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H. OF R.)

Treaty with Great Britain.

[MARCH, 1796.

parts of the Constitution, and as the expression of South Carolina.] He had remarked that the the public will, he would not, he hoped, consider House had passed a general resolution directing it as out of order when any question should arise, the Clerk to place in the code of laws of the Unitto hear the proceedings of those meetings cited ed States Treaties made under the authority of as an exposition of the public will.

the United States. Was this, he asked, an expoBut, in the present instance, he conceived the sition of the meaning of the Constitution ? He bemember unfortunate in his quotation. The meet- lieved the resolution a very proper one, and would ing wished to persuade the PRESIDENT not to vote now for its adoption if it was yet to be passed. sign, and they used the strongest expressions they It is certainly proper, when a Treaty is concluded could think of to convince him of the improprie- under the authority of the United States, that it ty of putting his hand to the fatal instrument. should be annexed in their code of laws; but this The meeting was not assembled for the purpose could not weigh against the exercise of discretion of expounding the Constitution: they met to give in the House on important Legislative subjects. weight to an application made to the proper au- The practice of the House, with respect to apthority to beg that the Treaty might be crushed propriation laws, in the cases of Indian Treaties, in that state of the business. But, to take the had been mentioned by the member from South gentleman's own rule of construction, it will be Carolina. In the first place, in observing upon found that when their petitions to the Presi- this, he would remark, that he always conceived DENT were of no effect, they then addressed this there was a distinction between an Indian Treaty House as their dernier resort. If these popular and a Treaty with a foreign nation. The English proceedings were to be considered as an expres- had always made a distinction when we were Cosion of public opinion, he would say that the pe-lonies. The Constitution establishes an express titions on the table of the House were more nu- difference. He should not, however, found his merous than he had ever known them on any objections to the inference of the gentleman upon question whatever. From these petitions it will this, but would examine it unconnected with this be found that the people had recognised the pow. distinction. Provisions had been made by this er of the House to interfere, and begged them not House to carry Indian Treaties into effect; but to abandon their rights.

why? No doubt because the use conceived it The next subject the member from South Ca- wise so to do, not because they had not a right to rolina touched upon was, the late amendments use their discretion in the business. Suppose, on proposed to the Constitution by the State of Vir- any of those occasions, a motion had been made ginia. He deduced, from one of these amend- to strike out the sum proposed to be appropriated, ments, that the Legislature of that State did not would it have been said that the motion was out conceive the power of the House to extend to of order? A similar motion was made lately matters of Treaty. This he did not believe a with respect to the Mint, and it was not considerfair deduction. It is not contended that there are ed as out of order. If, on that occasion, it had words in the Constitution expressly giving this been the opinion of the House that the Mint was participation in controlling Treaties to the House, an improper establishment, by refusing the approit is only contended for as growing out of the spe- priation they could have defeated the law. It cific powers vested in Congress. The object of was certainly the opinion of the House that they the State of Virginia was then to exchange a could exercise their discretion in the business, for construction that might be disputed for an expres- it was not even hinted that the motion for striking sion not to be doubted. It was unnecessary for out was out of order. the gentleman from South Carolina to remind On another head the gentleman appeared to the State of Virginia of the fate of their propo- plume himself much. He had asked, why, since sitions in the Legislatures of the several States. Vir- the President had proclaimed a Treaty as the ginia, he hoped, would pursue uniformly the line law of the land, which was not the law of the of conduct that had marked her political charac- land, why he was not impeached? This question, ter, under whatever circumstances she might hap- the member exultingly, remarked, had not been pen to be placed. Her conduct had been uniform answered, because, he imagined, it could not be from the Declaration of Independence to the pre- answered. sent day; uniform and exemplary in their obedi- Suppose I should tell the gentleman, said Mr. ence to the laws, and in their activity against en-G., that I could not now give him an answer, croachments; and, notwithstanding the fate of would it show that the House had not the authorher proposed amendments, he prided himself in ity contended for by the friends of the present morepresenting a State that never offered the slight- tion? Why was the subject mentioned ? Not est mark of disrespect to a sister State for differ- with a view, I believe, to the discovery of the ing with her in opinion. If Virginia had been truth. I fear it is calculated to produce an oppothe cause of some indelicacies on the part of other site effect-to check investigation. It is too often States, she is the innocent cause. They had ex- the case that the names of persons are brought ercised a Constitutional right which they con- into view, not to promote the development of ceived it their duty to exercise, and they could not principles, but as having a tendency to destroy be responsible for any indelicacies to which that freedom of inquiry. I will go further with the conduct might have given rise.

gentleman, and admit for a moment (a position, The practice of the House had been referred to however, I shall by and by controvert) that the yesterday by the member last up, [Mr. Smith, of PRESIDENT conceived that he had a right, after

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

the exchange of ratifications, to promulgate the limited in its objects, he meant, however, that Treaty as the supreme law of the land; what they had confined it only within the liinils of the would this amount to? Why, only that this was Constitution; but even admitting it in that exhis opinion ; but is that authority here? In any tent, is certainly a doctrine sufficiently alarming. other case rather than the present, I should be in- When the gentlemen contend for its supremacy, clined to pay a greater respect to opinions from they also admit in this point some qualifications; that source; but now, when the question is about according to their doctrine, it is not to be supreme the division of powers between two departments, over the head of the Constitution, but in every are we to be told of the opinions of one of those other respect they contend that it shall be unlimdepartments, to show that the other has no righi toited, supreme, undefined. Gentlemen who insist the exercise of power in the case. Such appeals that Treaties are supreme, next to the Constituare not calculated to convince, but to alarm. tion, must also grant that there is no necessity for

He acknowledged that the President's Procla- the House to trouble themselves with making laws. mation differed from what he expected it would It will be remarked, said Mr. G., by examining have been; because the President had expressly the history of man, that the people have always said in his Speech, at the opening of the session, been desirous to check the exereise of power in that he would lay the subject of the Treaty be- the administrators, and as uniformly have admin-fore the House; and not, he supposed, for their istrators endeavored to evade those checks. The opinions only, but for their agency. He believed, same among us. The American people, sensible however, the Proclamation was issued in its pre- of this, when they, after a fortunate struggle for sent form with the best intentions ; but the au- their liberties, were about to exercise their discrethority for the opinions on which it was founded tion in the establishment of a Constitution that would not, he said, prevent him from exercising should secure their rights and liberties, formed a his own. Opinion, said Mr. G., is sometimes re- | Government of checks. The Americans have the pulsive. When it is pressed too closely, resistance reputation of a sagacious people, and have showed and reaction, not favorable to the investigation of their sagacity in framing this Constitution ; but truth, are the consequence. The whole argu- even if they had proved themselves more sagament of the gentleman on this ground, then, provescious in devising checks, a correspondent sagacity nothing, and is attended with this ill effect-to would still have been found in the Government to check the discovery of truth. But he hoped the evade them. Never, I will venture to say, was House would seek within themselves for opinions, there an instance of a more complete rout of so and not travel for them to other departments of complete a system of checks, within the term of the Government. He had said, however, that it was six years, in any Government on earth; and if his belief that it was not probable the President the doctrine now contended for be agreed to, then viewed the Treaty as the supreme law of the land I do declare that the triumph of evasion of checks before it had been submitted for Legislative de- is complete, indeed, and little will be left hereafter cision; and this belief was grounded on the in- to be evaded. tentions which the PRESIDENT expressed in his The construction contended for by the friends Speech of laying the subject before the House. of the resolution is derived from two sources

Having examined the objections to the con- from the Constitution, and the nature of things. struction contended for by the friends of the mo- The Constitution says, the President, with the tion, drawn from collateral sources, he should advice and consent of two-thirds of the Senators turn his attention next, he said, to the intrinsic present, shall make Treaties. Perhaps, if there meaning of the Constitution. He would attempt was no other clause, the Treaty-making power to interpret the Constitution from the words of it. might be considered as unlimited. Another clause It was a misfortune the clauses were not more declares that the Constitution, the laws made unclear and explicit, so far as to force the same der it, and Treaties, shall be the supreme law of meaning upon every mind, however they might the land. Here the gentlemen, when they quote differ in opinion in other respects. However, this clause, stop, as if there were no other words from the imperfection of language, it was no won- in it; and from all this it would appear that the der, he observed, that on an instrument providing people had, in fact, delegated an unchecked power. for so many different objects, and providing such | But, if we go on, ii will be found that the last-mena variety of checks, various opinions as to con- tioned clause adds that the Judges in the respecstruction should arise ; but he considered the pre- tive States shall cause them to be executed, any sent clauses of as plain import as any part of the thing in the Constitution or laws of the individual instrument. The construction contended for by States to the contrary notwithstanding. From the opposers of the motion is, beyond denial, the the jealousy which individual States showed unmost dangerous in its effects, and the least proba- der the Old Confederation for the preservation of ble, as he thought, in its meaning. It is contend- their powers, and the inconveniences which were ed by them that the Treaty-making power is un experienced in consequence, it was found necesdefined in its nature, unlimited as to its objects, and sary, when organizing a new Government, to desupreme in its operation ; that the Treaty-mak-clare, explicitly, that their Constitutions and laws ing power embraces all the Legislative powers ; must yield to the Constitution, laws, and Treaties operates by controlling all other authorities, and of the United States, and for this purpose this that it is unchecked. When he had asserted this clause was introduced. power, as contended by the gentlemen to be un- Gentlemen, after granting that the Constitution

H. OF R.

Treaty with Great Britain.

[MARCH, 1796.

is supreme when in opposition to Treaties, con in the contract, not because it is the interest of tend that Treaties are supreme over laws. They the United States that it should be so. also admit that this is not warranted by the Con- Mr. G. then contended that, in proportion as an stitution, but they contend that it is so from the authority is undefined, in that proportion every nature of things. From the nature of things, he check should be exercised. It is the height of said, he should infer the reverse, though he disa-folly to contend that the American people ever greed in this from the gentleman from Penn- intended to give any authority an unlimited opesylvania, [Mr. Gallatin.] He contended that ration. If the Constitution be examined, it will the Constitution and the acts of the Legislature be found grounded on a jealousy against all ruannul Treaties, and that Treaties do not annullers; this is evident from the face of the instrulaws. . This he should infer from the nature of ment. Treaties and the nature of laws. Gentlemen said In the first place, it contains limitations to the that Treaties could not be repealed, because they aggregate powers of the Government. In the were made by two contracting parties. This next place, it provides checks for the powers given sounds very well, but was ever such a thing heard up. These checks are at least of three kinds; the of as a Convention to repeal a Treaty ? If this first is, that of a distribution of different species had never been done by Convention, it is at least of authorities into distinct hands, as in the case of presumable that the omission to have done so here the Legislative, Executive, and Judiciary; secondtofore renders this theory doubtful. The truth is, ly, it requires a concurrence of different branches that the right of annulling Treaties is essential to of the Government for the exercise of the same national sovereignty ; and nations have at all times species of authority, as in the case of all Legislataken their own measures respecting Treaties, un- tive subjects, the concurrence of the Senate and der the common responsibility for the breach; this House, to which is subjoined the qualified but if such is the practice, as is contended for, it veto of the President; the third species consists would be advisable in the present case. Perhaps, of prohibitions upon the whole of the departments said Mr. G., if nis gracious Majesty is once more in the exercise of particular authorities intrusted saluted with an expression of our reliance on his to them, as in the case of a prohibition of an apmagnanimity, and well known justice, &c., he may propriation for the support of an Army for more relieve us from the burden. If the epithets are ihan two years; the prohibition respecting exreverberated on him, they might rid us of that ports under the power to regulate commerce, &c. dilemma, which they had such an agency in pro- So jealous has the Constitution been with respect ducing

to armies, that it also requires biennial elections Mr. G. contended, that this mode of repealing for the purpose of enabling every new House to Treaties by Conventions was merely theory, and prevent the execution of a law for raising an Army that no instance of the exercise of such a power by withholding the appropriations for its support. could be met with in the history of nations, neither Whilst the Constitution was formed under this is the doctrine consonant to reason. The reason spirit of jealousy, it would have been wonderful why a law should repeal a Treaty, is because the that that power which is described to be unlimitlaw is an expression of the will of the nation, ed in its objects, undefined in its nature, and parathrough their Constitutional organ. He did not mount in its operation, should have been left unmean to say, that a Treaty is not binding as long checked; it would have been an evidence of the as it is a law: But, if it is admitted that the House, most egregious folly. The American people were in concurrence with the other branches, have the incapable of it; accordingly, checks are found in power of declaring war, then he would not say, the Constitution, if it be fairly interpreted ; and it that the Legislature were to repeal Treaties article is not very material whether these checks are in by article, but certainly they may annul them. express words, or whether they result virtually He would go farther, and suppose, by the instru- from the distribution of the several powers. It is

ment submitted to the House, an equalization of sufficient that they are efficacious. - duties on foreign and domestic bottoms be pro- The checks on the Treaty-making power he vided for, to the injury of our carrying trade; sup- considered as divisible into two classes; the first, pose a law should then pass annulling the Treaty; consists in the necessary concurrence of the House gentlemen say this would lead to war; perhaps it to give efficacy to Treaties; which concurrent might have the effect, but that is not now the ques- power they derive from the enumeration of the tion; the question of right is now in debate; sup- Legislative powers of the House. Where the pose a law should pass repealing, by the concur- Treaty-making power is exercised, it must be unrence of the proper authorities, the particular ar- der the reservation, that its provisions, so far as ticle, the existence of which he had supposed, the they interfere with the specified powers delegated Treaty would be rendered pro tanto void. Sup- to Congress, must be so far submitted to the dispose, he said, in the case of the present Treaty, cretion of that department of the Government. The ihat the Parliament of Great Britain refuse to President and Senate, by the Constitution, have carry it into complete effect, were we to enforce the power of making Treaties, Congress the powon Great Britain a compliance of its stipulations ? er of regulating commerce, raising armies, &c.; Great Britain had at all events the right so to act, and these, he contended, must form so many extaking the consequences of her conduct upon her- ceptions to the general power. Gentlemen had self. "But gentlemen contend that a Treaty is ir said that the Constitution was the exposition of repealable ; and because a foreign Power is a party the will of the people, and, as such, that they would

March, 1796.)

Treaty with Great Britain.

[H. OF R.

obey its injunctions. There could be no differ- to do wrong. He would answer him in a manner ence of opinion on this ground; for his own part, as trite, and say, that it never could be wrong to he confessed, if he adored anything on earth, it is do right. But this proved nothing ; still it is nethat will. But the question is, what is that will, cessary to inquire and judge what was right and as expressed in the Constitution ? That instru- what wrong, and to do this, discretion must be ment, to his mind, explained this question very exercised. So, in the present case, if it is right clearly. It enumerates certain powers which it to carry the Treaty into effect, it would be wrong declares specifically vested in Congress; and where not to do it; and so, if it would be wrong lo sancis the danger to be apprehended from the doctrine tion it, it could not be right to agree to it. But this laid down by the friends of the resolution ? the is to be determined by the exercise of a sound discrecontrary construction must produce the most per- tion. Heowned he felt attached to the old-fashioned nicious consequences; agreeably to that, there discretion, which consists in the faculty of chooswould remain no check over the most unlimited ing or refusing; he could not admit of the docile power in the Government. The gentlemen con- complying discretion, that gentleman contends for; tend, that the House must remain silent spectators he would call it a predestinated discretion. The in the business of a Treaty, and that they have no effect of this new-fangled discretion would be, not right to the exercise of an opinion in the matter; they to vote according to the conviction of one's own must then abandon their Constitutional right of mind, but by that of another. A clause of the legislation; they must abandon the Constitution Constitution had been cited to support the definiand cling to Treaties as supreme.

tion of discretion advanced by ihe gentleman; The other check over the Treaty-making pow that part which directs that Congress shall call a er, he noticed, was the power of making appropri- convention when a certain number of States reations, the exercise of which is specifically vested quire it. This surely could not apply to the docin Congress. He begged leave to call the particu- trine advanced ; there was, in that case, no room lar attention of the Committee to this part of the for the exercise of discretion ; discretion is out of subject. The Constitution says, that no money the question, and there is a positive obligation, shall be drawn from the Treasury, but in conse- under the binding force of an oath, to do a thing quence of appropriations made by law. This is when required in a certain manner; in this matno doubt intended as a check in addition to those ter, Congress are only to execute the injunction possessed by the House. It is meant to enable of the Constitution. Gentlemen had attempted to the House, without the concurrence of the other set up a new doctrine as to the operation of the branches, to check, by refusing money, any mis- moral sense ; their moral sense was to be exercised chief in the operations carrying on in any depart-. by the President and Senate, and they were willment of the Government. But what is a law? It ing to abide by its operation in the breasts of those is a rule prescribed by competent authority. The branches of the Government. He had always unword law in the cause of the Constitution he had derstood, for his own part, that an agent who had last poticed, was not meant in reference to the the right to be directed by his moral sense, must Treaty-making power; but in reference to Con- be a free agent. gress. A law prescribes a rule of conduct; it is There could be, he contended, no Legislative the expression of the will of the proper authority; act without deliberation ; the opinions which were it is the result of discretion. Legislation implies to guide their decisions must be matured by dedeliberation. If a law is the expression of the will

, liberation ; they were not to decide upon predesmust not an appropriation law be equally so? Buitinated impressions; but their conduct must rest gentlemen had found out a new-fashioned expo- on the operations of their own minds. sition of the word discretion, and, according to A gentleman from Connecticut had discarded their definition in fact, it was no discretion at all. all pretence to the exercise of discretion; he might They had mentioned a part of the Constitution have an opinion as a citizen, but would not have which provides that the salaries of the Judicial one on the present question as a legislator. This department shall be fixed; and asked, whether was a nice distinction, indeed; he could not, for his the House should conceive itself at liberty to use own part, abstract in this way the citizen from the a discretion in appropriations for that depart- legislator. He declared, he would not form an ment? Before he could consider this case and opinion ; Mr. G. conceived it the duty of a legisthat before the House, now parallel, he must beg lator to exercise an opinion, and not shut his eyes gentlemen wou point out any part of the Con- against conviction, and not to receive them from stitution that declared the House should not exer- extrinsic quarters. When the Constitution says, cise their discretion when called upon to make the Legislature shall enact laws, it implies that appropriations to carry into effect a Treaty. He they must be the fruits of deliberation, and not in could find nowhere, that, in this case, the right of the nature of an Executive act. opinion of the House is constrained.

The uniform practice of the British GovernA member from South Carolina had given to ment had been cited to have been, in the case of discretion a negative meaning; and chose to con- Treaties, the same as that contended for by the ceive that the discretion contended for by the friends of the present motion. The greatest securifriends of the motion, was a discretion of whim ty for the liberties of the people established in that and caprice; this was not the case. He had then Government, depends on the control which their attempted to combat the doctrine of discretion by Parliament hasover the purse-strings. In England, a trite remark, indeed, that it never could be right this power rests merely on custom ; here, the

H. of R.]

Treaty with Great Britain.

[MARCH, 1796.

House are expressly intrusted with it; what is a check upon the Legislative power, for the necustom in England, is reduced to writing in our gotiation necessarily foreclosed any further LegisConstitution. Then, if this power is in England lative proceedings. It did more than this; the a ground for Parliament to judge of Treaties, it Executive legislated against legislation, and overis a fair interence that it ought to be exercised ruled them on the subject in contest. He should here. The practice of the British Government, not advert at this time, he said, to the collateral he observed, had often been quoted here, in sup- circumstances which attended this business, nor port of doctrines very different from those in aid go further in detail ; he wished only to remark of which it is now cited; it has been deemed or-generally on the dangerous operation of the docthodox when it favored Executive prerogative. trines contended for. Now, it is said, the House He confessed, he never did expect that, as early have nothing to do but to obey, to appropriate the as 1796, a reference would be made to practices, necessary money, leaving all deliberation aside. under the British Government, in support of the Three years ago there was a further difference rights of the popular branch of our Government. of opinion between the branches of Government It was painful to be obliged to have resort to that on another interesting question. One branch was Government on such an occasion ; but the author- disposed to have an increase of the Military Esity of that Government should not be rejected for tablishment; a proposition to this effect was once, because its practice could be quoted in fa- brought into the House, and negatived. The vor of the popular branch. The ground of the Senate, notwithstanding. successively sent down practice in England, and of the right claimed two or three bills for an increase of the Military here, rests upon the sound maxim, that all public Establishment,they were as repeatedly negamoney is from the pockets of the people, and that | tived by the House. Here different views existed, it should be expended by none but their Repre- but the doctrine of checks was liberally exercised, sentatives. No maxim' had been more instru- and he thought to a good purpose. mental than this, in preserving the remnants of If the PRESIDENT, said Mr. Giles, can, by the British freedom; and thus early is the House called assistance of a foreign Power, legislate against upon to abandon it here.

the rights of the House to legislate, and his proSince checks were so wholesome and efficacious, ceedings are to be binding on the House, it necesand the want of them so dangerous to the rights sarily destroys their right to the exercise of disof the people, there could arise no evil conse- cretion. If he can by Treaty declare, that com. quence, and but little inconvenience, from a mul- merce shall not be regulated, that property shall tiplicity. What would the doctrine lead to, which not be sequestrated, and that piracies shall be goes to the suppression of the check now contend-judged and punished as he thinks fit; if he is to ed for ? That the PRESIDENT and Senate may, if exercise the unlimited Treaty-making power conthey please, reduce the House to a formal and not tended for, what security have we that he may an efficient branch of the Government.

not go further when the negotiations are renewed Treaties are contended to be paramount to the with Great Britain, agreeably to the stipulations laws; the President and Senate make these Trea- of the present Treaty ? What security have we ties, and when made and proclaimed as the su- that he will not agree with Great Britain, that if preme law, there is a predestinated necessity in she will keep up an Army of ten thousand men in the House to make the requisite provisions for Canada, he will do the same here? How could such carrying them into effect. The danger of this a stipulation be got over by the House, when they doctrine, he said, could not be better exemplified, are told that in matters of Treaty they must not than by a reference to the circumstances that at- pretend to exercise their will, but must obey ? tended the late Treaty in its progress. Three How will this doctrine operate upon the power years ago, a difference took place between the dif- of appropriation ? A Military Establishment may ferent branches of Government, as to the policy be instituted for twenty years, and as their moral that should obtain in reference to the conduct sense is to prevent their withholding appropriaof one foreign nation. The House were unwill- tions, they can have no power over its existence. ing to trust solely to the magnanimity of the Gentlemen should pause, he said, and consider King, and wished to make some exertions them- what would be the situation of the United States, selves for self-protection. With this view several under this doctrine, before they give it their sancmeasures were proposed, viz: commercial restriction. What he had mentioned as a possible retions, non-importation, embargo, sequestration, or sult of it, he observed, would beat more evidence rather arrestation upon the ground of the status of probability if the doctrine was established. quo. One of the measures passed the House by a Establish the doctrine, said Mr. G., and under its respectable majority, but was rejected in the Se- influence he thought there was a greater probanate by the casting vote of the Vice President. bility, at this day, of a stipulation for such an The President appointed an Envoy Extraordi- armament, than there was on the day the late pary, who entered into certain stipulations, which, Envoy was appointed, that such a Treaty as the being sanctioned by two-thirds of the Senate, it is present would have been the result of the negonow contended, are to operate to the destruction tiation. He took a retrespect of the circumstances of the powers specifically vested in the House. attendant on that negotiation. When the Envoy

If the above was a true statement, he said, and was named, what were the expectations ? Not he did not see in what particular it could be con- that he was going to throw himself upon the tradicted, then the Executive had been exerted as magnanimity of the Monarch ; but that he would

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