H. of R. Commerce with Great Britain. tion, but expressly undertakes to repeal a tax. By the existing law, British ships pay higher duties in our ports than American ships. The treaty provides, that in certain cases, embracing the principal trade between the two countries, British ships shall pay no higher duties than American. Thus the law of the land, providing for a public revenue, is so far attempted to be revoked by the treaty in question. If, then, the self sufficiency of this treaty, for its own execution, without the agency of legislative provisions, can, according to the argument of the gentlemen from Pennsylvania and Massachusetts, (Messrs. HOPKINSON and PICKERING,) be maintained, it must be upon the ground, that the treaty-making power can either repeal a tax or regulate foreign commerce, independently of this House. Let us examine the subject in this aspect of it. JANUARY, 1816. might want from this country, and to supply her with them in greater abundance, and on better terms. The articles, for instance, of cotton, tobacco, and flour. These cases all demonstrate the absurdity of claiming for the treaty-making power, in this country, any control whatever over the public revenue. The truth is, that except as a part of the Legislature, it possesses none; and from the very structure of our Government, cannot possess any. The claim, sir, of the same power to regulate, at its pleasure, our foreign commerce, without the interference of this House, will be found to rest on no better grounds. If with a view to a better understanding, and a closer connexion with Great Britain, the President and Senate were to agree by convention with that nation, to prohibit the exportation of If it be admitted, that the treaty-making power cotton and woollen manufactures from the Unican repeal a tax, it will, I apprehend, scarcely be ted States, for the next thirty years; or were to denied, that the same power can, in like manner, stipulate that the United States should not clear impose a tax. Suppose, then, the President and any vessel direct from other ports to France, Senate were, by convention with Great Britain, Spain, Holland, or any other European country, to stipulate for one hundred per cent. increase of except to Great Britain, such convention would, duties on all merchandises imported into the Uni- on the face of it, appear to be a complete and perted States from all foreign places, except from fect act, and requiring, therefore, agreeably to the the British possessions, alleging that this exemp-arguments of the gentlemen on the other side, no tion, in favor of Great Britain, was in consideration of the India trade, for which, it is said, no equivalent has been given by us. This would be an enormous tax on the people; and a tax, too, levied witout the consent of their representatives. But, sir, where did the idea originate of the imposition of a tax in a free country, without the concurrence of the immediate representatives of the people? The idea is preposterous, and one against which I enter my solemn protestation! I deny that there is any power on earth that can tax my constituents one cent, without their approbation, freely given, through their representative on this floor. legislative sanction; all that would be necessary would be instructions from the Secretary of the Treasury to the collectors of the customs. If, as it has been contended, the treaty-making authority possesses absolute control over our foreign commerce, there can exist no doubt of its competency. to enter into these engagements. Yet the very attempt to control them would be considered monstrous, and would no doubt be universally resisted. The doctrine, sir, proves too much, and therefore proves nothing. Again: suppose the treaty-making power were, as was once contemplated by the British Government, to engage that during any European war But still it is insisted that although the treaty in which Great Britain might be a party, all contains provisions repealing the discriminating American vessels bound to the ports of any naduties on British vessels and on goods imported tion in hostility with Great Britain, should first in them, it is nevertheless a valid instrument call or touch at some British port, and there pay Suppose, sir, this repealing power had been exer- a tax, and take a license for the benefit of prosecised on another subject. Suppose the President cuting their voyages! Let me ask if such an and Senate had undertaken by treaty stipulation engagement would not be considered as a most wholly to repeal the tax on foreign spirits. The daring usurpation? Yes, sir, it would be viewed amount of the tax repealed cannot vary the prin- as an alarming encroachment upon the rights of ciple-if they can repeal a tax for one dollar, they this House, and of the nation, and would be recan repeal one imposing millions. Yet I appre-pelled with indignation? And still this and all hend that the repeal by the treaty-making power, of the tax last mentioned, would be considered so outrageous an usurpation of the legislative authority, that it would not be submitted to for one moment. the cases of treaty stipulation which I have supposed would come fully within the rule laid down by gentlemen on the other side of the question, as the limit of the treaty-making power, namely, that whenever a treaty can, according to its own terms, execute itself, it requires no legislative sanction. I trust I have already sufficiently Further, sir, according to the same reasoning, even the direct tax might be reduced or repealed by the treaty-making power. If by that tax agri-shown the fallacy of this position. culture were supposed to be oppressed, the doc- But some gentlemen have recurred to another trine contended for, would enable the President ground of argument. They say that treaties are and Senate (the United States receiving an equiv-themselves the supreme law of the land, and can, alent) to remove the tax in order to encourage therefore, require no legislation to give to them the production of such articles as Great Britain I additional validity. This idea was strenuously JANUARY, 1816. Commerce with Great Britain. enforced by a gentleman from Massachusetts, (Mr. MILLS.) In considering the remarks of gentlemen on this branch of the subject, it will be perceived how necessary it is that positions in debate should be laid down with accuracy and precision. Gentlemen may be astonished, perhaps, when I announce to them my dissent from the position which they have so triumphantly advanced, in relation to the supremacy of treaties. Now, I deny, sir, the correctness of the proposition that treaties are the supreme law of the land. 1 very readily admit that treaties, made under the authority of the United States, that is, Constitutional treaties, are the supreme law of the land. But the broad, unqualified assertion, that treaties generally, (whether violative of the Constitution or not,) partake of that high and sacred character, is manifestly untenable. Here, then, the very gist of the question is, whether the Constitution does in fact confer the right to make such a treaty as the one before us, without the sanction of this House? H. OF R. Mr. CALHOUN observed, that the votes on this bill had been ordered to be recorded; and that the House would see, in his peculiar situation, a sufficient apology for his offering his reasons for. the rejection of the bill. He had no disposition to speak on this bill, as he felt contented to let it take that course which, in the opinion of the majority, it ought, until the members were called on by the order of the House to record their votes. The question presented for consideration is perfectly simple, and easily understood-Is this bill necessary to give validity to the late treaty with Great Britain? It appeared to him that this question is susceptible of a decision, without considering whether a treaty can in any case set aside a law; or, to be more particular, whether the treaty which this bill purposes to carry into effect does repeal the discriminating duties. The House will remember that a law was passed at the close of the last session conditionally repealing those duties. That act proposed to repeal them in relation to any nation which would on Having endeavored to show that such right its part agree to repeal similar duties as to this has not been conferred, I will decline repeating country. On the contingency happening the law the arguments which I have already had the became positive. It has happened, and has been honor of addressing to the House; especially announced to the country that England has after the luminous exposition of the subject with agreed to repeal. The President, in proclaiming which we have been favored by the honorable the treaty, has notified the fact to the House and gentleman from South Carolina, (Mr. LOWNDES.) country. Why then propose to do that by this Nor will I detain you respecting the definitions bill which has already been done by a previous that have been given with regard to the extent of act? He knew it had been said in conversation the treaty-making power. As to that. I will ob- that the provisions of the act were not as broad serve, that, subject to the limitations of the Con- as the treaty. It did not strike him so. They stitution, Í should conceive the treaty-making appeared to him to be commensurate. He would authority in this country as large and as com- also reason from the appearance of this House prehensive as the same authority in any other that they were not very deeply impressed with civilized State. After conceding to this House the necessity of this bill. He never, on any imthe privileges for which it contends, and which portant occasion, saw it so indifferent. Whence are evidently guarantied to it by the Constitu- could this arise? From the want of importance? tion, there would still be left to the treaty making If, indeed, the existence of the treaty depended authority a wide range of powers. For instance, on the passage of this bill, nothing scarcely the entire subject of belligerent regulations, in- could be more interesting. It would be calcucluding the most important topic of impress-lated to excite strong feelings. We all know how ment; the question of search, the subject of boundaries, and many others which it would be useless perhaps to enumerate. the country was agitated when Jay's Treaty was before this House. The question was on an ap-. propriation to carry it into effect-a power acI cannot perceive, sir, the advantage of resort- knowledged by all to belong to the House-and ing, as gentlemen have done, to the British Gov-on the exercise of which the existence of the ernment for precedents on this occasion. The analogies between that Government and ours, are in general too weak to authorize the deduction therefrom of any principle that can be safely depended on. It is understood, however, that the practice even of the British Government has always been in accordance with the principles which are maintained by the advocates of this bill. It results, therefore, from every view of the subject, of which I conceive it is fairly susceptible, that the bill now before us is not only not an useless one, as it has been said to be, but that it is absolutely indispensable; indispensable, in order to the fulfilment of the stipulations of the treaty, and because it relates to powers which cannot be exercised without the concurrence of this House. treaty was felt to depend. The feelings manifested corresponded with this conviction. Not so on this occasion. Further: the treaty has already assumed the form of law. It is so proclaimed to the community; the words of the proclamation are not material; it speaks for itself; and if it means anything, it announces the treaty as a rule of public conduct, as a law exacting the obedience of the people. Were he of the opposite side, if he indeed believed this treaty to be a dead letter until it had received the sanction of Congress, he would lay the bill on the table and move an inquiry into the fact why the treaty has been proclaimed as a law before it had received the proper sanction. It is true, the Executive has transmitted a copy of the treaty to the House; but has he sent the negotiation? Has he given any light to judge why it should receive the sanction of this body? Do gentlemen mean to say that information is not needed; that though we have the right to pass laws to give validity to treaties, yet we are bound by a moral obligation to pass such laws? To talk of the right of this House to sanction treaties, and at the same time to assert that it is under a moral obligation not to withhold that sanction, is a solecism. No sound mind that understands the terms can possibly assent to it. He would caution the House, while it was extending its powers to cases which he believed did not belong to it, to take care lest it should lose its substantial and undoubted power. He would put it on its guard against the dangerous doctrine that it can in any case become a mere registering body. Another fact in regard to this treaty. It does not stipulate that a law should pass to repeal the duties proposed to be repealed by this bill, which would be its proper form, if in the opinion of the negotiators a law was necessary; but it stipulates in positive terms for their repeal without consulting or regarding us. Mr. C. here concluded this part of the discussion, by stating that it appeared to him, from the whole complexion of the case, that the bill before the House was mere form, and not supposed to be necessary to the validity of the treaty. It would be proper however, he observed, to reply to the arguments which have been urged on the general nature of the treaty-making power, and, as it was a subject of great importance, he solicited the attentive hearing of the House. It is not denied, he believed, that the President with the concurrence of two thirds of the Senate have a right to make commercial treaties; it is not asserted that this treaty is couched in such general terms as to require a law to carry the details into execution. Why then is this bill necessary? Because, say gentlemen, that the treaty of itself, without the aid of this bill, cannot exempt British tonnage and goods imported in their bottoms, from the operation of the law laying additional duties on foreign tonnage and goods imported in foreign vessels; or, giving the question a more general form, because a treaty cannot annul a law. The gentleman from Virginia, (Mr. BARBOUR.) who argued this point very distinctly, though not satisfactorily, took as his general position, that to repeal a law is a legislative act, and can only be done by law; that, in the distribution of the legislative treaty-making power, the right to repeal a law fell exclusively under the former. How does this comport with the admission immediately made by him, that the Treaty of Peace repealed the act declaring war? If he admits the fact in a single case, what becomes of his exclusive legislative right? He indeed felt that his rule failed him, and in explanation assumed a position entirely new; for he admitted that when the treaty did that which was not authorized to be done by law, it did not require the sanction of Congress, and might in its operation repeal a law inconsistent with it. He said, Congress is not authorized to make peace; and for JANUARY, 1816. this reason a Treaty of Peace repeals the act declaring war. In this position, he understood his colleague substantially to concur. He hoped to make it appear that, in taking this ground, they have both yielded the point in discussion. He would establish, he trusted, to the satisfaction of the House, that the treaty-making power, when it was legitimately exercised, always did that which could not be done by law; and that the reasons advanced to prove that the Treaty of Peace repealed the act making war, so far from being peculiar to that case, apply to all treaties. They do not form an exception, but in faet constitute the rule. Why then, he asked, cannot Congress make peace? They have the power to declare war. All acknowledge this power. Peace and war are the opposites. They are the positive and negative terms of the same proposi tion; and what rule of construction more clear, than that when a power is given to do an act, the power is also given to repeal it? By what right do you repeal taxes, reduce your Army, lay up your Navy, or repeal any law, but by the force of this plain rule of construction? Why cannot Congress then repeal the act declaring war? He acknowledged with the gentleman, they cannot, consistently with reason. The solution of this question explained the whole difficulty. The reason is plain; one Power may make war; it requires two to make peace. It is a state of mutual amity succeeding mutual hostility; it is a state that cannot be created but with the consent of both parties. It required a contract or a treaty between the nations at war. Is this peculiar to a Treaty of Peace? No, it is common to all treaties. It rises out of their nature, and not from any accidental circumstance attaching itself to a particular class. It is no more or less than that Congress cannot make a contract with a foreign nation. Let us apply it to a treaty of commerceto this very case. Can Congress do what this treaty has done? It has repealed the discriminating duties between this country and England. Either could by law repeal its own. But by law they could go no farther; and for the same reason that peace cannot be made by law. Whenever, then, an ordinary subject of legislation can only be regulated by contract, it passes from the sphere of the ordinary power of making laws, and attaches itself to that of making treaties, wherever it is lodged. All acknowledge the truth of this conclusion, where the subject on which the treaty operates is not expressly given to Congress. But in other cases they consider the two powers as concurrent; and conclude, from the nature of such powers, that such treaties must be confirmed by law. Will they acknowledge the opposite, that laws on such subjects must be confirmed by treaties? And if, as they state, a law can repeal a treaty when concurrent, why not a treaty a law? Into such absurdities do false doctrines lead. The truth is, the legislative and treaty-making power, are never in the strict sense concurrent. They both may have the same subject, as in this case commerce; but they discharge functions as different in relation to it in their naturę, as their subject is alike. JANUARY, 1816. Commerce with Great Britain. H. OF R. When we speak of concurrent powers, we mean position, that a subsequent law can repeal a when both can do the same thing; but he con- treaty; and to this proposition, he understood tended, that when the two powers under discus- that the member from North Carolina (Mr. Gassion were confined to their proper sphere, not TON) assented. Strictly speaking, he denied the only the law could not do what could be done by fact. He knew that a law might assume the aptreaty, but the reverse was true; that is, they pearance of repealing a treaty; but he insisted it never are nor can be concurrent powers. It is was only in appearance, and that, in point of fact, only when we reason on this subject that we mis- it was not a repeal. Whenever a law was protake; in all other cases the common sense of the posed, declaring a treaty void, he considered that House and country decide correctly. It is pro- the House acted not as a legislative body, but posed to establish some regulation of commerce; judicially. He would illustrate his ideas? If we immediately inquire, does it depend on our the House is a moral body, that is, if it is gov will; can we make the desired regulation with-erned by reason and virtue, which it must always out the concurrence of any foreign Power. If so, be presumed to be, the only question that ever it belongs to Congress, and any one would feel it could occupy its attention whenever a treaty is to be absurd to attempt to effect it by treaty. On to be declared void, is whether, under all of the the contrary, does it require the consent of a for- circumstances of the case, the treaty is not aleign Power; is it proposed to grant a favor, to ready destroyed, by being violated by the nation repeal discriminating duties on both sides? It is with whom it is made, or by the existence of equally felt to belong to the treaty power; and some other circumstance, if other there can be. he would be thought insane who would propose The House determines this question. Is the counto abolish the discriminating duties in any case, try any longer bound by the treaty? Has it not by an act of the American Congress. It is cal- ceased to exist? The nation passes in judgment culated, he felt, almost to insult the good sense of on its own contract; and this, from the necessity the House, to dwell on a point apparently so clear. of the case, as it admits no superior power to What then would he infer from what had been which it can refer for decision. If any other conadvanced? That, according to the argument of sideration moves the House to repeal a treaty, it gentlemen, treaties, producing a state of things can be considered only in the light of a violation inconsistent with the provisions of an existing of a contract acknowledged to be binding on the law, annul such provisions. But as he did not country. A nation may, it is true, violate its agree with them in the view which they took, he contract; they may even do this under the form would here present his own for consideration. of law; but he was not considering what might Why then has a treaty the force which he attri- be done, but what might be rightfully done. It buted to it? Because it is an act in its own na- is not a question of power, but of right. Why ture paramount to laws made by the common are not these positions, in themselves so clear, legislative powers of the country. It is in fact a universally assented to? Gentlemen are alarmed law and something more, a law established by at imaginary consequences. They argue not as contract between independent nations. To an- if seeking for the meaning of the Constitution, alogise it to private life, law has the same rela- but as if deliberating on the subject of making tions to treaty, as the resolution taken by an in- one; not as members of the Legislature, and actdividual to his contract. An individual may ing under a Constitution already established, but make the most deliberate promise-he may swear as that of a convention about to frame one. For it in the most solemn form-that he would not his part, he had always regarded the Constitution sell his house or any other property he may have; as a work of great wisdom, and, being the instru yet, if he would afterwards sell, the sale would ment under which we existed as a body, it was be valid in law; he would not be admitted in a our duty to bow to its enactments, whatever they court of justice to plead his oath against his con- may be, with submission. We ought scarcely to tract. Take a case of Government in its simple indulge a wish that its provisions should be differform, where it was purely despotic, that is, all ent from what they in fact are. The consepower lodged in the hands of a single individual. quences, however, which appear to work with so Would not his treaties repeal inconsistent edicts ? much terror on the minds of the gentlemen, he Let us now ascend from the instances cited, to considered to be without any just foundation. illustrate the nature of the two powers, to the The treaty-making power has many and powerprinciple on which the paramount character of a ful limits; and it will be found, when he came to treaty rests. A treaty always affects the inter-discuss what those limits are, that it cannot deests of two; a law, only that of a single nation. It is an established principle of politics and morality, that the interest of the many is paramount to that of the few. In fact, it is a principle so radical, that without it no system of morality, no rational scheme of Government, could exist. It is for this reason that contracts, or that treaties, which are only the contracts of independent nations, or, to express both in two words, that plighted faith has in all ages and nations been considered so solemn. But it is said, in opposition to this stroy the Constitution, our personal liberty, involve us without the assent of this House in war, or grant away our money. The limits he proposed to this power are not the same, it is true, but they appeared to him much more rational and powerful than those which were supposed to present effectual guards to its abuse. Let us now consider what they are? The grant of the power to make treaties is couched in the most general terms. The words of the Constitution are, that the President shall have power, by and with the H. OF R. Commerce with Great Britain. JANUARY, 1816. advice and consent of the Senate, to make trea-clause from inhibiting that odious traffic, yet his ties, provided two-thirds of the Senators present colleague would admit that it was intended to be concur. In a subsequent part of the Constitu- a general prohibition on the Government of the tion, treaties are declared to be the supreme law Union. He perceived his colleague indicated of the land. Whatever limits are imposed on his dissent. It will be necessary to be more exthose general terms ought to be the result of the plicit. Here Mr. C. read that part of the Consound construction of the instrument. There stitution, and showed that the word "Congress" appeared to him but two restrictions on its exer- might be left out, in conformity to other parts of cise; the one derived from the nature of our the Constitution, without injury to the sense of Government, and the other from that of the power the clause; and he insisted that the plain meanitself. Most certainly all grants of power undering of the parties to the Constitution, was, that the Constitution must be controlled by that instru- the trade should continue till 1808, and that a ment; for, having their existence from it, they prohibition by treaty would be equally against must of necessity assume that form which the the spirit of the instrument. Besides these ConConstitution has imposed. This is acknowledged stitutional limits, the treaty power, like all powto be true of the legislative power, and it is doubt-ers, has others derived from its object and nature. less equally so of the power to make treaties. It has for its object contracts with foreign naThe limits of the former are exactly marked; it tions, as the powers of Congress have for their was necessary to prevent collision with similar object whatever can be done in relation to the co-existing State powers. This country is divi- powers delegated to it without the consent of ded into many distinct sovereignties. Exact enu- foreign nations. Each in its proper sphere opermeration here is necessary to prevent the most ates with general influence; but when they bedangerous consequences. The enumeration of came erratic, then they were portentous and danlegislative powers in the Constitution has rela- gerous. A treaty never can legitimately do that tion then, not to the treaty-power, but to the pow- which can be done by law; and the converse is ers of the State. In our relation to the rest of also true. Suppose the discriminating duties rethe world the case is reversed. Here the States pealed on both sides by law, yet what is effected disappear. Divided within, we present the exte- by this treaty would not even then be done; the rior of undivided sovereignty. The wisdom of plighted faith would be wanting. Either side the Constitution appears conspicuous. When might repeal its law without breach of contract. enumeration was needed, there we find the powers It appeared to him that gentlemen are too much enumerated and exactly defined; when not, we influenced on the subject by the example of do not find what would be vain and pernicious. Great Britain. Instead of looking to the nature Whatever, then, concerns our foreign relations; of our Government, they have been swayed in whatever requires the consent of another nation, their opinion by the practice of that Government belongs to the treaty power; can only be regulated to which we are but too much in the habit of by it; and it is competent to regulate all such looking for precedents. Much anxiety has resubjects; provided, and here are its true limits, cently been evinced to be independent of English such regulations are not inconsistent with the broadcloths and muslins. He hoped it indicated Constitution. If so they are void. No treaty the approach of a period when we should also can alter the fabric of our Government, nor can throw off the thraldom of thought. The truth it do that which the Constitution has expressly is, but little analogy exists between this and any forbad to be done; nor can it do that differently other Government. It is the pride of ours to be which is directed to be done in a given mode, founded in reason and equity; all others have and all other modes prohibited. For instance, the originated more or less in fraud, violence, or acciConstitution of the United States says, no money dent. The right to make treaties in England "shall be drawn out of the Treasury but by an can only be determined by the practice of that appropriation made by law." Of course no sub- Government, as she has no written Constitution. sidy can be granted without an act of law, and a Her practice may be wise in regard to her Govtreaty of alliance could not involve the country ernment, when it would be very imprudent here. in war without the consent of this House. With Admitting the fact to be, then, that the King rethis limitation it is easy to explain the case put fers all commercial treaties affecting the municiby my colleague, who said that, according to one pal regulations of the country to Parliament, for limitation, a treaty might have prohibited the its sanction, the ground would be very feeble to introduction of a certain description of persons prove that to be the intention of our Constitution. before the year 1808, notwithstanding the clause Strong difference exists between the forms of the in the Constitution to the contrary. Mr. C. said two Governments. The King is hereditary; he that he would speak plainly on this point; it was alone, without the participation of either House the intention of the Constitution that the slave of Parliament, negotiates and makes treaties; trade should be tolerated till the time mentioned. they have no Constitution emanating from the It covered him with confusion to name it here. people, alike superior to the Legislature and the He felt ashamed of such a tolerance, and took a King. Not so here. The President is elected large part of the disgrace, as he represented a for a short period; he is amenable to the public part of the Union by whose influence it might be opinion; he is liable to be impeached for corrupsupposed to have been introduced. Though Contion; he cannot make treaties without the congress alone is prohibited by the words of th currence of two-thirds of the Senate, a fact very |