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H. OF R.]

Treaty with Great Britain.

[MARCA, 1796.

not.

adopt a resolution so deeply tinged with usurpa- tatives, under this Constitution, had less power tion of power.

than was exercised by the House of Commons Mr. Holland said: It is with great diffidence in England; that they would be less able to seI rise on this important subject, to submit some

cure their liberties in this country against the apconsiderations to this Committee.' As it has now proaches of prerogative, would they have, under become a Constitutional question, not with re- that belief, accepted of this Constitution? I think, spect to the merits of the Treaty, but with respect Mr. Chairman, I may venture to say they would to the Constitutional right of this House to request the Executive to furnish us with papers With respect to the more absolute Government that related to the Treaty antecedent to its ratifi- of France, where has this power been lodged ? cation.

In this, as in the monarchy of England, it was, To this it is objected that this House has no in theory, lodged in a Prince; but the theory, discretionary power over the Treaty, and, on that even in that despotic Government, never could account, has nothing to do with the

papers. be carried into practice. According to Vattel, in The question is not whether the Treaty is a the Treaty made by Francis l., in the Treaty of good or bad Treaty, but it is whether we have a Madrid, on account of that Treaty encroaching right to exercise our judgments upon it. Then, on the fundamentals of their Government, it was without any regard to the Treaty, we must be set aside. How was this done? It was not done governed by the rational construction of the fun- by Parliament, for they had none; but the prindamentai principles of Government.

cipal people of the Kingdom met together at CogTo illustrate which, it may be necessary to ex- niac and annulled it. I ask again, Mr. Chairman, amine what has been incident to the different if the people of this country possess less power kinds of Government, according to the histories than the people of that despotic Government? of those nations governed by despotism, monarchs, Or do they possess less power to withstand the or republics; and, from the Constitution of the usurpations of the Executive, on the subject of United States as the fundamental maxims of the Treaties, in their Representatives in Congress

, Republic, draw that construction that is most ra- than has ever been maintained in the cramped sitional and natural.

tuation of the people of England by the House It will also be proper to examine which of of Commons ? those Governments preserves the most power in Why were these rights ever maintained and the people.

so scrupulously attended to by the people of those First, then, of monarchy. Where has that countries? It was because they considered them power been placed ? According to the theory of as the palladium of their remaining liberty-they, the English Government it has been lodged in the therefore, would not let them go. Sovereign, for it is there expressly said (nor has it Then, with respect to a Republic, the sovereign been denied on this floor) that the King is the power is in the people. It therefore follows that source of all power; and it is also expressly de- whatever can be effected by the people in those clared that the King of Great Britain has sove- countries can be done here-they being the source reign and exclusive right to make Treaties. That, of power. when they are made, they cannot be impeded or Then, with regard to the Constitution, it must annulled by any existing power in the Kingdom. be construed naturally and liberally in behalf of This is the theory of that Government. But what the people. Not as giving all power that can be has been the practice? I answer, the contrary; given, but as retaining all power and natural right for it ever has been that, when a Treaty was that ought to be retained. It would have been made, that the same has been submitted to the extremely improper to have wantonly discarded Parliament for concurrence; and Parliament, if natural privilege, or ceded more power than was they thought proper, admitted and sometimes an essential to Government; nor was any more innulled them, as in the Treaty of Utrecht, and tended to be given. sundry instances that the history of that nation The Constitution, upon the face of it, shows affords us.

The English Government, therefore, that this is the case-limits are prescribed to is in practice what it is not in theory. By the Governmental power. Not so in the countries construction of the Constitution, as contended for, spoken of, yet ihe people exercise it. But, it is by giving uncontrollable power to twenty Senators said our Constitution has not retained this priviand the PRESIDENT, our Government will be in lege, and it is the law and the testimony, sacred practice what the English Government is in volume, &c. The sacredness depends upon the theory. If this doctrine had been believed that attention to the principles that procured its adopthis was the true construction of the Constitution, tion; when that is contravened a violence is made previous and at the time of its adoption, would upon the rights of the people. If, by any conthe people of the United States have adopted it ? struction that can be given, these rights can be If they had been informed that, by this instru- preserved, it is wise to consider it as the better ment, they were ceding more power to two-thirds opinion. But it is said to be impossible that this of the Senators and PRESIDENT, than even could power has been ceded, subject to no control, to be practised by the King of England, with his the President and two-thirds of the Senators lords spiritual and temporal, under that impres- present; that, whatever may be the practice in sion would they have ceded' that power ? Or, if other countries, it will not apply to this; that they had been told that the House of Represen-I those countries have no Constitution, and that we March, 1796.)

Treaty with Great Britain.

[H. OF R.

have, and must be governed by it. Unfortunate violence to the property and rights of others. circumstance! why adopted ? Was it wantonly Nor has the adoption of the Constitution taken to throw away a privilege and natural right ? from us this privilege. Then, with regard to this Certainly not, but the contrary. It was to secure instrument, (the Treaty as it is laid before us,) is natural right, and to establish a Republican form it a subject that we can exercise our mental powof Government.

ers upon, or is it the property or right of others ? How, then, can it be said by a gentleman from It belongs no more to the PRESIDENT and Senate Connecticut, [Mr. Smith,] that, as a private citi- than to this branch of the Government. If it is zen, he might exercise his judgment; but, as a a property, it is the right of a nation, it is a prolegislator, on the score of the Treaty, he would perty in common, and, as such, we may clearly not think, although he acknowledged, that it was exercise our judgment upon it, in order to disthe duty of this Legislature to make laws to carry cover its merits or deformity; and, if it be found it into effect, but he had no discretion on the rea- valuable, perpetuate, if an incumbrance, discard son of the law? A gentleman from South Caro- it. If its merits can be known, there can be no lina [Mr. W. Smith) also said, that we had no doubt that it will obtain the support of this House discretion; and, to prove the position, quoted and of all the people of the United States. But it the prohibitory clause, third article and section is said by a gentleman from South Carolina, (Mr. in the Constitution, which prevents legislat-SMITH,] that the custom has always been to ading so far as relates to the diminution of the mit of the Treaties; and that no attempt had Judges salary. This clause was intended to pre- been made to prevent their operation till this sovent the destruction of a legal right; the salary litary case, and from this infers, that this House being fixed, it would be improper and unjust to has no power to examine its merits, that they diminish during the time for which he was elect- have uniformly passed laws to carry them into ed. But there is a difference between the repul-effect. All this may be true; but this goes only sive and the compulsive; the latter being incom- to show that they corresponded with those Treaties. patible with the character of a legislator, and that It does not show that this House had not the right freedom of will incident to legislation, and that or power of repulsion. There is a difference bethe man is the more or less a legislator in propor- tween the having the power, and the act of exertion to the freedom of his will, and uninterrupted cising the power to the full extent. exercise of his judgment. But, in the case of ap- A gentleman from Massachusetts [Mr. SedGpropriation, so far as relates to the discharge and wick] has said, that he is much amazed if this payment of the Judges' salary, as has been previ- power is in the House, that it was never found ously fixed by law, in this, as in all other cases out until this moment; that not a man, from Georof Legislative acts, a sound discretion should be gia to Massachusetts, ever knew it before. I beg exercised. It would be proper to examine the leave to inform that gentleman that he is misstate of the Treasury with other external rela- taken; that he has not made himself acquainted tions; and, if it should be found that the sum was with the understanding and judgment of, I trust, impracticable in the present state of things, they a large majority of enlightened citizens of the most certainly could refrain. Nor would this be United States. That it was this construction that a destruction, but only a temporary suspension of procured the adoption of the Constitution. That the Judges' right, which frequently happens in previous to, and at the Convention of North Carexigencies. It therefore clearly follows that, in olina, this clause, which gives the Treaty-making this case, discretion and judgment are at liberty. power to the President and Senate, was conand as much unrestrained as in any other act of sidered by some as an exceptionable part, on aclegislation.

count of the indefiniteness and generality of the In the eighth section, eighteenth clause of the expression. It was said, that the President, with Constitution, full power is given to Congress to two-thirds of the Senate, could make Treaties make all laws, &c.; and in the sixth clause of the and make stipulations unfavorable to commerce. ninth article it is expressly declared, that no mo- But those in favor of its adoption (of which I ney shall be drawn from the Treasury but by law. had the honor to be a member) said, that comWhy by law? Why not by a decree of the Se- mercial regulations had been previously and expate? It would have been much less expensive, pressly given to Congress, and to them secured. being done by them, and it would have prevented Under that conception I was in its favor ; but the phenomenon of one hundred and four Repre- should have been opposed to it upon the other sentatives of a free people, and spare them the construction. I yet think that is the true condisagreeable dilemma of being obliged to legis-struction. In the explanation of a statute, it is late where they could not exercise will nor judg- proper to examine the evil and the remedy, and ment; a situation extremely disagreeable in a to reconcile the seeming inconsistency, which private capacity to every person that has a tinc- can be done in no other way than by this coniure of independence; then shall it be said or be-struction. lieved that the Representatives of the free people I considered that the Executive had absolute of the United States can be in this situation ? power to make peace, as by the Constitution he

Natural right has power to think and act on all is declared Commander-in-Chief of all the Arsubjects that present themselves to our natural or mies, his situation enabled him to be the best moral sense, except acting on those objects that judge of the forces and of the force he had to would be accompanied with an express or implied contend with, and as secrecy was necessary to

H. OF R.]

Treaty with Great Britain.

[March, 1796.

effecting a Treaty of Peace, that power was prop- Another gentleman from South Carolina [Mr. erly vested in him, guarded by two-thirds of the Harper) said, when this motion was first made, Senate. But a Treaty of Commerce presupposes he thought it immaterial, but now he thinks it a an existing peace, and in those Treaties secrecy violation of the rights of the Executive. How is not essential; a competent knowledge of gentlemen can so suddenly change their opinions the produce of the respective States in all their from one extreme to the other, I am at a loss to remote situations was necessary; which would conceive. I, generally, have discovered that in be best obtained by an association of the three all common occurrences, things present thembranches of Government.

selves (as to substance) right in the first instance; This is a Treaty of Commerce, and therefore there may be some change with respect to form. has involved Legislative objects. It consequently Nor can I conceive any other cause than a recolrequires Legislative sanction; a contrary con- lection of the necessity of guards to prerogative. struction would be a violation of the Constitution I yet think it a modest and reasonable request, and of the principles upon which it was adopted, and in that point of view, I trust, will the Presiand therefore a violation of the rights of the DENT consider it. He will recollect that we are people.

the Representatives of the people, and that we I confess, on viewing the exception and force of cannot discharge our duty by knowing that this the argument, that I had some doubt, that when Treaty did happen, but by being acquainted with the Government became old and corrupt, that the causes that produced it, whether by accident, this perversion might be attempted; but had no design, or necessity. If by accident, we are not idea that in the course of six years it would be bound; if by design, and the motives corrupt, it contended for.

is a nullity: fraud contaminates a private conA view of mutual interest excites individuals tract, according to Vattel ; if by necessity, and and nations to form intercourse and commercial that can be known, it will be a sufficient apology, contracts. So long as the end corresponds with and we will submit to it. Under these considerathe design, the firm should exist and no longer ; tions, with those that have been offered, I am when either or both are dissatisfied, reason would conclusively in favor of the resolution. dictate a dissolution. Nor can this with indi- Mr. BRADBURY observed, that the most plausividuals or nations be a just cause of quarrel or ble reason that he had heard in support of the war, but often the best way to preserve peace. resolution under the consideration of the CommitIt is not enough for me to know that this Treaty tee, resulted from a principle advanced by a memdid happen, but I wish to know the causes that ber from Pennsylvania, who spoke upon the subproduced il, which will best be known by advert-ject last week. The principle was this; that ing to the papers contemplated in the resolution. where any articles of a Treaty were repugnant to

A gentleman from Vermont, [Mr. Buck) in prior existing acts of Congress, those acts must the commencement of this debate, has said that first be repealed by Congress before such Treaty the Treaty was now the law of the land, after can become the law of the land; and it was said having been concurred in by two-thirds of the some of the articles of the British Treaty were Senate, and ratified by the PresIDENT. It was of this nature. He would not stay to examine subverting the first principles of our Government, the truth of the fact, for admitting it

be true, and to oppose was rebellion; and more particu- he altogether denied the principle; but yet he larly as it was officially laid on the table and pro- acknowledged that if it could be made out, it mulgated by the President's Proclamation. To would afford the best reason yet given for calling use his language, it struck like thunder-appeared for the papers. If their concurrence was neceslike the majesty of Heaven.

sary to give existence or legality to the Treaty, I would beg leave to observe to that gentle- he saw not why they ought not to be favored man, that as to the majesty of Heaven, I lack a with the papers as well as the Senate. But he simile, not being acquainted with the gods. But asserted, and would endeavor to prove, that the with respect to thunder, I have some knowledge Treaty has already a legal existence; that it is of its operation; when it strikes a sensible object now the law of the land; and that, therefore, no it destroys sensibility. If it has had that effect act of Congress is, or can be, necessary to make upon that gentleman, unless he has recovered, he it so; and, therefore, that House could have no is yet unfit for a legislator. I would only further need of the papers, nor any right to call for them observe, that if the Treaty was not the law of on that ground. the land, the Proclamation did not make it so. I That the Treaty had already become the law should not have observed on the gentleman from of the land, and that no Legislative act of ConVermont, but for the eulogium given by the gen- gress was necessary to make it so, he argued tleman from South Carolina, (Mr. W. Smith,] wholly from the Constitution itself, by which who had said, that his speech was of such dignity alone the question must at last be determined. that an attempt to repeat it would lessen the ori- That instrument expressly declares, that all ginal.

Treaties made under the authority of the United I have been told it has been a custom in this States shall be the supreme law of the land. He House, when persons have conspicuously dis- laid no stress upon the word supreme, admitting charged their duty to give them the thanks of the for argument sake, that the supremacy ascribed House, I wish to indicate to the gentleman, that to the Constitution and laws, and Treaties made he was unauthorized to communicate mine. under it, meant a supremacy over the Consti

March, 1796.)

Treaty with Great Britain.

[H. OF R

tution and laws of individual States:* All he nant to it: here the maxim of law strictly apasked to be granted him, and which he thought plies, leges posteriores priores contrarius abrocould not be denied, was that a Treaty made gant. If it did not, it could not be the law of the under the authority of the United States was land; for, if former acts repugnant to it were the law of the land. If so, then all that still in force, they must still necessarily be supeneeded to be proved was, that a Treaty made by rior to it, and prevent its operation, and a law the PRESIDENT, with the advice and consent of that cannot operate is no law. two-thirds of the Senate, was a Treaty made It was acknowledged by the same gentleman, under the authority of the United States. And that an act of Congress could not repeal a Treato prove that, he needed only to mention another ty, because it was a contract made with another clause in the Constitution, which expressly de-party: Nor, said that gentleman, can a Treaty clares that the President, with such advice and repeal a law, because Congress made it, and their consent, shall have power to make Treaties. consent is necessary to repeal what they have

If then the United States, by their Constitu-. made. But he denied the consequence. It does tion, have authorized the President, with such not follow that an act of Congress is necessary to advice and consent, to make a Treaty, and if he, repeal a law, because they made it. The Constiwith such advice and consent, has in fact made tution may, without absurdity, authorize another one with Great Britain, then that Treaty is made distinct power to repeal an act of Congress; and under the authority of the United States, and if it is still a question of fact whether they had or so, then it is the law of the land.t This reason- not. He contended that they had in the case of ing appeared to him to be plain and conclusive. a Treaty. The consequence could not be denied or evaded. To prove his proposition, that gentleman had If so, the principle asserted by the gentleman observed, " That in the first section of the Confrom Pennsylvania must fall to the ground. The stitution all Legislative power therein mentioned Constitution neither expresses nor countenances was given to Congress; yet in the last section such a principle. If it had intended that a Legis- but one the Constitution says, Treaties shall be lative act in such case should be necessary to the supreme law of the land, though made by the complete the contract, it would have expressed PRESIDENT and Senate. A Legislative power is that intention by an express proviso; for it is a thus given them, after all Legislative power was case that must often happen in making of Trea- vested in Congress, as if there were two Legislaties, and which must have been contemplated tive powers. How were these powers to be rewhen the Constitution was made. Instead of conciled ?" He answered, the latter particular which the Constitution declares, that Treaties, power was an exception to the former general all Treaties without exception or limitation, made power. If a Treaty is a law, then the making it under the authority of the United States, (and he is a Legislative act, by what power soever made, had proved that Treaty to be so made.) 'shall be call it Executive, or what you please. If a genthe law of the land; but this principle teaches eral unlimited power of legislation be given to and asserts, that they shall not be the law of the Congress, and afterwards a particular power to land, although so made, until sanctioned by an legislate in a particular case, is given to the act of the Legislature. It was not possible to re- President, it must operate as an exception to the concile the doctrine with the Constitution; they general power; this will reconcile the two powwere contradictory in fact as well as in terms. He added, that if a Treaty was the law of the But it is said, if this be the case, then the Exland, it must necessarily, upon its becoming so, ecutive may grasp all Legislative power, and rerepeal and annul all previous acts and laws repug peal all acts of Congress, by making an insignifi

cant Indian tribe a party to a Treaty. He an*Though this be admit:ed here, for argt ment sake, yet it is easy swered that the Supreme Executive must be tion and the Laws of the United States which shall be made in very weak, as well as wicked, to make use of an pursuance thereof; and all Treaties made, or which shall be | Indian Treaty as an instrument to repeal all acts inade under the authority of the United States, shall be the su of Congress. What consideration could be held supremacy of the Constitution, and the laws male under it, while I forth by an insignificant Indian tribe as an equivin force, and of all Treaties made or to be made under the authori. 1 alent for so great a sacrifice. The fraud must apment, as over the Constitution and laws of the individual States: pear on the face of the Treaty, and would defeat General Government, of which there could be no room to doubt, to the Supreme Executive by the Constitution, The meaning is, that they shall all be supreme, not only over the his intentions. This Treaty-making power given though not expressed, but also over the Constitution and laws of every Slate in the Union, of which there might have been some was, he acknowledged, a very large and importpretence to doubt, had it not been expressed.

ant power; but no argument could be drawn * The words, “made under the authority of the United States," were evidently chosen instead of the words “male by the Presi" against its existence from the possibility of its dent, with the advice and consent of the Senate,” because they being abused. It was fully considered when the were to refer to Treaties then already made, as well as to such as Constitution was made, that the Treaty power should be thereafter made, the former not having been made.by the President, but by Congress, but both might truly be said to be was a great and important power, and the giving made under the authority of the United Staies. There is no color for the assertion made by Mr. Gallatin,

it to the Supreme Executive, without defining or that they were used to express imply lea"" that a Treaty' limiting it, was one great ohjection to the Conclashing in any of its provisions with the express powers of Con stitution. But it was then justly observed, and gress, would not, until it should so far have obtained the sanction of Congress, be a Trealy made under the authority of the United more especially in the debates of the Virginia

Convention, that it was a power that could not

ers.

States.

H. of R.]

Treaty with Great Britain.

[MARCH, 1796.

well be placed in Congress, nor anywhere else, so fore. was gained from the King by the Commons, well as in the Supreme Executive; and that, in was considered as so much gained by the people its nature, it could not be limited, except perhaps from an adverse power. that it ought not to extend to the dismemberment If the PRESIDENT were an hereditary monarch, of the Empire. This last sentiment is ascribed deriving his power from his predecessors by deto a learned and respectable character, who was scent, a power originally founded in conquest, now a member of that House; but, in the present Congress would do well to get as much of it oui debate that gentleman had declared, that he now of his hands as they could.

It would here be, as it hesitated not to say, that they ought not to admit was there, a struggle between prerogative and the Treaty-making power to be unlimited. How privilege, it would be the people against the King. this could be reconciled with his former senti- But as this was not the case, and as Congress ment, it it were rightly ascribed to him, he was never had in fact assumed and exercised the powunable to say. He presumed the gentleman had er of confirming by an act of theirs, Treaties made altered his opinion.

by the PRESIDENT, this argument from analogy The fatal consequences which might flow from wholly failed. the abuse of this power, have been painted by the Suppose the Parliament of Great Britain should same gentleman in strong colors; but ihose con- pass a law expressly delegating the Treaty-making sequences were considered as possible when the power to the King, with the advice and consent Constitution was formed; notwithstanding which, of two-thirds of his Privy Council, and should deit was judged necessary to lodge this power in clare in the act, that a 'Í'reaty made under such the Supreme Executive, without attempting to li- authority should be the supreme law of the land. mit it as to its object. And it cannot be limited They claim a right to make such a law, for Judge by anything but the Constitution; no laws incon- Blackstone affirms, that the denial of a power in sistent with that can be passed, either by the Treaty every Government, even to alter every part of its or Legislative power. “And the only other check's Constitution, is the height of political absurdity; he could find on this power of the Supreme Exe- and in England, he expressly ascrįbes this power cutive in the Constitution, were the requiring the t Parliament. advice and consent of two-thirds of the Senate; What would be the effect of such an act of Parand impeachments against both, for abuse of pow- liament? Would not a Treaty made under it be er, vested in that House.

clearly the law of England ? and 'would not all He nowhere read in the Constitution that any acts of Parliament, prior and repugnant to it, be act of Congress, in any possible case, was neces- repealed by it? He was clearly of opinion they sary to make a Treaty, so as that without it such would; and this clause, he said, was iuserted in Treaty could not be the law of the land. He no- the American Constitution, probably to guard where read that prior acts of Congress repugnant against that very construction which is now ento a Treaty must first be repealed before a Treaty deavore i to be put upon the Treaty power; on could be a law.

purpose to cut off all pretence of a power in ConBut, says the gentleman from Pennsylvania, gress to control a Treaty, by refusing to repeal the same Treaty power is given to the King by any prior laws that might stand in the way of it. the Constitution and laws of England, that is But, said the same gentleman, shall a British given to the PRESIDENT by our Constitution, and House of Commons have this right of controlling yet the Parliament have the power there which the Treaty-making power, and shall it be denied he contends for in favor of Congress here; that to the Representatives of a free people? He anis, they must repeal prior laws repugnaní to a swered, the President and Senate of the United new Treaty, before it can be the law of the land; States were as much the Representatives of a and why is not an act of Congress, it is asked, ne- free people as that House was; they were as cessary for the same purpose, in a similar case truly, though not so immediately, chosen by the here?" He would answer, because our Constitu- people as they were. The people distributed their tion is different from the British in this respect : powers as they pleased. The PRESIDENT, said he, it declares that a Treaty made under the autho- represents the people as their executive agent, rity of the United States, (and he had shown that and is possessed of all executive power, and the a Treaty made by the PRESIDENT, as aforesaid, power of making Treaties. The true question, was made under such authority,) is the law of then, was, shall'one constituted representative authe land, and if it is a law, nothing further can be thority usurp the power and control the acts asrequisite to make it so. There was no such de- signed by the Constitution to another representaclaration in the Constitution and laws of Eng-tive authority of the same free people? They cerland.

tainly ought not. If they should attempt it, it There was no arguing from the power of Par- would be opposing one authority of the people to liament to the power of Congress. The Parlia- another. It would be dividing a free people ment must have controlled this Treaty power of against itself. But he hoped he had said enough the King, and stripped him of his prerogative, by to show the unsounuiness of that principle, and use and custom. There bad been in England a fully to establish what he first undertook to prove, constant struggle between power and privilege; that the Treaty was already completed; that it the prerogatives of the King were not founded in was already the law of the land; and that it did, the grant of the people; they were founded on by its own force, repeal all prior laws, if there force, on the right of conquest'; whatever, there. I were any standing in the way of it; and if so, they

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