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MARCH, 1796.)

Treaty with Great Britain.

[H. OF R.

The revival of a transaction of so old a date at old mysterious doctrines of Governmental secrecy that particular moment, was to me surprising. was not necessary; that, in place of it, it seemed Not knowing their degree of relation to this ques- now to be believed that it was desirable, as far as tion between the two Houses, and not knowing possible, to have Governmental regulations accomthe cast of character but of one of them, I am left panied with light and information, and as full an only to conjecture. It was so peculiarly timed, exhibition of the reasons on which they are foundand the professed object also of so peculiar a na- ed as the nature of them will permit. He had ture, to interrupt the channels of confidence for almost brought his own mind to believe that there free communication between me and my constitu- was but one limitation to the extent of this prinents, that I have thought it my duty not to let the ciple, and that was, that, while measures were in treatment of it depend on my own individual dis- the transaction, and in an unfinished state, it might, cretion. I consider it as in the discretion of the at many times, be improper to disclose them. House. Mr. B. also observed that he felt himself un- Proofs could not be wanting that these impresder the necessity of using this as an apology for sions had such weight on the mind of the Presithe apparent neglects of Friday, after the particu- dent that he persuaded himself there was no danlar attention he had before appeared to pay to the ger of their making an unfavorable impression on discussion ; and for his not being able to notice his sentiments, qualified as the motion had been any of the proceedings in the debate of Friday, he by the last amendment. It was said, the Presihad supposed he had lost the opportunity of offer-DENT would have published these papers unasked, ing his opinion, but was glad to find the question if there had not been an impropriety in it. There had not been taken, as he was unwilling to suffer might be a diplomatic impropriety in disclosing this, or even a greater interruption, to prevent the particulars of a negotiation unless some kind him from declaring his opinion, as he had before of occasion led to it-like an individual too freely intended.

disclosing private letters; but when it was known Mr. B. then began his remarks on the question, that there was occasion, it is a perfect justification. and observed that, from the course which the A gentleman from South Carolina (Mr. Smith] business had taken, the subject seemed to be one had undertaken to controvert these assertions. His thing and the discussion another. He begged proofs are too remarkable not to be noticed: his leave first to consider the question, partly with a first was, that the old Congress had animadverted view to rescue some remarks which he had made on the conduct of a member from Rhode Island, when the question first presented itself. from a for improperly coinmunicating some matters which singular envelope which one or two members have had been intrusted to his confidence; the second thought proper to attempt to throw about them. was, that they now had a rule for clearing their He did not then say that it was advisable to re- galleries. Let that gentleman look at the secret quest these papers of the PRESIDENT, for the sake Journal of the old Congress, and see how it contiof publishing them; that published they ought to nually diminished till it was become almost nobe; that there were no secrets in Government thing; let him look over the United States, and now-a-days; and that the doctrine of mysteries was see how many public bodies which used to deliexploded.

berate in secret have now their doors open; let The mistake, if it was merely a mistake, must him look over the communications, of mere Exehave arisen from not attending to his first obser-cutive business, from the PresIDENT OF THE UNIration, which was nearly as follows: that they TED STATES, for these two or three years past; let were obliged, at any rate, to go into the subject; him read the rule of their own House, as it now the House had ordered the Committee of the stands, on the subject of clearing the gallery, and Whole to proceed to consider the Treaty, and the see how much it is narrowed from the rule which petitions from their fellow-citizens complaining was in force for the first two or three years—and of different parts of it; the committee must be then let him declare whether there is not some formed, the subject taken up, propositions upon it foundation for the assertions which he had atmust be received, and some result concluded on. tempted to combat. He hoped he should be exThe only question, then, was, whether to take up cused for having detained the Committee by some the subject unexplained as it was, merely from repetition of what he had before said—it was the the instrument and petitions, or to request any strict debate of the question, and had been held up information that might be thought useful to the undefended in two unfavorable attitudes. He discussion, and not improper to be communicated, could not patiently see observations that appeared which might guard them from error, and lead to him so important, so well grounded, and so strictly them to a proper result. To this it was objected, applicable to the question in debate, hunted from that these papers were secrets of the Executive the House, because the attention of gentlemen, department, &c. In this connexion it was he who at other times would not have suffered it in made the observation alluded to; that he hoped, silence, had been absorbed by a still more importon reflection, that objection would not appear to ant direction which the discussion had taken. He have so much weight; that, since they had been should conclude this part of his observations, which a free people, the different Governments in this he considered as properly the debate of the quescountry, and the different departments of Govern- tion, by an expression of his wish that gentlemen ment, appeared to be under an increasing convic- would reflect in what light they exhibited themtion (which, he thought, had been much strength. selves, and what must be the tendency of their ened by experience) that a rigid adherence to the opinions, if they avowed themselves the adversaH. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

ries of his observations, as he had now explained possibly exist any such case, in which it might them. He had hoped, when he first made the ever be proper for Congress to deliberate, it would observations, they had not been useless; they still seem to be giving up the ground on which the had great weight on his own mind-he believed discussion of the present question has been placed; they had on the minds of some other'mempers. what agency the House should take, and when,

Mr. B. then proceeded to consider the ques-would be other questions. Whether a case would tion in the form in which it is presented by the probably occur once in a hundred years that would discussion. He was sensible of the disadvantage warrant the House in touching the subject, is of no any person must labor under, and particularly consequence to the debate. The right is denied himself, in attempting to speak upon it, after it in the largest sense. The assertion is, that the had been so long and so very ably discussed. It House has no right to deliberate or to look into would be impossible for any person to propose to any papers on the subject; that the people have, himself a strict and regular plan of viewing the by the Constitution, reposed the whole of their subject without going over a great deal of the confidence on this subject elsewhere ; that, to ground that had been before taken by other gen- attempt to deliberate upon it, or to ask for any patlemen. This, in the present stage of the business, pers respecting it, is treason and anarchy: would be so tedious and any attempt to improve If this ground were once given up, he should be upon their statements would be to him so hope-infinitely less anxious what the House might do less>that he should decline the task, with barely in any particular case: these would rest on their making the observation as an apology for a less individual merits. For his own part, he was by formal, though he hoped not useless, submission no means disposed to carry the interference of the of some thoughts which had occurred to him on House to any extreme; but he could not express the subject.

his abhorrence of the doctrine in the extent to He said, it was remarkable that several gentle- which some gentlemen have carried it in this dismen rose with very different expressions which cussion. He begged leave to entreat gentlemen had been said to contain the subject in discussion. again candidly to review the few words in the It was certainly important to agree exactly on that Constitution on which they rested so much, and point. The least variation in the point of depart- to ask whether they appeared to be such labored ure would soon diverge till they were out of sight of expressions as they supposed-so apt and definite each other, and yet each one keep a straight direc- as to mean exactly what they contend for, and tion. One gentleman had stated that the question nothing else, and whether all the words may not was, whether this House should feel itself at liberty well be satisfied without, and stand more harmoto judge over the heads of PRESIDENT and Senate niously connected with the other parts of the Conon the subject of Treaties without restraint: his stitution. reasoning seemed to be built on that proposition. How much they intended to incorporate with Another gentleman had said that the question was, this power of Treaty-making, under cover of conwhether the power of making Treaties was given tract with foreign nations, he had not heard any by the Constitution to the PRESIDENT and two- one attempt to explain; it seemed designed to thirds of the Senate, or to the PRESIDENT and both stand distinguished as an indefinite, uncontrolled branches of the Legislature. He might mention branch of the Government, the extent of whose several others, but he called the attention of the powers was to be known only by its own acts. Its House to the fact, to settle the point, that they definition was to be, that it was indefinite-like might at least agree what they were talking about. what is said of some branches of the powers of The question, said he, on the table is to request Parliament; that no one has pretended or ought of the President papers respecting the Treaty: to pretend to know their extent; that they are not the objection is; you ought not to ask for the to be submitted to the judgment of any one but papers, because you have no right to touch the themselves; and that they never develope them subject. He begged leave then to ask, with the but by the particular exercise of them; that they utmost candor and respect, whether the real ques- were to be left in this state, because, if they were tion now depending and brought into dispute by defined, they might be eluded. However this this motion, is not whether all questions relating might be found, respecting a foreign Constitution, to this subject are not so definitely and perfectly it is making a monster of our own. There was settled by the Constitution that there was nothing not another part or lineament in it which appeared for that House to deliberate upon on the occasion, to be in the same mould or proportion. but only punctually to provide the funds to carry He then proceeded to observe, that though upon the Treaty into effect. If it were allowed that there these principles a definition of this power was not might be any possible or extraordinary cases on to be asked or expected, yet without doubt it might the subject of Treaty-making in which it might be permitted to contemplate it in its display. From ever be proper for that House to deliberate-as, the late exhibition which had been made of it in for instance, offensive Treaties which might bring the instrument which had been laid before the the country into a war--subsidies and support of House, it appeared to assume the right of repealforeign armies-introduction of an established ing laws. He supposed it not to be denied, that religion from a foreign country, or any other of in not less than four instances it had repealed laws those acts which are by the Constitution prohi-1 of the United States. He had not heard any reabited to Congress, but not prohibited to the makers, son assigned why it might not have been extended of Treaties; if it were allowed that there might to the whole book, and repealed all the laws passed

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

before that time. It appeared also to have nar- detain the House a minute by the repetition of the rowed the former ground of legislation, and taken luminous and able discussion with which the House away the powers of the Legislature, if he mistook had been for several days instructed. Can any not, on five subjects on which proceedings had man, said he, after the views which have been been begun, but not finished, at the preceding presented to us, doubt that there is room--that session. If the Committee on Unfinished Business there is a call for deliberation to reconcile some were to make a full report, he supposed they must parts of the Constitution on this subject--to give say, that with respect to the bill for the regulation the greatest effect to them all ? of the sale of prizes; the bill for the suspension of For example, it is said: commercial intercourse; a resolution for seques- Arr. I. "All Legslative power herein granted tration of Public Debts; also, for some commer- shall be vested in a Congress, consisting of a Senate cial discriminations, and concerning naturaliza- and House of Representatives," i.e. every particle tion, which they found among the unfinished of law-making power in the Constitution granted business--they forbore to bring them to the view shall be vested in a Congress, consisting of a Seof the House, inasmuch as Congress had now no nate and House of Representatives. Legislative powers on those subjects. Such a Art. VI. Treaties are laws. report would at first strike with a degree of sur- The power of making Treaties is a particle of prise. Has there been a Federal Convention ? it law-making power, granted by the Constitution ; would be asked. Have amendments to the Con- but it is granted by article 2d to the PRESIDENT stitution been recommended by two-thirds of each and two-thirds of the Senate. branch of Congress, and adopted by three-fourths And yet there is no doubt in these expressions. of the Legislatures of the respective States? He They are so perfectly clear and definite, that there believed he might say with safety that it was at is no call or even room to deliberate in commencleast a mode of taking away the Legislative powing practice upon them. ers of the Federal Government that had not before And how, he asked, are such questions between been much contemplated, and ought to be well the different constituent parts of the Government weighed before it was recognised in the extent in to be settled, but for each branch to deliberate which it now presented itself.

with calmness and moderation in their own Mr. B. then proceeded to take another view of sphere, and come to a mutual result? It must inthe subject, in which, he said, it would be neces- deed be a fearful, trembling loyalty, that should sary for him to request the Committee to go back prevent so important a branch of the Government with him again to the question, and take the other as that House from even presuming to deliberate alternative, to see whether it would not carry them on the very important considerations which have on to safer and better ground. He would begin it been addressed to them. It was not a new case, or by the assertion, that those few words in the Con- peculiar to that House ; there can be no doubt but stitution on this subject, were not those apt, pre- it will be well received by the other branches of cise, definite expressions, which irresistibly brought the Government, with the exception of but few upon them the meaning which he had been above individuals. The PRESIDENT had not hesitated to considering. He said it was not to disparage the send back to them their laws when he thought instrument, to say that it had not definitely, and them against the Constitution, and they had given with precision, absolutely settled everything on way to his reasons. The Judges had refused to which it had spoke. He had sufficient evidence execute a law intruding upon their department; to satisfy his own mind that it was not supposed it was repealed, and they passed another on the by the makers of it at the time, but that some sub- subject. jects were left a little ambiguous and uncertain. In this place, he begged leave to take notice of It was a creat thing to get so many difficult sub- some things which had been adduced in opposijects definitely settled at once. If they could all tion to the opinions which he had expressed. A be agreed in, it would compact the Government. gentleman from South Carolina had produced a The few that were left a little unsettled might, number of publications, and had alluded to a numwithout any great risk, be settled by practice or ber of transactions by which he would make it by amendments in the progress of the Govern- appear that it had been allowed, that the Treatyment. He believed this subject of the rival pow-making power was as extensive as it is now coners of legislation and Treaty was one of them; the tended for. He quoted a number of meeting and subject of the Militia was another, and some ques- party writings, and among the rest of his authorition respecting the Judiciary another. When he ties he was constantly expecting to hear him reflected on the immense difficulties and dangers quote another, very common in the present times, of that trying occasion--the old Government pros- the toasts. The gentleman from Massachusetts trated, and a chance whether a new one could be had produced many others: the reasons of memagreed in the recollection recalled to him nothing bers of the Convention, the proposed amendments but the most joyful sensations that so many things of several States, &c. He was willing to allow had been so well settled, and that experience had due force to thai kind of reasoning, if it has, in shown there was very little difficulty or danger in fact, been the common view of the subject; if it is settling the rest. In this part of the subject, he the one that most naturally presents itself on readsaid, had he been earlier in the debate, he should ing that part of the Constitution, it would be a have gone over some of the ground' on which good reason for calling up all their candor and others had now gone before him. He would not diligence on the occasion, in comparing and re

H. OF R.)

Treaty with Great Britain.

[MARCH, 1796.

conciling it to the other parts of the Constitution ; ascertain the meaning of phrases with as much but it was not of sufficient force to be a ground of precision as Dictionaries ascertain the meaning of absolute certainty that the thing is definitely set- words. It is exceedingly useful that it should be tled, and that they ought not to deliberate upon it. so. When such a precise meaning is fixed to a He thought more weight had been allowed to this phrase, and publicly known, it is apt to remain a turn of argument then was its due. It was not to long time exact, as it is frequently employed, and is be forgotten, that probably even in making the very useful as a medium of certainty. Many inConstitution, and in all that had been said upon stances of this kind might be quoted, particularly it since, there never had been till now so many from English books on law and Government. He persons and so much time employed at once in would observe further, these appropriate phrases searching and settling this single point. It may had been for their certainty in many instances be said to be the first solemn decision of the ques transferred into our Constitution, and their meantion. The suability of the States was not so much ing must be manifestly sought in those sources as talked of or believed, till it was declared by the in a Dictionary. One remarkable instance occurJudges to be the meaning of the Constitution ; its red to him, and which, from the singularity of its being a new and unexpected construction, was not garb, would be very discernible in the Constituused as a weapon to excite irritation against the tion-he meant the definition of treason in the Judges; why ought it to be on this occasion ? He third section of the third article of the Constitumight mention several other particulars to the tion. The phrase is, levying war, adhering to same effect, but he wished as far as possible to enemies, giving them aid and comfort. These avoid being tedious.

are the very words of the English books, which Mr. B. then undertook to state his own view of have been so critically judged that they are not the subject, and what he thought ought to be capable of the least variation in their meaning on done. Much, he said, depended on the words that tremendous subject; but this meaning is to "make Treaties and supreme law of the land;" as to be sought from those sources; he might mention the words supreme law of the land, he had not several instances, but it was unnecessary. He much doubt for what purpose solely they were in- thought the phrase, power to make Treaties, should troduced. The words were satisfied and he thought be ascertained in the same manner; and the Engmost naturally, by not suffering them to disturb lish meaning, as it would naturally be understood the balance.of the Federal Constitution, for that at the time of making the Constitution, should be is not the subject which the section where these affixed to it; that it should be considered as givwords are used is speaking of; but to consider ing to the PRESIDENT and two-thirds of the Senthem as giving to the Treaty-making power the ate the same kind of power as the King of Eng. same paramount authority over the laws and Con- land possesses on the subject of Treaties, which it stitutions of the several States, that they give at is known is in several cases subject to the control the same time to the Constitution and laws of the of Parliament. Here it is qualified by the powers United States. The words appear to be intro- specifically given to Congress. duced for the express purpose of making the Con- But all this, said he, is answered by most violent stitution, laws, and Treaties, of the United States, outcries, which sound to him very bold on so new paramount to the Constitutions and laws of the a subject: that the nation will be undone, all conseveral States, and for no other purpose; this is fidence in its engagements destroyed, and the all that the section appears to be speaking of; it country, without doubt, involved in a war abroad, satisfies the words, is the most obvious and natu- and anarchy at home. 'That was an extraordinary ral meaning, and leaves the other parts of the mode of discussing a curious and perplexed quesConstitution harmonious and undisturbed. As to tion. It may be asked, why do not those things the words "power to make Treaties," it was more occur in England ? The King, it is seen, has laid difficult to ascertain precisely what the Constitu- this same Treaty before Parliament; they may tion meant to give by them. It had been argued probably now be discussing it. Some of their that from the nature of Governmental powers, the Treaties which were read the other day appeared Treaty-making power must be paramount, and to be carried by but a small vote; suppose this from the nature of contract it must be paramount. should now be lost in Parliament by a small vote, The truth is, the Treaty-making power must be what reason to apprehend more dreadful consewhat the Constitution has made it. He did not quences to this country than to that? hesitate to say, that the most natural meaning to He hoped, on the whole, the House would be give these words, was to consider them as bor- prevailed on to go coolly into the subject; he had rowed from former use, and to give them the no doubt but their good sense and moderation meaning which they had always before given would guide them safely and prevent them from them. Gentlemen had said that nothing useful working mischief or creating confusion. He hoped could be derived from English books and explana- they would first request the papers on the subject; tions on these terms. This seemed to him an un- he had no doubt but that it would appear that this reasonable assertion. It might as well be said, was not now as new a question to all the branches that they could not use an English Dictionary to of the Government as it was to that House. It is ascertain the meaning of words. In many sciences, probable it presented itself to the Ministers who said he, there are definite and appropriate phrases made the Treaty: The English had been so much as well as definite and appropriate words; and, in the habit of having an article introduced into in fact, books which are Dictionaries of phrases, their Treaties respecting its being submitted to

MARCH, 1796.)

Treaty with Great Britain.

[H. of R.

Parliament, that probably the English Minister against the Constitution of the United States. had the caution to ask our Minister, whether an Why this new mode of explaining the Constituarticle ought not to be introduced about its being tion? It had been understood from the school-boy submitted to Congress, and what he considered to the Senator according to its true meaning. the powers of the President and Senate on the Why; to gratisy party rage, shall they attempt a subject. It is very probable information on this new explanation of this criterion of their happisubject will be found among the papers which it ness? An observation, he said, fell from one of is proposed to request. Our Minister was a man the Representatives from Virginia in his speech of so much good sense and information, that, of last week, which he would take the liberty to without doubt, he had drawn some line on that make one or two remarks on. He intimated that subject. Perhaps on looking at the papers they he stood on high ground; he felt bold from the might find he had drawn it very properly, and be propriety of his intentions; he cared not for the perfectly satisfied not to disturb it; but, that there cant word of disorganizer, &c. That is right; should have been so long and formal opposition gentlemen who attempt to remove the established to requesting the papers and looking at the sub-bound of the Constitution, ought to be bold; they ject, he confessed, was what he had not expected. ought to prepare for such cant words; it was rea

Mr. Cooper rose to refer his colleague [Mr. sonable they should expect them; for, from anHavens] who spoke last week, to the mode in cient date, the remover of land-marks was spoken which the laws and Constitution of the State of harshly of. All men, said he, must now see who New York were explained away in the year 1792, are willing to be bound down by the letter of the so as to deprive the citizens of that State of the Constitution, and who are desirous to break right of suffrage, and to inquire whether that de- through all shackles. There are three causes cision was not considered by all thoughtful people why this Treaty is so vastly disagreeable to some as erroneous; if so, whether the present reason of the citizens in a part of the Union. One was, ing does not originate from the same mistaken it compels some of them to pay their just debts, notions of power over right? I think, said Mr. C., which they contemplated evading: As to the idea it will not be improper for the gentleman to recal of its being a good or bad Treaty it is a mere preto mind those observations before he decides on tence, for the same opposition was made before it this important argument.

appeared as afterwards. A second is, that they That gentleman and several others have as have been at war with the nation this compact is serted on this floor, that a Treaty was not the made with, and an improper influence a nation law of the land until it was assented to by that now struggling for liberty has over their passions House; if so, it may be fair to inquire into its as Americans hasincreased their prejudices against merits, and have the papers before them. Let the British nation. But the third and most rathem examine the matter. Surely if that princi- tional cause is, that as they are an old and powerple be admitted, could not the officers of ihe re- ful nation, and as America is young, and unable venue with equal propriety say to Congress, your to meet them, they insult and misuse them on law is no law until our will is had-until we set that account. He felt their insults, yet his wish it in motion; or, the collectors of the taxes, your was to support their neutrality. Twenty years law is of no validity until we take order to make hence, he said, their voice would have a more the people pay their several quotas, or the people manly sound, and although they may feel now as at large say, we are the essence of all law; it is men will feel then, yet it would be imprudent for with us all revenue, all appropriations of money, them to act now as it would be proper for men to and all laws originate. Of what use, they may act then. A wise man is governed by reason, say, is your dry parchment? Although the House men of less understanding by experience; but it of Representatives may have passed it, although is the weak, indeed, that are governed by their the Senate may have agreed to it, although the passions or feelings, when the interest of their PRESIDENT may have confirmed it, and although country is in question. it may have passed through each House with all

Much has been said about the British Constituthe graceful forms necessary to dignify it as a law tion. He always understood that their charter of the land; yet, unless our will is had in the

was nothing more than long usage, or practice premises, it has no weight. But the question is

, reduced to precedent; and from that uncertain can it be thought right for the people ; can it be source their present unpleasant situation may have right for the collectors; would it be right for the arisen. But they had the book and page, and officers of the revenue; or was it right for that surely the good sense of the United States will House to hold out to their constituted authorities frown into atoms the man who shall attempt to this sort of language ? No, must be the answer. violate the sacred volume. The principle is subversive of all Government. Common sense revolts at the idea. In this

For his own part, he should oppose the resolu

way the people can repeal laws by not obeying them; tion, because it interfered with the oath he had and, perhaps, there may be cases when they have taken to support the Constitution of the United

States. a revolutionary right so to do; and it was in that confused state of things that Congress might re- With these observations , he should sit down peal Treaties by not filling that middle ground during the rest of the debate on this question, they are placed in by refusing to grant appropria- hoping the House would not so far forget themtions; but both must be considered as in rebellion I selves, and what they owe to posterity, as to

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