MARCH, 1796.] Treaty with Great Britain. [H. OF R. The revival of a transaction of so old a date at that particular moment, was to me surprising. Not knowing their degree of relation to this question between the two Houses, and not knowing the cast of character but of one of them, I am left only to conjecture. It was so peculiarly timed, and 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 free communication between me and my constituents, that I have thought it my duty not to let the treatment of it depend on my own individual discretion. I consider it as in the discretion of the House. Mr. B. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of Friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of Friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended. Mr. B. then began his remarks on the question, and observed that, from the course which the business had taken, the subject seemed to be one thing and the discussion another. He begged leave first to consider the question, partly with a view to rescue some remarks which he had made when the question first presented itself. from a singular envelope which one or two members have thought proper to attempt to throw about them. He did not then say that it was advisable to request these papers of the PRESIDENT, for the sake of publishing them; that published they ought to be; that there were no secrets in Government now-a-days; and that the doctrine of mysteries was exploded. old mysterious doctrines of Governmental secrecy was not necessary; that, in place of it, it seemed now to be believed that it was desirable, as far as possible, to have Governmental regulations accompanied with light and information, and as full an exhibition of the reasons on which they are foundalmost brought his own mind to believe that there was but one limitation to the extent of this principle, and that was, that, while measures were in the transaction, and in an unfinished state, it might, at many times, be improper to disclose them. Proofs could not be wanting that these impressions had such weight on the mind of the PRESIDENT that he persuaded himself there was no danger of their making an unfavorable impression on his sentiments, qualified as the motion had been by the last amendment. It was said, the PRESIDENT would have published these papers unasked, if there had not been an impropriety in it. There might be a diplomatic impropriety in disclosing the particulars of a negotiation unless some kind of occasion led to it-like an individual too freely disclosing private letters; but when it was known that there was occasion, it is a perfect justification. A gentleman from South Carolina [Mr. SMITH] had undertaken to controvert these assertions. His proofs are too remarkable not to be noticed: his first was, that the old Congress had animadverted on the conduct of a member from Rhode Island, for improperly communicating some matters which had been intrusted to his confidence; the second was, that they now had a rule for clearing their galleries. Let that gentleman look at the secret Journal of the old Congress, and see how it continually diminished till it was become almost nothing; let him look over the United States, and see how many public bodies which used to deliberate 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 UNIvation, which was nearly as follows: that they were obliged, at any rate, to go into the subject; the House had ordered the Committee of the Whole to proceed to consider the Treaty, and the petitions from their fellow-citizens complaining of different parts of it; the committee must be formed, the subject taken up, propositions upon it must be received, and some result concluded on. The only question, then, was, whether to take up the subject unexplained as it was, merely from the instrument and petitions, or to request any information that might be thought useful to the discussion, and not improper to be communicated, which might guard them from error, and lead them to a proper result. To this it was objected, that these papers were secrets of the Executive department, &c. In this connexion it was he made the observation alluded to; that he hoped, on reflection, that objection would not appear to have so much weight; that, since they had been a free people, the different Governments in this country, and the different departments of Government, appeared to be under an increasing conviction (which, he thought, had been much strengthened by experience) that a rigid adherence to the TED STATES, for these two or three years past; let him read the rule of their own House, as it now stands, on the subject of clearing the gallery, and see how much it is narrowed from the rule which was in force for the first two or three years-and then let him declare whether there is not some foundation for the assertions which he had attempted to combat. He hoped he should be excused for having detained the Committee by some repetition of what he had before said-it was the strict debate of the question, and had been held up undefended in two unfavorable attitudes. He could not patiently see observations that appeared to him so important, so well grounded, and so strictly applicable to the question in debate, hunted from the House, because the attention of gentlemen, who at other times would not have suffered it in silence, had been absorbed by a still more important direction which the discussion had taken. He should conclude this part of his observations, which he considered as properly the debate of the question, by an expression of his wish that gentlemen would reflect in what light they exhibited themselves, and what must be the tendency of their opinions, if they avowed themselves the adversa ries of his observations, as he had now explained them. He had hoped, when he first made the observations, they had not been useless; they still had great weight on his own mind-he believed they had on the minds of some other members. Mr. B. then proceeded to consider the question in the form in which it is presented by the discussion. He was sensible of the disadvantage any person must labor under, and particularly himself, in attempting to speak upon it, after it had been so long and so very ably discussed. It would be impossible for any person to propose to himself a strict and regular plan of viewing the subject without going over a great deal of the ground that had been before taken by other gentlemen. This, in the present stage of the business, would be so tedious-and any attempt to improve upon their statements would be to him so hopeless-that he should decline the task, with barely making the observation as an apology for a less formal, though he hoped not useless, submission of some thoughts which had occurred to him on the subject. [MARCH, 1796. possibly exist any such case, in which it might He said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. It was certainly important to agree exactly on that point. The least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. One gentleman had stated that the question was, whether this House should feel itself at liberty to judge over the heads of PRESIDENT and Senate on the subject of Treaties without restraint: his 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 branches of the Legislature. He might mention several others, but he called the attention of the House to the fact, to settle the point, that they might at least agree what they were talking about. The question, said he, on the table is, to request of the PRESIDENT papers respecting the Treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. He begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the Constitution that there was nothing for that House to deliberate upon on the occasion, but only punctually to provide the funds to carry the Treaty into effect. If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making in which it might ever be proper for that House to deliberate-as, for instance, offensive Treaties which might bring the country into a war-subsidies and support of foreign armies-introduction of an established religion from a foreign country, or any other of those acts which are by the Constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might stand distinguished as an indefinite, uncontrolled branch of the Government, the extent of whose powers was to be known only by its own acts. Its definition was to be, that it was indefinite-like what is said of some branches of the powers of Parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. However this might be found, respecting a foreign Constitution, it is making a monster of our own. There was not another part or lineament in it which appeared to be in the same mould or proportion. He then proceeded to observe, that though upon these principles a definition of this power was not to be asked or expected, yet without doubt it might be permitted to contemplate it in its display. From the late exhibition which had been made of it in the instrument which had been laid before the House, it appeared to assume the right of repealing laws. He supposed it not to be denied, that in not less than four instances it had repealed laws of the United States. He had not heard any reason assigned why it might not have been extended to the whole book, and repealed all the laws passed MARCH, 1796.] Treaty with Great Britain. [H. OF R. detain the House a minute by the repetition of the luminous and able discussion with which the House had been for several days instructed. Can any man, said he, after the views which have been presented to us, doubt that there is room-that there is a call for deliberation to reconcile some parts of the Constitution on this subject--to give the greatest effect to them all? For example, it is said: ART. I. "All Legslative power herein granted shall be vested in a Congress, consisting of a Senate and House of Representatives," i. e. every particle of law-making power in the Constitution granted shall be vested in a Congress, consisting of a Senate and House of Representatives. before that time. It appeared also to have nar- ART. VI. Treaties are laws. The power of making Treaties is a particle of law-making power, granted by the Constitution; but it is granted by article 2d to the PRESIDENT and two-thirds of the Senate. And yet there is no doubt in these expressions. They are so perfectly clear and definite, that there is no call or even room to deliberate in commenc And how, he asked, are such questions between the different constituent parts of the Government to be settled, but for each branch to deliberate with calmness and moderation in their own sphere, and come to a mutual result? It must indeed be a fearful, trembling loyalty, that should prevent so important a branch of the Government as that House from even presuming to deliberate on the very important considerations which have been addressed to them. It was not a new case, or peculiar to that House; there can be no doubt but it will be well received by the other branches of the Government, with the exception of but few individuals. The PRESIDENT had not hesitated to send back to them their laws when he thought them against the Constitution, and they had given way to his reasons. The Judges had refused to execute a law intruding upon their department; it was repealed, and they passed another on the subject. Mr. B. then proceeded to take another view of the subject, in which, he said, it would be necessary for him to request the Committee to go back with him again to the question, and take the other alternative, to see whether it would not carry them on to safer and better ground. He would begin it by the assertion, that those few words in the Constitution on this subject, were not those apt, precise, definite expressions, which irresistibly brought upon them the meaning which he had been above considering. He said it was not to disparage the instrument, to say that it had not definitely, and with precision, absolutely settled everything on which it had spoke. He had sufficient evidence to satisfy his own mind that it was not supposed by the makers of it at the time, but that some subjects were left a little ambiguous and uncertain. In this place, he begged leave to take notice of It was a great 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 reflected on the immense difficulties and dangers of that trying occasion--the old Government prostrated, and a chance whether a new one could be agreed in the recollection recalled to him nothing but the most joyful sensations that so many things had been so well settled, and that experience had shown there was very little difficulty or danger in settling the rest. In this part of the subject, he said, had he been earlier in the debate, he should have gone over some of the ground on which others had now gone before him. He would not ties he was constantly expecting to hear him quote another, very common in the present times, the toasts. The gentleman from Massachusetts had produced many others: the reasons of members of the Convention, the proposed amendments of several States, &c. He was willing to allow due force to that kind of reasoning, if it has, in fact, been the common view of the subject; if it is the one that most naturally presents itself on reading that part of the Constitution, it would be a good reason for calling up all their candor and diligence on the occasion, in comparing and re conciling it to the other parts of the Constitution; but it was not of sufficient force to be a ground of absolute certainty that the thing is definitely settled, and that they ought not to deliberate upon it. He thought more weight had been allowed to this turn of argument then was its due. It was not to be forgotten, that probably even in making the Constitution, and in all that had been said upon it since, there never had been till now so many persons and so much time employed at once in searching and settling this single point. It may be said to be the first solemn decision of the question. The suability of the States was not so much talked of or believed, till it was declared by the Judges to be the meaning of the Constitution; its being a new and unexpected construction, was not used as a weapon to excite irritation against the Judges; why ought it to be on this occasion? He might mention several other particulars to the same effect, but he wished as far as possible to avoid being tedious. [MARCH, 1796. ascertain the meaning of phrases with as much precision as Dictionaries ascertain the meaning of words. It is exceedingly useful that it should be so. When such a precise meaning is fixed to a phrase, and publicly known, it is apt to remain a long time exact, as it is frequently employed, and is very useful as a medium of certainty. Many instances of this kind might be quoted, particularly from English books on law and Government. He would observe further, these appropriate phrases had been for their certainty in many instances transferred into our Constitution, and their meaning must be manifestly sought in those sources as in a Dictionary. One remarkable instance occurred to him, and which, from the singularity of its garb, would be very discernible in the Constitution-he meant the definition of treason in the third section of the third article of the Constitution. The phrase is, levying war, adhering to enemies, giving them aid and comfort. These 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 considering to the PRESIDENT and two-thirds of the Senthem as giving to the Treaty-making power the same paramount authority over the laws and Constitutions of the several States, that they give at the same time to the Constitution and laws of the United States. The words appear to be introduced for the express purpose of making the Constitution, laws, and Treaties, of the United States, paramount to the Constitutions and laws of the several States, and for no other purpose; this is all that the section appears to be speaking of; it satisfies the words, is the most obvious and natural meaning, and leaves the other parts of the Constitution harmonious and undisturbed. As to the words "power to make Treaties," it was more difficult to ascertain precisely what the Constitution meant to give by them. It had been argued that from the nature of Governmental powers, the Treaty-making power must be paramount, and from the nature of contract it must be paramount. The truth is, the Treaty-making power must be what the Constitution has made it. He did not hesitate to say, that the most natural meaning to give these words, was to consider them as borrowed from former use, and to give them the meaning which they had always before given them. Gentlemen had said that nothing useful could be derived from English books and explanations on these terms. This seemed to him an unreasonable assertion. It might as well be said, that they could not use an English Dictionary to ascertain the meaning of words. In many sciences, said he, there are definite and appropriate phrases as well as definite and appropriate words; and, in fact, books which are Dictionaries of phrases, ate the same kind of power as the King of England possesses on the subject of Treaties, which it is known is in several cases subject to the control of Parliament. Here it is qualified by the powers specifically given to Congress. But all this, said he, is answered by most violent outcries, which sound to him very bold on so new a subject: that the nation will be undone, all confidence in its engagements destroyed, and the country, without doubt, involved in a war abroad, and anarchy at home. That was an extraordinary mode of discussing a curious and perplexed question. It may be asked, why do not those things occur in England? The King, it is seen, has laid this same Treaty before Parliament; they may probably now be discussing it. Some of their Treaties which were read the other day appeared to be carried by but a small vote; suppose this should now be lost in Parliament by a small vote, what reason to apprehend more dreadful consequences to this country than to that? He hoped, on the whole, the House would be prevailed on to go coolly into the subject; he had no doubt but their good sense and moderation would guide them safely and prevent them from working mischief or creating confusion. He hoped they would first request the papers on the subject; he had no doubt but that it would appear that this was not now as new a question to all the branches of the Government as it was to that House. It is probable it presented itself to the Ministers who made the Treaty. The English had been so much in the habit of having an article introduced into their Treaties respecting its being submitted to MARCH, 1796.] Treaty with Great Britain. [H. OF R. against the Constitution of the United States. Why this new mode of explaining the Constitution? It had been understood from the school-boy to the Senator according to its true meaning. Why, to gratify party rage, shall they attempt a new explanation of this criterion of their happiness? An observation, he said, fell from one of the Representatives from Virginia in his speech of last week, which he would take the liberty to make one or two remarks on. He intimated that he stood on high ground; he felt bold from the propriety of his intentions; he cared not for the cant word of disorganizer, &c. That is right; gentlemen who attempt to remove the established Parliament, that probably the English Minister had the caution to ask our Minister, whether an article ought not to be introduced about its being submitted to Congress, and what he considered the powers of the PRESIDENT and Senate on the subject. It is very probable information on this subject will be found among the papers which it is proposed to request. Our Minister was a man of so much good sense and information, that, without doubt, he had drawn some line on that subject. Perhaps on looking at the papers they might find he had drawn it very properly, and be perfectly satisfied not to disturb it; but, that there should have been so long and formal opposition 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. Mr. COOPER rose to refer his colleague [Mr. HAVENS] who spoke last week, to the mode in which the laws and Constitution of the State of New York were explained away in the year 1792, so as to deprive the citizens of that State of the right of suffrage, and to inquire whether that decision was not considered by all thoughtful people as erroneous; if so, whether the present reasoning does not originate from the same mistaken notions of power over right? I think, said Mr. C., it will not be improper for the gentleman to recal to mind those observations before he decides on this important argument. That gentleman and several others have asserted on this floor, that a Treaty was not the law of the land until it was assented to by that House; if so, it may be fair to inquire into its merits, and have the papers before them. Let them examine the matter. Surely if that principle be admitted, could not the officers of the revenue with equal propriety say to Congress, your law is no law until our will is had-until we set it in motion; or, the collectors of the taxes, your law is of no validity until we take order to make the people pay their several quotas, or the people at large say, we are the essence of all law; it is with us all revenue, all appropriations of money, and all laws originate. Of what use, they may say, is your dry parchment? Although the House of Representatives may have passed it, although the Senate may have agreed to it, although the PRESIDENT may have confirmed it, and although it may have passed through each House with all the graceful forms necessary to dignify it as a law of the land; yet, unless our will is had in the premises, it has no weight. But the question is, can it be thought right for the people; can it be right for the collectors; would it be right for the officers of the revenue; or was it right for that House to hold out to their constituted authorities this sort of language? No, must be the answer. The principle is subversive of all Government. Common sense revolts at the idea. In this the people can repeal laws by not obeying them; and, perhaps, there may be cases when they have a revolutionary right so to do; and it was in that confused state of things that Congress might repeal Treaties by not filling that middle ground they are placed in by refusing to grant appropriations; but both must be considered as in rebellion way ought to prepare for such cant words; it was reasonable they should expect them; for, from ancient date, the remover of land-marks was spoken harshly of. All men, said he, must now see who are willing to be bound down by the letter of the Constitution, and who are desirous to break through all shackles. There are three causes why this Treaty is so vastly disagreeable to some of the citizens in a part of the Union. One was, it compels some of them to pay their just debts, which they contemplated evading. As to the idea of its being a good or bad Treaty it is a mere pretence, for the same opposition was made before it appeared as afterwards. A second is, that they have been at war with the nation this compact is made with, and an improper influence a nation now struggling for liberty has over their passions as Americans has increased their prejudices against the British nation. But the third and most rational cause is, that as they are an old and powerful nation, and as America is young, and unable to meet them, they insult and misuse them on that account. He felt their insults, yet his wish was to support their neutrality. Twenty years hence, he said, their voice would have a more manly sound, and although they may feel now as men will feel then, yet it would be imprudent for them to act now as it would be proper for men to act then. A wise man is governed by reason, men of less understanding by experience; but it is the weak, indeed, that are governed by their passions or feelings, when the interest of their country is in question. Much has been said about the British Constitu tion. He always understood that their charter was nothing more than long usage, or practice reduced to precedent; and from that uncertain arisen. But they had the book and page, and source their present unpleasant situation may have surely the good sense of the United States will frown into atoms the man who shall attempt to violate the sacred volume. For his own part, he should oppose the resolution, because it interfered with the oath he had taken to support the Constitution of the United States. With these observations, he should sit down during the rest of the debate on this question, hoping the House would not so far forget themselves, and what they owe to posterity, as to |