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Treaty with Great Britain.

H. OF R.]

parts of the Constitution, and as the expression of the public will, he would not, he hoped, consider it as out of order when any question should arise, to hear the proceedings of those meetings cited as an exposition of the public will.

But, in the present instance, he conceived the member unfortunate in his quotation. The meet-lieved the resolution a very proper one, and would ing wished to persuade the PRESIDENT not to vote now for its adoption if it was yet to be passed. sign, and they used the strongest expressions they It is certainly proper, when a Treaty is concluded could think of to convince him of the improprie- under the authority of the United States, that it ty of putting his hand to the fatal instrument. should be annexed to their code of laws; but this The meeting was not assembled for the purpose could not weigh against the exercise of discretion of expounding the Constitution: they met to give in the House on important Legislative subjects. weight to an application made to the proper authority to beg that the Treaty might be crushed in that state of the business. But, to take the gentleman's own rule of construction, it will be found that when their petitions to the PRESIDENT were of no effect, they then addressed this House as their dernier resort. If these popular proceedings were to be considered as an expression of public opinion, he would say that the petitions on the table of the House were more numerous than he had ever known them on any question whatever. From these petitions it will be found that the people had recognised the power of the House to interfere, and begged them not to abandon their rights.

The practice of the House, with respect to appropriation laws, in the cases of Indian Treaties, had been mentioned by the member from South Carolina. In the first place, in observing upon this, he would remark, that he always conceived there was a distinction between an Indian Treaty and a Treaty with a foreign nation. The English had always made a distinction when we were Colonies. The Constitution establishes an express difference. He should not, however, found his objections to the inference of the gentleman upon this, but would examine it unconnected with this distinction. Provisions had been made by this House to carry Indian Treaties into effect; but why? No doubt because the House conceived it wise so to do, not because they had not a right to use their discretion in the business. Suppose, on any of those occasions, a motion had been made to strike out the sum proposed to be appropriated, would it have been said that the motion was out of order? A similar motion was made lately with respect to the Mint, and it was not considered as out of order. If, on that occasion, it had been the opinion of the House that the Mint was an improper establishment, by refusing the appropriation they could have defeated the law. It was certainly the opinion of the House that they could exercise their discretion in the business, for was not even hinted that the motion for striking out was out of order.

On another head the gentleman appeared to plume himself much. He had asked, why, since the PRESIDENT had proclaimed a Treaty as the law of the land, which was not the law of the land, why he was not impeached? This question, the member exultingly remarked, had not been answered, because, he imagined, it could not be answered.

[MARCH, 1796.

South Carolina.] He had remarked that the House had passed a general resolution directing the Clerk to place in the code of laws of the United States Treaties made under the authority of the United States. Was this, he asked, an exposition of the meaning of the Constitution? He be

The next subject the member from South Carolina touched upon was, the late amendments proposed to the Constitution by the State of Virginia. He deduced, from one of these amendments, that the Legislature of that State did not conceive the power of the House to extend to matters of Treaty. This he did not believe a fair deduction. It is not contended that there are words in the Constitution expressly giving this participation in controlling Treaties to the House, it is only contended for as growing out of the specific powers vested in Congress. The object of the State of Virginia was then to exchange a construction that might be disputed for an expres-it sion not to be doubted. It was unnecessary for the gentleman from South Carolina to remind the State of Virginia of the fate of their propositions in the Legislatures of the several States. Virginia, he hoped, would pursue uniformly the line of conduct that had marked her political character, under whatever circumstances she might happen to be placed. Her conduct had been uniform from the Declaration of Independence to the present day; uniform and exemplary in their obedience to the laws, and in their activity against encroachments; and, notwithstanding the fate of her proposed amendments, he prided himself in representing a State that never offered the slightest mark of disrespect to a sister State for differing with her in opinion. If Virginia had been the cause of some indelicacies on the part of other States, she is the innocent cause. They had exercised a Constitutional right which they conceived it their duty to exercise, and they could not be responsible for any indelicacies to which that conduct might have given rise.

The practice of the House had been referred to yesterday by the member last up, [Mr. SMITH, of

Suppose I should tell the gentleman, said Mr. G., that I could not now give him an answer, would it show that the House had not the authority contended for by the friends of the present motion? Why was the subject mentioned? Not with a view, I believe, to the discovery of the truth. I fear it is calculated to produce an opposite effect-to check investigation. It is too often the case that the names of persons are brought into view, not to promote the development of principles, but as having a tendency to destroy freedom of inquiry. I will go further with the gentleman, and admit for a moment (a position, however, I shall by and by controvert) that the PRESIDENT conceived that he had a right, after

MARCH, 1796.]

Treaty with Great Britain.

[H. of R. limited in its objects, he meant, however, that they had confined it only within the limits of the Constitution; but even admitting it in that extent, is certainly a doctrine sufficiently alarming. When the gentlemen contend for its supremacy, they also admit in this point some qualifications; according to their doctrine, it is not to be supreme over the head of the Constitution, but in every other respect they contend that it shall be unlimited, supreme, undefined. Gentlemen who insist that Treaties are supreme, next to the Constitution, must also grant that there is no necessity for the House to trouble themselves with making laws.

He acknowledged that the PRESIDENT's Proclamation differed from what he expected it would It will be remarked, said Mr. G., by examining have been; because the PRESIDENT had expressly the history of man, that the people have always said in his Speech, at the opening of the session, been desirous to check the exercise of power in that he would lay the subject of the Treaty be- the administrators, and as uniformly have admin- * fore the House; and not, he supposed, for their istrators endeavored to evade those checks. The opinions only, but for their agency. He believed, same among us. The American people, sensible however, the Proclamation was issued in its pre- of this, when they, after a fortunate struggle for sent form with the best intentions; but the au- their liberties, were about to exercise their discrethority for the opinions on which it was founded tion in the establishment of a Constitution that would not, he said, prevent him from exercising should secure their rights and liberties, formed a his own. Opinion, said Mr. G., is sometimes re- Government of checks. The Americans have the pulsive. When it is pressed too closely, resistance reputation of a sagacious people, and have showed and reaction, not favorable to the investigation of their sagacity in framing this Constitution; but truth, are the consequence. The whole argu- even if they had proved themselves more sagament of the gentleman on this ground, then, provescious in devising checks, a correspondent sagacity nothing, and is attended with this ill effect-to would still have been found in the Government to check the discovery of truth. But he hoped the evade them. Never, I will venture to say, was House would seek within themselves for opinions, there an instance of a more complete rout of so and not travel for them to other departments of complete a system of checks, within the term of the Government. He had said, however, that it was six years, in any Government on earth; and if his belief that it was not probable the PRESIDENT the doctrine now contended for be agreed to, then viewed the Treaty as the supreme law of the land I do declare that the triumph of evasion of checks before it had been submitted for Legislative de- is complete, indeed, and little will be left hereafter cision; and this belief was grounded on the in- to be evaded. tentions which the PRESIDENT expressed in his Speech of laying the subject before the House.

Having examined the objections to the construction contended for by the friends of the motion, drawn from collateral sources, he should turn his attention next, he said, to the intrinsic meaning of the Constitution. He would attempt to interpret the Constitution from the words of it. It was a misfortune the clauses were not more clear and explicit, so far as to force the same meaning upon every mind, however they might differ in opinion in other respects. However, from the imperfection of language, it was no wonder, he observed, that on an instrument providing for so many different objects, and providing such a variety of checks, various opinions as to construction should arise; but he considered the present clauses of as plain import as any part of the instrument. The construction contended for by the opposers of the motion is, beyond denial, the most dangerous in its effects, and the least proba-der ble, as he thought, in its meaning. It is contended by them that the Treaty-making power is undefined in its nature, unlimited as to its objects, and supreme in its operation; that the Treaty-making power embraces all the Legislative powers; operates by controlling all other authorities, and that it is unchecked. When he had asserted this power, as contended by the gentlemen to be un

the exchange of ratifications, to promulgate the Treaty as the supreme law of the land; what would this amount to? Why, only that this was his opinion; but is that authority here? In any other case rather than the present, I should be inclined to pay a greater respect to opinions from that source; but now, when the question is about the division of powers between two departments, are we to be told of the opinions of one of those departments, to show that the other has no right to the exercise of power in the case. Such appeals are not calculated to convince, but to alarm.

The construction contended for by the friends of the resolution is derived from two sourcesfrom the Constitution, and the nature of things. The Constitution says, the PRESIDENT, with the advice and consent of two-thirds of the Senators present, shall make Treaties. Perhaps, if there was no other clause, the Treaty-making power might be considered as unlimited. Another clause declares that the Constitution, the laws made under it, and Treaties, shall be the supreme law of the land. Here the gentlemen, when they quote this clause, stop, as if there were no other words in it; and from all this it would appear that the people had, in fact, delegated an unchecked power. But, if we go on, it will be found that the last-mentioned clause adds that the Judges in the respective States shall cause them to be executed, any thing in the Constitution or laws of the individual States to the contrary notwithstanding. From the jealousy which individual States showed un

the Old Confederation for the preservation of their powers, and the inconveniences which were experienced in consequence, it was found necessary, when organizing a new Government, to declare, explicitly, that their Constitutions and laws must yield to the Constitution, laws, and Treaties of the United States, and for this purpose this clause was introduced.

Gentlemen, after granting that the Constitution

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Treaty with Great Britain.

in the contract, not because it is the interest of the United States that it should be so.

ment.

is supreme when in opposition to Treaties, còn tend that Treaties are supreme over laws. They also admit that this is not warranted by the Con- Mr. G. then contended that, in proportion as an stitution, but they contend that it is so from the authority is undefined, in that proportion every nature of things. From the nature of things, he check should be exercised. It is the height of said, he should infer the reverse, though he disa- folly to contend that the American people ever greed in this from the gentleman from Penn- intended to give any authority an unlimited opesylvania, [Mr. GALLATIN.] He contended that ration. If the Constitution be examined, it will the Constitution and the acts of the Legislature be found grounded on a jealousy against all ruannul Treaties, and that Treaties do not annullers; this is evident from the face of the instru laws. This he should infer from the nature of Treaties and the nature of laws. Gentlemen said that Treaties could not be repealed, because they were made by two contracting parties. This sounds very well, but was ever such a thing heard of as a Convention to repeal a Treaty? If this had never been done by Convention, it is at least presumable that the omission to have done so heretofore renders this theory doubtful. The truth is, that the right of annulling Treaties is essential to national sovereignty; and nations have at all times taken their own measures respecting Treaties, under the common responsibility for the breach; but if such is the practice, as is contended for, it would be advisable in the present case. Perhaps, said Mr. G., if his gracious Majesty is once more saluted with an expression of our reliance on his magnanimity, and well known justice, &c., he may relieve us from the burden. If the epithets are reverberated on him, they might rid us of that dilemma, which they had such an agency in producing.

In the first place, it contains limitations to the aggregate powers of the Government. In the next place, it provides checks for the powers given up. These checks are at least of three kinds; the first is, that of a distribution of different species of authorities into distinct hands, as in the case of the Legislative, Executive, and Judiciary; secondly, it requires a concurrence of different branches of the Government for the exercise of the same species of authority, as in the case of all Legislative subjects, the concurrence of the Senate and this House, to which is subjoined the qualified veto of the PRESIDENT; the third species consists of prohibitions upon the whole of the departments in the exercise of particular authorities intrusted to them, as in the case of a prohibition of an appropriation for the support of an Army for more than two years; the prohibition respecting exports under the power to regulate commerce, &c. So jealous has the Constitution been with respect to armies, that it also requires biennial elections for the purpose of enabling every new House to prevent the execution of a law for raising an Army by withholding the appropriations for its support. Whilst the Constitution was formed under this spirit of jealousy, it would have been wonderful that that power which is described to be unlimited in its objects, undefined in its nature, and paramount in its operation, should have been left unchecked; it would have been an evidence of the most egregious folly. The American people were incapable of it; accordingly, checks are found in the Constitution, if it be fairly interpreted; and it is not very material whether these checks are in express words, or whether they result virtually from the distribution of the several powers. It is sufficient that they are efficacious.

Mr. G. contended, that this mode of repealing Treaties by Conventions was merely theory, and that no instance of the exercise of such a power could be met with in the history of nations, neither is the doctrine consonant to reason. The reason why a law should repeal a Treaty, is because the law is an expression of the will of the nation, through their Constitutional organ. He did not mean to say, that a Treaty is not binding as long as it is a law: But, if it is admitted that the House, in concurrence with the other branches, have the power of declaring war, then he would not say, that the Legislature were to repeal Treaties article by article, but certainly they may annul them. He would go farther, and suppose, by the instrument submitted to the House, an equalization of duties on foreign and domestic bottoms be provided for, to the injury of our carrying trade; suppose a law should then pass annulling the Treaty; gentlemen say this would lead to war; perhaps it might have the effect, but that is not now the question; the question of right is now in debate; suppose a law should pass repealing, by the concurrence of the proper authorities, the particular article, the existence of which he had supposed. the Treaty would be rendered pro tanto void. Suppose, he said, in the case of the present Treaty, that the Parliament of Great Britain refuse to carry it into complete effect, were we to enforce on Great Britain a compliance of its stipulations?er of regulating commerce, raising armies, &c.; Great Britain had at all events the right so to act, and these, he contended, must form so many extaking the consequences of her conduct upon her- ceptions to the general power. Gentlemen had self. But gentlemen contend that a Treaty is ir said that the Constitution was the exposition of repealable; and because a foreign Power is a party the will of the people, and, as such, that they would

The checks on the Treaty-making power he considered as divisible into two classes; the first, consists in the necessary concurrence of the House to give efficacy to Treaties; which concurrent power they derive from the enumeration of the Legislative powers of the House. Where the Treaty-making power is exercised, it must be under the reservation, that its provisions, so far as they interfere with the specified powers delegated to Congress, must be so far submitted to the discretion of that department of the Government. The PRESIDENT and Senate, by the Constitution, have the power of making Treaties, Congress the pow

[MARCH, 1796.

Treaty with Great Britain.

MARCH, 1796.]

obey its injunctions. There could be no difference of opinion on this ground; for his own part, he confessed, if he adored anything on earth, it is that will. But the question is, what is that will, as expressed in the Constitution? That instrument, to his mind, explained this question very clearly. It enumerates certain powers which it declares specifically vested in Congress; and where is the danger to be apprehended from the doctrine laid down by the friends of the resolution? the contrary construction must produce the most pernicious consequences; agreeably to that, there would remain no check over the most unlimited power in the Government. The gentlemen contend, that the House must remain silent spectators in the business of a Treaty, and that they have no right to the exercise of an opinion in the matter; they must then abandon their Constitutional right of legislation; they must abandon the Constitution and cling to Treaties as supreme.

The other check over the Treaty-making power, he noticed, was the power of making appropriations, the exercise of which is specifically vested in Congress. He begged leave to call the particular attention of the Committee to this part of the subject. The Constitution says, that no money shall be drawn from the Treasury, but in consequence of appropriations made by law. This is no doubt intended as a check in addition to those possessed by the House. It is meant to enable the House, without the concurrence of the other branches, to check, by refusing money, any mischief in the operations carrying on in any depart-. ment of the Government. But what is a law? It is a rule prescribed by competent authority. The word law in the clause of the Constitution he had last noticed, was not meant in reference to the Treaty-making power; but in reference to Congress. A law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. Legislation implies deliberation. If a law is the expression of the will, must not an appropriation law be equally so? But gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. They had mentioned a part of the Constitution which provides that the salaries of the Judicial department shall be fixed; and asked, whether the House should conceive itself at liberty to use a discretion in appropriations for that department? Before he could consider this case and that before the House, now parallel, he must_beg gentlemen would point out any part of the Constitution that declared the House should not exercise their discretion when called upon to make appropriations to carry into effect a Treaty. He could find nowhere, that, in this case, the right of opinion of the House is constrained.

A member from South Carolina had given to discretion a negative meaning; and chose to conceive that the discretion contended for by the friends of the motion, was a discretion of whim and caprice; this was not the case. He had then attempted to combat the doctrine of discretion by a trite remark, indeed, that it never could be right

[H. OF R.

to do wrong. He would answer him in a manner as trite, and say, that it never could be wrong to do right. But this proved nothing; still it is necessary to inquire and judge what was right and what wrong, and to do this, discretion must be exercised. So, in the present case, if it is right to carry the Treaty into effect, it would be wrong not to do it; and so, if it would be wrong to sanction it, it could not be right to agree to it. But this is to be determined by the exercise of a sound discretion. He owned he felt attached to the old-fashioned discretion, which consists in the faculty of choosing or refusing; he could not admit of the docile complying discretion, that gentleman contends for; he would call it a predestinated discretion. The effect of this new-fangled discretion would be, not to vote according to the conviction of one's own mind, but by that of another. A clause of the Constitution had been cited to support the definition of discretion advanced by the gentleman; that part which directs that Congress shall call a convention when a certain number of States require it. This surely could not apply to the doctrine advanced; there was, in that case, no room for the exercise of discretion; discretion is out of the question, and there is a positive obligation, under the binding force of an oath, to do a thing when required in a certain manner; in this matter, Congress are only to execute the injunction of the Constitution. Gentlemen had attempted to set up a new doctrine as to the operation of the moral sense; their moral sense was to be exercised by the PRESIDENT and Senate, and they were willing to abide by its operation in the breasts of those branches of the Government. He had always understood, for his own part, that an agent who had the right to be directed by his moral sense, must be a free agent.

There could be, he contended, no Legislative act without deliberation; the opinions which were to guide their decisions must be matured by deliberation; they were not to decide upon predestinated impressions; but their conduct must rest on the operations of their own minds.

A gentleman from Connecticut had discarded all pretence to the exercise of discretion; he might have an opinion as a citizen, but would not have one on the present question as a legislator. This was a nice distinction, indeed; he could not, for his own part, abstract in this way the citizen from the legislator. He declared, he would not form an opinion; Mr. G. conceived it the duty of a legislator to exercise an opinion, and not shut his eyes against conviction, and not to receive them from extrinsic quarters. When the Constitution says, the Legislature shall enact laws, it implies that they must be the fruits of deliberation, and not in the nature of an Executive act.

The uniform practice of the British Government had been cited to have been, in the case of Treaties, the same as that contended for by the friends of the present motion. The greatest security for the liberties of the people established in that Government, depends on the control which their Parliament has over the purse-strings. In England, this power rests merely on custom; here, the

Treaty with Great Britain.

H. OF R.]

House are expressly intrusted with it; what is custom in England, is reduced to writing in our Constitution. Then, if this power is in England a ground for Parliament to judge of Treaties, it is a fair inference that it ought to be exercised here. The practice of the British Government, he observed, had often been quoted here, in support of doctrines very different from those in aid of which it is now cited; it has been deemed orthodox when it favored Executive prerogative. He confessed, he never did expect that, as early as 1796, a reference would be made to practices, under the British Government, in support of the rights of the popular branch of our Government. It was painful to be obliged to have resort to that Government on such an occasion; but the authority of that Government should not be rejected for once, because its practice could be quoted in favor of the popular branch. The ground of the practice in England, and of the right claimed here, rests upon the sound maxim, that all public money is from the pockets of the people, and that it should be expended by none but their Representatives. No maxim had been more instrumental than this, in preserving the remnants of British freedom; and thus early is the House called upon to abandon it here.

[MARCH, 1796.

a check upon the Legislative power, for the negotiation necessarily foreclosed any further Legislative proceedings. It did more than this; the Executive legislated against legislation, and overruled them on the subject in contest. He should not advert at this time, he said, to the collateral circumstances which attended this business, nor go further in detail; he wished only to remark generally on the dangerous operation of the doctrines contended for. Now, it is said, the House have nothing to do but to obey, to appropriate the necessary money, leaving all deliberation aside.

was

Three years ago there was a further difference of opinion between the branches of Government on another interesting question. One branch was disposed to have an increase of the Military Establishment; a proposition to this effe brought into the House, and negatived. The Senate, notwithstanding, successively sent down two or three bills for an increase of the Military Establishment-they were as repeatedly negatived by the House. Here different views existed, but the doctrine of checks was liberally exercised, and he thought to a good purpose.

If the PRESIDENT, said Mr. GILES, can, by the assistance of a foreign Power, legislate against the rights of the House to legislate, and his proceedings are to be binding on the House, it necessarily destroys their right to the exercise of dis

Since checks were so wholesome and efficacious, and the want of them so dangerous to the rights of the people, there could arise no evil conse-cretion. If he can by Treaty declare, that comquence, and but little inconvenience, from a mul- merce shall not be regulated, that property shall tiplicity. What would the doctrine lead to, which not be sequestrated, and that piracies shall be goes to the suppression of the check now contend-judged and punished as he thinks fit; if he is to ed for? That the PRESIDENT and Senate may, if exercise the unlimited Treaty-making power conthey please, reduce the House to a formal and not tended for, what security have we that he may an efficient branch of the Government. not go further when the negotiations are renewed with Great Britain, agreeably to the stipulations of the present Treaty? What security have we that he will not agree with Great Britain, that if she will keep up an Army of ten thousand men in Canada, he will do the same here? How could such a stipulation be got over by the House, when they are told that in matters of Treaty they must not pretend to exercise their will, but must obey? How will this doctrine operate upon the power of appropriation? A Military Establishment may be instituted for twenty years, and as their moral sense is to prevent their withholding appropriations, they can have no power over its existence.

Treaties are contended to be paramount to the laws; the PRESIDENT and Senate make these Treaties, and when made and proclaimed as the supreme law, there is a predestinated necessity in the House to make the requisite provisions for carrying them into effect. The danger of this doctrine, he said, could not be better exemplified, than by a reference to the circumstances that attended the late Treaty in its progress. Three years ago, a difference took place between the different branches of Government, as to the policy that should obtain in reference to the conduct of one foreign nation. The House were unwilling to trust solely to the magnanimity of the King, and wished to make some exertions themselves for self-protection. With this view several measures were proposed, viz: commercial restrictions, non-importation, embargo, sequestration, or rather arrestation upon the ground of the status quo. One of the measures passed the House by a respectable majority, but was rejected in the Senate by the casting vote of the VICE PRESIDENT. The PRESIDENT appointed an Envoy Extraordinary, who entered into certain stipulations, which, being sanctioned by two-thirds of the Senate, it is now contended, are to operate to the destruction of the powers specifically vested in the House.

If the above was a true statement, he said, and he did not see in what particular it could be contradicted, then the Executive had been exerted as

Gentlemen should pause, he said, and consider what would be the situation of the United States, under this doctrine, before they give it their sanction. What he had mentioned as a possible result of it, he observed, would bear more evidence of probability if the doctrine was established. Establish the doctrine, said Mr. G., and under its influence he thought there was a greater probability, at this day, of a stipulation for such an armament, than there was on the day the late Envoy was appointed, that such a Treaty as the present would have been the result of the negotiation. He took a retrospect of the circumstances attendant on that negotiation. When the Envoy was named, what were the expectations? Not that he was going to throw himself upon the magnanimity of the Monarch; but that he would

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