the Constitution. As to Virginia, the gentleman had stated that that State had considered the checks as provided by the Constitution as inadequate, and proposed an amendment, purporting to require two-thirds of the whole number of Senators, instead of twothirds of the number present. This was true, he believed; but how would it apply in the sense the gentleman wished? The objection of that State was, that the check in the Senate, provided in the Treaty-making power, was not sufficient, and they proposed a greater: from which he would argue that they conceived the Treaty-making power to be a subject of extreme delicacy, and that they wished additional checks consequently added. How this was to prove that the Convention of Virginia did not construe the present clauses of the Constitution under debate as the friends of the present motion did, he was at a loss to determine. The gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. He had merely mentioned the result to the House. That gentleman had next professed to take a view of the opinions of the citizens of the United States antecedent to the present discussion, and posterior to the adoption of the Constitution. He had mentioned one case, viz: the meeting of the people of New York, who assembled to petition the PRESIDENT not to give his sanction to the pending Treaty, and exhorting him to refuse it, as, if it obtained his sanction, it could not be got rid of except by a war. Mr. G. remarked, he did not expect to hear that memThe right of the House to consider of the ex-ber quote the proceedings of town-meetings as a pediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important Constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the Committee.

The right of the House to the papers called for had not been denied by most of the gentlemen who opposed the present motion. They admit that the proposition, on the face of it, is not unconstitutional, if the House were about to exercise the powers in a Judicial capacity, to deliberate respecting an impeachment. The powers of the House, he insisted, did not vary with the different shapes they might constitutionally assume, whether they were exercising their functions as a Legislature or in a Judicial capacity. If the right to call for the papers was conceded to the House in one capacity, how could it be denied to them in another?

The question is, whether there be any provisions in the Constitution by which this House can in any case check the Treaty-making power; and, of consequence, whether it can question the merits of Treaties under any circumstances?

Various considerations had been advanced to show that the House cannot question the merits of a Treaty. Some of these considerations had grown out of the subject extrinsically, others from the provisions of the Constitution. Though at first he had intended to have stated simply his

rule for the conduct of the House. Such assemblages of the people had often been the theme of merriment, and always objects of contempt with that gentleman, so that he did not conceive how their proceedings could have any weight on the opinions of the members.

Mr. SMITH, of South Carolina, observed, that on the present question he had said nothing against the propriety of town-meetings.

Mr. GILES allowed that on the present occasion the gentleman had not repeated his sentiments respecting those meetings. For his own part, he was always ready to acknowledge that the result of those assemblies of the people, for the expres sion of their opinions, had a weight on his mind; but he might be permitted to ask that gentleman why, since he placed no faith on that source of information, he brought any thing said at such meetings into the view of the House? If the gentleman admitted the sense of those meetings as the orthodox explanation of the doubtful