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MARCH, 1796.)

Treaty with Great Britain.

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obtain a redress of grievances, and provide for the He concluded by observing, that the interprefuture security of our neutral rights; but what tation of the Treaty clauses of the Constitution, redress or security does the issue of the embassy as expounded by the gentlemen, would lead to a promise?

despotism of the worst kind. And if they were Gentlemen had gone so far as to declare, that to plunge the nation headlong into the evils that an attempt to examine the merits of the Treaty must result from the establishment of the docwas rebellion, was treason against the Constitu- trines contended for by the empty sounds of war tion. What justifies these harsh epithets? Such and disorganization, he should then lament the assertions could only create ill-will, and could not weakness-he should then, and not till then, distend to the investigation of truth. Another argu- trust the discretion of the House. ment of the same nature had been used. It was Mr. G. said, that before he concluded he could said, that the attempt at exercising a control over not help remarking, that the terms of war and disthe Treaty-making power was disorganizing the organization had been often applied to himself, Government. He believed the contrary would be and others, who generally associated with him in found to be the case : The doctrine advocated by political opinions; that he had at all times beheld the friends to the motion, only goes to claim a those groundless calumnies with contempt; that negative voice in the business of Treaty-making; he disdained them, and had never condescended whereas the doctrine of its opposers claims the to any explanation. He remarked, that he was exercise of a power, that would supersede the not in the habit of making professions; he knew specific authority delegated to the Legislature in that his conduct was the criterion by which he all cases whatever. How would even a rejection ultimately would, and ought to be, judged; and to of the Treaty disorganize the Government? Sup- that, with pleasure, he made his appeal for his pose the House should vote the Treaty null, and justification. the next day quietly pass a land bill; would not Mr. SEDGWICK said, that, after the length of the bill go calmly through its different stages? | time which had been consumed, and the talents There is no foundation for the imputation; it is which had been so ably exerted in the discussion mere clamor and noise, vor et præterea nihil. of this subject, he should not think himself authorChecks have been exercised before, and have notized to call the attention of the Committee to any produced these dreadful consequences. When the observations of his; but, that he considered it in House attempted to suspend the intercourse be- principle, and in its consequences, as the most imtween this country and Great Britain, they were portant question which had ever been debated in checked by the Senate, the Treaty was the only this House. It was no less than whether this evil consequence of this. The use of checks is House should, by construction and implication, exdestroyed when the doctrine of coalition ainong' tend its controlling influence to subjects which the different branches prevails. Such coalescing were expressly, and he thought exclusively, deledoes not render the Government strong; the gated by the people to another department of the strength of such a Government as ours is in the Government. We had heretofore been warned confidence of the people. Then let each branch emphatically against seizing on power by conmake a manly use of its delegated authority; they struction and implication. He had known no will retain that confidence and secure that strength. instance in which the caution that warning en

He did not believe, however, that the Ameri- forced, deserved more attention than on the precan people could be enslaved by their Govern- sent occasion. ment; they were too well convinced of the effi. It must, he said, have been foreseen by the author, cacy of the system of checks to suffer their liber- of the motion, that it would ultimately be contested ties to be filched from them for want of the exer- on the present ground. No sufficient reason had cise of them. He remarked, the House had not been given as an object for the call. The various been told yet how the exercise of discretion in the reasons which had been hinted at had hardly been business of the Treaty was to destroy the Govern- suggested before they were respectively abanment. Possibly the Treaty with Britain is to give doned. It would be remembered, and indeed had it energy, and if it be defeated, then disorganiza- been avowed, that a request, such as the present, tion was to ensue. But is the Government of the was in nature of a demand. It was true, if we had United States so low as to require foreign aid for authority on the subject of forming Treaties, we its support ? If it is tottering thus early, it may had a right to all the means of exercising an inwant, ere long, new negotiations and new conces-telligent discretion ; and the demand, of course, sions to prop it.

was well founded. But, if we had no such authoriThis would be a dreadful dilemma, that the ty, and we had none, unless it could be discovered Government should not possess efficacy enough in in the Constitution, then the demand had no good itself, but must lean on Great Britain for support. foundation on which it could rest, and was, in his This would be a great reflection on the Govern- opinion, an attempt at seizing on power by usurment, and the conclusion to be drawn would be, pation. that the confidence of the people had been mis- He was perfectly sensible in how disagreeable placed. He believed the Government a Goverp- an attitude a man would stand, who should atment of checks; that it was not intended the en- tempt to limit the extent of power claimed by an ergy of the Executive was to be increased by a assembly to which he should address himself. He coalition or subordination of departments, and had some of the most powerful inclinations of hupropped by a foreign Power.

man nature to contend with. He felt the full force

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Treaty with Great Britain.

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of the influence of this principle, as it would afford with a foreign nation, and had received the advice the cause of repulsion and resistance to the argu- and consent of the Senate, if it was of such a naments which he might submit: But having formed ture as to be properly denominated a Treaty, all an opinion, perfectly satisfactory to his own mind, its stipulations would thereby, and from that mofrom the best lighi which honest investigation ment, become " supreme laws.” could procure, he thought it a duty he owed his That such had been the construction from the country and posterity-a duty rendered more in- commencement of the Government to the prodispensable from the obligations which were upon mulgation of the British Treaty, he believed him--to obey the will of the people expressed in would be universally admitted; and but for that the Constitution of their Government, which he Treaty, probably never would have been denied. had sworn to support, solemnly to declare that Did this afford no evidence that the construction opinion, and the reasons on which it was founded. was a just one? Was the subject a less import.

He, in his conscience, believed, that if the Con- ant one, its decision might be safely trusted on stitution could operate the benefits its original in this ground. But all-important, as it was, for the stitution intended—that if the Government should purpose of further investigation it might be usebe rendered adequate to the protection of liberty, ful to consider the nature, extent, objects, and and the security of the people, it must be by keep- effects of this power. ing, the several departments distinct, and within What authority was then delegated under a their prescribed limits. Hence, that man would grant of power to form Treaties? Did not the give as good evidence of Republicanism, of virtue, term Treaties include all stipulations between inof sincere love of country, who should defend the dependent nations relative to subjects in which Executive in the exercise of his Constitutional the contracting parties have a mutual or common rights, as the man who should contend for any interest ? If it had a more confined or limited other department of Government. If either should sense, it became those who contended for it, to usurp the appropriate powers of another, anarchy, mark the limits and designate the boundaries. confusion, or despotism, must ensue: the functions Without a power so extensive, much of the beneof the usurping power would not be legitimate, fit resulting from amicable intercourse between but their exercise despotism. If the power of con- independent nations would be lost; and disputes trolling Treaties was not in the House, the same and differences, which are inevitable, would have spirit which might usurp it might also declare no means of amicable termination. From the the existence of the House perpetual, and fill the obvious utility, and indeed the absolute necessity, vacancies as they should occur. The merits of that such a power should be exercised, we know the present question, it seemed to be agreed, de- of no civilized nation, either ancient or modern, pended on this right; it was of infinite impor- which had not provided the organs of negotiation tance, therefore, to decide it justly.

to the extent, substantially, which he had menIt would be taken for granted, and it would be tioned. The power indispensable had always conceded on all hands, that we were to resort to been delegated, though guards had been provided the Constitution, to know the extent and limits of against its abuse by different means. our power, and if we found not there a clear evi

It was not now to be inquired, whether the dence of its existence, we ought to abandon the power of treating was wisely deposited, although exercise. It was certain we had not any express he was inclined to believe it could not be indelegation to make or to control the public will trusted to safer hands. It was sufficient, that in any of our relations with foreign nations. On those who had the right, the citizens of America, the other hand, we found it declared, that the had declared their will, which we were bound to PRESIDENT should have power to make Treaties respect, because we had sworn to support it, and by and with the advice and consent of the Senate, because we were their deputies. provided two-thirds of the Senators present con- The power of treating between independent curred. Treaties, to attain the ends for which nations might be classed under the following they were designed, were, from their nature, su- heads: 1. To compose and adjust differences, preme laws; but the Constitution had, in another whether to terminate or to prevent war. 2.. To place, declared, Treaties made under the authority form contracts for mutual security or defence; or of the United States should be supreme laws. to make Treaties, offensive or defensive. 3. To Gentlemen had said, that it was not declared that regulate an intercourse for mutual benefit, or to Treaties made by the PRESIDENT and Senate form Treaties of commerce. Without the first, should have this effect; but those made under the war and contention could only be terminated by authority of the United States. The question the destruction of one of the parties; without the then recurred, what Treaties were made under second, there could be no defence, by means of the authority of the United States ? The true union and concert, against superior force; and answer undoubtedly was, Treaties made by those without the last, a profitable and beneficial interto whom the people, by their Constitution, had course could not be arranged on terms of reciprodelegated the power. The President, qualified city. Hence, then, it must be evident to every as had been mentioned, had expressly, and none unprejudiced mind, that by a grant of power to else had such power. If we were to rest the sub- inake "Treaties, authority was given to bind the ject here. it would seem to follow irresistibly, and nation by stipulations; to preserve peace or terto be incapable almost of higher proof, that when- minate war; to enter into alliances, offensive and ever a compact was formed by the PRESIDENT | defensive, and to form coinmercial Treaties.

MARCH, 1796.]

Treaty with Great Britain.

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This power, he held, unlimited by the Constitu- If intolerable burdens were wantonly imposed; tion, and he held, too, that in its nature, to the if necessary to defeat the oppression, opposition extent he had mentioned, it was illimitable. Did and insurrection would not only be authorized, a serious difference exist with a foreign nation, in but become a duty. And if any man could hondetermining on the nature and extent of the stip- estly lay his hand on his heart, and in sincerity ulations which might be necessary to adjust it

, declare that a compliance with any existing the cause of injury, national rights and honor, the Treaty was worth more than our Government, evils of war, and all circumstances of relation be our Constitution, our Union, and the liberty protween the two countries, must be taken into ac- tected by them; to that man he was ready to decount. In forming alliances, the threatened pres- clare, that opposition had become a duty. But, in sure, your own and your enemy's relative strength, every instance of opposition, whether in defeat of the objects of acquisition or defence, must be a Legislative act, or of a Treaty, the right of reconsidered. And, in adjusting an equitable inter-sistance resulted not from the Constitution itself, course for commercial purposes, a thousand cir- for it had declared no such right; no Constitucumstances present themselves for nice calculation could declare it. It existed in original printions. A thousand circumstances of foreign rela- ciples, and never could be exercised but by retions would occur in the history of every country, sorting to them. under which nothing short of unlimited powers Gentlemen had spoken of the subject as if the of negotiation would be adequate to a prevention members of this House were the only Represenof enormous, perhaps ruinous evils.

tatives of the people, as their only protectors But it might be objected, that a power so enor- against the usurpations and oppressions of the mous, and comprehending such essential interests, other departments of the Government. Who might be abused, and thence asked, where is the then, he asked, were the Senators ? Were they remedy? To this he answered, that a national unfeeling tyrants, whose interests were separated association required, for the great purpose of pre- from and opposed to those of the people ? No. servation, an unlimited confidence on many sub- Did they possess hereditary powers and honors ? jects. Hence, not only this, but perhaps every No. Who, as contemplated by the Constitution, other national Government, had delegated to it were they? The most enlightened and the most an unlimited control over the persons and proper- virtuous of our citizens. What was the source ty of the nation.

from whence they derived their elevation? From It might, by the express power given to it of the confidence of the people, and the free choice raising armies, convert every citizen into a sol- of their electors. Who were those electors? Not dier, and, by a single assessment of a tax, it might an ignorant herd, who could be cajoled, flattered, command the use of all the property in the country and deceived—not even the body of enlightened

The power to raise armies and taxes was lim- American citizens; but their legislators, men to ited in its exercise by nothing but the discretion whom the real characters of the candidates would of the Legislature, under the direction of its pru- be known. They did not possess their seats in deace, wisdom, and virtue. Was there no secu- consequence of influence obtained by cajoling rity against a wanton abuse of these enormous and deceit, practised in obscure corners, where powers? Yes, it was to be hoped that the peo- the means of detection were difficult if not imple, in electing the members of this House, and practicable; but they were selected from the most the States in choosing those of the other, would conspicuous theatres, where their characters could not select characters, who, regardless of the pub- be viewed under every aspect, and by those most lic good, would wantonly impose on their consti- capable of distinguishing the true from the false. tuents unnecessary burdens. "It would be an addi- For what purposes were they elected ? To retional security, that the interests of the rulers present the most essential interests of their counwere inseparably connected with those of the try; as the guardians of the sovereignty of the people; that they could impose no burdens in States, the happiness of the people, and their jibwhich themselves did not equally participate. erties.' Who, as contemplated by the ConstituBut, should all these guards be insufficient. was tution, was the President? The man elected, there no dependance to be placed in the Presi- by means intended to exclude the operation of DENT ?-the man elected by a refined process, faction and ambition, as the one best entitled to pre-eminent in fame and virtue, as in rank'! Was public confidence and esteem. And was no conihere no security in the watchful guardianship of fidence to be reposed in such characters, thus such a character? Responsible by everything elected ? Might it not, to say no more, be at dear and valuable to man-his reputation, his own least doubtful, whether the treating power might and his fellow-citizens' happiness—was there no not be as safely intrusted in such hands excluwell-founded reliance on all these considerations, sively, as with the participation and under the for security against oppression? If not, we had control of the more numerous branch of the Lenot the requisite materials by which to adminis- gislature, elected in small districts, assailed by ter a Republican Government, and the project party and faction, and exposed to foreign inmight be abandoned. After all, however, should Auence and intrigue?. Whatever merits this, as the unlimited powers he had mentioned (and such an original question, might possess, the people had powers must always be unlimited) be wantonly decided their will. 'To the President and Senabused, was there no remedy? Yes, in the good ate they had given powers to make Treaties; they sense and manly independent spirit of the people. had given no such powers to the House.

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It was not, in his opinion, proper, when investi-out America. Mr. S. could not but observe that gating the Constitutional question of the extent it was perfectly unaccountable to his mind, that of a particular power, and in what hands it was that gentleman had yet to form an opinion to deposited, to divert the attention to a possible whom was delegated that power, the nature, exabuse of that power. Should it become a ques- tent, and effects of which he had so strongly and tion whether Congress was by the Constitution perspicuously detailed. The capacity of that genauthorized to raise armies, and the extent to tleman's mind, long exercised on political subwhich the power might be exercised, it would be jects; his known caution and prudence, would unfair and improper to divert the attention from authorize a request that he or his friends would the inquiry of what was the truth, to the abuses explain how it was possible, if such as he states which might result from the exercise of the should have been the intention of those who frampower

. To state that if such power existed, every ed the Constitution, that the true meaning should citizen might, by the wanton abuse of it, be de- not have been expressed in the instrument ? That graded from his rank, and subjected to the despo- when the gentleman went from the Assembly tism of military discipline: To show that armies which framed the Constitution, immediately afmight be employed as the instruments of destroy- terwards, to one of those which ratified it. he ing liberty: To picture your country as strewed should have admitted an opposite construction ? with human carcases, and stained with human As Mr. S. would undertake, by and by, to prove blood by their means. What would this be but that, in the Convention of Virginia, he did admit to substitute prejudices instead of arguments ? the very construction for which we now contended. Still, however, it would remain true, that there He would take the liberty further to inquire, how should be some means of calling forth the whole it happened, that, if such was really the intenforce of the community for its security and de- tion of the instrument, that such was the meanfence. It would still remain true, that the power ing of the people, no man bad heard of it until the of Congress to raise armies was only limited by discovery was produced by the British Treaty ? its discretion, under the direction of wisdom and Strange national intention, unknown for years to patriotism. The same observations, changing every individual! their relations, might with equal justness be ap. As the gentleman had been pleased to dwell on plied to the Treaty-making power. To be, and the idea of a co-operation between the powers of to continue a nation, required, on these subjects, the Government, he would take the liberty to unlimited confidence in the delegation of the ne- state, what had been ably explained by other gencessary powers. The people had granted them, tlemen, that the power of making Treaties was and provided against their abuse such guards as wholly different from that of making ordinary their wisdom dictated.

laws; originating from different motives; proThe gentleman from Virginia [Mr. Madison] ducing different effects, and operating to a differhad stated five different constructions which pos- ent extent. In all those particulars, the difference sibly might be given to the Constitution on this had been perfectly understood. For instance, the subject. Three of which, and for none of them ordinary legal protection of property, and the punto Mr. S.'s knowledge had any man ever contend-ishment of its violation, could never be extended ed, the gentleman had proved to be unfounded beyond your own jurisdiction; but, by Treaty, The fourth, that which he had given to the Con- the same protection could be extended within stitution, if admitted, and it should be abused, the jurisdiction of a foreign Government. You might produce mischievous effects. Was not this could not legislate an adjustment of disputes, nor true of all the great and essential powers of Go- a peace with another country; but, by Treaty, vernment? If the controlling influence of this both might be effected. Your laws, in no inHouse was added, would the power be less? A:d stance, could operate except in your own jurisif, under these circumstances, abused, would the diction, and on your own citizens. By Treaty, injury be more tolerable? In short, was not this an operation was given to stipulations within the a kind of argument infinitely more tending to the jurisdiction of both the contracting parties. production of prejudice, than to the discovery of It had been said that Treaties could not opetruth?

rate on those subjects which were consigned to The gentleman has really given no decisive Legislative control. If this be true, said he, how opinion what was the true construction. He had, impotent in this respect is the power of the Gohowever, seemed to incline to a belief that to the vernment! What, then, permit me to inquire, stipulations of a Treaty relative to any subject can the power of treating effect ? I will tell you committed to the control of the Legislature, to what it cannot do; it can make no alliances, begive them validity, Legislative co-operation was cause any stipulations for offensive or defensive necessary. Of consequence, if this was withheld, operations, will infringe on the Legislative power the operation of the Treaty would be defeated. of declaring war, laying taxes, or raising armies, That it was at the will, and within the discretion, or all of them. No Treaty of Peace can probably of the Legislature, to withhold such co-operation, be made, which will not either ascertain boundaand of course the House might control and defeat ries, stipulate privileges to aliens, the payment of the solemn engagements of the President and money, or a cession of a territory, and certainly Senate.

no Treaty of Commerce can be made. The gentleman who had suggested this opinion Was it not strange, that, to this late hour, it was well known to the Committee, and through-I should have been delayed, and that now, all at MARCH, 1796.)

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once, it should have been discovered, that no not be true; for it was no less than a direct conpower was delegated to any person to regulate tradiction in terms, to say, that there was no our foreign relations ? That, although a power power in the nation which could delay, resist, or was granted to the PRESIDENT and Senate to form annul the contracts of the King, and at the same Treaties, that yet there were such reservations time to say,,there was a power in the nation, the and restrictions, that there remained nothing on Parliament, which could delay, resist, and annul which this power could operate? Or was it true, those contracts. Both the assertions could not that this power was competent to treat with every be true. He was willing, however, to allow that Government on earth but that of Great Britain ? the Treaties which the gentleman bad mentioned, Might he not be permitted further to inquire, if were not the supreme laws of that country, until this Treaty had been formed with any other Pow- approved by the Legislature. He 'had already er, with the precise stipulations it now contained, said, that different countries had provided differwhether there ever would have existed this doubt ent guards against the abuse of this power. But of constitutionality ?

why attempt to divert our attention from a conWe had, he said, entered into Treaties of Com- struction of our own Constitution, to the vague, merce with many nations; we had formed an al- uncertain customs and practices of other counliance, and entered into a guarantee with France; tries? Why compare the PRESIDENT and Senate we had given Consular power, including judicial to the King of Great Britain ? In what was there authority to the citizens of that country, within a resemblance? In nothing. Why, then, perplex our own jurisdiction ; we had defined piracies, the subject by the introduction of irrelative matand provided for their punishment; we had re-ter? Was there perceived an interest in a divermoved the disabilities of alienage; we had grant- sion from the only legitimate source of informaed subsidies, and ceded territory. All this, and tion, the declared will of the people ? If we found much more, we had done, while the powers of the not there the power we claimed, we could exerGovernment remained unquestioned, and none cise it only by usurpation. even thought that they required Legislative co- Why did not gentleman extend their reasoning operation. Treaties, such as those, could, with further ? Where, in point of principle, was the difout opposition, and by unanimous consent, be ra- ference between restraining and controlling the tified, and considered by force of such ratification, Legislative power ? The injury may, be as great as supreme laws; but similar stipulations with in the one instance as in the other; nor is there Great Britain were clearly perceived to be un- any more foundation for denying to the Presiconstitutional, and President, Envoy, and Se dent and Senate the power in the one case than nate, were denounced for their respective agency in the other, from any words or expressions in the as infractors of the Constitution.

Constitution. The objection, which he had just answered, If the gentlemen are right in their construction, had been brought forward by a gentleman from if this was the understanding of the people at the Pennsylvania, (Mr. Gallatin.] with another time they deliberated on and ratified the Constinearly allied to it, if not resting on precisely the tution, the power of the President and Senate same foundation; that whatever stipulation in a of making Treaties, which then created the most Treaty required Legislative provision, or repealed serious deliberation and alarming apprehensions, a law, did not become a supreme law until it had was the most innocent thing in nature. It could received Legislative sanction. There was no li-hind the essential interests of the nation in nomitation expressed in the Constitution on which to thing. Could any man really believe that the found either of those objections. If we claimed agitation which a discussion of this subject occathe power which the objections imported, the sioned, more, perhaps, than any other in the Conclaim must rest on construction and implication stitution, could have for its object only the power alone. Indeed, the whole reasoning of all the of the President and Senate, in which two-thirds gentlemen seemed to him to be capable of being of the latter must concur, to digest schemes of expressed in a few words: The PRESIDENT and Treaties to be laid before the Legislature for its Senate, in the sole and uncontrolled exercise of the approbation ? Treaty-making power, may sacrifice the most The gentleman from New York (Mr. Havens important interests of the people. The House of and the gentleman from Virginia (Mr. Giles] Representatives is more worthy the public confi- had asserted the power of the Legislature to redence; and, therefore, by our influence, we will peal Treaties; whenever the wisdom of Congress. prevent the abuse of power.

should concur in opinion with those gentlemen, The gentleman, to prove his position, stated, we should then cease to contend respecting the that the power of treating in Great Britain and construction of the Constitution on this subject. the United States is precisely the same. He then For whenever our nation should, in defiance of read a passage from Judge Blackstone,“ that the every principle of morality and common honesty, sovereign power of treating with foreign nations by its practice, establish its right to prostrate nawas vested in the person of the King, and that tional honor, by sporting with the public faith, no any contract he engaged in, no power in the King- nation would submit to be contaminated by a dom could delay, resist, or annul.” At the same connexion with one which avowed the right of time, he said, that certain Treaties, such as those violating its faith by the infraction of solemn of subsidy and commerce, were not binding until Treaties. ratified by Parliament. Now, both these could On all subjects of this sort, the real inquiry was

4th Con.--18

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