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JANUARY, 1816.

Commerce with Great Britain.

H. of R.

material to be remembered, which body is in like or French empire ? Certainly it would. For manner responsible to the people at periods not what are the laws of a despotic monarchy but very remote; above all, as the laws and Consti- the breath of the sovereign, call him what you tution are here perfecily distinct, and the latter will? And was that an analogy on which to found is alike superior to laws and treaties, the treaty a construction of our Constitution, on which the power cannot change the form of Government, gentleman had bestowed so high' but not undeor encroach on the liberties of the country, with served an eulogium ? No; it was because a out encroaching on that instrument, which, so treaty made by a despotic Power will repeal the long as the people are free, will be watched with law of the land there, that a treaty made by Presvigilance.

idential authority will not repeal the law of the Mr. RANDOLPH said, when be took his seat yes- land here. To come to the gentleman's experiterday, or rather before he was qualified to take mentem crucis, and try the strength of his arguhis seat, he had considered the bill then aod nowment, that a treaty is paramount to the law of under discussion as one of perhaps as trivial a na- the land. Suppose the Treaty of Peace had conture as ever engaged the attention of this House, tained a provision for ceding a way a part or the or of any legislative body. But, of this bill, it whole of South Carolina, as an equivalent for might be said, vires acquirit eundo; and of this Jamaica, for territory in India, or for Ireland. perhaps he was about to afford the House some Would the gentleman consider such a stipulation, proof, by adding his little rill to swell the torrent although in the nature of a contract, as amounting of debate to which this bill bad given rise. Certo a law of the land? But, perhaps, he said, he taioly-and he koew with what suspicions such should be told that that which is paramount to declarations were generally received, but he spoke the law of the land, is not paramount to the Conit bona fide-he had no intention to utter one stitution, and that ihe Constitution prohibits the word on the subject until he heard doctrines cession of a State or part of a State 10 a foreign against which he felt himself bound to enter his Power. I! was unquestionably true, whatever solemn protest. He might say of this bill, as of might be his opinion, that such is not ihe universome disease, the danger was in the mode of sal opinion ; although it might perhaps be proved treatment, in the doctor, and not in the disease. by the event, that as the United States had hereHe hoped the gentleman from South Carolina tofore acquired territory by treaty, we have also would pardon him when he had heard doctrines parted with territory by treaty-as in the infrom him this day, against which he felt it his stance of Moose Island, and it may be, in the insolemn and bounden duty to enter his protest. stance of the new boundary line to be run beThere was nothing in this, he knew, to alarm tween us and Canada, that it may be so run as the gentleman, for it was the protest of a feeble to take off part of the territory which was a part isolated individual, but of an individual who of the United States-yes, a part of the good old would discharge his duty off this floor and on thirteen United States. this floor, with the same zeal and perseverance But, the gentleman had said something of the as if he commanded a majority of the House at effect of a contract of an individual on an oaih bis beck. If he understood the gentleman, Mr. previously taken. What analogy, Mr. R. asked, R. said, he had declared that a treaty, being of the was there between the absurd and preposterous nature of a compact, touching the interests of conduct of an individual who attempis to tie himother nations than our own, it therefore follow- self up by an oath from imprudence, from the ed, that the treaty-making power, so long as it gambling-table, from the bottle, from squandering confined itself to its own sphere, that of contract; his estate, &c., and the acis of Government, espeso long as it received equivalents for what it cially as those acts are affected by the acts of gave, whether real or pomival, according to the two branches of the Government' farthest regentleman's doctrine no matier-they are not moved from the people, who do not speak their to be crippled up, not to be examined; that in- sense as much as we do? Mr. R. here expressed asmuch as the interest of two nations instead a doubt whether, from having been out of the of one, were concerned in all treaties; therefore habit of speaking and having overstrained his the treaty.making power is paramount to the voice, he had been able to make himself underlegislative power—did he or did he not understood. He then adverted to the observation of the stand the gentleman? It was impossible to mis- gepileman from South Carolina, that the Presiunderstand him; for, Mr. R. said, he had stated dent and Senate have an unquestionable right his positions with a precision and clearness which to put an end to the calamities of war by makleft no room for doubt-yes, that treaties, being ing a Treaty of Peace, over which this House paramount, of course repealed the law of the could have no control. 'Mr. R. agreed with that land, so far as the law of ihe land came into colo gentleman, that the exercise of the power to put lision with any article of a treaty which was an end to the calamities of war, was the most confined 10 the legitimate objects of a treaty, viz: important ever granted by a free people, except to contracts with another nation. But the hon- the exercise of the power to declare war. He orable gentleman from South Carolina bad, with agreed also with the gentleman, after Congress peculiar infelicity of illustration, drawn examples had declared war, the President and Senate might from despotic Governments. Would a treaty by treaty restore the state of peace; but he could made by a Sultan of Constantinople or an Emot agree with the gentleman, that a treaty, alpéror of France go to repeal a law of the Turkish I though it should confine itself to what the gen

H. OF R.

Commerce with Great Britain.


tleman called a contract, was paramount to law, tive or judicial, provided the precedents are takes and competent to repeal existing laws. Suppose from good Constitutional times—for he would that the Treaty of Peace had been a treaty of al- never take precedents under any administration liance, and had stipulated that the United States during times of great turbulence or excitement, should levy an army of an hundred thousand when the best of us are under temptations, to men, and that they should be sent to the Conti. which most of us yield, of carrying our passions nent to aid the British, Prussian, and Austrian and prejudices into public life. With all due arms on the plains of Waterloo-would this submission to the gentleman from South CaroHouse have been bound to raise the men ? Would lina, and to this House, Mr. R. said he did declare Congress have been bound to provide the means that the President and Senate did not and never of maintaining them ? Certainly not.

had possessed the power, by any contract with a In the declaration of war, it had been argued, foreign Power, of repealing any law of the land, by the gentleman from South Carolina, that the or enacting any law in its stead. This be said, House had acted in a judicial capacity. In a was his opinion of this great Constitutional quesjudicial capacity ! exclaimed Mr. R. He had tion; he had expressed it in this hasty way, upheard it, he said, in and out of this House, ques. der the excitement of the abhorrence-he hoped tioned whether this House acted judiciously in the gentleman would pardon him; it bad pothing declaring war, but he never heard it before sug personal in it--of the abhorrence he felt at the gested whether or not they had acted judicially doctrine which the gentleman had uttered on this on that occasion. He had never before heard floor-a doctrine which there was a time when it doubted, whether the Congress in passing any it would have been called highly federal doctrine; act, acted judicially or legislatively. [Mr. Cal- and certainly not the less objectionable to Mr. R. HOUN here made a brief explanation and state-on that account, either at that time or this--the ment of the extent of his position.] Mr. R. ex- doctrine that, so long as they could find another pressed his obligation to the gentleman for hav- power to contract with, the President and Senate ing stated his argument exactly as he had at first might exercise a power paramount to all law, understood it. He would put it to this House, though not to the Constitution. This was too to the nation, to every man, woman, and child dangerous a power to be given to the President in the nation. Suppose the Treaty of London and Senate under such a sweeping clause. If had been unsuspended by the truce of Amiens, this bill had passed through this House sub silentio, would the declaration of war with Great Britain if it had been carried or rejected, he should never have put an end to that treaty ? It would ;-and have thought much of it; for it would never have would that act have been a judicial act, when assumed to him that aspect, which it bad done the consent of the President and Senate was ne- since this morning-since the gentleman had ascessary to our acting at all? Did the gentleman serted, that so long as they confined themselves mean to say, continued Mr. R., that when the to the legitimate sphere of contract, the PresiTreaty with France was repealed by an act mak- 'dent and Senate might exercise a power superior ing war, during Mr. Adams's administration, it to all law whatever. was repealed by a judicial act? Was it possible ? Mr. R. said, he was happy to find, however, Was there a man wide awake who could ad- that the gentleman bad, in a degree, dissipated vance such an opinion? This House, he said, the horrid phantom which had so much alarmed acted judicially when it decided on the qualifi. not his imagination but his judgment. The gencations of a member; the Senate when it tried tleman had admitted, that there was a certain inan impeachment. But how could that be a ju. fluence-a certain Constitutional check on the dicial act which reads-Be it enacted by the Sen. President and Senate of the United States—for ate and House of Representatives, fc. Go to the example, impeachment as regarded the President, Secretary of State's office, said Mr. R., if the and public opinion as regarded the Senate-and rolls be still in existence, and see in what that that the spirit of the Constitution would at all act differs from any other-the title is as plain, times meliorate the power which, in the gentlethe parchment as smooth. This act, which reman's opinion, the President and Senate possessed pealed an existing treaty, which treaty could not of violating every law of the land. Mr. R. granted be revived after peace, unless renewed and again that this was the case, and that the first reflection ratified, differs in no respect of form or solemnity on it had caused Mr. R. himself to depreciate this from the simplest law ever made for the relief of bill below its actual importance-for he really a petitioner before this House. It does not differ had thought the House was making a great deal from any other legislative act; and you have no out of nothing, swelling a molebill into a mounjudicial power, as far as my recollection now sup- tain-until he heard the debate, when he became plies me, beyond the right to try the title to a convinced, in so far as the power of the House member's seat, and the right to expel a refractory of Representatives was important in the Constiand disorderly member.

tution of the United States, so far as it behooves Mr. R. said he did not mean to enter into the the House of Representatives to hold the power comparison between the constitution of Great which had been conferred on them, for the naBritain and that of the United States, considering tion's good, by the nation ; that, so far, this was it irrelevant. Mr. R. agreed that our Constitu- a question of importance. Thai the time should tion was to be found in the charter, and in the ever come when the President of the United practice under the Constitution, whether legisla- States should dare to negotiate a treaty which

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would meet with the decided reprobation of the on the House too long; he could not, however, people of the country and their Representatives, repress the expression of his horror ai the docwas another question; that the time should ever tripes which had been advanced-doctrines, if come when the House of Representatives would they prevailed, subversive not only of the Constiever have the incivility to refuse to pass laws to tution of the United States, but of all free govcarry into effect such a treaty, is also another eroment whatever. question. I do not believe, said he, (addressing Mr. King, of Massachusetts, spoke as follows: the Speaker,) that either of these periods will Mr. Speaker, as the vote which I shall give happen in my life time, or in yours; because I upon this bill, will differ from those which will believe, sir-I hope I am not mistaken-that the be given by those friends with whom I bave the good sense of the people of the United States, if pleasure generally to act, I owe it to them and to it please God 10 permit us to remain in peace myself to explaio, as briefly as possible, the reathat their good sense will, in spite of all the efforts sons of that vote, leaving the general argument to swell up great standing armies, mighty navies, to others more able and willing to discuss it. heavy taxes, and to advance the glory (as it is When this subject was first started in the House; called) of the Government under which I live, in when this bill was first iotroduced, and it was obthe blood and misery of the people—that they will served by many gentlemen that no bill was neput an end, as they have once before put an end cessary, that the convention was already the law io such projects, the same in kind but differing in of the land, without much reflection I inclined to degree-differing indeed, because infinitely below that opinion; concluding that what was already what I have seen for some time past agitated. the law of the land, could not, by any act of ours, And whether the House of Representatives de- be more the law of the land. But, sir, when, in clare with the honorable gentlemen on the other the course of debate, I heard my honorable friend side of the House, that we have the power, or from North Carolina (Mr. Gaston) speak of the with my friend from North Carolina, that we moral obligation which this House was under to have not the power or the right to pass this bill, appropriate money to carry any treaty stipulation during your lite-time and mine, the Constitution into effect, which might require the aid of Conwill not be violated. This bill, Mr. R. repeated, gress, and of the awful responsibility we should was not of much importance in its matter, but in incur, were we to refuse to make such appropriathe manner of its discussion. By way of pioning tion, he appeared to acknowledge a case where a the honorable gentleman down, said he, let me treaty was not complete without legislative aid, conclude the few crude remarks 'I have to make, and that the House might incur the responsibility by this question ; suppose that a part of the con- of refusing such aid; my first impression I theretract by the late treaty had been, ihat each party fore thought wrong, and with the treaty, the bill, should burn, sink, or dismantle an equal number and the Constitution, before me, I was determined of ships-of-the-line, frigates, and so on--that pro- to investigate the subject attentively on its mervision would require no appropriation ;–or, sup-its, with such light, however dim, as the Supreme pose the treaty had contained a stipulation io de- bestower of every good gift had seen fit io imstroy all our feet, provided Great Britain would part to me. Of the opinion out of doors and of destroy an equal number of bers--this would have the times, I know nothing; to confess to you the required po appropriation ; it would have been truth, sir, I was afraid to recur to opinions of other within the legitimate sphere of contracts; it would times, lest they should have been produced by have been a bargain; it would have even had re- an excitement unfavorable to correci conclusions ciprocity; it would have kept the word of promise in politics. The result of my investigation on to the ear, but broke it to the hope. But then, this subject is: that whenever a treaty or consaid Mr. R., comes in the power of impeachment—vention does, by any of its provisions, encroach the great remedy; I have no idea of it-it has upon any of the enumerated powers vested by the been tried and found wanting, in the case of a Constitution in the Congress of the United States, member of the other House, and in the case of a or any of the laws by them enacted in execution high judicial officer. The power of impeachment, of those powers, such treaty or convention, after he said, appeared to him to be not the daily bread, being ratified, must be laid before Congress, and but the extreme medicine of the Constitution such provisions cannot be carried into effect withHe had no faith in il-he had no faith in a course out an act of Coogress. For instance, whenever of mercury, to restore health and vigor to that a treaty affected duties on imports, enlargiog or constitution which was broken down by diseasem diminishing them, as the present one did to dinor did he believe, if such a stipulation as he had minish; whenever a treaty went to regulate comrepresented had been found in a treaty, ibat a merce with foreigo nations, as that expressly did majority of this House could have been found to with one, as the power to lay duties and the vote for an impeachment. Impeachment, Mr. power to regulate commerce are expressly given R. said, extends to loss of office, to disqualifica- to Congress, such provisions of such treaty must tion ; that may be a terrible punishment to the receive the sanction of Congress before they can young and aspiring; but to those who are retiring be considered as obligatory and as part of the from the political theatre, amidst the plaudits of municipal law of this country. And this cona great part of the nation over which they preside, struction is strengthened by a part of the general such a punishment had no terrors. Mr. R. con power given to Congress, following the enumercluded by saying, he believed he had trespassed I ated powers, "to make all laws which shall be H. OF R.

Commerce with Great Britain.

JANUARY, 1816_

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proper, for carrying into execu- of the House for a moment to the few remarks tion the foregoing powers, and all other powers which the discussion had suggested to his mind. vested by the Constitution in the Government and which had not been noticed by those whe of the United States, or in any department or had preceded him in the debate. Crude and inoffice thereof." In other words, for carrying digested as these remarks may appear, he could into execution the treaty-making power (that be- venture to engage they would have at least the ing among the other powers) in all cases where merit of brevity. Mr. M. said, he was opposed it has been exercised on subjects, placed by the to the passage of the bill; not because he felt the Constitution within the control of the legislative least disposition to impede the execution of the department. This construction is further strengih-treaty, lame and imbecile as it is, to which it reened by the concession of honorable gentlemen, lates, but because he foresaw the danger of emin one case, that where appropriations of money barrassing the other branches of the Government are necessary for carrying the provisions of any by this interference, and because he believed, as treaty into effect, there legislative provision is well from the structure of the Goveroment, as necessary. Now, sir, to concede that the sanc. from the express provisions of the Constitution, tion of Congress is necessary in one case of enu- we could not interpose our authority in the way merated and specified power, is to concede it in contemplated by this bill, without attempting an all such cases. Nor, sir, can any serious incon- unwarrantable exercise of power pot delegated to venience arise from this construction. As to ne- this House by the Constitution. It would be not gotiations with foreign Powers, our Ministers will merely an act of useless legislation, but of downalways know the peculiar structure of our Gov- right usurpation. Gentlemen had indulged themernment; nor can foreign Ministers, who may selves at great length in search of arguments to ever be sent to treat with us, be ignorant thereof. prove the inexpediency of vesting the absolute Besides, the distinction, as to the several kinds of and uncontrolled power of making treaties, in the treaties, is well known; some, respecting solely President and Sepate, and had iaxed their imour external relations, or the intercourse between aginations for proof of the mischiefs which might our Government and that of a foreign Power, result from the exercise of this power. Sir, we will execute themselves, or are perfect without are not at liberly to go into that inquiry. The any legislative aid; and it can instantly be deter- question is not, where ought this important premined, from the nature of the provisions, when rogative of sovereignty to be lodged ? But, where legislative aid is necessary. Further, sir, your is it deposited by the Constitution ? We are not Goveroment has well understood this distinction. sitting as a convention to make such a distribuSome creaties they, by their proclamations, mere- tion of powers as we think best calculated to seody ratify and confirm, where legislative aid is ne- cure the preservation of liberty, but we are called cessary, as in the present case; others, they not upon to exercise those powers already vested in oply ratify and confirm, but enjoin an observance us by the instrument which we have solemoly thereof upon all our citizens, as will be seen by sworn to support. turning to the ratification, by Mr. Jefferson, of The practice of other Governments is equally several treaties published in the seventh volume irrelevant to the present inquiry, and especially United States laws. The fear that the President of those Governments whose forms of proceeding, and Senate (they must both, or two-thirds of the and the distributions of whose powers, bear but a latter, concur) will agree with the House in pass. remote analogy to our own. Ours is a federative ing an improper law on the subject of a treaty Government, composed of distinct and separate which they had before ratified, cannot be well sovereignties, and clothed with no powers, exfounded. There is much more reason to fear cepting those which are expressly delegated by that they may be induced to ratify a treaty re- the Constitution, or which necessarily result from quiring legislative provision, which the House them. It is an anomaly among existing Governought to refuse. Should a case of that kind occur, meots, and from the manner in which it was while I have the honor to be one of the Repre- formed, Mr. M. said, he thought it might easily sentatives of the people, I shall have no hesita- be shown, that it was never the intention of the tion, with my brethren, to interpose ourselves convention to vest the House of Representatives between the Executive and the people, in the de- with any participation in the treaty-making fence of their rights, or the freedom of our coun- power. try. Far, then, from shrinking from what my Thirteen independent States, each possessing, honorable friend is pleased to call an awful re- all the attributes of sovereigaty-the power of sponsibility, I should think it a sacred duty to making treaties among the rest-varying in size, meet the crisis, resist the encroachment, and leave in population, in wealth, and in strength, of difthe consequences with God. I never will consent fereoi babits, interests, and pursuits, assemble to that the House of Representatives of the people form a Constitution for their mutual protection shall become a mere Parliament of Paris, to regis- and defence. The wise men to whom the acter the edicts of the President. I shall vote for complishment of this great object was intrusted the bill.

had to contend with the prejudices of the people, Mr. Mills said, nothing had been further from and the jealousies of the Siates, to reconcile inhis intention than to take a part in the present terests at variance with each other, and so to debate. But although he had bestowed but little combine and shape them as not to sacrifice those attention to the subject, he begged the indulgence of one section of country to the supposed advan

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JANUARY, 1816.
Commerce with Great Britain.

H. OF R. tage of others. It was, of course, a system of treaties.” The treaty with Great Britain, now compromise and conciliation-each surrendering under consideration, has been made and ratified something for the good of all.

precisely in the form thus prescribed. The inIt was, therefore, for the purpose of protecting ference is

, therefore, irresistible: It is the supreme the interests and guarding the rights of the States law of the land; and no power on earth can renthat the Constitution requires the assent of two- der it more obligatory. It is a compact entered thirds of the members of the Senate to the rati-into between two sovereign independent nations, fication of a treaty. It is not because the Senate acting under their respective lawful authorities; are a co-ordinate branch of the Legislature that it is perfect and complete in all its parts, has rethey are called upon to advise the President upon ceived the sanction of each party, and is prothis subject, but because they represent the sov- claimed to the world by your President, acting ereignty of the States; and in requiring the as under the same instrument by which we hold our sent of two-thirds of the Senate, it was believed seats, not as an inchoate and incomplete act, rethat no treaty would ever be ratified unless it was quiring any further ceremony to render it valid, for the interest of two-thirds of the States. But, but as made and concluded, and already binding said Mr. M., adopt the doctrine contended for by each party to its respective stipulations. the gentlemen on the other side-admit this The inconsistencies arising out of the construcHouse to a participation of this power, and what tion of the Constitution, contended for by the adwould be the consequence? Why, sir, it would vocates of this bill, Mr. M. said, were numerous be in the power of four States only, out of the and palpable. He would instance but one or two: eighteen, now composing the Union, to defeat the By the bill, the House undertake to put a con

ralification of a treaty which had received the struction upon the treaty. We pass the bill and - sanction of the President and two-thirds of the send it to the Senate. That body, upon the Senate. Yes, sir, although the Senate, represent ground that our construction is not correct, reing the respective States, might have given their fuse, by a majority of ope, to pass a bill for carunanimous advice to the President, it would still rying into effect a treaty to which two-thirds be in the power of the Representatives of Mas- have already given their deliberate consentsachusetts, New York, Pennsylvania, and Vir- what would be the result? Would the treaty ginia, to prevent its being carried into effect. cease to operate, and lose its binding efficacy ? Where, sir, are the rights of the respective States, Again, suppose the bill passes both the Senate so sedulously guarded by the Constitution; where and House, and your President refuses his sanc. is the security of the small States; or, where the tion on the very ground that you are trenching interests of the commercial ones, if a treaty made upon his legitimate authority, and assuming a for the protection of those great objects is liable power not delegated to Congress. Where is then to be defeated by a combination of this sort ? your treaty; and how stand your relations with The supposition is monstrous. No, sir, the House Great Britain ? A doctrine so replete with abof Representatives have no more right to inter- surdity capnot be correct. Let us not, sir, emfere than they would have if the Constitution ploy our time in the vain effort to legislate where bad required the advice of two-thirds of the Gov- we have no power and can produce no effect. Let ernors of the respective States to the confirma- each department of the Government confine itself tion of a treaty. It is the assent of the States, to the sphere in which the Constitution has placed and not of the people numerically, which was in it. Employment enough may be found in the tended to be secured.

rightful exercise of authority, while nothing but Mr. M. said, the remarks he had already made disorder and confusion will result from its abuse. were founded principally upon the structure of Mr. M. said, it would be easy to show that the our Government, and what must have been the practice of our Government under the Constiintention of its founders. But from an examina- tution, had been conformable to the principles tion of the Constitution itself, and a comparison for which he contended; but as ibe hour of adof its various parts, he had been astonished that jouroment had arrived, and he had already tresany difference of opinion should exist upon this passed upon the patience of the House longer than subject. He should not, however, detain the he intended, he would detain them no further. House with a labored argument upon this part of Mr. REYNOLDS said he rose with some diffithe case, inasmuch as the reasoning of the honor-dence to express his opinion on the great question able gentleman from Pennsylvania, (Mr. Hop. now before the House, particularly after the great KINSON,) and those who had preceded him upon display made by the genilemen from South Carolithe same side, must have produced a conviction na,(Mr. Calhoun,) and from Virginia, (Mr. Ranupon the minds of all over whom he could hope DOLPH,) who had just sat down. But whenever a to have any influence, and must be, in his appre- great Constitutional question is involved, Mr, R. hension, conclusive upon all who iake the Con- said, he would always take the liberty to deliver stitution for their guide. That instrument de his sentiments while he had the honor of a seat clares, that "all treaties made or to be made under in this House. He did not mean, however, to the authority of the United States shall be the su- enter into the general discussion, which the quespreme law of the land." It expressly vests in tion now assumed by the eloquence of the houthe " President, by and with the advice and con- orable gentleman from Virginia, (Mr. RANDOLPH,) sent of the Senale, provided two-thirds of the at this late hour, but merely to state the grounds on members - present concur, the power to make I which his opinion rested. Mr. R. said it was time

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