H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

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

Mr. HOLLAND said: It is with great diffidence I rise on this important subject, to submit some considerations to this Committee. As it has now become a Constitutional question, not with respect to the merits of the Treaty, but with respect to the Constitutional right of this House to request the Executive to furnish us with papers that related to the Treaty antecedent to its ratification.

To this it is objected that this House has no discretionary power over the Treaty, and, on that account, has nothing to do with the papers.

than was exercised by the House of Commons in England; that they would be less able to secure their liberties in this country against the approaches of prerogative, would they have, under that belief, accepted of this Constitution? I think, Mr. Chairman, I may venture to say they would

not.

With respect to the more absolute Government of France, where has this power been lodged? In this, as in the monarchy of England, it was, in theory, lodged in a Prince; but the theory, even in that despotic Government, never could be carried into practice. According to Vattel, in The question is not whether the Treaty is a the Treaty made by Francis I., 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 prindamental 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 kinds of Government, according to the histories of those nations governed by despotism, monarchs, or republics; and, from the Constitution of the United States as the fundamental maxims of the Republic, draw that construction that is most rational and natural.

It will also be proper to examine which of those Governments preserves the most power in the people.

if the people of this country possess less power than the people of that despotic Government? Or do they possess less power to withstand the usurpations of the Executive, on the subject of Treaties, in their Representatives in Congress, than has ever been maintained in the cramped situation of the people of England by the House of Commons?

Why were these rights ever maintained and so scrupulously attended to by the people of those countries? It was because they considered them as the palladium of their remaining liberty—they, therefore, would not let them go.

Then, with respect to a Republic, the sovereign power is in the people. It therefore follows that whatever can be effected by the people in those countries can be done here-they being the source of power.

Then, with regard to the Constitution, it must be construed naturally and liberally in behalf of the people. Not as giving all power that can be given, but as retaining all power and natural right that ought to be retained. It would have been extremely improper to have wantonly discarded natural privilege, or ceded more power than was essential to Government; nor was any more intended to be given.

First, then, of monarchy. Where has that power been placed? According to the theory of the English Government it has been lodged in the Sovereign, for it is there expressly said (nor has it been denied on this floor) that the King is the source of all power; and it is also expressly declared that the King of Great Britain has sovereign and exclusive right to make Treaties. That, when they are made, they cannot be impeded or annulled by any existing power in the Kingdom. This is the theory of that Government. But what has been the practice? I answer, the contrary; for it ever has been that, when a Treaty was made, that the same has been submitted to the Parliament for concurrence; and Parliament, if they thought proper, admitted and sometimes annulled them, as in the Treaty of Utrecht, and 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 the 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 of the Senators and PRESIDENT, than even could be practised by the King of England, with his lords spiritual and temporal, under that impression would they have ceded that power? Or, if they had been told that the House of Represen

opinion. But it is said to be impossible that this power has been ceded, subject to no control, to the PRESIDENT and two-thirds of the Senators present; that, whatever may be the practice in other countries, it will not apply to this; that those countries have no Constitution, and that we

Treaty with Great Britain.

have, and must be governed by it. Unfortunate violence to the property and rights of others. circumstance! why adopted? Was it wantonly to throw away a privilege and natural right? Certainly not, but the contrary. It was to secure natural right, and to establish a Republican form of Government.

In the eighth section, eighteenth clause of the Constitution, full power is given to Congress to make all laws, &c.; and in the sixth clause of the ninth article it is expressly declared, that no money shall be drawn from the Treasury but by law. Why by law? Why not by a decree of the Se-mercial regulations had been previously and exnate? It would have been much less expensive, being done by them, and it would have prevented the phenomenon of one hundred and four Representatives of a free people, and spare them the disagreeable dilemma of being obliged to legislate where they could not exercise will nor judgment; a situation extremely disagreeable in a private capacity to every person that has a tincture of independence; then shall it be said or believed that the Representatives of the free people of the United States can be in this situation?

effecting a Treaty of Peace, that power was properly vested in him, guarded by two-thirds of the Senate. But a Treaty of Commerce presupposes an existing peace, and in those Treaties secrecy is not essential; but a competent knowledge of the produce of the respective States in all their remote situations was necessary; which would be best obtained by an association of the three branches of Government.

This is a Treaty of Commerce, and therefore has involved Legislative objects. It consequently requires Legislative sanction; a contrary construction would be a violation of the Constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people.

I confess, on viewing the exception and force of the argument, that I had some doubt, that when the Government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for.

[MARCH, 1796.

Another gentleman from South Carolina [Mr. HARPER] said, when this motion was first made, he thought it immaterial, but now he thinks it a violation of the rights of the Executive. How gentlemen can so suddenly change their opinions from one extreme to the other, I am at a loss to conceive. I, generally, have discovered that in all common occurrences, things present themselves (as to substance) right in the first instance; there may be some change with respect to form. Nor can I conceive any other cause than a recollection of the necessity of guards to prerogative. I yet think it a modest and reasonable request, and in that point of view. I trust, will the PRESIDENT consider it. He will recollect that we are the Representatives of the people, and that we cannot discharge our duty by knowing that this Treaty did happen, but by being acquainted with the causes that produced it, whether by accident, design, or necessity. If by accident, we are not bound; if by design, and the motives corrupt, it is a nullity: fraud contaminates a private contract, according to Vattel; if by necessity, and that can be known, it will be a sufficient apology, and we will submit to it. Under these considerations, with those that have been offered, I am conclusively in favor of the resolution.

A view of mutual interest excites individuals and nations to form intercourse and commercial contracts. So long as the end corresponds with the design, the firm should exist and no longer; when either or both are dissatisfied, reason would 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 it, which will best be known by advert-ject last week. The principle was this; that ing to the papers contemplated in the resolution. A gentleman from Vermont, [Mr. Buck] in the commencement of this debate, has said that the Treaty was now the law of the land, after having been concurred in by two-thirds of the Senate, and ratified by the PRESIDENT. It was subverting the first principles of our Government, and to oppose was rebellion; and more particularly as it was officially laid on the table and promulgated by the PRESIDENT'S Proclamation. To use his language, it struck like thunder-appeared like the majesty of Heaven.

where any articles of a Treaty were repugnant to prior existing acts of Congress, those acts must first be repealed by Congress before such Treaty can become the law of the land; and it was said some of the articles of the British Treaty were of this nature. He would not stay to examine the truth of the fact, for admitting it to be true. he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. If their concurrence was necessary to give existence or legality to the Treaty, he saw not why they ought not to be favored with the papers as well as the Senate. But he asserted, and would endeavor to prove, that the Treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of Congress is, or can be, necessary to make it so; and, therefore, that House could have no need of the papers, nor any right to call for them on that ground.

I would beg leave to observe to that gentleman, that as to the majesty of Heaven, I lack a simile, not being acquainted with the gods. But with respect to thunder, I have some knowledge of its operation; when it strikes a sensible object it destroys sensibility. If it has had that effect upon that gentleman, unless he has recovered, he is yet unfit for a legislator. I would only further observe, that if the Treaty was not the law of 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,] who had said, that his speech was of such dignity that an attempt to repeat it would lessen the original.

I have been told it has been a custom in this House, when persons have conspicuously discharged their duty to give them the thanks of the House, I wish to indicate to the gentleman, that he was unauthorized to communicate mine."

wholly from the Constitution itself, by which alone the question must at last be determined.

That instrument expressly declares, that all Treaties made under the authority of the United States shall be the supreme law of the land. He laid no stress upon the word supreme, admitting for argument sake, that the supremacy ascribed to the Constitution and laws, and Treaties made under it, meant a supremacy over the Consti

tution and laws of individual States:* All he asked to be granted him, and which he thought I could not be denied, was that a Treaty made under the authority of the United States was the law of the land. If so, then all that needed to be proved was, that a Treaty made by the PRESIDENT, with the advice and consent of two-thirds of the Senate, was a Treaty made under the authority of the United States. And to prove that, he needed only to mention another clause in the Constitution, which expressly declares that the PRESIDENT, with such advice and consent, shall have power to make Treaties.

[H. or R.

nant to it: here the maxim of law strictly applies, leges posteriores priores contrarius abrogant. If it did not, it could not be the law of the land; for, if former acts repugnant to it were still in force, they must still necessarily be superior to it, and prevent its operation, and a law that cannot operate is no law.

It was acknowledged by the same gentleman, that an act of Congress could not repeal a Treaty, because it was a contract made with another party. Nor, said that gentleman, can a Treaty repeal a law, because Congress made it, and their consent is necessary to repeal what they have made. But he denied the consequence. It does rot follow that an act of Congress is necessary to repeal a law, because they made it. The Constitution may, without absurdity, authorize another distinct power to repeal an act of Congress; and it is still a question of fact whether they had or not. He contended that they had in the case of a Treaty.

If then the United States, by their Constitution, have authorized the PRESIDENT, with such advice and consent, to make a Treaty, and if he, with such advice and consent, has in fact made one with Great Britain, then that Treaty is made under the authority of the United States, and if so, then it is the law of the land. This reasoning appeared to him to be plain and conclusive. The consequence could not be denied or evaded. If so, the principle asserted by the gentleman from Pennsylvania must fall to the ground. The Constitution neither expresses nor countenances such a principle. If it had intended that a Legislative act in such case should be necessary to complete the contract, it would have expressed that intention by an express proviso; for it is a case that must often happen in making of Treaties, and which must have been contemplated when the Constitution was made. Instead of which the Constitution declares, that Treaties, all Treaties without exception or limitation, made under the authority of the United States, (and he had proved that Treaty to be so made.) shall be the law of the land; but this principle teaches and asserts, that they shall not be the law of the land, although so made, until sanctioned by an act of the Legislature. It was not possible to reconcile the doctrine with the Constitution; they were contradictory in fact as well as in terms. He added, that if a Treaty was the law of the land, it must necessarily, upon its becoming so, repeal and annul all previous acts and laws repug-peal all acts of Congress, by making an insignifi

To prove his proposition, that gentleman had observed, "That in the first section of the Constitution all Legislative power therein mentioned was given to Congress; yet in the last section but one the Constitution says, Treaties shall be the supreme law of the land, though made by the PRESIDENT and Senate. A Legislative power is thus given them, after all Legislative power was vested in Congress, as if there were two Legislative powers. How were these powers to be reconciled?" He answered, the latter particular power was an exception to the former general power. If a Treaty is a law, then the making it is a Legislative act, by what power soever made, call it Executive, or what you please. If a general unlimited power of legislation be given to Congress, and afterwards a particular power to legislate in a particular case, is given to the PRESIDENT, it must operate as an exception to the general power; this will reconcile the two pow

ers.

But it is said, if this be the case, then the Executive may grasp all Legislative power, and re

cant Indian tribe a party to a Treaty. He an*Though this be admitted here, for argument sake, yet it is easy swered, that the Supreme Executive must be to show, that the declaration in the Constitution, "This Constitution 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 made under the authority of the United States, shall be the su of Congress. What consideration could be held preme law of the land," is to be considered as a declaration of the supremacy of the Constitution, and the laws made under it, while forth by an insignificant Indian tribe as an equivin force, and of all Treaties made or to be made under the authori-alent for so great a sacrifice. The fraud must apty of the United States, as well over the general Federal Government, as over the Constitution and laws of the individual States. The meaning is, that they shall all be supreme, not only over the General Government, of which there could be no room to doubt, though not expressed, but also over the Constitution and laws of every State in the Union, of which there might have been some pretence to doubt, had it not been expressed."

+The words," made under the authority of the United States,"

pear on the face of the Treaty, and would defeat his intentions. This Treaty-making power given to the Supreme Executive by the Constitution, was, he acknowledged, a very large and important power; but no argument could be drawn against its existence from the possibility of its being abused. It was fully considered when the Constitution was made, that the Treaty power was a great and important power, and the giving it to the Supreme Executive, without defining or that they were used to express or imply the idea that a Treaty limiting it, was one great objection to the Con

were evidently chosen instead of the words "made by the Presi dent, with the advice and consent of the Senate,' because they were to refer to Treaties then already made, as well as to such as should be thereafter made, the former not having been made.by the President, but by Congress, but both might truly be said to be made under the authority of the United States.

There is no color for the assertion made by Mr. Gallatin,

clashing in any of its provisions with the express powers of Con gress, would not, until it should so far have obtained the sanction of Congress, be a Treaty made under the authority of the United States.

stitution. But it was then justly observed, and more especially in the debates of the Virginia Convention, that it was a power that could not

[MARCH, 1796.

fore. was gained from the King by the Commons, was considered as so much gained by the people from an adverse power.

well be placed in Congress, nor anywhere else, so well as in the Supreme Executive; and that, in its nature, it could not be limited, except perhaps 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 out 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, if it were rightly ascribed to him, he was unable to say. He presumed the gentleman had altered his opinion.

never had in fact assumed and exercised the power of confirming by an act of theirs, Treaties made by the PRESIDENT, this argument from analogy wholly failed.

Suppose the Parliament of Great Britain should pass a law expressly delegating the Treaty-making power to the King, with the advice and consent of two-thirds of his Privy Council, and should declare in the act, that a Treaty made under such authority should be the supreme law of the land. They claim a right to make such a law, for Judge Blackstone affirms, that the denial of a power in every Government, even to alter every part of its Constitution, is the height of political absurdity and in England, he expressly ascribes this power to Parliament.

The fatal consequences which might flow from the abuse of this power, have been painted by the same gentleman in strong colors; but those consequences were considered as possible when the Constitution was formed; notwithstanding which, it was judged necessary to lodge this power in the Supreme Executive, without attempting to limit it as to its object. And it cannot be limited by anything but the Constitution; no laws inconsistent with that can be passed, either by the Treaty or Legislative power. And the only other checks he could find on this power of the Supreme Executive in the Constitution, were the requiring the 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 Treaty could not be the law of the land. He nowhere read that prior acts of Congress repugnant to a Treaty must first be repealed before a Treaty could be a law.

But, says the gentleman from Pennsylvania, the same Treaty power is given to the King by the Constitution and laws of England, that is given to the PRESIDENT by our Constitution, and yet the Parliament have the power there which he contends for in favor of Congress here; that is, they must repeal prior laws repugnant to a new Treaty, before it can be the law of the land; and why is not an act of Congress, it is asked, necessary for the same purpose. in a similar case here? He would answer, because our Constitution is different from the British in this respect: it declares that a Treaty made under the authority of the United States, (and he had shown that a Treaty made by the PRESIDENT, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. There was no such declaration in the Constitution and laws of Eng

land.

There was no arguing from the power of Parliament to the power of Congress. The Parliament must have controlled this Treaty power of the King, and stripped him of his prerogative, by use and custom. There had been in England a constant struggle between power and privilege; the prerogatives of the King were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, there

would; and this clause, he said, was inserted in the American Constitution, probably to guard against that very construction which is now endeavored to be put upon the Treaty power; on purpose to cut off all pretence of a power in Congress to control a Treaty, by refusing to repeal any prior laws that might stand in the way of it.

But, said the same gentleman, shall a British House of Commons have this right of controlling the Treaty-making power, and shall it be denied to the Representatives of a free people? He answered, the PRESIDENT and Senate of the United States were as much the Representatives of a free people as that House was; they were as truly, though not so immediately, chosen by the people as they were. The people distributed their powers as they pleased. The PRESIDENT, said he, represents the people as their executive agent, and is possessed of all executive power, and the power of making Treaties. The true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the Constitution to another representative authority of the same free people? They certainly ought not. If they should attempt it, it would be opposing one authority of the people to another. It would be dividing a free people against itself. But he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the Treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they