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H. GF R.

Treaty with Great Britain.

[MARCH, 1796.

and ought to be, what was the intention of the adopted; and if we perceived a correspondence parties to this instrument? Hence a brief view of construction between those who formed and of some interesting occurrences, which took place those who received and approved, we might then at the adoption of the Government, would not be surely derive all reasonable satisfaction that we impertinent, but might be useful.

had discovered the truth. Here he believed that A cotemporaneous exposition of any instru- it might be asserted, without any danger of conment, and especially by those who were agents in tradiction, that in the State Conventions it was, its fabrication, had been allowed, and was, in fact, on one hand, affirmed that the President and among the best guides to finding its true meaning. Senate would, by the Constitution, have power to Gentlemen who had been members of the Con- form Treaties on any subject in which ihe Univention, and unfriendly to the Constitution, with ted States and a foreign nation had a common an intention of preventing its adoption, had stated interest; and that Treaties so formed, without to their constituents that the power of making any other aid or circumstance whatever, would Treaties, as confided to the President and Se- thereby become the supreme law of the land; and nate, was as extensive as was now contended for. that the exercise of this power was not so guarded Their intention could have been no other than to as to render it safe to the public interests. On the alarm the people with the dangerous extent, and other hand, it was admitted that such was the what would be the pernicious exercise of this extent of the power, and it was attempted, at least, power. If this charge was unjust and groundless, to be proved that it was so guarded that danger what would have been the conduct of the friends could not reasonably be apprehended from its exof that instrument? They would have proved ercise. It would be too tedious, and well might be the charge to have been malicious and ill-founded. thought unnecessary, to consult all the materials They would have shown that the Constitution which might be within our reach on this subject; was not liable to such an objection; that it could but he dared to appeal to the recollection of every bear no such construction. They would, in the gentleman who was in a situation to know the language of novel discovery, have said, that every facts, for the correctness of the statement which subject of legislation was an exception from the he had made; and he would read some few expower

of making Treaties; and thus they would tracts from the debates of the Convention of Vir: have proved to the world, that the sages of our ginia, which would probably be, on this occasion, country had devised and offered to their enlight- for many reasons, admitted as the best authority; ened countrymen a scheme of Government, des- and particularly, because the subject there was titute, by an express delegation, of the essential examined by eminent talents, and by minute and attribute of adjusting differences with other na- scrupulous investigation. tions, and of agreeing with them on the terms of Mr. SEDGWICK read the following passages from amicable intercourse. But they did no such thing; the third volume of the “ Debates and Proceedings they admitted the power, proved the necessity of of the Convention of Virginia." From the speech it, and contended that it would be safe in practice. of Mr. George Mason, who was as well a member Let me here, said he, appeal to any unprejudiced of the Federal Convention, as of that of Virginia: man, if he can possibly believe that the enemies

“ That he thought this a most dangerous clause. By of the Constitution could have made the charge the Confederation, nine States were necessary to concur against it, and that its friends would have adınit- in a Treaty: this secured justice and moderation. His ted the truth of it, on the hypothesis that it was principal fear, however, was not that five, but seven unfounded and false? They certainly knew what States, a bare majority, would make Treaties to bind they had so recently intended, and having opposite the Union.” objects in view, which excited their strongest He then read the reply of Mr. George Nicholas wishes, it was impossible they should agree in to Mr. Mason : imposing on the people a false and unwarrantable construction. So far he had extended his reflec- local views, being elected by no particular State, but the

That the approbation of the President, who had no tions as resulting from the conduct of those who people at large, was an additional security.” formed the Constitution ; a conduct from which, he flattered himself, there flowed demonstration ed for, that this House was intended to have a

Mr. S. said, that if it was true, as now contendthat the power of making Treaties was as exten- check on the principles which had been mentioned, sive as was that which was now contended for, and which, he had already shown, would extend This being the concurrence of men who could not have united to deceive, with regard to which could be formed, it was utterly impossible it should

to some of the stipulations of every Treaty which it was impossible they should be mistaken, formed a guide for our opinion, which could not mislead. not have been mentioned and relied on. which no degree of stupidity could mistake, nor From a speech of Mr. Madison he read: the most ingenious sophistry successfully mis- “ That he thought it astonishing that gentlemen represent.

should think that a Treaty could be got with surprise, So much he had thought proper to say, as re

or that foreign nations should be solicitous to get a spected the construction given to this part of the Treaty ratified by the Senators of a few States ; that instrument by those who formed, who could not should the President summon only a few States, he mistake, and who were under no temptation to would, for so atrocious a thing, be impeached.” misrepresent it. It might be necessary, in the From the speech of another member, Mr. next place, to inquire under what opinions it was Henry :

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"That if two-thirds of a quorum would be empow- the empire. The Senate alone ought not to have this ered to make a Treaty, they might relinquish and alien- power. ate territorial rights, and our most valuable commercial

From the speech of Mr. Corbin, who was in advantages. In short, should anything be left it would favor of the Constitution : be because the President and Senators were pleased to admit it.”

“If there be any sound part in the Constitution it is

this clause, The Representatives are excluded from (How, Mr. S. asked, could this be true, if the interposing in making Treaties, because large popular doctrine now laid down, in support of this motion, assemblies are very improper to transact such business, was well founded ?]

from the impossibility of their acting with sufficient “ The power of making Treaties, ill guarded as it is, secrecy, despatch, and decision, which can only be found extended further than it did in any country in the in small bodies; and because such numerous bodies world. Treaties were to have more force here than in are always subject to faction and party animosities. any part of Christendom.”

That it would be dangerous to give this power to the

President alone, as the concession of such a power to From Mr. Madison's speech he read:

one individual is repugnant to Republican principles. “ Are not Treaties the law of the land in England ? It is therefore given to the President and Senate (who I will refer you to a book which is in every man's hand, represent the States in their individual capacities) con*Blackstone's Commentaries ;' it will inform you, that jointly. In this it differs from every Government we Treaties made by the King are to be the supreme law know. It steers with admirable dexterity between the of the land; if they are to have any efficacy they must two extremes, neither leaving it to the Executive, as in be the law of the land. They are so in every country.” most other Governments, nor to the Legislative, which

would too much retard such negotiations." From Governor Randolph : “It is said, there is no limitation of Treaties. I defy

That another member of the Convention, (Mr. the wisdom of that gentleman to show how they ought Henry,) after contending that the Constitution to be limited.”

ought to be amended, so as to guard against the From Mr. George Nicholas:

abuse of the Treaty-making power, by requiring Have we not seen, in America, how Treaties are tions by saying:

the consent of the House, concluded his observaviolated, though they are in all countries considered as the supreme law of the land ?

“That when their consent is necessary, there will That Mr. Mason, speaking of this power, had be a certainty of attending to the public interests.” said :

That the debate on this interesting subject was, It is true it is one of the greatest acts of sovereignty,

in that Convention, concluded by a gentleman of and therefore ought to be most strongly guarded. The this House, [Mr. Madison,] not by insisting on cession of such power, without such checks and guards, that security, which gentlemen had now discovercannot be justified ; yet I acknowledge such a power ed the Constitution provided against the abuse of must rest somewhere: It is so in all Governments. If, this power. He had stated : in the course of an unsuccessful war, we should be com- “ That the power was precisely in the new Constitupelled to give up part of our territories or undergo sub- tion as it was in the Confederation.' jugation, if the General Government could not make a

He had stated the checks which the ConstituTreaty to give up such a part, for the preservation of tion had in fact provided, but it had not then the residue, the Government itself, and consequently the rights of the people must fall. Such a power must, there occurred to him that the consent of this House fore, rest somewhere. For my own part, I never heard

was among them. it denied that such a power must be vested in the Go

He also read the amendment which the Convernment. Our complaint is, that it is not sufficiently vention of Virginia proposed to the Constitution : guarded, and that it requires much more solemnity and That no commercial Treaty shall be ratified without caution than are delineated in that system.”

the concurrence of two-thirds of the whole number of [Strange, Mr. S. said, that this gentleman did the Senate; and no Treaty ceding, controlling, restrainnot discover, or was not told, that Treaties before ing, or suspending the territorial rights or claims of the they should become laws, must receive Legislative rights or claims to fishing in the American seas, or navi

United States or any of them, or their or any of their san tion.]

gating the American rivers, shall be made but in cases of “ There are other things which the King [meaning the most urgent necessity; nor shall any such Treaty the King of Great Britain) cannot do, which may be be ratified, without the concurrence of three-fourths of done by the President and Senate in this case. Could the whole number of the members of both Houses the King, by his prerogative, enable foreign subjects to

respectively." purchase lands, and have an hereditary, indefeasible title? Will any gentleman say that they (the Presi

Mr. Sedgwick said, that it was manifest, bedent and Senate] may not make a Treaty, whereby the yond all doubt, from that amendment, that the subjects of France, England, and other Powers, may Convention of that State supposed, that the Conbuy what lands they please in this country?”

". The stitution as it then stood unamended, delegated to President and Senate can make any Treaty whatso- the President and Senate, and to ihe exclusion

We wish not to refuse, but to guard this power, of the House, the whole power of making and raas it is done in England." “ We wish an explicit de tifying Treaties, with all its consequences and claration in that paper, that the power which can make effects. other Treaties, cannot, without the consent of the na- He had stated, that the real inquiry was, what tional Parliament, the national Legislature, dismember opinion was entertained on this subject by those

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H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

who ratified the Constitution. If that opinion PRESIDENT and Senate under the Constitution to could be discovered, with honest minds it must be form " Treaties.” The Legislative powers of the conclusive on the present debate. He had shown pation, then residing with the several States, wereas what opinion was entertained by Virginia; what obstructive to the operation of Treaties (andextendpower she meant to delegate, and to whom. That ed to all the objects which the National and State this opinion remained from that time until she Legislatures now comprehend) as the Congresproposed her late amendments, unaltered, appear- sional Legislative can now be. Yet under the. Coned from the amendments themselves. That State federation Treaties of Alliance, of Peace, of Comthen, and her Representatives here, who had ex- merce, were made ; nor until the present moment pressed themselves, differed in cpinion. He did has their obligations been denied, though they connot mention Virginia with intention of producing tained stipulations, perhaps, on all the subjects to any unpleasant sensation. He was willing to allow which the treating power could extend. No Lethat she was great, wise, intelligent, enlightened, gislative provision had been thought necessary to and, if gentiemen pleased, moral. 'Her opinion give them validity; and he dared appeal to every derived additional authority from her respectabili- member of the Committee, that every enlightened ty. It was not Virginia alone, but he was persuad-citizen had admitted their binding obligation as ed every other State had given precisely the same supreme laws. That the Treaty of Peace in parconstruction. That the Treaty-making power, ticular, which controlled the most important with all its effects and consequences, was solely and rights of sovereignty, arrested the hand of justice exclusively in the President and Senate. And in inflicting punishment for the highest crime he would dare to challenge gentlemen to produce which a citizen could commit, treason, and stayed a solitary instance of its being adopted under any proceedings in cases of confiscation, for forfeitures other idea. Indeed the agitation which was at that which had been incurred, had always received this time produced, would of all things be the most construction. He would add, that it was well unridiculous, if any of the other constructions were derstood to be the opinion of that tribunal whicb true. If the power was checked as was now con- the Constitution had authorized to pronounce the tended, it was impossible danger should be appre-law, the Supreme Court, that the Treaty from its hended from its exercise; it could indeed do nei- own powers, repealed all antecedent laws which ther good nor evil.

stood in the way of its execution. Here then, he said, we had the evidence of those To proceed further on: Since the adoption of who framed, and of those who received and ap- the Constitution, the powers now denied, had been proved the Constitution. There was another constantly exercised with all the consequences source of inquiry, which would confirm, it it want- and effects now contended for, and, until the preed confirmation, that construction for which he sent moment, unquestioned. Peace wad been conhad contended. It was the construction which had cluded, subsidies granted, payment of money stipubeen practically given by those who had adminis-lated, territorial rights discussed and decided on. tered our Government, from the commencement Treaties for those purposes had been ratified, pot of our foreign relations, to the present session; a by venal and corrupt majorities, but by virtuous construction which had been assumed, admitted, or unanimity. Hence, from the moment we had beacquiesced in, by our National and State Govern- come a nation, under every form of our implied or ments, and by every individual citizen, until they expressed association, the powers now denied had received new light, by our having accommodated been exercised, not only without question, but our causes of contention with Great Britain, and with unqualified approbation. escaped the evils with which we had been threat- There was one more point of light in which this ened from that source.

subject ought to be viewed, In the year 1789, it The association which preceded any express was proposed to discriminate in the imposition of contract between the States, was supposed to im- our duties, between the nations with whom we ply an authority to form national compacts, im- had, and those with whom we had not, Treaties posing national obligations, and pledging the pub- of Commerce. The author of this proposition refic faith. Hence our Treaty with France, which bewed the same in the year 1794. This was virpreceded two years our national association, the tually acknowledging the validity of the Treaties Confederation, had been supposed binding on us, which did exist and inviting those nations who. and not only obliging us to the faithful perform- had not already, to form Commercial Treaties, ance of our express engagements, but as drawing Something more chan this was done by the mo- . after it undefined, unlimited, and perpetual obli- tions which some gentlemen of the minority gations of gratitude. This seemed, so far as re- of the Senate are said to have made when this spected defined obligations, to be a rational deduc- very Treaty was in discussion. Their motions tion, from what is an inseparable attendant on recommended an accomomodation by Treaty of national associations, and without which a nation all subsisting differences between the two counwould be destitute of one of the best means of se- tries. It could not escape remark that these several curing its happiness, and even existence. propositions and motions were supported, by all

To pursue, he said, the history of our country thai description of persons who now opposed the on this subject, in the order of time, it would not Treaty. be pretended that, under the Confederation, the It would not then be deemed impertinent to inpowers of Congress to form " Treaties and Alli- quire, it was worthy attention, what was imported ances" were more extensive than those of the l and admitted by this conduct and those proposi

March, 1796.]

Treaty with Great Britain.

[H. OF R.


tions? They undoubtedly implied a concession conduct instead of supporting would tend to subthat the subsisting Treaties were of validity ; why vert, and would, if persisted in, annihilate the else should they be considered as a meritorious Constitution. This was undoubtedly one of the cause of favorable discrimination ? They implied, most important of the public contracts; but the too, that there existed in this country a power to truth was, in fact, that we were bound to perform treat on commercial relations, and to adjust sub- all the public engagements. The truth was that sisting differences.

our national association was a compact of virtue. If without Legislative aid (and they had receiv- To support the Constitution it was necessary to ed none) those Treaties would authorize the Le- preserve public faith. To promote the public hapgislature to derange the commercial pursuits of piness it was essential to hold sacred, and to per-. the nation, and enter into Legislative hostility form, the public engagements. In this were inwith that nation with which we had the most ex- cluded all engagements, whether expressed in the tensive relations, it must be from the competency form of Constitution, of laws, or of Treaties; in of the Treaty-making power on the principles on any way, indeed, in which the people had agreed which we contended. Strange again, he would that their will and their duties might be expressed.

it must appear that the true construction of Mr. S. concluded by obse ng, that he had inthe Constitution, on this very important subject, tended to have presented the subject in several should have escaped the penetration and sagacity other important aspects, but he had already tresof the author of those propositions, during the time passed on the patience of the Committee. He of forming and ratifying the instrument, and his would, as the time of adjournment was passed, whole active public life, from those periods until suspend for the present any further observations; that of the publication of the British Treaty. and he hoped that all the grounds which he had

If, then, it was true, as he had endeavored to left unoccupied would be taken by other gentleprove, that by the power given by the Constitu- men, so as to supersede the necessity of troubling tion to the PRÉSIDENT and Senate to make Trea- the Committee with any further observations on ties, they had an authority to the extent he had this subject. supposed with all its consequences and effects; if March 14.-In Committee of the Whole on Treaties so formed did in fact become supreme Mr. LIVINGSTON's resolution: law, then being compacts they bound the public Mr. Samuel LYMAN said he rose only to make faith and could not be violated without national a few observations. He was against the resoludisgrace and personal dishonor. They might re- tion now on the table, as involving a doctrine, in quire Legislative provision to carry them into ef- his opinion, not only inconsistent with the princifect; but this neither implied nor authorized the ples of the Constitution, but also inconsistent with exercise of discretion, as to refusal. The Consti- the laws of nations. In debating the merits of this tution he had had frequent occasions of saying resolution, an exceedingly important abstract Conprescribed a Government of departments. Each stitutional question had arisen, viz: How far that was intended to be furnished with the means of self- House had a right to exercise their Legislative preservation and defence. For this purpose it was discretion and judgment relative to carrying a declared, that the President should receive a Treaty into effect. In order to answer this quescompensation to be ascertained by law. Laws tion, he would raise two premises. And, first, by were to be made by the Legislature, of which this the Constitution, the Legislative powers of that House was one branch. To support the Constitu- House, in co-operation with the other branches of tion each department must be enabled to perform the Legislature, extend to all objects within the the functions assigned to it. To enable the Exe- reach of their sovereignty, excepting the reservacutive to do its duties, the compensation must be tions to the distinct sovereignties of the several provided. It was then necessary to the support States which compose the Union; but beyond of the Constitution, that the compensation should those boundaries their powers could not extend. be made. We have sworn to support the Constitu- Secondly, there is, by the Constitution, attached tion. The people by their Constitution had solemn- to the Legislature a subordinate kind of power, of ly engaged that whoever was the PRESIDENT a limited and ministerial, or Executive nature. should receive a compensation. We had been de- At present, it did not occur to him that this subputed to discharge the duties and engagements ordinate power was to be exercised in its simpliwhich our constituents had assumed. Under city, excepting in two instances, viz: 1st, for callthese circumstances no man of common honesty ing a Convention under certain circumstances to could declare that we were at liberty to refuse all amend the Constitution; and, 2dly, for carrying provision.

into effect Treaties which are constitutionally The gentleman from Virginia [Mr. Madison] made; for these two purposes, the people, who are had.attempted to make a distinction between the the source of power, had stripped that House of duties we had imposed on us by the Constitution all Legislative authority, and made them only the and such as were enjoined by law. He could per- executors of their will; therefore, upon these ceive no foundation for any such distinction. 'Af- premises he answered, if a Treaty was unconstiter the salary of the President was ascertained iutional, they had an undoubted right to exercise by law, it could not be paid without an appropria- a Legislative discretion and judgment relative to tion; would any one say he was at liberty to with- carrying it into operation, for they were sent there hold it? No man, he presumed, would wish to risk as the guardians of the rights of their fellow-citihis reputation by such an assertion. For suchens, and, for that purpose, are sworn to support H. OF. R.)

Treaty with Great Britain.

[MARCH, 1796.

the Constitution ; but if the Treaty was Constitu- thorities, for every sentiment of their nature entional, they had not a right to exercise that dis- forced conviction, and, of consequence, is clothed cretion; for, without their intervention, it becomes with all the solemnity of moral obligation. the supreme law of the land, and virtually repeals This principle of the law of nature is no less all laws which are repugnant to it; and in that than the law of self-preservation, as relative to case that House is bound to obey it, and to carry themselves

, their nation, and all other nations ; it into complete execution ; for, by the Constitu- for, what would be the consequence if the reverse tion, the power of making Treaties is vested solely of this doctrine was established as the Law of Naand exclusively in the Executive department. In tions? The consequence would be pernicious and the former case, they have a right to exercise a destructive among the nations; it would be the deliberative or Legislative power, but not in the source of jealousies, of Carthagenian faith, of war latter case ; they could there only exercise a min- and bloodshed. isterial or Executive power. So that herein, said He had not the least doubt of the constitutionhe, lies the true distinction, and it arises from the ality of a Treaty, when the stipulations in it were nature and principles of the Constitution. Gen- of such a nature as not to respect objects of legistlemen would do well to recollect Miller and De- lation, but only objects which lay beyond the lolme upon the British Constitution, when they bounds of their sovereignty; for beyond those limform a comparison of their Constitution with the its their laws could not extend as rules to regulate Constitution of England, and to advert to one im-lhe conduct of subjects of foreign Powers; and portant circumstance, which is the source of a although some stipulations in a Trtaiy may reconsiderable dissimilarity, especially as to the spect objects which were within the reach of their power of making Treaties: The Constitution of sovereignty, yet it may be in such manner as to this country is written, and the powers of the sev- be strictly Constitutional ; for such stipulations eral departments of Government are clearly and may be not only pertinent, but absolutely necesaccurately defined; but the Constitution of Eng-sary in forming the Treaty. This conclusion, he land is made up of customs and precedents, the in- thought, was the natural and necessary result of a fluence of which has been alternately augment fair and liberal construction of the principles of ing or decreasing from time immemorial, owing the Constitution, and especially of that paragraph to a perpetual conflict between the Sovereign and which vests the power of making Treaties in the the House of Commons, the Government being in Supreme Executive, with the advice of the Seits origin an absolute monarchy, and founded upon nate. conquest; but the spirit of that great nation, by Mr. L. said he was sensible he had been deliverthe subtlety and adroitness of their House of Com- ing an unpopular doctrine, but that he was deeply mons, who have been watchful of favorable junc- impressed with its truth, its reality, and its imporitures, has, as it were, surreptitiously deprived their ance; and that the obligations of an oath had preSovereign of many of his royal prerogatives. This vented his silence on the occasion. check upon his Treaty-making power was, among

Mr. Baldwin said he had before expressed his others, an important achievement.

opinion, in general terms, in favor of this question. In this country they had only a right to exer- It must have been observed that he had been for cise a deliberative or' Legislative power relative several days noting the debates, and preparing to to Treaties which are unconstitutional; but they take part in them. He had intended to have incould only exercise a ministerial or Executive troduced the debate on Friday morning last, but power relative to Treaties which are Constitu- a singular incident prevented him, which he felt tional; and in forming an opinion relative to the it to be his duty to iake this earliest opportunity constitutionality or unconstitutionality of a Trea- to state to the House. Mr. B. then said: About ty, all they want were the Treaty and the Con- five minutes before I expected to rise on the quesstitution, and then, by comparing the two instru- tion, I was called out of the House by a person ments tegether, and upon that comparison alone, then unknown to me, who said his name was FREform their judgment. From these premises it LINGHUYSEN, and whom I found to be a Senator conclusively follows, that, as they have no occa- of the United States. After a number of intersion, so_they have no right, to call upon the Su- views, he observed, with great expressions of pain preme Executive for the papers in question. This and regret, that he was at last obliged to the undoctrine, he thought, necessarily resulted not only welcome office of delivering me thai letter, which from the principles of their Constitution, but also I opened and found to be a challenge directed to from an important principle of the Law of Na- me from James Gunn, who is also a Senator of tions. For all nations bei ween whom there are the United States. The pretext for this transacexisting Treaties have a kind of property lodged tion was, to extort from me some private letters in the secret cabinet of each other, and no nation which I had received early in the session from a can, consistently with good faith, publish to the number of my constituents

, expressing their wish world the secret negotiations which led to form that I would endeavor to prevent any thing being ing either of those Treaties. To prove this prin- done in Congress to validate the Mississippi Yazoo ciple, a recurrence may be had to Paley's Phi- Land Speculation before the meeting of the State losophy and Vattel's Law of Nations. This prin- Legislature. There was no complaint of any perciple of the Law of Nations is predicated upon an sonal indecorum or disrespect at all; whether they important principle of the law of nature. Here, were actuated in their conduct solely by interest then, is no necessity of recurring to written au-l in Yazoo speculations, I will not pretend to judge,

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