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and ought to be, what was the intention of the parties to this instrument? Hence a brief view of some interesting occurrences, which took place at the adoption of the Government, would not be impertinent, but might be useful.

adopted; and if we perceived a correspondence of construction between those who formed and those who received and approved, we might then surely derive all reasonable satisfaction that we had discovered the truth. Here he believed that it might be asserted, without any danger of contradiction, that in the State Conventions it was, on one hand, affirmed that the PRESIDENT and Senate would, by the Constitution, have power to form Treaties on any subject in which the United States and a foreign nation had a common interest; and that Treaties so formed, without any other aid or circumstance whatever, would thereby become the supreme law of the land; and that the exercise of this power was not so guarded as to render it safe to the public interests. On the other hand, it was admitted that such was the extent of the power, and it was attempted, at least, to be proved that it was so guarded that danger could not reasonably be apprehended from its exercise. It would be too tedious, and well might be thought unnecessary, to consult all the materials which might be within our reach on this subject; but he dared to appeal to the recollection of every gentleman who was in a situation to know the facts, for the correctness of the statement which he had made; and he would read some few extracts from the debates of the Convention of Virginia, which would probably be, on this occasion, for many reasons, admitted as the best authority; and particularly, because the subject there was examined by eminent talents, and by minute and

A cotemporaneous exposition of any instrument, and especially by those who were agents in its fabrication, had been allowed, and was, in fact, among the best guides to finding its true meaning. Gentlemen who had been members of the Convention, and unfriendly to the Constitution, with an intention of preventing its adoption, had stated to their constituents that the power of making Treaties, as confided to the PRESIDENT and Senate, was as extensive as was now contended for. Their intention could have been no other than to alarm the people with the dangerous extent, and what would be the pernicious exercise of this power. If this charge was unjust and groundless, what would have been the conduct of the friends of that instrument? They would have proved the charge to have been malicious and ill-founded. They would have shown that the Constitution was not liable to such an objection; that it could bear no such construction. They would, in the language of novel discovery, have said, that every subject of legislation was an exception from the power of making Treaties; and thus they would have proved to the world, that the sages of our country had devised and offered to their enlightened countrymen a scheme of Government, destitute, by an express delegation, of the essential attribute of adjusting differences with other na-scrupulous investigation. tions, and of agreeing with them on the terms of amicable intercourse. But they did no such thing; they admitted the power, proved the necessity of it, and contended that it would be safe in practice. Let me here, said he, appeal to any unprejudiced man, if he can possibly believe that the enemies "That he thought this a most dangerous clause. By of the Constitution could have made the charge the Confederation, nine States were necessary to concur against it, and that its friends would have admit-in a Treaty: this secured justice and moderation. His ted the truth of it, on the hypothesis that it was principal fear, however, was not that five, but seven unfounded and false? They certainly knew what States, a bare majority, would make Treaties to bind they had so recently intended, and having opposite the Union." objects in view, which excited their strongest wishes, it was impossible they should agree in imposing on the people a false and unwarrantable construction. So far he had extended his reflections as resulting from the conduct of those who formed the Constitution; a conduct from which, he flattered himself, there flowed demonstration that the power of making Treaties was as exten-check on the principles which had been mentioned, sive as was that which was now contended for: and which, he had already shown, would extend This being the concurrence of men who could not have united to deceive, with regard to which it was impossible they should be mistaken, formed a guide for our opinion, which could not mislead, which no degree of stupidity could mistake, nor the most ingenious sophistry successfully misrepresent.

Mr. SEDGWICK read the following passages from the third volume of the "Debates and Proceedings of the Convention of Virginia." From the speech of Mr. George Mason, who was as well a member of the Federal Convention, as of that of Virginia:

ed for, that this House was intended to have a Mr. S. said, that if it was true, as now contend

could be formed, it was utterly impossible it should to some of the stipulations of every Treaty which not have been mentioned and relied on.

Treaty with Great Britain.

[MARCH, 1796.

He then read the reply of Mr. George Nicholas to Mr. Mason:

local views, being elected by no particular State, but the "That the approbation of the President, who had no people at large, was an additional security."

From a speech of Mr. MADISON he read:

"That he thought it astonishing that gentlemen should think that a Treaty could be got with surprise, or that foreign nations should be solicitous to get a Treaty ratified by the Senators of a few States; that should the President summon only a few States, he would, for so atrocious a thing, be impeached."

From the speech of another member, Mr.

So much he had thought proper to say, as respected the construction given to this part of the instrument by those who formed, who could not mistake, and who were under no temptation to misrepresent it. It might be necessary, in the next place, to inquire under what opinions it was | Henry:


Treaty with Great Britain.

MARCH, 1796.]

"That if two-thirds of a quorum would be empowered to make a Treaty, they might relinquish and alienate territorial rights, and our most valuable commercial advantages. In short, should anything be left it would be because the President and Senators were pleased to admit it."

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From Mr. George Nicholas:

"Have we not seen, in America, how Treaties are violated, though they are in all countries considered as the supreme law of the land?"

That Mr. Mason, speaking of this power, had

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the empire. The Senate alone ought not to have this power."

[Strange, Mr. S. said, that this gentleman did not discover, or was not told, that Treaties before they should become laws, must receive Legislative sanction.]

From the speech of Mr. Corbin, who was in favor of the Constitution:

"If there be any sound part in the Constitution it is this clause. The Representatives are excluded from interposing in making Treaties, because large popular assemblies are very improper to transact such business, from the impossibility of their acting with sufficient secrecy, despatch, and decision, which can only be found in small bodies; and because such numerous bodies are always subject to faction and party animosities. That it would be dangerous to give this power to the President alone, as the concession of such a power to one individual is repugnant to Republican principles. It is therefore given to the President and Senate (who represent the States in their individual capacities) conjointly. In this it differs from every Government we know. It steers with admirable dexterity between the two extremes, neither leaving it to the Executive, as in most other Governments, nor to the Legislative, which would too much retard such negotiations."

That another member of the Convention, (Mr. Henry,) after contending that the Constitution ought to be amended, so as to guard against the abuse of the Treaty-making power, by requiring the consent of the House, concluded his observations by saying:

"That when their consent is necessary, there will be a certainty of attending to the public interests."


"It is true it is one of the greatest acts of sovereignty,

and therefore ought to be most strongly guarded. The
cession of such power, without such checks and guards,
cannot be justified; yet I acknowledge such a powered
must rest somewhere: It is so in all Governments. If,
in the course of an unsuccessful war, we should be com-
pelled to give up part of our territories or undergo sub-
jugation, if the General Government could not make a
Treaty to give up such a part, for the preservation of
the residue, the Government itself, and consequently the
rights of the people must fall. Such a power must, there-
fore, rest somewhere. For my own part, I never heard
it denied that such a power must be vested in the Go-
Our complaint is, that it is not sufficiently
guarded, and that it requires much more solemnity and
caution than are delineated in that system."


That the debate on this interesting subject was, this House, [Mr. MADISON,] not by insisting on in that Convention, concluded by a gentleman of that security, which gentlemen had now discover

the Constitution provided against the abuse of this power. He had stated:

"That the power was precisely in the new Constitution as it was in the Confederation."

He had stated the checks which the Constitution had in fact provided, but it had not then occurred to him that the consent of this House was among them.

He also read the amendment which the Con

vention of Virginia proposed to the Constitution:

"That no commercial Treaty shall be ratified without the concurrence of two-thirds of the whole number of the Senate; and no Treaty ceding, controlling, restraining, or suspending the territorial rights or claims of the United States or any of them, or their or any of their

rights or claims to fishing in the American seas, or navigating the American rivers, shall be made but in cases of the most urgent necessity; nor shall any such Treaty be ratified, without the concurrence of three-fourths of the whole number of the members of both Houses respectively."

"There are other things which the King [meaning the King of Great Britain] cannot do, which may be done by the President and Senate in this case. Could the King, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary, indefeasible title? Will any gentleman say that they [the President and Senate] may not make a Treaty, whereby the subjects of France, England, and other Powers, may buy what lands they please in this country?" "The President and Senate can make any Treaty whatsoWe wish not to refuse, but to guard this power, as it is done in England." "We wish an explicit declaration in that paper, that the power which can make other Treaties, cannot, without the consent of the na- He had stated, that the real inquiry was, what tional Parliament, the national Legislature, dismember | opinion was entertained on this subject by those

Mr. SEDGWICK said, that it was manifest, beyond all doubt, from that amendment, that the Convention of that State supposed, that the Constitution as it then stood unamended, delegated to the PRESIDENT and Senate, and to the exclusion of the House, the whole power of making and ratifying Treaties, with all its consequences and effects.


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[MARCH, 1796.

PRESIDENT and Senate under the Constitution to form "Treaties." The Legislative powers of the nation, then residing with the several States, were as obstructive to the operation of Treaties (and extend

who ratified the Constitution. If that opinion could be discovered, with honest minds it must be conclusive on the present debate. He had shown what opinion was entertained by Virginia; what power she meant to delegate, and to whom. Thated to all the objects which the National and State this opinion remained from that time until she Legislatures now comprehend) as the Congresproposed her late amendments, unaltered, appear-sional Legislative can now be. Yet under the Coned from the amendments themselves. That State federation Treaties of Alliance, of Peace, of Comthen, and her Representatives here, who had ex- merce, were made; nor until the present moment pressed themselves, differed in cpinion. He did has their obligations been denied, though they connot mention Virginia with intention of producing tained stipulations, perhaps, on all the subjects to any unpleasant sensation. He was willing to allow which the treating power could extend. No Lethat she was great, wise, intelligent, enlightened, gislative provision had been thought necessary to and, if gentlemen pleased, moral. Her opinion give them validity; and he dared appeal to every derived additional authority from her respectabili- member of the Committee, that every enlightened

ty. It was not Virginia alone, but he was persuad-citizen had admitted their binding obligation as ed every other State had given precisely the same supreme laws. That the Treaty of Peace in parconstruction. That the Treaty-making power, ticular, which controlled the most important with all its effects and consequences, was solely and rights of sovereignty, arrested the hand of justice exclusively in the PRESIDENT and Senate. And in inflicting punishment for the highest crime he would dare to challenge gentlemen to produce which a citizen could commit, treason, and stayed a solitary instance of its being adopted under any proceedings in cases of confiscation, for forfeitures other idea. Indeed the agitation which was at that which had been incurred, had always received this time produced, would of all things be the most construction. He would add, that it was well unridiculous, if any of the other constructions were derstood to be the opinion of that tribunal which true. If the power was checked as was now con- the Constitution had authorized to pronounce the tended, it was impossible danger should be appre-law, the Supreme Court, that the Treaty from its hended from its exercise; it could indeed do nei- own powers, repealed all antecedent laws which ther good nor evil. stood in the way of its execution.

Here then, he said, we had the evidence of those To proceed further on: Since the adoption of who framed, and of those who received and ap- the Constitution, the powers now denied, had been proved the Constitution. There was another constantly exercised with all the consequences source of inquiry, which would confirm, if it want- and effects now contended for, and, until the preed confirmation. that construction for which he sent moment, unquestioned. Peace had been conhad contended. It was the construction which had cluded, subsidies granted, payment of money stipubeen practically given by those who had adminis-lated, territorial rights discussed and decided on. tered our Government, from the commencement Treaties for those purposes had been ratified, not of our foreign relations, to the present session; aby venal and corrupt majorities, but by virtuous construction which had been assumed, admitted, or unanimity. Hence, from the moment we had beacquiesced in, by our National and State Govern- come a nation, under every form of our implied or ments, and by every individual citizen, until they expressed association, the powers now denied had received new light, by our having accommodated been exercised, not only without question, but our causes of contention with Great Britain, and with unqualified approbation. escaped the evils with which we had been threatened from that source.

There was one more point of light in which this subject ought to be viewed, In the year 1789, it was proposed to discriminate in the imposition of our duties, between the nations with whom we had, and those with whom we had not, Treaties of Commerce. The author of this proposition renewed the same in the year 1794. This was virtually acknowledging the validity of the Treaties which did exist and inviting those nations who had not already, to form Commercial Treaties, Something more than this was done by the mo tions which some gentlemen of the minority of the Senate are said to have made when this very Treaty was in discussion. Their motions recommended an accommodation by Treaty of all subsisting differences between the two countries. It could not escape remark that these several propositions and motions were supported, by all that description of persons who now opposed the Treaty.

It would not then be deemed impertinent to inquire, it was worthy attention, what was imported and admitted by this conduct and those proposi

The association which preceded any express contract between the States, was supposed to imply an authority to form national compacts, imposing national obligations, and pledging the public faith. Hence our Treaty with France, which preceded two years our national association, the Confederation, had been supposed binding on us, and not only obliging us to the faithful performance of our express engagements, but as drawing after it undefined, unlimited, and perpetual obligations of gratitude. This seemed, so far as respected defined obligations, to be a rational deduction, from what is an inseparable attendant on national associations, and without which a nation would be destitute of one of the best means of securing its happiness, and even existence.

To pursue, he said, the history of our country on this subject, in the order of time, it would not be pretended that, under the Confederation, the powers of Congress to form "Treaties and Alliances" were more extensive than those of the

Treaty with Great Britain.

MARCH, 1796.]

[H. OF R.

If without Legislative aid (and they had received none) those Treaties would authorize the Legislature to derange the commercial pursuits of the nation, and enter into Legislative hostility with that nation with which we had the most extensive relations, it must be from the competency of the Treaty-making power on the principles on which we contended. Strange again, he would say, it must appear that the true construction of the Constitution, on this very important subject, should have escaped the penetration and sagacity of the author of those propositions, during the time of forming and ratifying the instrument, and his whole active public life, from those periods until that of the publication of the British Treaty.

tions? They undoubtedly implied a concession | conduct instead of supporting would tend to subthat the subsisting Treaties were of validity; why vert, and would, if persisted in, annihilate the else should they be considered as a meritorious Constitution. This was undoubtedly one of the cause of favorable discrimination? They implied, most important of the public contracts; but the too, that there existed in this country a power to truth was, in fact, that we were bound to perform treat on commercial relations, and to adjust sub-all the public engagements. The truth was that sisting differences. our national association was a compact of virtue. To support the Constitution it was necessary to preserve public faith. To promote the public happiness it was essential to hold sacred, and to per-. form, the public engagements. In this were included all engagements, whether expressed in the form of Constitution, of laws, or of Treaties; in any way, indeed, in which the people had agreed that their will and their duties might be expressed.

MARCH 14.-In Committee of the Whole on Mr. LIVINGSTON's resolution:

If, then, it was true, as he had endeavored to prove, that by the power given by the Constitution to the PRESIDENT and Senate to make Treaties, they had an authority to the extent he had supposed with all its consequences and effects; if Treaties so formed did in fact become supreme law, then being compacts they bound the public Mr. SAMUEL LYMAN said he rose only to make faith and could not be violated without national a few observations. He was against the resoludisgrace and personal dishonor. They might re- tion now on the table, as involving a doctrine, in quire Legislative provision to carry them into ef- his opinion, not only inconsistent with the princifect; but this neither implied nor authorized the ples of the Constitution, but also inconsistent with exercise of discretion, as to refusal. The Consti- the laws of nations. In debating the merits of this tution he had had frequent occasions of saying resolution, an exceedingly important abstract Conprescribed a Government of departments. Each stitutional question had arisen, viz: How far that was intended to be furnished with the means of self- House had a right to exercise their Legislative preservation and defence. For this purpose it was discretion and judgment relative to carrying a declared, that the PRESIDENT should receive a Treaty into effect. In order to answer this quescompensation to be ascertained by law. Laws tion, he would raise two premises. And, first, by were to be made by the Legislature, of which this the Constitution, the Legislative powers of that House was one branch. To support the Constitu- House, in co-operation with the other branches of tion each department must be enabled to perform the Legislature, extend to all objects within the the functions assigned to it. To enable the Exe-reach of their sovereignty, excepting the reservacutive to do its duties, the compensation must be tions to the distinct sovereignties of the several provided. It was then necessary to the support States which compose the Union; but beyond of the Constitution, that the compensation should those boundaries their powers could not extend. be made. We have sworn to support the Constitu- Secondly, there is, by the Constitution, attached tion. The people by their Constitution had solemn- to the Legislature a subordinate kind of power, of ly engaged that whoever was the PRESIDENT a limited and ministerial, or Executive nature. should receive a compensation. We had been de- At present, it did not ccur to him that this subputed to discharge the duties and engagements ordinate power was to be exercised in its simpliwhich our constituents had assumed. Under city, excepting in two instances, viz: 1st, for callthese circumstances no man of common honesty ing a Convention under certain circumstances to could declare that we were at liberty to refuse all amend the Constitution; and, 2dly, for carrying provision. into effect Treaties which are constitutionally The gentleman from Virginia [Mr. MADISON] made; for these two purposes, the people, who are had.attempted to make a distinction between the the source of power, had stripped that House of duties we had imposed on us by the Constitution all Legislative authority, and made them only the and such as were enjoined by law. He could per- executors of their will; therefore, upon these ceive no foundation for any such distinction. Af-premises he answered, if a Treaty was unconstiter the salary of the PRESIDENT was ascertained tutional, they had an undoubted right to exercise by law, it could not be paid without an appropria-a Legislative discretion and judgment relative to tion; would any one say he was at liberty to with- carrying it into operation, for they were sent there hold it? No man, he presumed, would wish to risk as the guardians of the rights of their fellow-citihis reputation by such an assertion. For such ens, and, for that purpose, are sworn to support

Mr. S. concluded by observing, that he had intended to have presented the subject in several other important aspects, but he had already trespassed on the patience of the Committee. He would, as the time of adjournment was passed, suspend for the present any further observations and he hoped that all the grounds which he had left unoccupied would be taken by other gentlemen, so as to supersede the necessity of troubling the Committee with any further observations on this subject.

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Treaty with Great Britain.

the Constitution; but if the Treaty was Constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that House is bound to obey it, and to carry it into complete execution; for, by the Constitution, the power of making Treaties is vested solely and exclusively in the Executive department. In the former case, they have a right to exercise a deliberative or Legislative power, but not in the latter case; they could there only exercise a ministerial or Executive power. So that herein, said he, lies the true distinction, and it arises from the nature and principles of the Constitution. Gentlemen would do well to recollect Miller and Delolme upon the British Constitution, when they form a comparison of their Constitution with the Constitution of England, and to advert to one important circumstance, which is the source of a considerable dissimilarity, especially as to the power of making Treaties: The Constitution of this country is written, and the powers of the several departments of Government are clearly and accurately defined; but the Constitution of England is made up of customs and precedents, the influence of which has been alternately augmenting or decreasing from time immemorial, owing to a perpetual conflict between the Sovereign and the House of Commons, the Government being in its origin an absolute monarchy, and founded upon conquest; but the spirit of that great nation, by the subtlety and adroitness of their House of Com-ing an unpopular doctrine, but that he was deeply mons, who have been watchful of favorable junc- impressed with its truth, its reality, and its importtures, has, as it were, surreptitiously deprived their ance; and that the obligations of an oath had preSovereign of many of his royal prerogatives. This vented his silence on the occasion. check upon his Treaty-making power was, among others, an important achievement.

In this country they had only a right to exercise a deliberative or Legislative power relative to Treaties which are unconstitutional; but they could only exercise a ministerial or Executive power relative to Treaties which are Constitutional; and in forming an opinion relative to the constitutionality or unconstitutionality of a Treaty, all they want were the Treaty and the Constitution, and then, by comparing the two instruments tegether, and upon that comparison alone, form their judgment. From these premises it conclusively follows, that, as they have no occasion, so they have no right, to call upon the Supreme Executive for the papers in question. This doctrine, he thought, necessarily resulted not only from the principles of their Constitution, but also from an important principle of the Law of Nations. For all nations between whom there are existing Treaties have a kind of property lodged in the secret cabinet of each other, and no nation can, consistently with good faith, publish to the world the secret negotiations which led to forming either of those Treaties. To prove this principle, a recurrence may be had to Paley's Philosophy and Vattel's Law of Nations. This principle of the Law of Nations is predicated upon an important principle of the law of nature. Here, then, is no necessity of recurring to written au

Mr. BALDWIN said he had before expressed his opinion, in general terms, in favor of this question. It must have been observed that he had been for several days noting the debates, and preparing to take part in them. He had intended to have introduced the debate on Friday morning last, but a singular incident prevented him, which he felt it to be his duty to take this earliest opportunity to state to the House. Mr. B. then said: About five minutes before I expected to rise on the question, I was called out of the House by a person then unknown to me, who said his name was FRELINGHUYSEN, and whom I found to be a Senator of the United States. After a number of interviews, he observed, with great expressions of pain and regret, that he was at last obliged to the unwelcome office of delivering me that letter, which I opened and found to be a challenge directed to me from JAMES GUNN, who is also a Senator of the United States. The pretext for this transaction was, to extort from me some private letters which I had received early in the session from a number of my constituents, expressing their wish that I would endeavor to prevent any thing being done in Congress to validate the Mississippi Yazoo Land Speculation before the meeting of the State Legislature. There was no complaint of any personal indecorum or disrespect at all; whether they were actuated in their conduct solely by interest in Yazoo speculations, I will not pretend to judge.

[MARCH, 1796.

thorities, for every sentiment of their nature enforced conviction, and, of consequence, is clothed with all the solemnity of moral obligation.

This principle of the law of nature is no less than the law of self-preservation, as relative to themselves, their nation, and all other nations; for, what would be the consequence if the reverse of this doctrine was established as the Law of Nations? The consequence would be pernicious and destructive among the nations; it would be the source of jealousies, of Carthagenian faith, of war and bloodshed.

He had not the least doubt of the constitutionality of a Treaty, when the stipulations in it were of such a nature as not to respect objects of legislation, but only objects which lay beyond the bounds of their sovereignty; for beyond those limits their laws could not extend as rules to regulate the conduct of subjects of foreign Powers; and although some stipulations in a Treaty may respect objects which were within the reach of their sovereignty, yet it may be in such manner as to be strictly Constitutional; for such stipulations may be not only pertinent, but absolutely necessary in forming the Treaty. This conclusion, he thought, was the natural and necessary result of a fair and liberal construction of the principles of the Constitution, and especially of that paragraph which vests the power of making Treaties in the Supreme Executive, with the advice of the Senate.

Mr. L. said he was sensible he had been deliver

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