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Treaty with Great Britain.

MARCH, 1796.]

obtain a redress of grievances, and provide for the future security of our neutral rights; but what redress or security does the issue of the embassy promise?

[H. OF R.

He concluded by observing, that the interpretation of the Treaty clauses of the Constitution, as expounded by the gentlemen, would lead to a despotism of the worst kind. And if they were to plunge the nation headlong into the evils that must result from the establishment of the doctrines contended for by the empty sounds of war and disorganization, he should then lament the weakness-he should then, and not till then, dis

Gentlemen had gone so far as to declare, that an attempt to examine the merits of the Treaty was rebellion, was treason against the Constitution. What justifies these harsh epithets? Such assertions could only create ill-will, and could not tend to the investigation of truth. Another argu-trust the discretion of the House. ment of the same nature had been used. It was said, that the attempt at exercising a control over the Treaty-making power was disorganizing the Government. He believed the contrary would be found to be the case: The doctrine advocated by the friends to the motion, only goes to claim a negative voice in the business of Treaty-making; whereas the doctrine of its opposers claims the exercise of a power, that would supersede the specific authority delegated to the Legislature in all cases whatever. How would even a rejection of the Treaty disorganize the Government? Suppose the House should vote the Treaty null, and the next day quietly pass a land bill; would not the bill go calmly through its different stages? There is no foundation for the imputation; it is mere clamor and noise, vor et præterea nihil. Checks have been exercised before, and have not produced these dreadful consequences. When the House attempted to suspend the intercourse between this country and Great Britain, they were checked by the Senate, the Treaty was the only evil consequence of this. The use of checks is destroyed when the doctrine of coalition among the different branches prevails. Such coalescing does not render the Government strong; the strength of such a Government as ours is in the confidence of the people. Then let each branch make a manly use of its delegated authority; they will retain that confidence and secure that strength.

He did not believe, however, that the American people could be enslaved by their Government; they were too well convinced of the effi cacy of the system of checks to suffer their liberties to be filched from them for want of the exercise of them. He remarked, the House had not been told yet how the exercise of discretion in the business of the Treaty was to destroy the Government. Possibly the Treaty with Britain is to give it energy, and if it be defeated, then disorganization was to ensue. But is the Government of the United States so low as to require foreign aid for its support? If it is tottering thus early, it may want, ere long, new negotiations and new concessions to prop it.

Mr. G. said, that before he concluded he could not help remarking, that the terms of war and disorganization had been often applied to himself, and others, who generally associated with him in political opinions; that he had at all times beheld those groundless calumnies with contempt; that he disdained them, and had never condescended to any explanation. He remarked, that he was not in the habit of making professions; he knew that his conduct was the criterion by which he ultimately would, and ought to be, judged; and to that, with pleasure, he made his appeal for his justification.

Mr. SEDGWICK said, that, after the length of time which had been consumed, and the talents which had been so ably exerted in the discussion of this subject, he should not think himself authorized to call the attention of the Committee to any observations of his; but, that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this IIouse. It was no less than whether this House should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the Government. We had heretofore been warned emphatically against seizing on power by construction and implication. He had known no instance in which the caution that warning enforced, deserved more attention than on the present occasion.

It must, he said, have been foreseen by the author of the motion, that it would ultimately be contested on the present ground. No sufficient reason had been given as an object for the call. The various reasons which had been hinted at had hardly been suggested before they were respectively abandoned. It would be remembered, and indeed had been avowed, that a request, such as the present, was in nature of a demand. It was true, if we had authority on the subject of forming Treaties, we had a right to all the means of exercising an intelligent discretion; and the demand, of course, was well founded. But, if we had no such authority, and we had none, unless it could be discovered in the Constitution, then the demand had no good foundation on which it could rest, and was, in his opinion, an attempt at seizing on power by usurpation.

This would be a dreadful dilemma, that the Government should not possess efficacy enough in itself, but must lean on Great Britain for support. This would be a great reflection on the Government, and the conclusion to be drawn would be, that the confidence of the people had been mis- He was perfectly sensible in how disagreeable placed. He believed the Government a Govern- an attitude a man would stand, who should atment of checks; that it was not intended the en-tempt to limit the extent of power claimed by an ergy of the Executive was to be increased by a assembly to which he should address himself. He coalition or subordination of departments, and had some of the most powerful inclinations of hupropped by a foreign Power. man nature to contend with. He felt the full force

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Treaty with Great Britain.

of the influence of this principle, as it would afford
the cause of repulsion and resistance to the argu-
ments which he might submit: But having formed
an opinion, perfectly satisfactory to his own mind,
from the best light which honest investigation
could procure, he thought it a duty he owed his
country and posterity-a duty rendered more in-
dispensable from the obligations which were upon
him-to obey the will of the people expressed in
the Constitution of their Government, which he
had sworn to support, solemnly to declare that
opinion, and the reasons on which it was founded.
He, in his conscience, believed, that if the Con-
stitution could operate the benefits its original in-
stitution intended-that if the Government should
be rendered adequate to the protection of liberty,
and the security of the people, it must be by keep-effects of this power.
ing the several departments distinct, and within
their prescribed limits. Hence, that man would
give as good evidence of Republicanism, of virtue,
of sincere love of country, who should defend the
Executive in the exercise of his Constitutional
rights, as the man who should contend for any
other department of Government. If either should
usurp the appropriate powers of another, anarchy,
confusion, or despotism, must ensue: the functions
of the usurping power would not be legitimate,
but their exercise despotism. If the power of con-
trolling Treaties was not in the House, the same
spirit which might usurp it might also declare
the existence of the House perpetual, and fill the
vacancies as they should occur. The merits of
the present question, it seemed to be agreed, de-
pended on this right; it was of infinite impor-
tance, therefore, to decide it justly.

It would be taken for granted, and it would be conceded on all hands, that we were to resort to the Constitution, to know the extent and limits of our power, and if we found not there a clear evidence of its existence, we ought to abandon the exercise. It was certain we had not any express delegation to make or to control the public will in any of our relations with foreign nations. On the other hand, we found it declared, that the PRESIDENT should have power to make Treaties by and with the advice and consent of the Senate, provided two-thirds of the Senators present concurred. Treaties, to attain the ends for which they were designed, were, from their nature, supreme laws; but the Constitution had, in another place, declared, Treaties made under the authority of the United States should be supreme laws. Gentlemen had said, that it was not declared that Treaties made by the PRESIDENT and Senate should have this effect; but those made under the authority of the United States. The question then recurred, what Treaties were made under the authority of the United States? The true answer undoubtedly was, Treaties made by those to whom the people, by their Constitution, had delegated the power. The PRESIDENT, qualified as had been mentioned, had expressly, and none else had such power. If we were to rest the subject here, it would seem to follow irresistibly, and

The power of treating between independent nations might be classed under the following heads: 1. To compose and adjust differences, whether to terminate or to prevent war. 2. To form contracts for mutual security or defence; or to make Treaties, offensive or defensive. 3. To regulate an intercourse for mutual benefit, or to form Treaties of commerce. Without the first, war and contention could only be terminated by the destruction of one of the parties; without the second, there could be no defence, by means of union and concert, against superior force; and without the last, a profitable and beneficial intercourse could not be arranged on terms of reciprocity. Hence, then, it must be evident to every unprejudiced mind, that by a grant of power to make Treaties, authority was given to bind the nation by stipulations; to preserve peace or ter

to be incapable almost of higher proof, that when-minate war; to enter into alliances, offensive and ever a compact was formed by the PRESIDENT defensive, and to form commercial Treaties.

[MARCH, 1796.

with a foreign nation, and had received the advice and consent of the Senate, if it was of such a nature as to be properly denominated a Treaty, all its stipulations would thereby, and from that moment, become "supreme laws."

That such had been the construction from the commencement of the Government to the promulgation of the British Treaty, he believed would be universally admitted; and but for that Treaty, probably never would have been denied. Did this afford no evidence that the construction was a just one? Was the subject a less important one, its decision might be safely trusted on this ground. But all-important, as it was, for the purpose of further investigation it might be useful to consider the nature, extent, objects, and

What authority was then delegated under a grant of power to form Treaties? Did not the term Treaties include all stipulations between independent nations relative to subjects in which the contracting parties have a mutual or common interest? If it had a more confined or limited sense, it became those who contended for it, to mark the limits and designate the boundaries. Without a power so extensive, much of the benefit resulting from amicable intercourse between independent nations would be lost; and disputes and differences, which are inevitable, would have no means of amicable termination. From the obvious utility, and indeed the absolute necessity, that such a power should be exercised, we know of no civilized nation, either ancient or modern, which had not provided the organs of negotiation to the extent, substantially, which he had mentioned. The power indispensable had always been delegated, though guards had been provided against its abuse by different means.

It was not now to be inquired, whether the power of treating was wisely deposited, although he was inclined to believe it could not be intrusted to safer hands. It was sufficient, that those who had the right, the citizens of America, had declared their will, which we were bound to respect, because we had sworn to support it, and because we were their deputies.

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

This power, he held, unlimited by the Constitu- If intolerable burdens were wantonly imposed; tion, and he held, too, that in its nature, to the if necessary to defeat the oppression, opposition extent he had mentioned, it was illimitable. Did and insurrection would not only be authorized, a serious difference exist with a foreign nation, in but become a duty. And if any man could hondetermining on the nature and extent of the stip- estly lay his hand on his heart, and in sincerity ulations which might be necessary to adjust it, declare, that a compliance with any existing the cause of injury, national rights and honor, the Treaty was worth more than our Government, evils of war, and all circumstances of relation be- our Constitution, our Union, and the liberty protween the two countries, must be taken into ac- tected by them; to that man he was ready to decount. In forming alliances, the threatened pres- clare, that opposition had become a duty. But, in sure, your own and your enemy's relative strength, every instance of opposition, whether in defeat of the objects of acquisition or defence, must be a Legislative act, or of a Treaty, the right of reconsidered. And, in adjusting an equitable inter-sistance resulted not from the Constitution itself, course for commercial purposes, a thousand cir- for it had declared no such right; no Constitucumstances present themselves for nice calcula- tion could declare it. It existed in original printions. A thousand circumstances of foreign rela-ciples, and never could be exercised but by retions would occur in the history of every country, sorting to them. under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils.


But it might be objected, that a power so enormous, and comprehending such essential interests, might be abused, and thence asked, where is the remedy? To this he answered, that a national association required, for the great purpose of preservation, an unlimited confidence on many subjects. Hence, not only this, but perhaps every other national Government, had delegated to it an unlimited control over the persons and property of the nation.

It might, by the express power given to it of raising armies, convert every citizen into a soldier, and, by a single assessment of a tax, it might command the use of all the property in the country. The power to raise armies and taxes was limited in its exercise by nothing but the discretion of the Legislature, under the direction of its prudence, wisdom, and virtue. Was there no security against a wanton abuse of these enormous powers? Yes, it was to be hoped that the people, in electing the members of this House, and the States in choosing those of the other, would not select characters, who, regardless of the public good, would wantonly impose on their constituents unnecessary burdens. It would be an additional security, that the interests of the rulers were inseparably connected with those of the people; that they could impose no burdens in which themselves did not equally participate. But, should all these guards be insufficient. was there no dependance to be placed in the PRESIDENT?-the man elected by a refined process, pre-eminent in fame and virtue, as in rank! Was there no security in the watchful guardianship of such a character? Responsible by everything dear and valuable to man-his reputation, his own and his fellow-citizens' happiness-was there no well-founded reliance on all these considerations, for security against oppression? If not, we had not the requisite materials by which to administer a Republican Government, and the project might be abandoned. After all, however, should the unlimited powers he had mentioned (and such powers must always be unlimited) be wantonly abused, was there no remedy? Yes, in the good sense and manly independent spirit of the people.

Gentlemen had spoken of the subject as if the members of this House were the only Representatives of the people, as their only protectors against the usurpations and oppressions of the other departments of the Government. Who then, he asked, were the Senators? Were they unfeeling tyrants, whose interests were separated from and opposed to those of the people? No. Did they possess hereditary powers and honors? No. Who, as contemplated by the Constitution, were they? The most enlightened and the most virtuous of our citizens. What was the source from whence they derived their elevation? From the confidence of the people, and the free choice of their electors. Who were those electors? Not an ignorant herd, who could be cajoled, flattered, and deceived-not even the body of enlightened American citizens; but their legislators, men to whom the real characters of the candidates would be known. They did not possess their seats in consequence of influence obtained by cajoling and deceit, practised in obscure corners, where the means of detection were difficult if not impracticable; but they were selected from the most conspicuous theatres, where their characters could be viewed under every aspect, and by those most capable of distinguishing the true from the false. For what purposes were they elected? To represent the most essential interests of their country; as the guardians of the sovereignty of the States, the happiness of the people, and their liberties. Who, as contemplated by the Constitutution, was the PRESIDENT? The man elected, by means intended to exclude the operation of faction and ambition, as the one best entitled to public confidence and esteem. And was no confidence to be reposed in such characters, thus elected? Might it not, to say no more, be at least doubtful, whether the treating power might not be as safely intrusted in such hands exclusively, as with the participation and under the control of the more numerous branch of the Legislature, elected in small districts, assailed by party and faction, and exposed to foreign influence and intrigue? Whatever merits this, as an original question, might possess, the people had decided their will. To the PRESIDENT and Senate they had given powers to make Treaties; they had given no such powers to the House.

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Treaty with Great Britain.

[MARCH, 1796.

It was not, in his opinion, proper, when investi-out America. Mr. S. could not but observe that gating the Constitutional question of the extent it was perfectly unaccountable to his mind, that of a particular power, and in what hands it was that gentleman had yet to form an opinion to deposited, to divert the attention to a possible whom was delegated that power, the nature, exabuse of that power. Should it become a ques- tent, and effects of which he had so strongly and tion whether Congress was by the Constitution perspicuously detailed. The capacity of that genauthorized to raise armies, and the extent to tleman's mind, long exercised on political subwhich the power might be exercised, it would be jects; his known caution and prudence, would unfair and improper to divert the attention from authorize a request that he or his friends would the inquiry of what was the truth, to the abuses explain how it was possible, if such as he states which might result from the exercise of the should have been the intention of those who frampower. To state that if such power existed, every ed the Constitution, that the true meaning should citizen might, by the wanton abuse of it, be de- not have been expressed in the instrument? That graded from his rank, and subjected to the despo- when the gentleman went from the Assembly tism of military discipline: To show that armies which framed the Constitution, immediately afmight be employed as the instruments of destroy- terwards, to one of those which ratified it, he ing liberty: To picture your country as strewed should have admitted an opposite construction? with human carcases, and stained with human As Mr. S. would undertake, by and by, to prove blood by their means. What would this be but that, in the Convention of Virginia, he did admit to substitute prejudices instead of arguments? the very construction for which we now contended. Still, however, it would remain true, that there He would take the liberty further to inquire, how should be some means of calling forth the whole it happened, that, if such was really the intenforce of the community for its security and de- tion of the instrument, that such was the meanfence. It would still remain true, that the powering of the people, no man had heard of it until the of Congress to raise armies was only limited by discovery was produced by the British Treaty? its discretion, under the direction of wisdom and Strange national intention, unknown for years to patriotism. The same observations, changing every individual! their relations, might with equal justness be ap As the gentleman had been pleased to dwell on plied to the Treaty-making power. To be, and the idea of a co-operation between the powers of to continue a nation, required, on these subjects, the Government, he would take the liberty to unlimited confidence in the delegation of the ne-state, what had been ably explained by other gencessary powers. The people had granted them, tlemen, that the power of making Treaties was and provided against their abuse such guards as wholly different from that of making ordinary their wisdom dictated. laws; originating from different motives; producing different effects, and operating to a different extent. In all those particulars, the difference had been perfectly understood. For instance, the ordinary legal protection of property, and the pun

ed, the gentleman had proved to be unfounded. The fourth, that which he had given to the Constitution, if admitted, and it should be abused, might produce mischievous effects. Was not this true of all the great and essential powers of Government? If the controlling influence of this House was added, would the power be less? And if, under these circumstances, abused, would the injury be more tolerable? In short, was not this a kind of argument infinitely more tending to the production of prejudice, than to the discovery of truth?

The gentleman from Virginia [Mr. MADISON] | had stated five different constructions which possibly might be given to the Constitution on this subject. Three of which, and for none of them to Mr. S.'s knowledge had any man ever contend-ishment of its violation, could never be extended beyond your own jurisdiction; but, by Treaty, the same protection could be extended within the jurisdiction of a foreign Government. You could not legislate an adjustment of disputes, nor a peace with another country; but, by Treaty, both might be effected. Your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. By Treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties.

It had been said that Treaties could not operate on those subjects which were consigned to Legislative control. If this be true, said he, how impotent in this respect is the power of the Government! What, then, permit me to inquire, can the power of treating effect? I will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the Legislative power of declaring war, laying taxes, or raising armies. or all of them. No Treaty of Peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no Treaty of Commerce can be made.

The gentleman who had suggested this opinion was well known to the Committee, and through- I should have been delayed, and that now, all at

Was it not strange, that, to this late hour, it

The gentleman has really given no decisive opinion what was the true construction. He had, however, seemed to incline to a belief that to the stipulations of a Treaty relative to any subject committed to the control of the Legislature, to give them validity, Legislative co-operation was necessary. Of consequence, if this was withheld, the operation of the Treaty would be defeated. That it was at the will, and within the discretion, of the Legislature, to withhold such co-operation, and of course the House might control and defeat the solemn engagements of the PRESIDENT and Senate.

MARCH, 1796.]

Treaty with Great Britain.

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not be true; for it was no less than a direct contradiction in terms, to say, that there was no power in the nation which could delay, resist, or annul the contracts of the King, and at the same time to say, there was a power in the nation, the Parliament, which could delay, resist, and annul those contracts. Both the assertions could not be true. He was willing, however, to allow that the Treaties which the gentleman had mentioned, were not the supreme laws of that country, until approved by the Legislature. He had already said, that different countries had provided different guards against the abuse of this power. But why attempt to divert our attention from a con

once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? That, although a power was granted to the PRESIDENT and Senate to form Treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? Or was it true, that this power was competent to treat with every Government on earth but that of Great Britain? Might he not be permitted further to inquire, if this Treaty had been formed with any other Power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality? We had, he said, entered into Treaties of Com-struction of our own Constitution, to the vague, merce with many nations; we had formed an al- uncertain customs and practices of other counliance, and entered into a guarantee with France; tries? Why compare the PRESIDENT and Senate we had given Consular power, including judicial to the King of Great Britain? In what was there authority to the citizens of that country, within a resemblance? In nothing. Why, then, perplex our own jurisdiction; we had defined piracies, the subject by the introduction of irrelative matand provided for their punishment; we had re- ter? Was there perceived an interest in a divermoved the disabilities of alienage; we had grant- sion from the only legitimate source of informaed subsidies, and ceded territory. All this, and tion, the declared will of the people? If we found much more, we had done, while the powers of the not there the power we claimed, we could exerGovernment remained unquestioned, and none cise it only by usurpation. even thought that they required Legislative cooperation. Treaties, such as those, could, without opposition, and by unanimous consent, be ratified, and considered by force of such ratification, as supreme laws; but similar stipulations with Great Britain were clearly perceived to be unconstitutional, and PRESIDENT, Envoy, and Senate, were denounced for their respective agency, as infractors of the Constitution.

Why did not gentleman extend their reasoning further? Where, in point of principle, was the difference between restraining and controlling the Legislative power? The injury may be as great in the one instance as in the other; nor is there any more foundation for denying to the PRESIDENT and Senate the power in the one case than in the other, from any words or expressions in the Constitution.

The objection, which he had just answered, had been brought forward by a gentleman from Pennsylvania, [Mr. GALLATIN,] with another nearly allied to it, if not resting on precisely the same foundation; that whatever stipulation in a Treaty required Legislative provision, or repealed a law, did not become a supreme law until it had received Legislative sanction. There was no limitation expressed in the Constitution on which to found either of those objections. If we claimed the power which the objections imported, the claim must rest on construction and implication alone. Indeed, the whole reasoning of all the gentlemen seemed to him to be capable of being expressed in a few words: The PRESIDENT and Senate, in the sole and uncontrolled exercise of the Treaty-making power, may sacrifice the most important interests of the people. The House of Representatives is more worthy the public confidence; and, therefore, by our influence, we will prevent the abuse of power.

The gentleman, to prove his position, stated, that the power of treating in Great Britain and the United States is precisely the same. He then read a passage from Judge Blackstone, "that the sovereign power of treating with foreign nations was vested in the person of the King, and that any contract he engaged in, no power in the Kingdom could delay, resist, or annul." At the same time, he said, that certain Treaties, such as those of subsidy and commerce, were not binding until ratified by Parliament. Now, both these could 4th CON.-18

If the gentlemen are right in their construction, if this was the understanding of the people at the time they deliberated on and ratified the Constitution, the power of the PRESIDENT and Senate of making Treaties, which then created the most serious deliberation and alarming apprehensions, was the most innocent thing in nature. It could bind the essential interests of the nation in nothing. Could any man really believe that the agitation which a discussion of this subject occasioned, more, perhaps, than any other in the Constitution, could have for its object only the power of the PRESIDENT and Senate, in which two-thirds of the latter must concur, to digest schemes of Treaties to be laid before the Legislature for its approbation?

The gentleman from New York [Mr. HAVENS] and the gentleman from Virginia [Mr. GILES] had asserted the power of the Legislature to repeal Treaties; whenever the wisdom of Congress should concur in opinion with those gentlemen, we should then cease to contend respecting the construction of the Constitution on this subject. For whenever our nation should, in defiance of every principle of morality and common honesty, by its practice, establish its right to prostrate national honor, by sporting with the public faith, no nation would submit to be contaminated by a connexion with one which avowed the right of violating its faith by the infraction of solemn Treaties.

On all subjects of this sort, the real inquiry was

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