H. OF R.] Treaty with Great Britain. Union with respect to the late Treaty with Great Britain were true; if the negotiator had been bribed; if he had given up the rights of his country; if their liberty and independence had been sacrificed; if the PRESIDENT and Senate had been bribed by British gold; if he had any idea of that kind, he would not agree to carry the Treaty into effect; nor should he conceive the national faith bound by such an instrument; no matter what grounds were taken to justify the refusal, whether constitutional or revolutionary. If these principles were just, he said, it would be allowed that that House had a discretionary power with respect to appropriating to carry a Treaty into effect, though it had nothing to do with making it. No cause, he said, had been shown for calling for papers. Why, then, call for them? Gentlemen talked about impeachment? They might impeach without papers. But did they want to bring forward an impeachment? No such thing; it was only to cover the real drift of the motion that this was mentioned. Did any gentleman think there was sufficient evil in the late Treaty with Great Britain to authorize them in refusing to carry it into effect? It appeared to him, that that House had a right to call for any papers which might throw light on their deliberations. But they must also consider, that there was a discretion to be used by the Executive in giving up papers in his hands. When there are papers in his hands which that House had real occasion for, it was important that they should be brought forward; but, he said, as long as a proper confidence subsisted between the two branches of the Government, if that House asked for papers which the PRESIDENT thought it improper to send them, he would decline doing it. But it is not contended, that the papers which are the object of the present resolution will be of any real use to the House. The gentleman who brought forward the motion had read them through, and the most that he said on the subject was, that the negotiator had not complied with some of the first instructions which were given to him. Another ground of calling for the papers, which was to him a pleasing ground, was that of publicity; for he fully agreed with the gentleman from Georgia, that the more public Governmental proceedings could with propriety be made, the better; but that House had not the right to direct the PRESIDENT on that head; they ought rather to leave it to him to publish the papers, or not, as he pleased; for, if they considered the PRESIDENT as attentive at all times to the duties of his office, it would be arrogancy in that House to attempt to influence him in that particular. But the main point in dispute was the force and effect of the Treaty-making power. What were the powers and privileges of the House on the subject? In pursuing this inquiry, he was pleased with the remark of the gentleman from Georgia, that in examining into the meaning of [MARCH, 1796. the words and phrases, they must take the meaning that was generally given to them, and if they could find out the true import of the phrase make Treaties, it would remove all doubts on the subject. He hoped, for this purpose, that gentleman would have examined the proceedings of his own country; but, instead of doing this, they find him referring to the practices of Great Britain. The PRESIDENT and Senate, Mr. C. observed, were expressly authorized to make Treaties. To what should they compare Treaties? Might they not say that they were betwixt nations what bargains were betwixt individuals? And, after he had employed an agent to make a contract, with full discretion, and he had in pursuance of his authority made it, was it not binding? Though in public as well as in private contracts he acknowledged there might be circumstances which would justify a non-compliance with the terms of the bargain; yet, in case all the circumstances had been fair, the contract must be complied with. It appeared to him not unimportant to consider whether, when Treaties were made, they were not the laws of the land. A power to make, carried in his mind a power to complete. But if this were doubtful, where should they look for information? He expected the gentleman from Georgia—knowing him to be well acquainted with the proceedings of Government for a long time-would have referred them to the old Confederation. It would certainly have been more natural to have referred them to the old Congress than to the Parliament of Great Britain. If they looked into the powers of the old Congress they would find that they had the power to enter into Treaties and alliances, which he apprehended to be the same power as that placed in the PRESIDENT and Senate in the present Government; and it was natural to conclude that a Treaty made by the present power was equally binding with those made under the old government; for it will be recollected that the general power was delegated to the General Government; and if they had the same powers, he could not see that there should be any difference in the exercise of them. If it had been intended otherwise, the convention at the forming of the constitution, would have added a proviso that no Treaty should be made by the PRESIDENT and Senate which included commercial regulations. It appeared to him that a subject of such recent date as their constitution could not receive much elucidation from the opinions held concerning it in the conventions, at or about the time of passing it. He confessed he found little aid to assist his mind to form a judgment on the matter from any other source than the constitution itself; indeed he thought the light was there so clear that nothing more was wanted. There were four members, he said, in that House who were members of the convention who formed the constitution. The sentiments of two of those gentlemen he was not acquaint MARCH, 1796.] Treaty with Great Britain. [H. OF R. altered the continuation of their existence from three to seven years. Where must they look in the United States for the sovereign power? They must go to the people at large; for in them it lay alone. Their constitution limited the powers of every branch of government, and it was therefore improper to apply foreign ideas to their constitution. But if a Treaty was made by the agents of a sovereign power, authorized for the purpose, the end was answered: in the United States, the sovereign power can act only by its agents. ed with; but two of them had spoken on this | lowed to be omnipotent. Parliament have subject. If those gentlemen had come forward and declared that such a power as the Treaty power was contended to be was not intended to be placed in the hands of the PRESIDENT and Senate, but that that House was meant to have certain powers with respect to Treaties, he would not say but that such a declaration would have shook his faith on the subject; for, though he should still have been guided by the instrument itself, yet authority so respectable would have its weight on his mind. But what did the gentlemen who have delivered their sentiments say? The gentleman from Georgia (Mr. BALDWIN) mentioned the necessity of inquiring into the true meaning of the phrase, "make Treaties; "" and, instead of telling them what had been the practice in the old government, he went over the water to Great Britain. What did they get from the gentleman from Virginia, (Mr. MADISON?) He produced five sets of doubts and one problem upon the construction of the constitution. This had the same effect on his mind as if they had declared that the meaning of the constitution was well understood, in the convention which formed it, to vest the Treatymaking power completely in the PRESIDENT and Senate. It was certainly matter of great importance where the different powers of Government were placed, and caused considerable debates in the convention. Some thought the Treaty-making power should be placed in the Legislature, but that was greatly objected to; it was urged by others that the powers should be in the PRESIDENT and a majority of the Senate; it was again proposed that two-thirds of the whole number of the Senators should consent to a Treaty-but finally passed as it is found in the constitution. He was far from accusing those gentlemen with impropriety of conduct on the occasion. If they think it would be better for the interests of the people that that House should have a share in the making of certain Treaties, and believe the constitution will bear that construction, it was not for him to impeach the purity of their motives or propriety of their conduct; but it would require strong arguments to convince his mind that the constitution placed any such power in that House, contrary to the unanimous understanding of the members of the convention who formed it. The Legislature of Great Britain, he said, it was true, consisted of three branches, and that was almost the only feature in that Government resembling that of the United States. In Great Britain, their Executive is an hereditary Monarch, whereas the PRESIDENT OF THE UNITED STATES is elected every four years. Their House of Lords consisted of bishops and an hereditary nobility-the bishops appointed by the Crown, and the nobility were increased at the King's pleasure; whilst the Senate of the United States is elected every six years. Gentlemen say the Senators are not elected by the people, but they are chosen by the Legislatures of the different States, who are elected by the people. The House of Commons in Britain, which is the only representation of the people their Government contains, is elected by a very small part of the people; and the Crown has such an influence in it as to be able to carry most questions at its pleasure. How could it then bear a comparison with that House, who were chosen by the whole people every two years? The absurdity might be admitted, in that Government, that the King had the power to make Treaties, and that the sanction of the Legislature was still necessary to give them legal validity, because the influence of the Crown was so great in both Houses as to carry any measure it pleased through them. But it would not do in this country. The comparison, therefore, betwixt the two Governments fails, and no arguments can be drawn from it. The other argument respecting the danger of the power being placed solely in the Executive arose from the comparison with Great Britain. If the powers of the PRESIDENT and Senate of this country could with any tolerable degree of The arguments which had been urged for justice be compared to those of the King and placing certain powers in that House with re- House of Lords in Great Britain, as little spect to Treaties were drawn from the practice taste as he had for revolutions, he would not of Great Britain, and from the danger of the say but he should be induced to join gentlemen, Treaty power being vested wholly in the PRESI- either by fraud or force, to overturn the constiDENT and Senate. He did not think that the Gov-tution. He looked on the representation in the ernment of Great Britain had been introduced Senate to be as complete as in that House. for any other purpose than illustration, though Gentlemen were very fond of calling that House other use had been made of it out of doors. the popular branch of government. He agreed With respect to the principles of that govern- that a criticism on words was in general trifling. ment, let them inquire into its sovereign power; for it was a just position that Treaties must be made by the sovereign power of a nation. Where should they find that power in Great Britain? The King and Parliament were alVOL. I-44 That gentlemen from Virginia might assert this, he allowed, as they had nineteen members out of the hundred and five in that House, and in the Senate only a fifteenth part of the body; but gentlemen did not mean, when they spoke H. OF R.] Treaty with Great Britain. [МАВСН, 1796. on that subject, to have reference to particular | further, that the clause in the constitution States, but to the whole. The Senators and which provides that no money shall be drawn Representatives were regularly apportioned for from the Treasury, but "in consequence of apthe whole Union; and, though on different propriations made by law," as vesting in the principles, were as completely represented in different branches of Government a check adethe one House as in the other. quate to every purpose of security. Mr. C. concluded with saying, that he had no doubt the powers vested by the constitution were well vested; and if the constitution was fairly considered, little doubt could remain on the subject. But if the House passed the resolution now before the committee, he should not consider the question as decided; but if the construction was still insisted upon, he was happy the constitution was not wholly in their hands -that there were joined with them in the guardianship of it, the PRESIDENT, the Senate, and the people of the United States. On the other hand, he did not consider the House of Representatives as having a constitutional right to interfere in making Treaties, or that a Treaty needed any concurrence of that House, or Legislative sanction, to make it the law of the land. He had always supposed that Treaties were exactly on the footing of laws in their operation on antecedent laws, suspending and repealing such as were repugnant. Treaties may sometimes require Legislative aid to carry them into effect; so may laws, and they were constantly in the habit of making laws to carry into effect laws heretofore made. Mr. HILLHOUSE said, it was with diffidence he rose to speak on a subject which had been After these preliminary observations, Mr. H. so copiously and ably handled by gentlemen proceeded to inquire, not what ought to be, but who had preceded him. It had been his inten- what was the Constitution of the United States? tion to have given a silent vote on the reso- We were not, he said, in Convention, but in the lution on the table, but the turn which the discharge of Legislative functions under the debates had taken-involving an important con- constitution; and to understand the extent of stitutional question, relative to the powers vested the powers intended to be granted in the second in the different branches of Government-seem- article, section two, by these words, "the ed to create a necessity of expressing his senti- PRESIDENT shall have power, by and with the ments, lest by his vote he might seem to sub-advice and consent of the Senate, to make Treascribe to certain doctrines in the latitude in which they had been laid down. And as he should differ in some respects from most of the gentlemen that had spoken, he asked the indulgence of the committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their government which might be of serious consequence. If ties, provided two-thirds of the Senators present concur," we must advert to the general definition of the Treaty-making power-what objects it may embrace, and how far it can interfere with Legislative power. A Treaty is a compact entered into by two independent nations, for mutual advantage or defence. Nothing can, therefore, come within the Treaty-making power but what has a relation to both nations, On the one hand, he did not think that Trea- and in which they have a mutual interest. The ties could not, under any circumstances, be the object of this power is to secure to our citizens subject of Legislative consideration or discus- advantages in foreign countries which are withsion, and that they were not to look into them. out or beyond our Legislative jurisdiction, to It appeared to him, that they not only had the enable the Treaty-making power to obtain right, but that it was their indispensable duty which, it must necessarily be authorized to give to look into every Treaty, when called upon to some consideration or equivalent therefor. aid in its operation; to see whether it had the the United States authorize an agent to make a constitutional forms; whether it related to ob- bargain or purchase, the power of binding the jects within the province of the Treaty-making United States for a reasonable consideration is power, a power which is not unlimited. The necessarily given. Whenever the Treaty-making objects upon which it can operate are under-power departs from these rules, it is without its stood and well defined, and if the Treaty-mak-jurisdiction, and such a Treaty would be of no ing power were to embrace other objects, their validity. Under this view of the subject, if we doings would have no more binding force than look into our code of laws, we shall find few if the Legislature were to assume and exercise judicial powers under the name of legislation. It might be proper, also, to examine the merits of a Treaty, so far as to see whether it be of such a ruinous nature as, according to the law of nations, it would be null, and whether they would be justified in withholding Legislative provision to carry it into effect. He also considered Treaties as subject to Legislative control, so that their operation, so far as related to the people of the United States, might be suspended or annulled whenever, in the opinion of the Legislature, there was sufficient cause. And of them that can be affected, to any great degree, by the Treaty-making power. All laws regulating our own internal police, so far as the citizens of the United States alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. He could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present MARCH, 1796.] Treaty with Great Britain. [H. OF R. Treaty, which was the revenue law; which | hibited. Was it ever imagined that, by this provides that certain duties shall be paid on general power, Congress had a right, by formgoods imported into the United States, and on ing a Treaty with a foreign power, to legislate goods coming in foreign bottoms ten per cent. over the States to any extent? Suppose Conadvance on the amount of such duties. This gress, instead of taking so much pains to peris a law no Treaty can repeal, admitting the suade the States to consent to their laying the repealing power in its fullest latitude, because five per cent. impost, and in obtaining which no foreign nation can have any interest or con- they were finally defeated by the refusal of one cern in the duties payable by our own citizens State, after every possible exertion, had underinto our own Treasury. All that a Treaty taken to have it done by Treaty? Would not could do, would be to suspend or arrest its the measures have been reprobated with one operation, so far as the citizens or subjects of voice, and the Treaty considered as a nullity? the nations with whom we treated, were or In the first place, in Art. I., organizing a Lemight be affected by it. The only operation gislative body, and delegating to them, not all, which the British Treaty has upon that law is, but a part only of the Legislative power of that in consideration of our being freely admit- the States, in these words: "All Legislative ted to the fur trade and the trade into Canada, powers herein granted shall be vested in a Conwhich opens to the enterprise of our citizens a gress; " and among the specified powers, the vast source of wealth and advantage, we only right of regulating commerce with foreign nagive in return to the subjects of the King of tions. How were they to regulate commerce? Great Britain the privilege of bringing, by land Not by the exercise of the Treaty-making power. or inland navigation, into the United States, This article of the constitution has not the goods for which they pay no more duties than least relation to that kind of power: it was Leour citizens pay on goods imported in American gislative power only that was meant: it vested bottoms. British subjects have always been Congress with the whole power, as far as the permitted to reside and trade in the United object could be accomplished by a Legislative States, and peltry is to be duty free in the act; but this power would embrace but a small territories of each. According to this definition part of the objects which come within the term of the Treaty-making power, and as far as he of regulating commerce with foreign nations; it could judge, he said, it was correct; it cannot could extend no further than the bounds of our have that unlimited extension which has been own jurisdiction. There is not a single expresascribed to it. It cannot be that monster which sion that looks like authorizing them to act in has been described as about to swallow up all any other than their Legislative character. the Legislative powers of Congress; nor can The constitution then proceeds, in the second there be any danger of the PRESIDENT and Sen- Article, to the establishment of an Executive ate having it in their power, by forming Treaties power, to be vested in a PRESIDENT, and in the with an Indian tribe or a foreign nation, to second section, says: "The PRESIDENT shall legislate over the United States. The Treaty- have power, by and with the advice and conmaking power cannot affect the Legislative sent of the Senate, to make Treaties, provided power of Congress but in a very small and limit- two-thirds of the Senators present concur." ed degree. Because a Treaty or an Executive The most general terms are used, and such as act may, in some instances, arrest the operation under the old Confederation had been underor progress of law, it is no argument against stood to embrace every kind of Treaty, comthe existence of the power. In article first, mercial as well as others, and had been exersection eighth, of the constitution, a specific cised in the most ample and unlimited manner, power is granted to Congress to provide for the and the Treaties thus formed had been declared punishment of the counterfeiters of the secu- and adjudged to have the force and operation rities or coins of the United States. In another of a law, and that they repealed all laws that article, the PRESIDENT is authorized generally were opposed to them; and these Treaties were to grant reprieves or pardons for offences against then in full force and operation, and were the the United States, excepting in cases of im- supreme law of the land. It cannot be prepeachment. Can any one seriously contend sumed that the framers of our constitution that the PRESIDENT has not the power of grant- were ignorant of the laws of the land, or that ing a pardon to a counterfeiter of securities or they had not well attended to and examined coins, because it would suspend and defeat the Treaties, which, by the constitution, they were operation of a law, on a subject, specially dele- again about to declare to be the supreme law gated to Congress? If this doctrine be true, of the land under the new Government. Now, that all Legislative power may be exercised by if it really was intended that the Treaty-makthe Treaty-making power, Congress, under the ing power should not be as broad, and have the old Confederation, had unlimited Legislative same extension and operation as had been expower over the States. The old Confederation ercised under the old Confederation, or that vested in Congress an unlimited power to make there was to be a distinction between commerTreaties, excepting only that the States were to cial Treaties and others, or that Treaties generbe at liberty to impose like duties on foreigners ally should not so operate as to repeal pre-existas on their own people, and that the exporta-ing laws, or that the concurrence of the House tion or importation of goods was not to be pro- of Representatives, or sanction of Congress, H. OF R.] Treaty with Great Britain. [MARCH, 1796. Clopton, Isaac Coles, Henry Dearborn, George Dent, should, under any circumstances, be necessary | Cabell, Gabriel Christie, Thomas Claiborne, John to give validity or force to a Treaty, how can we account for the total silence of the constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? If any limitation was intended, the convention certainly knew that it was necessary it should be inserted. When we examine the constitution, and see with what accuracy and care it is drawn up, how wonderfully every part of it is guarded, that there is not a single word but appears to have been carefully examined, and when we call to mind the members of that convention, and find them to have been the ablest and most accurate men of our country, we cannot presume that we should have been left to the sad alternative, for the purpose of explaining so NAYS.-Benjamin Bourne, Theophilus Bradbury, important an article of our constitution, which Daniel Buck, Joshua Coit, William Cooper, Abiel might have been so easily made definite, to be Foster, Dwight Foster, Nathaniel Freeman, jz, obliged to resort to the British House of Com-jamin Goodhue, Chauncey Goodrich, Roger GrisEzekiel Gilbert, Nicholas Gilman, Henry Glenn, Benmons for precedents, and those too which were wold, Robert Goodloe Harper, Thomas Hartley, James derived from the most turbulent periods of the Hillhouse, William Hindman, John Wilkes Kittera, Government of that nation; when, it is a possi- Samuel Lyman, Francis Malbone, William Vans ble case, that the change of a Ministry, or the Murray, John Reed, Theodore Sedgwick, Samuel rage of party, might have been more immediate- Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac ly the object of pursuit than the true interest Smith, William Smith, Zephaniah Swift, George of the nation; more especially as the practice Thatcher, Richard Thomas, Mark Thompson, Urish of our own Government, and the legal opinion Tracy, John E. Van Allen, Peleg Wadsworth, John of our own country, were directly opposed to Williams. such a construction. But if all this might be supposed not to have had sufficient weight to have induced the convention to have introduced such a limitation, or some intimation that such limitation was intended, they must have supposed it necessary when they handed out with the constitution, which were declared by the ratification thereof to be the supreme law of the land, Treaties of every description, commercial as well as others. To me, the language of this transaction is, we have, by one article of this constitution, granted the Treaty-making power, in general terms, to the PRESIDENT and Senate. MARCH 24. [The question was taken on Mr. LIVINGSTON'S resolution, which is in the following words:] "Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed." The division on this resolution, in Committee of the Whole, was for the resolution 61, against it 38-majority 23. The resolution was then taken up in the House, and the yeas and nays being called upon it, were taken, and stood yeas 62, nays 37, as follows: YEAS.-Theodorus Bailey, David Bard, Abraham Baldwin, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. RECAPITULATION.-Yeas 62, nays 37, absent 5-104-the Speaker 1-whole number of Representatives 105.* Mr. DAYTON, the Speaker, in Committee of the Whole, voted against the resolution. MARCH 25.-The committee, (Messrs. LIVINGSTON and GALLATIN,) appointed to present the resolution agreed to yesterday to the PRESI DENT, reported, that the PRESIDENT answered, that he would take the resolution into consideration. MARCH 30.-The following Message was received from the PRESIDENT in answer to the resolution of the House: Gentlemen of the House of Representatives : With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, together with the correspondence and other documents relative to that Treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed. *Thus the House, by a majority of 25, passed the call upon the President for the papers, and upon the declared ground of a right to judge the Treaty, as it contained a regulation of commerce, and also required an appropriation of money. it was made, and although he had no objection to furnishing the papers, and had laid them before the Senate, (whence President Washington received the call in the sense in which they became public,) yet he deemed it his duty to resist the claim of right asserted by the House, and therefore to refuse the papers-which he did in a closely reasoned Message, an epitome of the arguments used in the House on that side. |