Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 1 (of 16)

by United States. Congress

Thursday, February 11.

Post Roads from Maine to Georgia.

Mr. Madison moved that the resolution laid upon the table some days ago be taken up, relative to the survey of the post roads between the province of Maine and Georgia; which, being read, he observed that two good effects would arise from carrying this resolution into effect; the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements upon them.

Mr. Baldwin was glad to see this business brought forward; the sooner it could be carried into effect, the better. In many parts of the country, he said, there were no improved roads, nothing better than the original Indian track. Bridges and other improvements are always made with reluctance whilst roads remain in this state, because it is known as the country increases in population and wealth, better and shorter roads will be made. All expense of this sort, indeed, is lost. It was properly the business of the General Government, he said, to undertake the improvement of the roads, for the different States are incompetent to the business, their different designs clashing with each other. It is enough for them to make good roads to the different seaports; the cross roads should be left to the government of the whole. The expense, he thought, would not be very great. Let a surveyor point out the shortest and best track, and the money will soon be raised. There was nothing in this country, he said, of which we ought to be more ashamed than our public roads.

Mr. Bourne thought very valuable effects would arise from the carrying of this resolution into effect. The present roads may be much shortened. The Eastern States had made great improvements in their roads, and he trusted the best effects would arise from having regular mails from one end of the Union to the other.

Mr. Williams did not think it right for the revenues of the Post Office to be applied to this end. He acknowledged the propriety of extending the post roads to every part of the Union; he thought the House had better wait for the report of the committee to which business relative to the Post Office had been referred, which was preparing to be laid before the House.

Mr. Madison explained the nature and object of the resolution. He said it was the commencement of an extensive work. He wished not to extend it at present. The expense of the survey would be great. The Post Officer, he believed, would have no objection to the intended regulation.

After some observations from Mr. Thatcher, on the obtaining of the shortest distance from one place to another, and the comparing old with new roads, so as to come at the shortest and best, the resolution was agreed to, as follows:

Resolved, That a committee be appointed to report a bill authorizing the President of the United States to cause to be examined, and, where necessary, to be surveyed, the general route most proper for the transportation of the mail between ——, in Maine, and ——, in the State of Georgia, and to cause to be laid before Congress the result of such examination and survey, with an estimate of the expense of rendering such route fit, in all its parts, to be the established route of the post; the expense of such examination and survey to be defrayed out of the surplus revenues of the Post Office.[69]

Ordered, That Mr. Madison, Mr. Thatcher, Mr. Baldwin, Mr. Henderson, and Mr. Sherburne, be appointed a committee pursuant to the said resolution.

Monday, February 22.

Washington's Birth-Day.

Mr. W. Smith moved that the House adjourn for half an hour.

This motion occasioned a good deal of conversation upon its propriety. In favor of it, it was said, that it had been a practice ever since the commencement of the Government, for that House to make a short adjournment on that day in order to pay their compliments to the President, and that several members were absent, from an idea that the House would adjourn at 12 o'clock as usual. On the other hand, it was objected that it was the business of the members of that House first to do their duty, and then attend to the paying of compliments; that just at that time the house of the President was filled with militia and others; and that, therefore, it would be better, upon the whole, to wait upon the President after the business of the day was finished.

Mr. Gallatin moved that the words "half an hour" be struck out.

The sense of the House was first taken on the amendment, which was lost, without a division. The motion was then put and negatived, being 38 for it, and 50 against it.

Friday, February 26.

Compensation to Members.

Mr. Giles moved that the bill for allowing compensation to the members of the Senate and House of Representatives, and certain officers of both Houses, be taken up, which being agreed to, the House resolved itself into a Committee of the Whole; and the bill being read,

Mr. Swift wished to strike out the words making the Speaker a greater allowance than other members.

Mr. Giles thought a larger allowance ought to be made to the Speaker than to other members, as his duty was double that of any other member; but if gentlemen wished to do away the incidental expenses of the office, he had no objection.

Mr. Swift consented to vary his motion according to the ideas of the member from Virginia. If the Speaker had more duty to perform than other members, he should be willing to make him a greater allowance, but he doubted it.

Mr. W. Smith hoped no alteration would be made in the allowance heretofore made; he saw no reason for it.

Mr. Goodhue said, he voted against the additional pay allowed the Speaker when the act first passed, as he saw no necessity for the Speaker to give dinners to the members of that House; but though he objected to this, he was willing to allow him recompense for his additional services. He hoped, however, the gentleman who now so ably filled the office, would not consider any thing said on this subject as alluding personally to him.

Mr. Sedgwick was willing to give the money to the Speaker which had heretofore been paid him, and for the same purpose, although he and his colleague were both against the measure when it originally passed.

Mr. Dayton wished the business might be discussed without reference to him personally. Indeed he believed he should not be materially affected by any regulations which might be agreed to, as, if he might judge by his present feelings, his health would not permit him to remain in the chair after this session.

Mr. Giles was confident that no one meant to hurt the feelings of the gentleman who now filled the chair. The member from Massachusetts had said, when the measure passed, he was against it, but now he was in favor of it. He could see no ground for this change of sentiment. Mr. G. said, he was against the money being paid for incidental expenses, but not against making the Speaker ample allowance for his services.

Mr. Kitchell was also for striking out the words, but for making ample compensation to the Speaker.

Mr. Bourne did not suppose that the incidental expenses of the Speaker were confined to the dinners which he gave them; he was put to more expense in receiving company than other members. He did not think six dollars a day too much for this.

Mr. Madison said, it was customary in all the State Governments to make the Speaker a greater allowance than other members: his services were far greater; they were uninterrupted. Besides, it was necessary to do so to invite men of talents to accept of the office; and every one knew the advantages arising from having a man of talents as Speaker. Without inquiring whether the compensation was too large or too small, he doubted whether it was constitutional to make any alteration in it which might affect the present Speaker. To support his opinions he read a clause of the constitution.

Mr. Hillhouse was of opinion that nothing in the constitution extended to the present question. He hoped they should agree to strike out the words alluded to, as the sooner the practice of feasting was abolished, the better. If members wished to form social acquaintances, it was far preferable to visit each other at their lodgings. He said, this was the first time the law had come under review since it had passed, and it was proper to have the matter settled. He wished to allow a reasonable sum for the services of the Speaker, but no more. He did not think there was any weight in the observation, that a large compensation was necessary to induce men of talents to accept of the chair—he thought the honor was a sufficient inducement.

Mr. Williams said there was no office appertaining to the Speaker which included expense; the words ought therefore to be struck out.

Mr. Page was in favor of striking out the words, as he did not understand their meaning, but in favor of keeping the allowance of the Speaker the same as usual. The Speaker, he said, ought to be placed in an independent situation, by a handsome salary. His duties were fourfold to those of any other member. Indeed, said he, nothing but a sense of duty could induce a man to undertake such an office.

Mr. Giles said, if it was agreed to strike out the words for the incidental expenses of his office, he should move to introduce in their place, "on account of extra services annexed to his office."

Mr. Jeremiah Smith liked the words proposed better than those in the bill, but did not think it of the importance it was made.

The motion for striking out was put and carried.

Mr. Giles then proposed his motion.

Mr. Hillhouse was against the introduction of these words.

Mr. Varnum hoped the motion would prevail. The services of the Speaker are extraordinary and laborious. The State Legislatures, he said, always allowed their Speaker double the pay of other members.

Mr. Murray hoped the words would not obtain. He considered the Speakership of that House as a very elevated situation. In certain contingencies he believed he was the Chief Executive of the United States. He thought the calculation of pay too mechanical. The dignity of the office was sufficient, without extraordinary compensation; the duties of it were well known.

The question was put, and negatived.

Mr. Giles moved to fill up the blank for the daily allowance of members of the Senate with six dollars.

Mr. Page proposed seven; when, after a few observations from Mr. Williams in favor of six, the sense of the House was taken, which was in favor of six dollars—only twenty-one members rising in favor of seven.

The allowance of the Speaker again coming into consideration, Mr. Swift wished an inquiry might be made into the duties of the office. It was his opinion that many members upon committees performed greater services than he; and if the Speaker had an extra allowance, they ought to have an extra allowance also. Some gentlemen thought, on the score of dignity, a high salary ought to be paid. He thought differently. Can it be supposed it would be necessary, said he, to give any member of this House double pay to accept of the office? No such thing. Being now discharged from any obligation to treat members, he could not agree to allow him the usual sum. He should not object to two or three dollars a day extra, but no more.

Mr. Giles thought the duty of the Speaker three times as arduous as that of any other member of the House.

Mr. Crabb voted for striking out the words, but he was not for diminishing the salary of the Speaker.

The motion for the usual allowance was put and carried, and the other blanks of the bill were filled up with the same sums as heretofore allowed to the different officers. The committee rose; the bill then went through the House, and was ordered to be engrossed and read a third time on Monday.

Monday, March 7.

The Treaty with Great Britain.

[The debate on the subject of the Treaty with Great Britain, and of the constitutional powers of the House with respect to treaties, having occupied the time of the House nearly every day for a month, (commencing the 7th of March and ending on the 7th of April,) it is deemed preferable, and as being more acceptable to the reader, to present the whole in one body consecutively, rather than to spread it in detached parts intermixed with other subjects, through the general proceedings of each day. This debate, as here given, possesses a character for authenticity and correctness which does not belong to the newspaper reports of the day, it having undergone the careful revision of the Speakers themselves. The debate which took place on making the provision for carrying the Treaty into effect, will be found subsequently, in the proceedings of each day as the subject came up before the House.][70]

On the second of March, Mr. Livingston, after stating that the late British Treaty must give rise in the House to some very important and constitutional questions, to throw light upon which every information would be required, laid the following resolution upon the table.

"Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty."

March 7.—Mr. Livingston said he wished to modify the resolution he had laid on the table, requesting the President to lay before the House sundry documents respecting the Treaty. It was calculated to meet the suggestions of gentlemen to whose opinions he paid the highest respect, and was founded in the reflection that the negotiations on the twelfth article were probably unfinished; and therefore, he said, a disclosure of papers relative to that or any other pending negotiation, might embarrass the Executive. He wished, therefore, to add, at the end of his former motion, the following words: "Excepting such of said papers as any existing negotiation may render improper to be disclosed."

The motion of Mr. Livingston was then taken up.

Mr. Tracy requested gentlemen in favor of the resolution to give their reasons why the application for papers was to be made.

Mr. Livingston said, he had no wish to conceal his intentions. The motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. The gentleman from Connecticut wished to know why he had brought this resolution before the House? He did it for the sake of information. That gentleman wished to know to what point this information was to apply? Possibly to all the points he had enumerated. It was impossible, however, to say to which or how many of these points without a recurrence to those very papers. He could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. It was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. The House were, on every occasion, the guardians of their country's rights. They are, by the constitution, the accusing organ of the officers employed. The information called for they ought to possess, as it would tend to elucidate the conduct of the officers. His principal reason, however, for proposing the measure, was a firm conviction that the House were vested with a discretionary power of carrying the Treaty into effect, or refusing it their sanction.

Mr. Murray said, that he was against the resolution for two reasons, which then struck his mind forcibly. The first was the want of a declared object within the acknowledged cognizance of the House; the other was because he believed it was designed as the groundwork of a very dangerous doctrine, that the House had a right to adjudge, to adopt, or to reject Treaties generally. Had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the Treaty, the subject would be presented under an aspect very different from that which it has assumed. He considered a Treaty, constitutionally made, to be the supreme law of the land. The Treaty in view has been negotiated and ratified, he thought, agreeably to the constitution. It has been issued, by the President's proclamation, as an act obligatory upon the United States. If the House mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the constitution to give it every opposition.

Mr. Baldwin thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. The President has sent the House the Treaty; petitions have come forward on the subject; the House must act in the business. It is yet unaccompanied with any documents to throw light upon it. No person concerned in the negotiation has a seat on the floor of the House; so that no oral information can be expected. Implicit faith was not to be reposed, he imagined, in public officers. It would be unfair to take up the subject naked and unexplained.

Mr. Gallatin said, he should not now enter into the merits of the question, but merely state that pertain powers are delegated by the constitution to Congress. They possess the authority of regulating trade. The Treaty-making power delegated to the Executive may be considered as clashing with that. The question may arise, whether a Treaty made by the President and Senate, containing regulations touching objects delegated to Congress, can be considered binding, without Congress passing laws to carry it into effect. A difference of opinion may exist as to the proper construction of the several articles of the constitution, so as to reconcile those apparently contradictory provisions. But all those questions would occur in future discussions. What is now wanted is information on the subject, to elucidate the different views which may be taken of the Treaty. It must do good to obtain it, and could do no harm to ask for it. If it would be improper to communicate any part of the information on the subject, the President will say so. He had hoped, he said, that the resolution would have passed without objection. He concluded by observing, that the House were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. At present, he did not contemplate the exercise of that right.

Mr. Madison admitted that every proposition, however distantly related to a question on the Treaty, drew from the importance of that subject considerable importance to itself. In a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to the decorum and dignity of the House, with a proper delicacy to the other departments of Government, and, at the same time, with fidelity and responsibility for our constituents. The proposition now before the House, he conceived, might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the constitution, so as to take to the Executive all deliberative will, and leave the House only an Executive and ministerial instrumental agency?

Mr. Smith (of South Carolina) said, that he had listened attentively to the reasons advanced in favor of this resolution, and that he had heard nothing to convince him of its propriety. The President and Senate have, by the constitution, the power of making Treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do every thing in their power to carry them into full execution. He recognized but one exception to this rule, and that was, when the instrument was clearly unconstitutional. In this case, he remarked, it had not been said that the Treaty was unconstitutional. When the resolution was first brought forward, it had indeed been observed, that the discussion might involve certain constitutional points, and, therefore, the papers called for by the resolution were necessary; but it was obvious, the question of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption, could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to.

He was surprised that gentlemen who displayed such zeal for the constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the Executive and Legislative Departments. The constitution had assigned to the Executive the business of negotiation with foreign powers; this House can claim no right by the constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the Executive; for a concession would be a surrender of the powers specially delegated to him, and a violation of his trust. The proposition calls upon the President to lay before the House the instructions given to Mr. Jay, and the correspondence between him and Lord Grenville; and for what purpose? Is this House to negotiate the Treaty over again? Has the constitution made this House a diplomatic body, invested with the powers of negotiation? Is not this House excluded? for, if the maxim that "the expression of one is the exclusion of another," applies to this case, the assignment of the Treaty-making power to the President and Senate, is a manifest exclusion of this House. This call, then, on the President, is an attempt to obtain indirectly what the constitution has expressly assigned to others.

After Mr. S. had sat down, it was moved by Mr. Giles, to take the resolution up in Committee of the Whole for the purpose of more ample discussion.

This motion was agreed to; sixty-one members rising in the affirmative.

The House immediately resolved itself into a Committee of the Whole, on the resolution.

Mr. Nicholas remarked, that the member from Connecticut, first up, when inquiring for the reason of a call for papers, had suggested two. The one, relating to the merits of the instrument; the other, an inquiry into the conduct of officers concerned. On the latter ground, gentlemen conceded that the House had a right to require the papers, and yet seemed willing to adhere to that, on which they conceived a call could not be, with propriety, grounded, as the one that influenced the conduct of the friends to the resolution. All gentlemen admitted, that the House had the superintendence over the officers of Government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention.

He took a view of the prominent features of the arguments of the members up before him. It had been said that, if the power of the President and Senate, as to Treaties, was complete, then the House had no right to claim a participation; this could not be denied; but the question was, whether the Executive had that right unqualifiedly, in all cases. In the present case, he contended, the House had a voice. To elucidate: Suppose that, in the constitution of the United States, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the House have a control over the money matters stipulated in a Treaty; would not this constitute a qualification of the powers of the President and Senate with respect to Treaties? The constitution, on this head, he contended, though less explicit than his supposed case would make it, was not the less positive, if tested by all the fair rules of construction; and if compared with the practice of the government from which we had borrowed, with many other matters, this part of our constitution. In England, the country alluded to, their House of Parliament had exercised a control over the moneyed articles of Treaties; and he contended, the House of Representatives had an equal authority here, as chief guardians of the purse-strings. It was unnecessary, at this time, he said, to touch on the other parts of the Treaty which clashed with the constitutional powers of the House.

He again adverted to the power of control that the House of Commons have over Treaties; and contended, that that provision of the British constitution had been accurately copied in our own with this deviation only, that the Senate have the power of making amendments to money bills here, which the House of Lords there have not. He could show, from the best authority, the acknowledgment of the British Crown officers themselves, that the Parliament has a right to discuss and decide on Treaties which involved moneyed stipulations.

The same power, he argued, resided in the House here; for shall it be said, that we have borrowed only the form from Great Britain, and not touched the substance? Shall it be said, that the House have a discretion as to appropriations, and yet they must make them as directed by a Treaty? If the House have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. But, with the power of appropriating money, the House have certainly the right to judge of the propriety of the appropriation. The constitution explains itself fully on this head. He instanced the specific power in the constitution, with respect to appropriations for the army, to explain from that instrument its meaning in other parts.

The constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the House may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. The power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the constitution. This will show what was expected of this House in appropriating money; that they should judge of the usefulness of the expenditure. In the case of the army, the constitution does not say that we may disband an army by withholding money; but for the purpose of investing us with the same power, only requires that the appropriation should recur every two years; taking it for granted, that in this as well as in every other Legislative act, we will duly weigh every consequence.

Having thus explained from the constitution itself the true meaning of this power of appropriation, he proceeded to elucidate it by a reference to the practice of the Government. He found an instance in the permanent appropriations made for the payment of the public debt. If the House in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? The permanency of the provision took its rise from the idea, that the House possessed a discretionary power as to appropriations. Thus, he had shown that the practice of the Government, the provisions of the constitution, and the example of the British, from whom we had exactly copied the control over money transactions, all proved a discretion in the House as to appropriations. This must be considered as a sufficient answer to the gentleman from South Carolina, when he said, that the President and Senate possessed the Treaty-making power; for they possessed it with qualification, in matters of money; and unless the House chose to grant that money, it was so far no Treaty.

It was said, that if the Treaty was not the law of the land, the President should be impeached for declaring it as such. Parts of the Treaty the President and Senate had, no doubt, a right to make without any control of the House—those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under the qualifications provided by the constitution. It was said, that no instance of such a call as that now contemplated could be produced. No; nor of such a Treaty, he answered.

Mr. Swanwick expressed his sense of the importance of the subject before the House, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. He had not conceived, however, that the decision of the present question involved the sense of the House as to the merits of the Treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the Treaty had been censured by assemblages of people with precipitancy, and without proper information. They did this on the best information that could by them be obtained. But if the House should go into a Committee of the Whole, to take into consideration the Treaty, without obtaining all the information in their power, they would be justly to blame.

He adverted to the constitution; according to that instrument, the Legislative power is completely vested in Congress. By the 8th section of the 1st article, not only a certain specification of powers are granted to Congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. If, then, Congress have the power to pass laws to carry into execution all powers vested by the constitution in the Government of the United States, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive Legislative control? Is the Treaty-making power not a power vested by the constitution in the Government of the United States, or in a department or officer thereof? If it is, is the conclusion not obvious, that Congress have power to pass laws for carrying these powers into effect? But in the power to pass laws, discretion is necessarily implied; of course, this House must judge when it is to act; whether it will, or will not, carry into effect the object in question. It is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given.

The member from South Carolina construed this part of the constitution in a different way, and insisted that, as the President and Senate had the power of making Treaties, the House were divested of the right of exercising their judgment upon the subject. If this doctrine prevails, to what a situation would the Representatives of a free people be reduced? The constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the House to raise money? Suppose that authority were in this way to grant millions upon millions, must the House, at all events, be compelled to provide for their payment? In this case the House become mere automatons, mere mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves.

Great stress is laid upon the constitution declaring Treaties laws of the land. This article has often been quoted partially, but not at large. It is in these words: "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "And the Judges in every State shall be bound thereby, any thing in the constitution or laws of any State, to the contrary notwithstanding." Hence, it is obvious that the supremacy of the law is over the constitution and laws of the separate States, which was necessary to prevent these interfering with those. But it does not affect the powers of this House, as a component part of the General Legislature, and authority of the United States. It is also worth while to notice the gradation in the article.

First. This constitution.

Secondly. The laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches.

Thirdly. Treaties. How absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the Government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors.

The gentleman from Vermont said, yesterday, that if the President and Senate were to make a Treaty, and that House were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain Government. Mr. S. observed, that that gentleman would probably be surprised, when he was told, that the British House of Commons possesses the same power which he reprobates in the Legislative Assembly of the United States. This, Mr. S. proved, by reading the King's Speech to both Houses of Parliament, in which he informs them of this Treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. What, judge of the propriety of passing laws to carry into effect a Treaty ratified! And shall it be said, exclaimed he, that the Representative Assembly of the United States does not possess a privilege enjoyed by an English House of Commons! He hoped not.

Mr. Harper said, that it had not been his intention to trouble the committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on points, which it appeared to him unnecessary to decide. He did not conceive that the powers of the House respecting Treaties were necessary to be considered; the question appeared capable of a satisfactory decision on different grounds.

When the motion was first proposed, he thought it innocent at least, and was in doubt whether it might not be proper, because he was in doubt how far these papers might be necessary for enabling the House to exercise that discretion on the subject of Treaties, which he admitted it to possess; but on a more accurate and extensive view of the subject, and after carefully attending to the discussion which had already taken place, he was thoroughly persuaded that these papers were no way necessary, and, that being unnecessary, to call for them was an improper and unconstitutional interference with the Executive department. Could it be made to appear that these papers are necessary for directing or informing the House on any of those Legislative questions respecting the Treaty which came within its powers, he should propose to change the milk-and-water style of the present resolution. The House, in that case, would have a right to the papers; and he had no idea of requesting as a favor what should be demanded as a right. He would demand them, and insist on the demand. But, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the House, to call for them would be an unconstitutional intermeddling with the proper business of the Executive.

It had been said, that this motion was of little consequence; that it was only a request which might be refused, and that the privileges of that House were narrow indeed, if it could not request information from the Executive department. But it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. Legislative bodies often make the most formidable expressions of their will in the shape of requests. It would be further observed, that an honorable member from Pennsylvania, (Mr. Gallatin,) after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. After this avowal of the system, after this notice that the present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold?

Mr. Gallatin conceived that, whether the House had a discretionary power with respect to Treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. Under the first view of the subject, if the House has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. This latter view of the subject, even, must introduce a discussion of the Treaty, to know whether any law ought to be repealed, or to see what laws ought to be passed. If any article in the instrument should be found of doubtful import, the House would most naturally search for an explanation, in the documents which related to the steps which led to the Treaty. If one article of the Treaty only be doubtful, the House would not know how to legislate without the doubt being removed, and its explanation could certainly be found nowhere with so much propriety as in the correspondence between the negotiating parties.

Gentlemen had gone into an examination of an important constitutional question upon this motion. He hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground, he had no objection to follow them in it, and to rest the decision of the constitutional powers of Congress on the fate of the present question. He would, therefore, state his opinion, that the House had a right to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the Treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the Treaty itself, and therefore had a right to ask for every information which could assist them in deciding that question.

One argument repeatedly used by every gentleman opposed to the present motion was, "That the Treaty was unconstitutional or not; if not, the House had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." He wished gentlemen had defined what they understood by a constitutional Treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional treaty. He would say what he conceived constituted the unconstitutionality of a treaty. A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to the Legislative department, such a Treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the Legislature have a right to demand the documents relative to the negotiation of the Treaty, because that Treaty operates on objects specially delegated to the Legislature. He turned to the constitution. It says that the President shall have the power to make Treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what Treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the constitution, where it is said that the constitution, and the laws made in pursuance thereof, and all Treaties, are the supreme law of the land; and thence, they insist that Treaties made by the President and Senate are the supreme law of the land, and that the power of making Treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the constitution.

The power of making Treaties is contended to be undefined, then it might extend to all subjects which may properly become the subjects of national compacts. But, he contended, if any other specific powers were given to a different branch of the Government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. If still it is insisted that Treaties are the supreme law of the land, the constitution and laws are also; and it may be asked, which shall have the preference? Shall a Treaty repeal a law or a law a Treaty? Neither can a law repeal a Treaty, because a Treaty is made with the concurrence of another party—a foreign nation—that has no participation in framing the law: nor can a Treaty made by the President and Senate repeal a law, for the same reason, because the House of Representatives have a participation in making the law. It is a sound maxim in Government, that it requires the same power to repeal a law that enacted it. If so, then it follows that laws and Treaties are not of the same nature; that both operate as the law of the land, but under certain limitations; both are subject to the control of the constitution; they are made not only by different powers, but those powers are distributed, under different modifications, among the several branches of the Government. Thus no law could be made by the Legislature giving themselves power to execute it; and no Treaty, by the Executive, embracing objects specifically assigned to the Legislature without their assent.

To what, he asked, would a contrary doctrine lead? If the power of making Treaties is to reside in the President and Senate unlimitedly: in other words, if, in the exercise of this power, the President and Senate are to be restrained by no other branch of the Government, the President and Senate may absorb all Legislative power—the Executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the Treaty-making power is unlimited and undefined, it may extend to every object of legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But Treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by Treaties. Then it would have been the shortest way to have carried the late Treaty into effect by the instrument itself, by adding to it another article, appropriating the necessary sums. By what provision of the constitution is the Treaty-making power, agreeably to the construction of the gentlemen, limited? Is it limited by the provisions with respect to appropriations? Not more so than by the other specific powers granted to the Legislature. Is it limited by any law past? If not, it must embrace every thing, and all the objects of legislation. If not limited by existing laws, or if it repeals the laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the Legislative power in fact resides in the President and Senate, and they can, by employing an Indian tribe, pass any law under the color of Treaty. Unless it is allowed that either the power of the House over the purse-strings is a check, or the existing laws cannot be repealed by a Treaty, or that the special powers granted to Congress limit the general power of Treaty-making, there are no bounds to it, it must absorb all others, repeal all laws in contravention to it, and act without control.

To the construction he had given to this part of the constitution, no such formidable objections could be raised. He did not claim for the House a power of making Treaties, but a check upon the Treaty-making power—a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power.

He read a quotation from Blackstone, page 257, vol. i., to show that the power of Treaty-making in England is as extensively vested in the King, as it can possibly be said to be here in our Executive.

The following is the passage alluded to:

"II. It is also the King's prerogative to make Treaties, leagues, and alliances with foreign States and Princes. For it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power, and then it is binding upon the whole community; and, in England, the sovereign power, quo ad hoc, is vested in the person of the King. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul."

After such a latitude as this clause gives, it would be supposed that there could be no check reserved upon this power; yet it will be found that Parliament have a participation in it. And the apparent inconsistency is easily reconciled, by observing that the power given generally to the Executive of making contracts with other nations, does not imply that of making Legislative regulations, but that when the contract happens to embrace Legislative objects, the assistance of the Legislature becomes necessary to give it effect.

He proceeded to show the operation of this limitation of the Treaty-making power in England by the practice of Parliament. It was always considered as discretionary with Parliament to grant money to carry Treaties into effect or not, and to repeal or not to repeal laws that interfere with them. In citing instances of the exercise of this power, he should not go further back than their Revolution.

He then read several extracts from Anderson's History of Commerce, vol. iii. pages 269, '70, '71, '72. They are so much in point that we transcribe the most material passages:

"But we could not omit our animadversions on the eighth and ninth articles, as they were so extraordinary in themselves, and as they occasioned so great a stir and uneasiness at that time, as to have brought the whole Treaty of Commerce to miscarry then and ever since.

"Art. IX. That within the space of two months after a law shall be made in Great Britain, whereby it shall be sufficiently provided that not more customs or duties be paid for goods and merchandise brought from France into Great Britain than what are payable for goods and merchandise of the like nature, imported into Great Britain from any other country in Europe; and that all laws made in Great Britain since the year 1664 for prohibiting the importation of any goods or merchandise coming from France, which were not prohibited before that time, be repealed, the general tariff in France, on the 18th of September, in the said year 1664, shall take place there again, and the duties payable in France by the subjects of Great Britain for goods imported and exported, shall be paid according to the tenor of the tariff above mentioned.

"When the said two articles came to be known by the merchants of Great Britain, they were received with the utmost surprise and indignation, and the clamor was loud and universal.

"That the complying with those two articles would effectually ruin the commerce we carried on to Portugal—the very best branch of all our European commerce. That the said eight articles did, in general terms, put France on an equal footing with Portugal or any other of our best allies, in point of commerce."

"This is, in brief, the sum of this mercantile controversy, which when brought into Parliament, it was so apparent that our trade to France had ever been a ruinous one, and that if, in consequence of accepting the said eighth and ninth articles, the British Parliament should consent to reduce the high duties and take off the prohibitions so prudently laid on French commodities, it would effectually ruin the very best branches of our commerce, and would thereby deprive many hundred thousand manufacturers of their subsistence; which was also supported by petitions from many parts of the kingdom: that, although a great majority of that House of Commons was in other respects closely attached to the ministry, the bill for agreeing to the purport of the said two articles was rejected by a majority of nine voices, after the most eminent merchants had been heard at the bar of that House, to the great joy of the whole trading part of the nation, and of all other impartial people."

Thus it must be clearly seen, that the consent of Parliament was not only deemed necessary to the completion of the Treaty, but that that consent was refused, and that in consequence the Treaty fell to the ground, and was not revived for a period of near eighty years, and all notwithstanding the plenitude of the Treaty-making power, said by the best English authority, Blackstone, to be vested in the King; which was, however, he repeated, necessarily checked by the special powers vested in Parliament; for none but they could grant money, or repeal the laws clashing with the provisions of Treaties.

He cited another instance of the exercise of this controlling power in Parliament of even a later date, viz: in the year 1739, in the case of a Treaty between Spain and Great Britain, which was sanctioned by a very small majority indeed in Parliament. He cited a third example from Anderson, vol. vi., page 828, in the case of the Treaty of Commerce between France and Great Britain, to show that the practice of the Parliament's interfering in Treaties is not obsolete.

The following is an article of the said Treaty, which Mr. Gallatin read:

"XIV. The advantages granted by the present Treaty to the subjects of His Britannic Majesty shall take effect, as far as relates to the kingdom of Great Britain, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by the Treaty.

"And the advantages by all these articles, except the tariff, shall take effect with regard to the kingdom of Ireland, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by this Treaty: and, in like manner, the advantages granted by the tariff shall take effect in what relates to the said kingdom, as soon as laws shall be passed there for giving effect to the said tariff."

Upon this principle, founded on almost immemorial practice in Great Britain, did the Minister of that kingdom, when introducing the late Treaty with Prussia into Parliament, tell the House that they will have to consider the Treaty and make provision for carrying it into effect. On the same principle, when the debate took place on that instrument, it was moved to strike out the sum proposed to be voted, which would have defeated it, and afterwards to strike out the appropriation clause, which would have rendered the bill a mere vote of credit, and would also have caused the Treaty to fall to the ground. On the same principle, the King of Great Britain, when he mentioned the American Treaty, promised to lay it before them in proper season, that they might judge of the propriety of enacting the necessary provisions to carry it into effect.

It remains to be examined, said Mr. G., whether we are to be in a worse situation than Great Britain; whether the House of Representatives of the United States, the substantial and immediate Representatives of the American people, shall be ranked below the British House of Commons; whether the Legislative power shall be swallowed up by the Treaty-making authority, as contended for here, though never claimed even in Great Britain?

In Great Britain, he remarked, the Treaty-making power is as undefined as in America. The constitution here, declares that the President and Senate shall make Treaties; there, custom says as loudly, that the King shall make them. In Great Britain, however, the power is limited, by immemorial custom, by the exercise of the Legislative authority by a branch distinct from the regal; in the same manner is it limited here, not however merely by custom and tradition, but by the words of the constitution, which gives specifically the Legislative power to Congress; and he hoped this authority would be exercised by the House with as much spirit and independence as any where.

If this doctrine is sanctioned, if it is allowed, that Treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution declare, that they give up all control, all right to the exercise of discretion, it is tantamount to saying, that they abandon their share in legislation, and that they consent the whole power should be concentred in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House, and their right to judge of the expediency of carrying the Treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the Treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground, and the Treaty carried into affect, if reconcilable to the interests of the United States.

March 10.—In Committee of the Whole, on Mr. Livingston's resolution, Mr. Hartley delivered his sentiments as follows:

As I was not present when this subject was first introduced, it cannot be expected that I should take any great share in the debate; but some observations I have heard, chiefly from the gentleman last up yesterday from Pennsylvania, have induced me to show a few grounds for my vote.

That gentleman has strongly combined this resolution with the Treaty, and wishes that every one who holds that there should be a co-operation of this House respecting that instrument, should vote for the resolution. I think differently.

The gentlemen who contend for the mighty power of the Executive and Senate, as well as those who argue for the great authority of this House, perhaps are on extremes; but the Treaty ought not now to be so largely under consideration. I am willing, if it is thought proper, to take it up at an early day, and, after a full hearing, will vote as I hold right.

The gentleman I referred to, from Pennsylvania, argued most strenuously that the laws and customs of Great Britain and the Constitution of the United States were analogous—nay, that the powers were precisely the same.

The gentlemen who hold this doctrine have made researches, and have quoted several authorities; but why have not those ingenious gentlemen discovered a single instance where the British House of Commons have had the instructions given by the Executive to the negotiating Minister laid before them. If there was such a power, no doubt that body would at some period have exercised it; for no men on earth have extended the power of privileges which they had further than the members of the House of Commons of Britain.

As those gentlemen who contend for the likeness—indeed, sameness of the Treaty-making powers of both countries—can show no precedent, it may be fairly contended, that no such right exists as is contemplated by the resolution.

Treaties are made under the Executive in almost all countries, and when the Ministers have gone through their part of the business, the Treaty is commonly laid before the nation. If any national act is further necessary, it would pass in conformity to the principles of good faith; if any thing is necessary (consistent with the constitution) on the part of the House, it will be the discussion of another day.

Mr. Griswold said, that the resolution on the table appeared at first view to be perfectly innocent, and, he might add, of very little importance. It amounted to no more than a request to the President to furnish the House with papers relating to the negotiation with Great Britain, which he might either satisfy or reject. But the discussion which had taken place in the committee, had given the subject a very serious aspect, and involved a question of the first importance; and although some gentlemen had thought that the committee had prematurely involved itself in the examination of the question, he could not see how the discussion could have been avoided. For gentlemen would not say that any resolution—more particularly a resolution calling on the President for documents belonging to the Executive Department—was to pass the House without a conclusive reason, much less without any reason for its passing. On this principle gentlemen had been called on at an early period for the reasons on which they grounded the resolution. They had attempted to assign reasons, but those reasons had been generally abandoned; and it could not at that time be seriously contended that the objects of general information or publicity, which had been first mentioned, could justify the House in calling on the President for papers relating to the British Treaty, or that those papers were necessary to enable the House to judge of the constitutionality of the Treaty. The friends of the resolution, aware of this, had at last come forward and assigned a new and a very important reason. It had been now said, that the House of Representatives have a right to judge over the heads of the President and Senate on the subject of Treaties; that no Treaty can become a law until sanctioned by the House; and, in fine, that the House of Representatives is a constitutional part of the Treaty-making power.

If these facts and the principles which grow out of them are true, he could not say that the resolution was improper; and although he did not know to what part of the Treaty the papers would particularly apply, yet, if the House were to take this extensive view of the Treaty, and ultimately to sanction or reject it, it would seem that the papers relating to the negotiation ought to be laid before them. But if these facts are not true, and the House is not a constitutional part of the Treaty-making power, and the Treaty is already a law without its sanction, then the reason falls to the ground, and the resolution ought to be rejected.

This inquiry into the powers of the House of Representatives must be confined, and the question arising out of it must be decided by a fair construction of the constitution. The powers of each branch of the Government are there limited and defined, and an accurate understanding of that instrument would enable gentlemen to decide the question.

In comparing these questions with the constitution, gentlemen were not, however, to inquire whether that constitution was a good or a bad one; whether too much power had been given to this or to that branch of the Government. The question will only be, what powers has the constitution given, and to what departments have the same been distributed?

To render the subject as clear and distinct as possible, he thought it would not be improper to take an abstract view of those two powers in all governments having foreign relations which are immediately connected with the inquiry, viz: the Legislative and the Treaty-making power. And if gentlemen can clearly fix in their minds the limits of each, they will become better enabled to see their operation, and to decide on the powers of the House in the exercise of them.

The Legislative power in all governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain English writers have said of the British Government, its power is almost omnipotent. Thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of government, or which occasionally arise from the nature of government itself, and limit the objects of its operation.

It is easy to see, that in the exercise of these Legislative powers, it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. Such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments.

The Treaty-making power operates in a very different manner; its power is limited and confined to the forming of Treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. In the exercise of this power, it will unavoidably happen that the laws of the Legislature are sometimes infracted. The Legislature, for certain causes,—perhaps to compel a foreign nation to form a treaty on terms of reciprocity,—may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect; the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. If, in this case, the Treaty power cannot touch the laws of the Legislature, the object which gave rise to those very laws can never be attained; no Treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has not been attained. Such a construction of the Treaty power would defeat every object for which that power was established; and instead of possessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it.

From these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the Treaty-making was paramount to the Legislative power; and that the positive institutions of the Legislature must give place to compact.

On this construction, a perfect harmony is introduced into the departments of Government. Both the Legislative and the Treaty power are necessary, on many occasions, to accomplish the same objects. The Legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the Treaty power, when that nation is compelled to agree to such reasonable compact, to remove by Treaty those very regulations, and the war itself, on fair and equitable terms.

Mr. Madison said, that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.

The true question, therefore, before the committee, was, not whether the will of the people expressed in the constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the powers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object.

On comparing the several passages in the constitution, which had been already cited to the committee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the President and two-thirds of the Senate; and it is declared in another place, that the constitution and the Laws of the United States, made in pursuance thereof, and Treaties made, or to be made under the authority of the United States, shall be the supreme law of the land. And the judges, in every State, shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State constitutions and laws, and not over the Constitution and Laws of the United States. And it was observable, that the judicial authority, and the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States, or to laws requisite to be passed by the States for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the constitution, that could leave room for different constructions. As the case, however, had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

He stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur:

I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.

II. As concurrent powers relating to the same objects; and operating like the power of Congress, and the power of the State Legislatures, in relation to taxes, on the same articles.

III. As each of them supreme over the other as it may be the last exercised; like the different assemblies of the people, under the Roman Government, in the form of centuries, and in the form of tribes.

IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the committee, as both unlimited in its objects, and completely paramount in its authority.

V. The Congressional power may be viewed as co-operative with the Treaty power, on the Legislative subjects submitted to Congress by the constitution, in the manner explained by the member from Pennsylvania (Mr. Gallatin) and exemplified in the British Government.

The objection to the first construction is, that it would narrow too much the Treaty power, to exclude from Treaties altogether the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations.

The objection to the second is, that a concurrent exercise of the Treaty and Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power and the power of Congress. A Treaty of Commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.

To the third, the objection was equally fatal. That it involved the absurdity of an imperium in imperio, of two powers, both of them supreme, yet each of them liable to be superseded by the other. There was, indeed, an instance of this kind found in the government of ancient Rome, where the two authorities of the comitia curiata, or meetings by centuries, and the comitia tributa, or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other. For, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country.

The fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the constitution.

In order to smooth the way for this doctrine, it had been said that the power to make Treaties was laid down in the most indefinite terms; and that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have; for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must, in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A Legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration.

It must be objected to this construction, therefore, that it extends the power of the President and Senate too far, and cramps the powers of Congress too much.

He did not admit that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in governments which bore most analogy to our own. In absolute governments, where the whole power of the nation is usurped by the governments, and all the departments of power are united in the same person, the Treaty power has no bounds; because the power of the sovereign to execute it has none. In limited governments, the case is different; the Treaty power, if undefined, is not understood to be unlimited. In Great Britain, it is positively restrained on the subjects of money and dismembering the empire. Nor could the Executive there, if his recollection was right, make an alien a subject by means of a Treaty.

But the question immediately under consideration, and which the context and spirit of the constitution must decide, turned on the extent of the Treaty power in relation to the objects; specifically and expressly submitted to the Legislative power of Congress.

It was an important, and appeared to him to be a decisive, view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and to appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the President and Senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the constitution, and must share the same fate. A member from Connecticut (Mr. Griswold) had admitted that the power of war was exclusively vested in Congress; but he had not attempted, nor did it seem possible, to draw any line between that and the other enumerated powers. If any line could be drawn, it ought to be presented to the committee; and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the President and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. They might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be carried to Europe, Asia, or Africa; they might even attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety or other common objects. Under this aspect the Treaty power would be tremendous indeed.

The force of this reasoning is not obviated by saying, that the President and Senate would only pledge the public faith, and that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be, as is alleged, a constitutional one; if Congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? Under a constitutional obligation with such sanctions to it, Congress, in case the President and Senate should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact, it had been said that they must obey the injunctions of a Treaty, as implicitly as a subordinate officer in the Executive line was bound to obey the Chief Magistrate, or as the Judges are bound to decide according to the laws.

As a further objection to the doctrine contended for, he called the attention of the committee to another very serious consequence from it. The specific powers, as vested in Congress by the constitution, are qualified by sundry exceptions, deemed of great importance to the safe exercise of them. These restrictions are contained in section 9 of the constitution, and in the articles of amendment which have been added to it. Thus, the "migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress." He referred to several of the other restrictive paragraphs which followed, particularly the 5th, which says, that no tax shall be laid on exports, no preference given to ports of one State over those of another, &c. It was Congress, also, he observed, which was to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, &c. Now, if the Legislative powers, specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers could be no limitation or check to the Treaty power.

Returning to the powers particularly lodged in Congress, he took notice of those relating to war, and money, or the sword and the purse, as requiring a few additional observations, in order to show that the Treaty power could not be paramount over them.

It was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether, and how far, it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged and exercised as a branch of the general authority, essential to the public safety. The only question, therefore, that could arise, was whether the power should be lodged in this or that department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive department; with a view, no doubt, to guard it against the abuses which might be apprehended, from placing the power of declaring war in those hands which would conduct it when declared; and which, therefore, in the ordinary course of things, would be most tempted to go into war. But, according to the doctrine now maintained, the United States, by means of an alliance with a foreign power, might be driven into a state of war by the President and Senate, contrary both to a sense of the Legislature, and to the letter and spirit of the constitution.

On the subject, also, of appropriating money, particularly to a military establishment, the provision of the constitution demanded the most severe attention. To prevent the continuance of a military force for a longer term than might be indispensable, it is expressly declared, that no appropriation for the support of armies shall be made for more than two years. So that, at the end of every two years, the question, whether a military force ought to be continued or not, must be open for consideration; and can be decided in the negative, by either the House of Representatives or the Senate's refusing to concur in the requisite appropriations. This is a most important check and security against the danger of standing armies, and against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as, at the end of every two years a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Representatives have no right to deliberate on appropriations pledged by the President and Senate, and cannot refuse them, without a breach of the constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated, at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if, at the end of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, and two appropriations for two years each, the second of which, the two Houses would be constitutionally obliged to make.

It had been said that, in all cases, a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the constitution.

The constitution of the United States is a constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.

He came next to the fifth construction, which left with the President and Senate the power of making Treaties, but required at the same time the Legislative sanction and co-operation, in those cases where the constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason: it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and nowhere expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.

Mr. W. Smith (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, (Mr. Madison,) but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the President and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British constitution; but had concluded his remarks on that argument with allowing, that, after all, our own constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the President and Senate by the constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the constitution. By referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth. He would then confidently appeal to the opinions of those who, when the constitution was promulgated, were alarmed at the Treaty power, because it was by the constitution vested in the President and Senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the Government. The discussions which took place at the time of its adoption by the Convention of the several States, proved, beyond a doubt, that the full extent of the power was then well understood, and thought, by those who approved of the constitution, to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might ensue from the unlimited nature of the Treaty power were well considered before the constitution was adopted, and Virginia required no further check than the one above recited. All, therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators.

Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the committee at this time with reading them. He would only recall the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania (Mr. Gallatin) must well remember, (having been one of the meeting,) where, after stating objections to the extensive powers delegated by the constitution, the following amendment was proposed, as necessary to limit and restrain the powers: "Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the constitution the check which is now discovered by this ex post facto construction.

Having stated the general opinion of the public, as manifested by the friends as well as the enemies of the constitution, Mr. S. said he would proceed to show that the practice of Congress had, from the commencement of its existence, been conformable to that opinion. Several treaties had been concluded with Indian tribes under the present constitution. These Treaties embraced all the points which were now made a subject of contest—settlement of boundaries, grants of money, &c.; when ratified by the President and Senate, they had been proclaimed by the Executive as the law of the land; they had not even been communicated to the House; but the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian Department. It was not pretended that the constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations.

That this House considered a Treaty, when ratified by the President and Senate, as the law of the land, was further evident from a resolve of the House, of the 4th of June, 1790, in these words;

"Resolved, That all Treaties made, or which shall be made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made to the code of laws, as soon as they were ratified by the President and Senate, and promulged by the President.

Mr. S. repeated his former assertion, that there were cases where that House had not the right of withholding appropriations; if they had the power, indeed, they might stop the proceedings of Government altogether; and so, individuals had the power of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the constitution; the members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not they should perform that duty. Thus, unless they intended to arrest the operations of Government, their discretion could not be requisite to determine whether they should appropriate the moneys necessary for its support; but out of what fund, and when the moneys shall be paid, and other matters of detail. So, when a Treaty was concluded, and became a compact binding the nation, the discretion of the House (unless it was intended to violate our faith) could not determine whether the moneys contracted for should be paid, but the mode, the fund, and such questions of detail, would alone be considered. The distinction, which was an obvious one, between power and right, had not been attended to. The House had certainly the power to do many things which they had not the right to do; they had the power to do wrong, but they certainly had not the right to do wrong; and whether the wrong was committed by acting where they ought not to act, or refusing to act where they ought, was immaterial; both were equally reprehensible. It had been boldly said, that there was no case which could possibly come before them, where they would not be at liberty to answer aye or no: he would produce a case—by the constitution, on the application of a certain number of States, wishing for amendments, Congress must call a Convention; where is this boasted discretion, of which so much has been said? Could the House, in this case, exercise its discretion, whether or no a Convention should be called? Why not? Because the constitution says it must call a Convention: and does not the constitution say, "Treaties made by the President and Senate are laws, and that laws must be obeyed?" The same injunctions of the constitution are imposed in both cases; and as in the first, all this House could do, would be to regulate the time and place of holding the Convention; so, in the latter, their discretion would be limited to the mode, and fund, and other details. The gentleman had mentioned the article in the constitution respecting appropriations for military services—they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. When a Military Establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two years; no inconvenience, then, could result. But there was no such limitation in respect to any other branch of expenditure; from custom, appropriations for the support of Government were annual; appropriations even for pensions were annual, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith.

March 11.—In Committee of the Whole, on Mr. Livingston's resolution.

Mr. Giles said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the President, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the President conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable.

The right of the House to consider of the expediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the committee.

The question is, whether there be any provisions in the constitution by which this House can in any case check the Treaty-making power; and, of consequence, whether it can question the merits of Treaties under any circumstances?

Various considerations had been advanced to show that the House cannot question the merits of a Treaty. Some of these considerations had grown out of the subject extrinsically, others from the provisions of the constitution. Though at first he had intended to have stated simply his own opinion of the constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the constitution to be incidental.

The gentleman from South Carolina had referred to the opinions of the Conventions of the States at the time of adopting the constitution. As to Virginia, the gentleman had stated that that State had considered the checks as provided by the constitution as inadequate, and proposed an amendment, purporting to require two-thirds of the whole number of Senators, instead of two-thirds of the number present. This was true, he believed; but how would it apply in the sense the gentleman wished? The objection of that State was, that the check in the Senate, provided in the Treaty-making power, was not sufficient, and they proposed a greater: from which he would argue that they conceived the Treaty-making power to be a subject of extreme delicacy, and that they wished additional checks consequently added. How this was to prove that the Convention of Virginia did not construe the present clauses of the constitution under debate as the friends of the present motion did, he was at a loss to determine. The gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. He had merely mentioned the result to the House.

The practice of the House had been referred to yesterday by the member last up, (Mr. Smith, of 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 believed the resolution a very proper one, and would vote now for its adoption, if it was yet to be passed. It is certainly proper, when a Treaty is concluded under the authority of the United States, that it should be annexed to their code of laws; but this could not weigh against the exercise of discretion in the House on important Legislative subjects.

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, 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 it 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.

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 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.

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 probable, 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 unlimited 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.

The construction contended for by the friends of the resolution is derived from two sources—from 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 under 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.

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 power of regulating commerce, raising armies, &c.; and these, he contended, must form so many exceptions to the general power. Gentlemen had said that the constitution was the exposition of the will of the people, and, as such, that they would obey its injunctions. There could be no difference of opinion on this ground; for his own part, he confessed if he adored any thing 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 department 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.

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 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.

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 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 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.

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 discretion. If he can by Treaty declare, that commerce shall not be regulated, that property shall not be sequestrated, and that piracies shall be judged and punished as he thinks fit; if he is to exercise the unlimited Treaty-making power contended for, what security have we that he may 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.

Gentlemen had gone so far as to declare, that an attempt to examine the merits of the Treaty was rebellion, was treason against the constitution. What justifies these harsh epithets? Such assertions could only create ill-will, and could not tend to the investigation of truth. Another argument of the same nature had been used. It was said, that the attempt at exercising a control over the Treaty-making power was disorganizing the Government. He believed the contrary would be found to be the case. The doctrine advocated by the friends to the motion, only goes to claim a negative voice in the business of Treaty-making; whereas the doctrine of its opposers claims the exercise of a power, that would supersede the specific authority delegated to the Legislature in all cases whatever.

Mr. Sedgwick said, that, after the length of time which had been consumed, and the talents which had been so ably exerted in the discussion of this subject, he should not think himself authorized to call the attention of the committee to any observations of his; but, that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this House. It was no less than whether this House should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the Government. We had heretofore been warned emphatically against seizing on power by construction and implication. He had known no instance in which the caution that warning enforced, deserved more attention than on the present occasion.

It would be taken for granted, and it would be conceded on all hands, that we were to resort to the constitution, to know the extent and limits of our power, and if we found not there a clear evidence of its existence, we ought to abandon the exercise. It was certain we had not any express delegation to make or to control the public will in any of our relations with foreign nations. On the other hand, we found it declared, that the President should have power to make Treaties by and with the advice and consent of the Senate, provided two-thirds of the Senators present concurred. Treaties, to attain the ends for which they were designed, were, from their nature, supreme laws; but the constitution had, in another place, declared, Treaties made under the authority of the United States should be supreme laws. Gentlemen had said, that it was not declared that Treaties made by the President and Senate should have this effect; but those made under the authority of the United States. The question then recurred, what Treaties were made under the authority of the United States? The true answer undoubtedly was, Treaties made by those to whom the people, by their constitution, had delegated the power. The President, qualified as had been mentioned, had expressly, and none else had such power. If we were to rest the subject here, it would seem to follow irresistibly, and to be incapable almost of higher proof, that whenever a compact was formed by the President with a foreign nation, and had received the advice and consent of the Senate, if it was of such a nature as to be properly denominated a Treaty, all its stipulations would thereby, and from that moment, become "supreme laws."

The power of treating between independent nations might be classed under the following heads: 1. To compose and adjust differences, whether to terminate or to prevent war. 2. To form contracts for mutual security or defence; or to make Treaties, offensive or defensive. 3. To regulate an intercourse for mutual benefit, or to form Treaties of commerce. Without the first, war and contention could only be terminated by the destruction of one of the parties; without the second, there could be no defence, by means of union and concert, against superior force; and without the last, a profitable and beneficial intercourse could not be arranged on terms of reciprocity. Hence, then, it must be evident to every unprejudiced mind, that by a grant of power to make Treaties, authority was given to bind the nation by stipulations; to preserve peace or terminate war; to enter into alliances, offensive and defensive, and to form commercial Treaties.

This power, he held, unlimited by the constitution, and he held, too, that in its nature, to the extent he had mentioned, it was illimitable. Did a serious difference exist with a foreign nation, in determining on the nature and extent of the stipulations which might be necessary to adjust it, the cause of injury, national rights and honor, the evils of war, and all circumstances of relation between the two countries, must be taken into account. In forming alliances, the threatened pressure, your own and your enemy's relative strength, the objects of acquisition or defence, must be considered. And, in adjusting an equitable intercourse for commercial purposes, a thousand circumstances present themselves for nice calculations. A thousand circumstances of foreign relations would occur in the history of every country, under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils.

But it might be objected that a power so enormous, and comprehending such essential interests, might be abused, and thence asked, where is the remedy? To this he answered, that a national association required, for the great purpose of preservation, an unlimited confidence on many subjects. Hence, not only this, but perhaps every other national government, had delegated to it an unlimited control over the persons and property of the nation.

It might, by the express power given to it of raising armies, convert every citizen into a soldier, and, by a single assessment of a tax, it might command the use of all the property in the country.

The power to raise armies and taxes was limited in its exercise by nothing but the discretion of the Legislature, under the direction of its prudence, wisdom, and virtue. Was there no security against a wanton abuse of these enormous powers? Yes, it was to be hoped that the people, in electing the members of this House, and the States in choosing those of the other, would not select characters, who, regardless of the public good, would wantonly impose on their constituents unnecessary burdens. It would be an additional security, that the interests of the rulers were inseparably connected with those of the people; that they could impose no burdens in which themselves did not equally participate. But, should all these guards be insufficient, was there no dependence to be placed in the President?—the man elected by a refined process, pre-eminent in fame and virtue as in rank! Was there no security in the watchful guardianship of such a character? Responsible by every thing dear and valuable to man—his reputation, his own and his fellow-citizens' happiness—was there no well-founded reliance on all these considerations, for security against oppression? If not, we had not the requisite materials by which to administer a republican government, and the project might be abandoned. After all, however, should the unlimited powers he had mentioned (and such powers must always be unlimited) be wantonly abused, was there no remedy? Yes, in the good sense and manly independent spirit of the people. If intolerable burdens were wantonly imposed; if necessary to defeat the oppression, opposition and insurrection would not only be authorized, but become a duty. And if any man could honestly lay his hand on his heart, and in sincerity declare, that a compliance with any existing Treaty was worth more than our Government, our constitution, our Union, and the liberty protected by them; to that man he was ready to declare, that opposition had become a duty. But, in every instance of opposition, whether in defeat of a Legislative act, or of a Treaty, the right of resistance resulted not from the constitution itself, for it had declared no such right; no constitution could declare it. It existed in original principles, and never could be exercised but by resorting to them.

The gentleman from Virginia (Mr. Madison) had stated five different constructions which possibly might be given to the constitution on this subject; three of which, (and for none of them to Mr. S.'s knowledge had any man ever contended,) the gentleman had proved to be unfounded. The fourth, that which he had given to the constitution, if admitted, and it should be abused, might produce mischievous effects. Was not this true of all the great and essential powers of government? If the controlling influence of this House was added, would the power be less? And if, under these circumstances, abused, would the injury be more tolerable? In short, was not this a kind of argument infinitely more tending to the production of prejudice than to the discovery of truth?

The gentleman has really given no decisive opinion what was the true construction. He had, however, seemed to incline to a belief that to the stipulations of a Treaty relative to any subject committed to the control of the Legislature, to give them validity, Legislative co-operation was necessary. Of consequence, if this was withheld, the operation of the Treaty would be defeated. That it was at the will, and within the discretion, of the Legislature to withhold such co-operation, and of course the House might control and defeat the solemn engagements of the President and Senate.

The gentleman who had suggested this opinion was well known to the committee, and throughout America. Mr. S. could not but observe that it was perfectly unaccountable to his mind, that that gentleman had yet to form an opinion to whom was delegated that power, the nature, extent, and effects of which he had so strongly and perspicuously detailed. The capacity of that gentleman's mind, long exercised on political subjects, his known caution and prudence, would authorize a request that he or his friends would explain how it was possible, if such as he states should have been the intention of those who framed the constitution, that the true meaning should not have been expressed in the instrument? That when the gentleman went from the Assembly which framed the constitution, immediately afterwards, to one of those which ratified it, he should have admitted an opposite construction? As Mr. S. would undertake, by and by, to prove that, in the Convention of Virginia, he did admit the very construction for which we now contended, he would take the liberty further to inquire, how it happened, that, if such was really the intention of the instrument, that such was the meaning of the people, no man had heard of it until the discovery was produced by the British Treaty? Strange national intention, unknown for years to every individual!

As the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the Government, he would take the liberty to state, what had been ably explained by other gentlemen, that the power of making Treaties was wholly different from that of making ordinary laws; originating from different motives; producing different effects, and operating to a different extent. In all those particulars, the difference had been perfectly understood. For instance, the ordinary legal protection of property, and the punishment of its violation, could never be extended beyond your own jurisdiction; but, by Treaty, the same protection could be extended within the jurisdiction of a foreign government. You could not legislate an adjustment of disputes, nor a peace with another country; but, by Treaty, both might be effected. Your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. By Treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties.

It had been said that Treaties could not operate on those subjects which were consigned to Legislative control. If this be true, said he, how impotent in this respect is the power of the Government! What, then, permit me to inquire, can the power of treating effect? I will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the Legislative power of declaring war, laying taxes, or raising armies, or all of them. No Treaty of peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no Treaty of commerce can be made.

Was it not strange, that, to this late hour, it should have been delayed, and that now, all at once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? That, although a power was granted to the President and Senate to form Treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? Or was it true, that this power was competent to treat with every government on earth but that of Great Britain? Might he not be permitted further to inquire, if this Treaty had been formed with any other power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality.

March 14.—In Committee of the Whole on Mr. Livingston's resolution:

Mr. Samuel Lyman said he rose only to make a few observations. He was against the resolution now on the table, as involving a doctrine, in his opinion, not only inconsistent with the principles of the constitution, but also inconsistent with the laws of nations. In debating the merits of this resolution, an exceedingly important abstract constitutional question had arisen, viz: How far that House had a right to exercise their Legislative discretion and judgment relative to carrying a Treaty into effect. In order to answer this question, he would raise two premises. And, first, by the constitution, the Legislative powers of that House, in co-operation with the other branches of the Legislature, extend to all objects within the reach of their sovereignty, excepting the reservations to the distinct sovereignties of the several States which compose the Union; but beyond those boundaries their powers could not extend. Secondly, there is, by the constitution, attached to the Legislature a subordinate kind of power, of a limited and ministerial, or Executive nature. At present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: 1st, for calling a Convention under certain circumstances to amend the constitution; and, 2dly, for carrying into effect Treaties which are constitutionally made; for these two purposes, the people, who are the source of power, had stripped that House of all Legislative authority, and made them only the executors of their will; therefore, upon these premises he answered, if a Treaty was unconstitutional, they had an undoubted right to exercise a Legislative discretion and judgment relative to carrying it into operation, for they were sent there as the guardians of the rights of their fellow-citizens, and, for that purpose, are sworn to support 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.

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 delivering an unpopular doctrine, but that he was deeply impressed with its truth, its reality, and its importance; and that the obligations of an oath had prevented his silence on the occasion.

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. The revival of a transaction of so old a date at that particular moment, was to me surprising. Not knowing their degree of relation to this question between the two Houses, and not knowing the cast of character but of one of them, I am left only to conjecture. It was so peculiarly timed, and the professed object also of so peculiar a nature, to interrupt the channels of confidence for free communication between me and my constituents, that I have thought it my duty not to let the treatment of it depend on my own individual discretion. I consider it as in the discretion of the House. Mr. B. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of Friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of Friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended.

He said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. It was certainly important to agree exactly on that point. The least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. One gentleman had stated, that the question was, whether this House should feel itself at liberty to judge over the heads of President and Senate on the subject of Treaties without restraint: his reasoning seemed to be built on that proposition. Another gentleman had said that the question was, whether the power of making Treaties was given by the constitution to the President and two-thirds of the Senate, or to the President and both branches of the Legislature. He might mention several others, but he called the attention of the House to the fact, to settle the point, that they might at least agree what they were talking about. The question, said he, on the table is, to request of the President papers respecting the Treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. He begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the constitution, that there was nothing for that House to deliberate upon on the occasion, but only punctually to provide the funds to carry the Treaty into effect. If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making, in which it might ever be proper for that House to deliberate—as, for instance, offensive Treaties which might bring the country into a war—subsidies and support of foreign armies—introduction of an established religion from a foreign country, or any other of those acts which are by the constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might possibly exist any such case, in which it might ever be proper for Congress to deliberate, it would seem to be giving up the ground on which the discussion of the present question has been placed; what agency the House should take, and when, would be other questions. Whether a case would probably occur once in a hundred years that would warrant the House in touching the subject, is of no consequence to the debate. The right is denied in the largest sense. The assertion is, that the House has no right to deliberate or to look into any papers on the subject; that the people have, by the constitution, reposed the whole of their confidence on this subject elsewhere; that, to attempt to deliberate upon it, or to ask for any papers respecting it, is treason and anarchy.

If this ground were once given up, he should be infinitely less anxious what the House might do in any particular case: these would rest on their individual merits. For his own part, he was by no means disposed to carry the interference of the House to any extreme; but he could not express his abhorrence of the doctrine in the extent to which some gentlemen have carried it in this discussion. He begged leave to entreat gentlemen again candidly to review the few words in the constitution on which they rested so much, and to ask whether they appeared to be such labored expressions as they supposed—so apt and definite as to mean exactly what they contend for, and nothing else; and whether all the words may not well be satisfied without, and stand more harmoniously connected with the other parts of the constitution.

How much they intended to incorporate with this power of Treaty-making, under cover of contract with foreign nations, he had not heard any one attempt to explain; it seemed designed to stand distinguished as an indefinite, uncontrolled branch of the Government, the extent of whose powers was to be known only by its own acts. Its definition was to be, that it was indefinite—like what is said of some branches of the powers of Parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. However this might be found respecting a foreign constitution, it is making a monster of our own. There was not another part or lineament in it which appeared to be in the same mould or proportion.

Mr. B. then undertook to state his own view of the subject, and what he thought ought to be done. Much, he said, depended on the words "make Treaties and supreme law of the land;" as to the words supreme law of the land, he had not much doubt for what purpose solely they were introduced. The words were satisfied, and he thought most naturally, by not suffering them to disturb the balance of the Federal Constitution, for that is not the subject which the section where these words are used is speaking of; but to consider them as giving to the Treaty-making power the same paramount authority over the laws and constitutions of the several States, that they give at the same time to the Constitution and laws of the United States. The words appear to be introduced for the express purpose of making the Constitution, laws, and Treaties of the United States, paramount to the constitutions and laws of the several States, and for no other purpose; this is all that the section appears to be speaking of; it satisfies the words, is the most obvious and natural meaning, and leaves the other parts of the constitution harmonious and undisturbed. As to the words "power to make Treaties," it was more difficult to ascertain precisely what the constitution meant to give by them. It had been argued that from the nature of governmental powers, the Treaty-making power must be paramount, and from the nature of contract it must be paramount. The truth is, the Treaty-making power must be what the constitution has made it. He did not hesitate to say, that the most natural meaning to give these words, was to consider them as borrowed from former use, and to give them the meaning which they had always before given them. Gentlemen had said that nothing useful could be derived from English books and explanations on these terms. This seemed to him an unreasonable assertion. It might as well be said that they could not use an English Dictionary to ascertain the meaning of words. In many sciences, said he, there are definite and appropriate phrases as well as definite and appropriate words; and, in fact, books which are dictionaries of phrases, ascertain the meaning of phrases with as much precision as dictionaries ascertain the meaning of words. It is exceedingly useful that it should be so. When such a precise meaning is fixed to a phrase, and publicly known, it is apt to remain a long time exact, as it is frequently employed, and is very useful as a medium of certainty. Many instances of this kind might be quoted, particularly from English books on law and government. He would observe further, these appropriate phrases had been for their certainty in many instances transferred into our constitution, and their meaning must be manifestly sought in those sources as in a dictionary. One remarkable instance occurred to him, and which, from the singularity of its garb, would be very discernible in the constitution—he meant the definition of treason in the third section of the third article of the constitution. The phrase is levying war, adhering to enemies, giving them aid and comfort. These are the very words of the English books, which have been so critically judged that they are not capable of the least variation in their meaning on that tremendous subject; but this meaning is to be sought from those sources; he might mention several instances, but it was unnecessary. He thought the phrase, power to make Treaties, should be ascertained in the same manner; and the English meaning, as it would naturally be understood at the time of making the constitution, should be affixed to it; that it should be considered as giving to the President and two-thirds of the Senate the same kind of power as the King of England possesses on the subject of Treaties, which it is known is in several cases subject to the control of Parliament. Here it is qualified by the powers specifically given to Congress.

Mr. Holland said: It is with great diffidence I rise on this important subject, to submit some considerations to this committee. As it has now become a constitutional question, not with respect to the merits of the Treaty, but with respect to the constitutional right of this House to request the Executive to furnish us with papers that related to the Treaty antecedent to its ratification.

To this it is objected that this House has no discretionary power over the Treaty, and, on that account, has nothing to do with the papers.

The question is not whether the Treaty is a good or bad Treaty, but it is whether we have a right to exercise our judgments upon it. Then, without any regard to the Treaty, we must be governed by the rational construction of the fundamental principles of government.

To illustrate which, it may be necessary to examine what has been incident to the different kinds of government, according to the histories of those nations governed by despotism, monarchs, or republics; and from the Constitution of the United States as the fundamental maxims of the Republic, draw that construction that is most rational and natural.

It will also be proper to examine which of those governments preserves the most power in the people.

First, then, of monarchy. Where has that power been placed? According to the theory of the English Government it has been lodged in the Sovereign, for it is there expressly said (nor has it been denied on this floor) that the King is the source of all power; and it is also expressly declared that the King of Great Britain has sovereign and exclusive right to make Treaties. That, when they are made, they cannot be impeded or annulled by any existing power in the kingdom. This is the theory of that Government. But what has been the practice? I answer, the contrary; for it ever has been that, when a Treaty was made, the same has been submitted to the Parliament for concurrence; and Parliament, if they thought proper, admitted and sometimes annulled them, as in the Treaty of Utrecht, and sundry instances that the history of that nation affords us. The English Government, therefore, is in practice what it is not in theory. By the construction of the constitution, as contended for, by giving uncontrollable power to twenty Senators and the President, our Government will be in practice what the English Government is in theory. If this doctrine had been believed, that this was the true construction of the constitution, previous and at the time of its adoption, would the people of the United States have adopted it? If they had been informed that, by this instrument, they were ceding more power to two-thirds of the Senators and President, than even could be practised by the King of England, with his lords spiritual and temporal, under that impression would they have ceded that power? Or, if they had been told that the House of Representatives, under this constitution, had less power than was exercised by the House of Commons in England; that they would be less able to secure their liberties in this country against the approaches of prerogative, would they have, under that belief, accepted of this constitution? I think, Mr. Chairman, I may venture to say they would not.

With respect to the more absolute government of France, where has this power been lodged? In this, as in the monarchy of England, it was, in theory, lodged in a prince; but the theory, even in that despotic government, never could be carried into practice. According to Vattel, in the Treaty made by Francis I., in the Treaty of Madrid, on account of that Treaty encroaching on the fundamentals of their government, it was set aside. How was this done? It was not done by Parliament, for they had none; but the principal people of the kingdom met together at Cogniac and annulled it. I ask again, Mr. Chairman, if the people of this country possess less power than the people of that despotic Government? Or do they possess less power to withstand the usurpations of the Executive, on the subject of Treaties, in their Representatives in Congress, than has ever been maintained in the cramped situation of the people of England by the House of Commons?

Why were these rights ever maintained and so scrupulously attended to by the people of those countries? It was because they considered them as the palladium of their remaining liberty,—they therefore, would not let them go.

Then, with respect to a Republic, the sovereign power is in the people. It therefore follows that whatever can be effected by the people in those countries can be done here—they being the source of power.

Then, with regard to the constitution, it must be construed naturally and liberally in behalf of the people. Not as giving all power that can be given, but as retaining all power and natural right that ought to be retained. It would have been extremely improper to have wantonly discarded natural privilege, or ceded more power than was essential to government; nor was any more intended to be given.

The constitution, upon the face of it, shows that this is the case—limits are prescribed to governmental power. Not so in the countries spoken of, yet the people exercise it. But it is said our constitution has not retained this privilege, and it is the law and the testimony, sacred volume, &c. The sacredness depends upon the attention to the principles that procured its adoption; when that is contravened a violence is made upon the rights of the people. If, by any construction that can be given, these rights can be preserved, it is wise to consider it as the better opinion. But it is said to be impossible that this power has been ceded, subject to no control, to the President and two-thirds of the Senators present; that, whatever may be the practice in other countries, it will not apply to this; that those countries have no constitution, and that we have, and must be governed by it. Unfortunate circumstance! why adopted? Was it wantonly to throw away a privilege and natural right? Certainly not, but the contrary. It was to secure natural right, and to establish a Republican form of Government.

I considered that the Executive had absolute power to make peace; as by the constitution he is declared Commander-in-chief of all the armies, his situation enabled him to be the best judge of the forces and of the force he had to contend with, and as secrecy was necessary to effecting a Treaty of Peace, that power was properly vested in him, guarded by two-thirds of the Senate. But a Treaty of Commerce presupposes an existing peace, and in those Treaties secrecy is not essential; but a competent knowledge of the produce of the respective States in all their remote situations was necessary; which would be best obtained by an association of the three branches of Government.

This is a Treaty of Commerce, and therefore has involved Legislative objects. It consequently requires Legislative sanction; a contrary construction would be a violation of the constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people.

I confess, on viewing the exception and force of the argument, that I had some doubt, that when the government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for.

Mr. Bradbury observed, that the most plausible reason that he had heard in support of the resolution under the consideration of the committee resulted from a principle advanced by a member from Pennsylvania, who spoke upon the subject last week. The principle was this; that where any articles of a Treaty were repugnant to prior existing acts of Congress, those acts must first be repealed by Congress before such Treaty can become the law of the land; and it was said some of the articles of the British Treaty were of this nature. He would not stay to examine the truth of the fact, for admitting it to be true, he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. If their concurrence was necessary to give existence or legality to the Treaty, he saw not why they ought not to be favored with the papers as well as the Senate. But he asserted and would endeavor to prove, that the Treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of Congress is, or can be, necessary to make it so; and, therefore, that House could have no need of the papers, nor any right to call for them on that ground.

That the Treaty had already become the law of the land, and that no Legislative act of Congress was necessary to make it so, he argued wholly from the constitution itself, by which alone the question must at last be determined.

That instrument expressly declares, that all Treaties made under the authority of the United States shall be the supreme law of the land. He laid no stress upon the word supreme, admitting for argument's sake, that the supremacy ascribed to the constitution and laws, and Treaties made under it, meant a supremacy over the constitution and laws of individual States. All he asked to be granted him, and which he thought could not be denied, was that a Treaty made under the authority of the United States was the law of the land. If so, then all that needed to be proved was, that a Treaty made by the President, with the advice and consent of two-thirds of the Senate, was a Treaty made under the authority of the United States. And to prove that, he needed only to mention another clause in the constitution, which expressly declares that the President, with such advice and consent, shall have power to make Treaties.

He nowhere read in the constitution that any act of Congress, in any possible case, was necessary to make a Treaty, so as that without it such Treaty could not be the law of the land. He nowhere read that prior acts of Congress repugnant to a Treaty must first be repealed before a Treaty could be a law.

But, says the gentleman from Pennsylvania, the same Treaty power is given to the King by the Constitution and laws of England, that is given to the President by our constitution, and yet the Parliament have the power there which he contends for in favor of Congress here; that is, they must repeal prior laws repugnant to a new Treaty, before it can be the law of the land; and why is not an act of Congress, it is asked, necessary for the same purpose, in a similar case here? He would answer, because our constitution is different from the British in this respect: it declares that a Treaty made under the authority of the United States, (and he had shown that a Treaty made by the President, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. There was no such declaration in the Constitution and laws of England.

There was no arguing from the power of Parliament to the power of Congress. The Parliament must have controlled this Treaty power of the King, and stripped him of his prerogative, by use and custom. There had been in England a constant struggle between power and privilege; the prerogatives of the King were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, therefore, was gained from the King by the Commons, was considered as so much gained by the people from an adverse power.

If the President were an hereditary monarch, deriving his power from his predecessors by descent, a power originally founded in conquest, Congress would do well to get as much of it out of his hands as they could. It would here be, as it was there, a struggle between prerogative and privilege; it would be the people against the King. But as this was not the case, and as Congress never had in fact assumed and exercised the power of confirming, by an act of theirs, Treaties made by the President, this argument from analogy wholly failed.

Suppose the Parliament of Great Britain should pass a law expressly delegating the Treaty-making power to the King, with the advice and consent of two-thirds of his Privy Council, and should declare in the act, that a Treaty made under such authority should be the supreme law of the land. They claim a right to make such a law, for Judge Blackstone affirms, that the denial of a power in every government, even to alter every part of its constitution, is the height of political absurdity; and in England, he expressly ascribes this power to Parliament.

What would be the effect of such an act of Parliament? Would not a Treaty made under it be clearly the law of England? and would not all acts of Parliament, prior and repugnant to it, be repealed by it? He was clearly of opinion they would; and this clause, he said, was inserted in the American Constitution, probably to guard against that very construction which is now endeavored to be put upon the Treaty power; on purpose to cut off all pretence of a power in Congress to control a Treaty, by refusing to repeal any prior laws that might stand in the way of it.

But, said the same gentleman, shall a British House of Commons have this right of controlling the Treaty-making power, and shall it be denied to the Representatives of a free people? He answered, the President and Senate of the United States were as much the Representatives of a free people as that House was; they were as truly, though not so immediately, chosen by the people as they were. The people distributed their powers as they pleased. The President, said he, represents the people as their Executive agent, and is possessed of all Executive power, and the power of making Treaties. The true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the constitution to another representative authority of the same free people? They certainly ought not. If they should attempt it, it would be opposing one authority of the people to another. It would be dividing a free people against itself. But he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the Treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they could have no need of the papers to assist them in making it a law. It had also been laid by the King before his Parliament, and he supposed the necessary appropriations had been made to carry it into effect. He did not know that any other Parliamentary provision was necessary.

But it may be said, that it is fit and proper that they should call for the papers mentioned in the resolution, even if the Treaty were law, because appropriations by act of Congress would be necessary to carry it into effect, and they ought to have the papers to judge whether it be fit for them to make those appropriations.

He answered, whether that be fit or not, in his opinion, must depend wholly upon the Treaty or law itself, and upon nothing out of it. It was like all other laws requiring appropriations, in making which they must be governed by a sound and legal discretion, and that discretion must be governed by the instrument itself.

Even if a question should arise and be proper for the discussion of that House, on the constitutionality of the Treaty, yet that question must be decided by the Treaty itself, and by nothing else; and there could be no need of any papers for that purpose. If general information were the object, to allay the public sensibility, he should think the better way would be to request the President to publish the papers in all the newspapers throughout the United States. But he believed he must be considered as the best judge in that matter. He would only add, that the correspondence between their Envoy and the British Minister was, in its nature, secret and confidential. It was communicated to the Senate because they were a part of the Treaty-making power, which the House was not; but even to them it was communicated in confidence. A request to the President, said he, to communicate these papers, amounts to a requirement; but there can be no right to require where there is no obligation to obey.

Mr. Page spoke as follows: I confess, sir, that I had wished that this House, instead of asking the President for information respecting the negotiation and ratification of the Treaty, at this late day of its session, had given him, as soon as possible after its meeting, fully their opinions, and that of their constituents, respecting the Treaty itself. But, as time has been afforded for deliberation, and the House has waited most patiently and respectfully till the President could "place the subject before them," according to his promise in his Address to Congress, I think they have shown a spirit of moderation which deserves credit. The friends of the Treaty cannot complain that it has been hastily and rudely attacked, and should not object to the request which is proposed to be made to the President, to furnish a statement of facts which, from what has been said elsewhere, may be supposed sufficient to silence the most clamorous opposers of the Treaty.

I think that the Treaty is constitutional, as far as relates to the powers of the contracting parties to make Treaties; and is constitutional and valid, also, as far as relates to that part of it which gives it the name of a Treaty of Amity, and which might be in a separate and distinct Treaty by itself; for the President, by and with the advice and consent of two-thirds of the Senators present, has an undoubted authority, under the express words in the first article of the constitution, to make Treaties. And I have no doubt that the Treaties which were in the view of the framers of that article, must have been principally Treaties of Peace, of Amity, of Neutrality, or of Alliance. This is the more probable, as the first and principal Treaties in which nations were concerned, were Treaties of Peace, or Treaties to secure the blessings of peace; and it is certain that the Treaty of Peace with Great Britain was the very Treaty which gave rise to the declaration of the constitution, that all Treaties made and to be made by the authority of the United States shall be the supreme law of the land: for the Treaty of Peace with Great Britain was said to be in a state of inexecution on account of an obstruction thrown in the way by the laws of certain States. This article, therefore, was intended to remove all obstacles, which had arisen or might arise from State Legislatures, and might, I will here remark, as easily have been extended to remove all obstructions from the General Legislature by adding to the words "any Constitution or law of the States," these words, "or the Constitution or laws of the United States notwithstanding." The power to make Treaties of Commerce and Navigation, I humbly conceive, could scarcely be within the view and design of the Convention, at least not as a primary object, when they formed the article respecting Treaties; because they knew, that the extent, situation, population, and productions of the United States, were such as would command them a sufficient share of the commerce of the world, without the aid of Commercial Treaties. They knew that almost all Europe stood in need of their productions, and that Great Britain and her islands could scarcely exist without them; they knew more, they knew this, sir, that the almost universal belief of their constituents, that giving a power to Congress to regulate commerce, which would answer every purpose of Commercial Treaties, gave existence to the very powers under which they were acting at the moment they framed that article. This mode of regulating commerce was favored by the opinion of the people, who celebrated the adoption of the constitution with so much exultation and expensive parade in the great commercial cities of the United States. They had no doubt that the new Congress would use the power with which it was invested, so as to oblige Great Britain to open her ports to them in the West Indies, and to put their trade with them upon a more equitable and stable footing. Indeed, sir, the people thought, as associations not to import certain articles from Great Britain, entered into by them when they were poor helpless Colonists, with halters about their necks, repealed the Stamp act, that acts of Congress regulating commerce, so as to retaliate on Great Britain, would at least prevent the enacting of the law by which the British King was authorized to regulate the commerce of the United States with Great Britain and her Islands.

I acknowledge, sir, that whenever a Treaty is to be made, the President and Senate are the proper agents to make it. I think it an excellence in our constitution that the President and Senate, though not allowed to declare war, have authority to put a stop to its horrors. This is a wise provision against the injury which the pride and ambition of the larger States might do to the smaller, by continuing a war. But I cannot conceive that when Congress is authorized to make all laws necessary and proper to carry into effect all the powers granted by the constitution, the Treaty-making power as well as others, and are to provide for the general welfare, which is not confided to the President and Senate, nor can be intrusted to them alone by the people upon any principle which has ever had weight in the formation of a Republican Government,—I cannot conceive, I say, that as this is the case, and the House of Representatives is composed of members proportioned to a certain ratio of the number of persons to be represented, and has the sole right to originate money bills, how it can possibly be supposed that the President and Senate, without their concurrence, can make regulations of commerce, which may be injurious to the general welfare, ruinous to the commerce of certain, and even the largest, States; and by a Treaty, too, which may, moreover, deprive that House, which, by the supposition of those who have defended the Treaty is at least a Committee of Ways and Means, (and, indeed, nothing more,) of the resources of revenue to which, by the constitution, they might have recourse.

But we are told, sir, that the power given to Congress by the constitution to regulate commerce cannot extend to that regulation which depends upon the will of a foreign nation or government, and which can only be regulated by compact, or by the Treaty-making or pactitious powers. Granting that this assertion be true, which, however, may be denied, as the general belief which I have alluded to, and on which the existence of the present Government was founded, seemed to contradict it; for it was almost universally believed that an act of Congress regulating the commerce of the United States with Great Britain, as had been proposed to the former Congress, or Congress under the Confederation, or as proposed to this House on the 3d of January, 1794, and well known by the name of Madison's propositions, or as proposed by Mr. Clark, 7th April, 1794, would have brought about a more advantageous commercial intercourse with Great Britain than any direct negotiation with the British Minister. It was thought highly probable that the Parliament of Great Britain would (if any of these propositions had been adopted by Congress) have refused to have renewed their act, by which the trade with these United States (as if they were more degraded than Colonies) was regulated by the King's Proclamation. I say, granting, however, that assertion to be true, how does it prove, or what other assertion can prove, that Congress has not a right, under the express words of the constitution, which declares that it shall have power to regulate commerce with foreign nations, to be a party to that compact, or to have some share, either previously or subsequently, in the Treaty-making business, when it regulates the commerce of the United States with foreign powers?

I may agree that a Treaty is necessary to establish a commercial intercourse between two nations, to their mutual advantage and satisfaction, but I must affirm, that as that Treaty would be a commercial regulation, and as Congress is expressly empowered by the constitution to regulate commerce, whenever such Treaty shall be made between the United States and any other nation, Congress must either direct that the negotiation be commenced upon conditions approved, or sanction the ratification of such Treaty by some act showing that the regulation of commerce, by the Treaty, was made by the authority of Congress, in conformity to the constitution.

Besides, sir, if the President and Senate can regulate the commerce of the United States with one nation, they can with all nations, and if they can with all, what nation can there be with whom Congress can regulate commerce? This argument, therefore, must fall to the ground. We are told, however, that the Treaty-making power, from its nature, is competent to all the objects at least of the Treaty under consideration, and is not to be controlled or checked by this House. Let me examine this assertion. If this be true, sir, we find that although the British King, from whose tyranny we revolted, cannot force upon his subjects, against the will of their Representatives, a Treaty, which it is acknowledged, too, he has a right to make, the President of the United States can, by his Proclamation, force upon the people who are his constituents a Treaty which their direct Representatives wish to suspend, alter, or annul. Can this possibly be a true construction of the Treaty-making power? Surely it cannot. If it be true, then, can the President repeal, as he has by the Treaty, the laws of Congress, although by the constitution he cannot negative them? He can oblige Congress to levy taxes; can withdraw impost and tonnage from their reach; prohibit the exportation of sundry articles, the produce of the United States, although the constitution forbids, the Senate and Representatives concurring, to lay the smallest duty on the exportation of any article; he can create offices and annex salaries thereto; destroy the rights of this House; provoke war; in short, he can do any thing; but this we are sworn to deny. The absurdity of that construction, then, must be evident, and the recollection of our oaths to support the constitution, of which we have been reminded, must force us to revolt at the thoughts of adopting such a monstrous construction of the constitution. We are reminded also of the President's Proclamation. I will attend to it. I look upon it as a proper notification of the ratification of the Treaty of Amity with Great Britain, but it can have no effect on the Treaty of Commerce and Navigation, till sanctioned by the votes of Congress. The evacuation of the posts on our frontiers held by the British, if intended in consequence of the Treaty of Amity, ought to take place, or if in conformity to the Treaty of Peace; but, if intended as a compliance with conditions annexed to the Treaty of Commerce and Navigation, good faith requires that they ought not to be evacuated until the final adjustment of the differences which may arise in the course of the discussion of the merits of that Treaty, and this with me is one reason why I wish for information from the President respecting the Treaty. I confess too, sir, that I wish for a full and free conference with the Senate on the important subject of the Treaty.

Mr. Bourne said he would have given a silent vote on this question, had it not have been for some strange doctrines which had been asserted, for he did not consider the question in itself as necessarily involving any constitutional question. The doctrine, that the formal assent of the House of Representatives was essential to the legal existence of a Treaty, struck him as a perfect novelty. That the President and Senate had power under the constitution to make Treaties, and that these Treaties were the laws of the land, he had never heard denied until this debate. It was true he had heard it said, that the House might control the President and Senate in the exercise of this power, by refusing to carry Treaties into effect by withholding appropriations of money; but he did not expect to hear the assertion, that the ratification of the House was necessary to a Treaty, before it became the law of the land.

As a Representative of a small State, he felt himself much interested in opposing the doctrine contended for. Under the former Confederation Rhode Island had an equal vote with any State in the making of Treaties. This right was thought to have been fully preserved under the present constitution. But, if the sentiments he was combating prevailed, the small States would be deprived of one of their most essential rights; for the power of making Treaties, as one of the principal rights of sovereignty, was vested in all the States separately when they became independent, was afterwards, and in the old Confederation, vested in Congress, each State having an equal vote. It was now, in his opinion, exclusively vested in the President and Senate, in which body the great and small States had the same equality of suffrage. The opinion which he advanced was not merely the opinion of Rhode Island when the constitution was adopted. A gentleman from Massachusetts had already shown from the debates of the Virginia Convention, that that Assembly entertained the same opinion. He was sure the opinion prevailed in the Convention of Massachusetts—he had attended their debates when this part of the constitution was the subject of discussion. Objections were raised against it, from the indefiniteness of the power vested in the President and Senate of making Treaties. No one suggested that the House of Representatives had any control over, much less a participation in this power. It was urged, from the nature of the power, that it ought to be placed where it was—in the President and Senate. The Senate represented the sovereignty of the States; besides, from their small numbers, they were better adapted to the exercise of this power in respect to secrecy and despatch, necessary in negotiations. Objections were raised on the ground of the possible abuses to which the power of making Treaties, unlimited and undefined as it was, might be carried. No one said the President and Senate did not possess the power, nor was it pretended that Congress had any power to control it.

He then called the attention of the committee to the debates of the Convention of North Carolina. He had been a little surprised to hear a member from that State yesterday say he was a member of the Convention, and that it was understood that Congress could control the President and Senate in making Treaties, so far as respected commerce; the power of legislating on commercial regulations being given to Congress. What created his surprise was, that he had read the debates of the first Convention, and found no such sentiment. The gentleman had explained himself by saying, there was a second Convention called in that State, of which he was a member, and there the doctrine alluded to had been advanced. The debates of this Convention Mr. B. had not seen.

Mr. Brent said he should not in the present debate touch on the merits of the Treaty, which he conceived foreign to this question. On a motion to ask for papers with respect to the Treaty, he did not conceive with what propriety the fitness of the instrument could be brought into view.

The turn which the debate had taken had given rise, he said, to an important constitutional question; he did not believe its decision of consequence to the decision on the present motion; but as the debate had taken that turn, he should pursue the same road in answer to the arguments of gentlemen. He laid this down as a sound inference from the provisions of the constitution on the subject of the Treaty power: that the President and Senate possess the right of forming Treaties, and of carrying on the necessary negotiations with foreign countries; but when these contain stipulations bearing a relation to the specific power vested in the Legislature, the House had a right to take cognizance of it, and such a Treaty could not become the supreme law of the land until sanctioned by the Legislature. To show the justness of this position, he should examine this subject, he said, in a threefold light. He should examine it by a recurrence to the words of the constitution; then to the opinions which prevailed as to its meaning at the time it was framed and adopted; and, lastly, he should examine what construction was best calculated to preserve the liberties of this country.

The constitution contains two clauses in reference to the Treaty-making power. The first declares that the President, with two-thirds of the Senate, shall have power to make Treaties. He proceeded to inquire whether this clause gives them the right to make Treaties the supreme law of the land? To determine this it was necessary to examine the import of the word in those countries where the Treaty power had been frequently exercised, and to consult the opinions of the best civilians. The general power of making Treaties is under the control of the constitution. In despotic countries, where all power, Legislative, judicial, and Executive, is in the hands of one person, there the Treaty-making power is without control, and a Treaty as soon as made becomes, ipso facto, the supreme law of the land; but in all limited governments, the Treaty power is subject to the limitations in the constitution. The practice of this principle may be found even in the British Government. There, though the King originates Treaties, as the President and Senate do here, they do not become the supreme law of the land, respecting Legislative subjects, until the co-operation of Parliament is obtained. Thus the power of making Treaties does not imply the power of making those Treaties in all cases the supreme law of the land. If the Executive make a Treaty involving none but Executive powers strictly, then it becomes immediately the supreme law; but if they contain provisions, which involve the Legislative authority, the Executive can make them but conditionally, and they do not become supreme until the Legislature choose to make them so. The British Government furnishes an example where this doctrine has been practised, and it is by a reference to the practice of despotic Governments, that the mistaken idea is taken up that all Treaties, as soon as made, become the supreme law of the land. The clause in our constitution, he concluded, does not give authority to the President and Senate to make a supreme law of the land.

When this clause of the constitution is compared with the other parts of it, it will be found, he said, that the above interpretation is just; for the Treaty-making power is delegated as a general power, while to Congress specific powers are granted. The rational and admitted rule of construction in these cases is, that specific power restrains general powers; and here, then, the general Treaty power must be restrained by the specific powers of Congress. He admitted that the Executive had full power, under the general authority vested in them by the constitution, to originate Treaties and to carry on negotiations with foreign powers; but that if the provisions of a Treaty so negotiated clashed with specific powers granted, the authority exercising those specific powers must give it their sanction before it becomes the supreme law of the land.

He next turned to the second clause of the constitution respecting Treaties, which had been noticed in the debate. It says, that the constitution, laws, and Treaties, shall be the supreme law of the land; and gentlemen contend, he remarked, that though the first clause does not make the Treaties entered into by the Executive the supreme law of the land, yet that this does; but its obvious and only meaning, when the whole of it is taken into view, is, that the Constitution, laws, and Treaties of the United States, are only meant to be declared supreme to constitutions and laws of the individual States. It is admitted, as a sound rule of construction, that to discover the true meaning of any instrument, it is fair to have recourse to the existing circumstances that produced it. When the constitution was formed, it was under a strong impression of the inconveniences experienced under the Confederation, when great obstruction was thrown in the way of the Treaty power, by the States refusing to carry into execution those agreed to by the constitutional authority. This was the evil the framers of the constitution had in view when they inserted this clause, and it has no relation to the powers of the General Government, which stand precisely in the same situation with or without it. It does not declare that Treaties shall abrogate laws, but that the States shall not have it in their power to throw impediments in the way of their execution. The words of the constitution cannot be understood otherwise than that the constitution, laws, and Treaties, shall exist together; it does not say that a Treaty shall repeal a law, or a law repeal a treaty. Then the constitution certainly contemplated that they never should be in opposition, for contradictory and opposing laws cannot exist at the same time; if they exist at the same time, they cannot be in opposition to each other. If it can be supposed that the President and Senate can make a Treaty in opposition to a law of the Legislature, and yet both the Treaty and the law be at the same time the supreme law of the land, an absurdity is supposed. But if it be admitted that the House shall have a participation in the business of Treaties, in cases which involve the Legislative authority, then the words of the constitution become intelligible, and both Treaties and laws may be at the same time the supreme law of the land.

Gentlemen say, that Treaties, ipso facto, repeal anterior laws clashing with their provisions: they say, that the constitution, laws, and Treaties, stand upon the same footing in the constitution, being all declared the supreme law of the land. If Treaties can repeal laws, then laws can repeal the constitution, for the second (laws) are to the first (constitution) what the third (Treaties) are to the second (laws); then, also, by parity of reasoning, Treaties may repeal the constitution. If all stand on the same footing, and the precedence is according to the point of time, the last always prevailing, then Treaties may change the fundamental principles of our Government; then the President and Senate, by entering into stipulations with a foreign government, may give us a monarchy, may convert our President into a king, and our Senate into a nobility; for, say the gentlemen, Treaties are the law of the land as well as the constitution, and a subsequent law repeals those which are anterior. But these positions are false in all their parts; a law or a Treaty cannot repeal the constitution, nor can a Treaty repeal a law. If the manner in which the three words are placed in the constitution is to have any force, it would not favor the construction of the gentlemen; they contend for the supremacy of Treaties, whereas Treaties are last named, and the true construction from this source would be the reverse, when there was clashing. He next adverted to the lengths to which the mode of interpretation contended for by the gentlemen would carry them. It was never intended, he asserted, by the people, when they instituted this Government, that the Treaty power should possess this omnipotence. It was never intended that the President and Senate should have it in their power to effect a radical change in our Government, and stipulate with a foreign nation for a guarantee of the change. Laws contrary to the constitution are nugatory, and Treaties contrary to existing laws, the same; because, when in that stage, they are not concluded under the authority of the United States, but are only so (and then there is no longer any clashing) when once they have received the sanction of the Legislature. From the above, he concluded that the President and Senate originate Treaties, and that the Legislature to a certain extent should exercise a check upon this power. And upon these principles the British Treaty is not the supreme law of the land until a decision on it was had in the Legislature.

Mr. Findlay.—It seems to be agreed by both parties that the express words of the constitution will not support either position without a liberty of construction. The difference of opinion is now confined to what construction is most agreeable to the general principles of the constitution.

That the construction which gives the fullest scope to all the powers vested in the different departments of the Government, and which, by combining their operation, is the best calculated for the preservation of the Government itself, offers fairest to be the true one, cannot reasonably be doubted.

The Legislative powers, to regulate commerce with foreign nations, to levy taxes, appropriate money, &c., are specifically vested in Congress, and as deposited in the Legislature, are secured by numerous negative checks, declaring what things Congress shall not do, and guards regulating the manner in which it shall exercise its powers on the proper subjects.

The Treaty-making power is not vested in Congress; the negotiating part of making Treaties is partly of an Executive nature, and can be most conveniently exercised by that department, and is, therefore, vested in the President and Senate. The President shall have the power to make Treaties, two-thirds of the Senate agreeing therewith.

Even the power of negotiating, which includes the timing of Treaties, the appointment of Envoys, and instructing them, and approving of Treaties, so far as to present them for ratification, are powers of great importance, and may put the Government in such circumstances as to render it expedient to ratify a Treaty, which, if it had not been agreed to by the negotiating agents, it would have rejected—are powers of great importance of themselves; but it is acknowledged that more than this is vested by the constitution in the Treaty-making powers.

The power of making treaties is admitted to be so extensive as to embrace all subjects arising under the law of nations, for securing amity and friendship betwixt nations, and for the mutual protection of the citizens in their correspondence with each other. Authority for this purpose is not vested in Congress among the enumerated powers, but expressly given to the President and Senate; therefore, Treaties to this extent, ratified under their authority, are the laws of the land, according to the constitution.

The powers specifically vested in Congress are so explicitly checked and guarded as to form an unequivocal limitation to the Treaty-making power, when it extends to powers specifically vested in the Legislature, consisting of the Senate and House of Representatives, with the approbation of the President.

The Legislature cannot transfer its essential powers, nor evade them; the exercise of its privileges it may dispense with, but if it may dispense with or transfer any one Legislative power, it may, on the same principle, dispense with or transfer every power with which it is vested, and for the exercise of which the Legislature only are responsible.

The Executive cannot assume or exercise any power expressly vested in the Legislature. If the Executive may, by an extension of the Treaty-making power, regulate commerce, make laws to raise and appropriate money, &c., or, which is the same thing, command laws to be made for carrying Treaties, which interfere with the Legislative powers, into effect; or if, as is contended, the Legislature has no moral power of discretion, no power to refuse to make laws to carry Treaties into effect, or even to form an opinion on the goodness or badness of Treaties, when they relate to powers explicitly intrusted to its deliberation: on the same principle all Legislative discretion may be exercised by the Treaty-making power without regard to the constitutional guards provided to prevent the abuses of those powers. For there is no Legislative power vested in Congress but what may be either directly or indirectly exercised by the Treaty-making power.

If the Treaty-making power is admitted to the extent pleaded for, and the specific powers vested in Congress are admitted in the extent in which they are unequivocally expressed, we are reduced to a dilemma, and the constitution is necessarily admitted to have instituted two interfering Legislative authorities, acting in direct competition with each other on the same subjects, and both making supreme laws of the land; which though they may be nominally distinct, have the same effect on the citizens, with this difference only, that we may be relieved from the oppression of laws by a repeal of them, but cannot be relieved from the hardships resulting from a Treaty, without the consent of another nation.

In advocating the resolution before the committee, we admit a reasonable latitude to both the Legislative and Treaty-making powers. Where the Treaty-making power extends itself to express Legislative objects, and where Legislative aid is absolutely necessary to carry the Treaty into effect, we contend that the Legislature in making such laws, exercise that moral power that is necessary for legislating in all other cases, and are not reduced to the situation of an executive officer, or mere treasurers of the United States. In this case, we say, that the powers are not intended to make war with each other; that the departments ought to concur in the exercise of them. This method preserves the exercise of both powers in their proper places; the other destroys the Legislative authority which is, by the constitution, the most explicitly vested, and precisely guarded.

Mr. Smith, of New Hampshire, said, he had not intended to have delivered his sentiments on the question before the committee, but as he did not fully agree in opinion with any gentleman who had spoken, it became necessary for him to express the grounds of his opinion. This he would do as briefly as possible.

As this question involved the constitutional powers of the House, he viewed it as important; it was a delicate question. We were called upon to decide as to our own powers. For these reasons he thought that the discussion should be conducted with moderation, coolness, and candor; that such a temper was most favorable to truth. However gentlemen might differ, he observed, on other subjects, in this we are all agreed, that, in forming our judgments on all such questions, the constitution must be our sole guide. It was this instrument, he said, which defines the powers given to the General Government, and which distributes these powers among the several departments. If the constitution had not assigned to each its peculiar portion of power, these departments, like the original elements, would be engaged in a perpetual war for power. All would be confusion, disorder, and anarchy. He proposed, in the first place, to give what he conceived to be the true exposition of the constitution, on the subject of Treaties in general. He should then, he said, state as correctly as possible the exposition or construction of the constitution contended for by the gentleman opposed to him. He lamented that he could not do this with greater accuracy. The gentlemen had not agreed among themselves. He could only state what seemed to be the general current of opinion. The construction which he advocated was, that, by the Constitution of the United States, the power of making Treaties is exclusively vested in the President and two-thirds of the Senate. That this power extends to all kinds of Treaties—of Peace, of Alliance, of Amity, of Commerce and Navigation, and embraces all those subjects, and comprehends all those objects, which can with propriety be the subject of convention or compact between nations; that is, every thing in which they have a mutual or common interest. That a compact so made which does not change the constitution, and which does not palpably and manifestly betray or sacrifice the private interests of the State, (which is invalid on natural principles,) is binding on the nation without any sanction on the part of the House of Representatives. That such a Treaty is by the constitution paramount to the constitution and laws of the several States; that the Judges in the several States are bound to obey it. That it is by the reason and nature of the thing paramount to a law of the United States, and abrogates and annuls all pre-existing laws contrary to it, and, as long as it remains in force, limits and restricts the power of the Legislature of the United States to pass any laws in contravention of it. That, when such a Treaty requires money to be provided, or rather Legislative acts to be performed, it is the duty of the Legislature to provide and appropriate the money in the same manner as it is their duty to provide and appropriate money for the payment of our debts. That the nation must judge whether it be constitutionally formed or not; whether the stipulations contained in it be such as in good faith they are bound to execute, and whether any circumstances have happened which would justify a non-observance of it. That on these subjects they must exercise a sound discretion. That neither the nation, nor any departments of the Government, are at liberty to reject a Treaty merely because it is a hard bargain.

The doctrine on the other side is—

That the power to make Treaties is limited to such objects as are not comprehended and included in the specified powers given to Congress by the constitution; or, that a Treaty which comprehends or embraces any such object is not valid; that is, not the supreme law of the land, until the House of Representatives have added their sanction to it; or, if this be not admitted, that the House of Representatives, by the theory of our constitution, have check on the Treaty-making power, in providing and appropriating money necessary to carry a Treaty into effect; which power, it is admitted on all hands, they possess; and thus in this way control the doings of the President and Senate, and can reject a Treaty, or at least certain parts of it. That they can and ought to do this if they believe the Treaty to be a bad one, though not injurious in an extreme, such as manifestly betraying or sacrificing the private interest of the State, (which by the Law of Nations nullifies such a compact,) and which on all hands would readily be admitted as a sufficient cause for refusing to carry it into execution.

Mr. William Lyman began with remarking, that the gentlemen opposed to the resolution had at first contended, that the House had not a constitutional right to require papers of the Executive, relative to any subject whatever; and that if a requisition was made, it would be discretionary with the Executive, whether it should be complied with or not.

To this he replied, that the House possessed the power of impeachment solely, and that this authority certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect. But not to rely solely on this, he recollected one case, he said, perfectly in point, which was in the correspondence of the former Secretary of State (Mr. Jefferson) with the British Minister, communicated to the House. From dates and references, there appeared in that correspondence a chasm. The House, therefore, passed a resolution requesting the Executive to lay before them what had been omitted; and further, the resolution in that case was offered by the gentleman from South Carolina, (Mr. Smith,) who was now so vehemently opposed to the present. The right of calling for papers was sanctioned, he said, by the uniform and undeniable practice of the House ever since the organization of the Government; they had called for papers and information whenever it was judged expedient; and he asserted, that the House had the fullest right to the possession of any papers in the Executive department; they were constituted the especial guardians of the people for that purpose; and he would undertake to say, that this was the first time it had ever been controverted.

In order to ascertain the powers of the House, he would advert to the constitution. In the first article and first section, it was declared, "that all Legislative powers therein granted, were vested in a Congress, to consist of a Senate and House of Representatives;" and in the eighth section of the same article, the powers granted were defined and specified, such as to lay and collect taxes, borrow money, regulate commerce, and to exercise other important powers enumerated in the several clauses of that important section. He said it was unnecessary to read them, as they had been so frequently referred to in the course of the debate; but he would request gentlemen to pause and reflect whether it could be supposed that this section was not to be efficacious and operative; was it possibly conceivable that a section so definite and so important had been introduced in the constitution merely for the purpose of being nullified and rendered nugatory by a subsequent article or section? The very supposition, he said, appeared to him the height of absurdity, and an affront to common sense; and yet this would be the case, if the doctrines advanced were true, viz: that Treaties, when made and ratified by the President and Senate, were supreme law, and that they controlled and repealed all laws that stood in their way. Congress could neither regulate commerce, borrow money, prescribe rules of naturalization, nor legislate on any other subject, because the President and Senate, by Treaty, would abrogate them all. It was in vain to consult the House of Representatives in the formation of laws, if they thus were liable to be annulled at the pleasure of the President and Senate. The present question, he said, was not, whether the House should make Treaties, but whether the President and Senate should make laws; all the power contended for on the part of the House was the power of self-preservation; it was a repelling power, a power to prevent the President and Senate, under the color of making Treaties, from making all the laws. A gentleman from Connecticut (Mr. Griswold) had said, that the Legislative power occupied all ground, and was vested in Congress; and that the Treaty-making power occupied all ground, and was vested in the President and Senate; and that although Congress, who were the agents for the people, should make laws, yet, that the President and Senate, who were also their agents, might, by Treaty, repeal them. This, Mr. L. said, contradicted a sound axiom, and one he had never before heard controverted, viz: that it required the same power to repeal as to make a law. Such incongruities as the gentleman had advanced, Mr. L. said, could never be reduced to practice; two persons could not be possessed fully and completely of the same thing and at the same time. The gentleman could never reconcile his positions, the one would certainly defeat the other; upon his construction, the Treaty-making power must absorb the Legislative power, or the Legislative power would absorb the Treaty-making power.

It appeared, therefore, to him, that constitutions, laws, and all writings, ought to receive such interpretation and construction as to render them consistent with themselves; and that it was highly presumptive a construction was erroneous when it produced an absurd conclusion. If the several parts of the constitution were compared and critically examined, the determination must be, that, although the President and Senate could make Treaties, yet it could not be intended, those Treaties that entrenched on the specific Legislative powers of Congress, unless with their concurrence and consent; otherwise, it followed, that, although the three branches were consulted in the enacting laws, two might repeal them. But it had been asserted that this power, insisted upon on the part of the House, was a novel doctrine, introduced merely upon the spur of the present occasion; notwithstanding which, it had been proved by several gentlemen who had spoken upon the question, that this interpretation was given to the constitution in most of the State Conventions at the time of its adoption; that the same interpretation had also been given, at that time, by the writers both for and against its adoption. It had appeared, from the extracts of publications at that period, that whatever might have been the diversity of opinion in other respects relative to the constitution, that, in this construction, at least, both its friends and opposers perfectly agreed. This principle, then, being thus settled and understood, it remained only to show that it had been invariably admitted and recognized from the first organization of the Government until this time. The first Treaty that had been made under this constitution, he said, was that with the Creek Indians, in the year 1789; previously to the making of which, the President communicated the subject to Congress; an extract from which communication he would read, viz: "If it should be the judgment of Congress, that it would be most expedient to terminate all differences in the Southern district, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest," &c. Here, Mr. L. said, he wished it might be particularly noticed, that this subject was expressly referred to the judgment of Congress to determine on its expediency or inexpediency, and for what purpose, he would ask, was it referred? If the Senate and President possessed the full power of making Treaties, there could be no occasion for consulting the House of Representatives; and yet, in this case, the first that presented itself, it had been conceived necessary. In consequence of this communication, Congress had judged it expedient to hold the Treaty; and on the 20th of August, the same year, enacted a law in which the sum of twenty thousand dollars was appropriated for that purpose; and, in conformity thereto, the President appointed Commissioners and gave them instructions, which instructions had been also communicated to Congress, from which he would also read one paragraph; it was as follows: "You will observe that the whole sum that can be constitutionally expended for the proposed Treaty shall not exceed twenty thousand dollars." On this, he said, any commentary was unnecessary, as the principle that the Legislative power operated to restrain the power of making Treaties, was so fully and explicitly recognized and admitted by the President himself. By pushing inquiry further, it would be found that, in January, 1790, in consequence of communications from the Executive which were referred to a select committee, and a report made thereon, the House came to the following resolution, to wit: "That provision ought to be made by law for holding a Treaty with the Wabash, Miami, and other Indian tribes north-west of the river Ohio." In March following, a law was made, the title of which was "An act entitled an act providing for holding a Treaty to establish peace with certain Indian tribes."

In March, 1791, the sum of twenty thousand dollars was appropriated for obtaining a recognition of the Treaty with the Emperor of Morocco. In March, 1793, one hundred thousand dollars were appropriated to defray the expense of a Treaty with the Indian tribes north-west of the river Ohio.

Thus it was apparent that laws had always been deemed necessary to provide for holding Treaties and for defraying the expenses thereof.[71]

March 17.—In Committee of the Whole, on Mr. Livingston's resolution.

Mr. Reed said, he saw no necessity for the papers referred to in the resolution. If the constitutionality of the Treaty should be questioned, or the propriety of making appropriations, these questions, he conceived, must be determined by comparing the Treaty with the constitution, and by attending to those stipulations contained in the Treaty itself.

It was not his intention to have troubled the committee by speaking on this occasion; but perceiving that some gentlemen, in the course of the debate, had gone further into the opposite extremes than he was prepared at present to follow them, he felt as if he ought to express his own sentiments with regard to the constitutional rights of that House relative to the Treaty in question. The Treaty was undoubtedly negotiated, ratified, and promulgated by constitutional authority. The President, with the advice and consent of two-thirds of the Senate, was, in his opinion, unquestionably that authority which the United States had authorized to make Treaties. But still it seemed taken for granted that some agency of that House, in its Legislative capacity, would be needed in order to carry the aforesaid Treaty into effect. A question, therefore, arose, viz: Was that House, in all such cases, bound and obliged to put so implicit and absolute a confidence in the Executive or in Treaties as would render it entirely unnecessary to have any opinion of their own about them, or the probable consequences of their operation? For his part, if he had never seen the Treaty in contemplation, and were perfectly ignorant of its contents, or, if he fully believed, as a citizen, that it was unconstitutional, or calculated to ruin, or very materially injure the country, he should not think himself justifiable in voting to appropriate money for the purpose of carrying it into effect. It had been conceded by gentlemen that if a Treaty were evidently unconstitutional, it would not be wrong to withhold appropriations; and he conceived that a Treaty might possibly be so injurious in its effects as to justify such a measure. Supposing such a possible event should ever actually happen, did not the right of refusing to legislate in support of the said Treaty involve the right of previously examining all Treaties which need the aid of the Legislature, and of judging for themselves whether it would be proper or improper to make laws for the purpose of carrying them into effect?

In making Treaties the Executive would use his own discretion, keeping within the limits prescribed for him by the constitution. In making laws the Legislature must use their own discretion, always keeping within those limits and bounds which the constitution had fixed for them. He said, the discretionary right here contended for was not the right of doing wrong; it was not the right of violating the constitution; it was not the right of supporting a Treaty which ought to be defeated, nor of defeating a Treaty which ought to be supported; but, simply the right of judging for themselves, whether they ought, by their own act and deed, in the character of Legislators, to appropriate by law such sums of money as would be needed in order to support an existing Treaty, all things and circumstances relating thereto being suitably examined and properly considered. Perhaps it would be objected, that the constitution nowhere expressly gave the Legislators that right. He answered, the right was not precluded, but implied, and, in some respects, evidently one of the original and essential rights of man; a law of nature, prior and superior to all other laws; a law never to be transgressed in any station whatsoever. Individuals, in many cases at least, had a right to exercise their own discretion with respect to the propriety of submitting to a civil law or of risking the penalty, the consequence of disobedience; and, as a branch of the Legislature, he believed they had a right to deliberate and consult, among other things, the expediency and duty of making or of refusing to make appropriations, even in the case of a Treaty. It appeared to him that, in legislating, the Legislature should have this right of judging for themselves with respect to the propriety of making or refusing to make any law whatsoever. In most cases their duty would perhaps appear plain and obvious, particularly in the case of appropriating money where a law or Treaty actually existed. However, the obligation did not arise wholly from the circumstance of an existing law, but partly from the nature, reasonableness, and tendency of the thing itself.

A Treaty negotiated by constitutional authority was, he contended, a solemn compact between two nations. It was an important consideration; but he thought they might, with propriety, attend to other considerations, for and against it, especially when their own aid was required, in order to carry it fully into effect. This he conceived was the right of the House, and no encroachment upon the prerogative of the other branches. An appropriation was a specific sum, appropriated by a particular law to a particular purpose.

The right of appropriating the public money was not a natural right, but a right derived from the constitution; and the Legislature were to exercise that right according to the honest dictates of their own best discretion; excepting those instances in which they were expressly restricted by the constitution itself, as in the cases of compensation for the services of the President of the United States, and for the services of the Judges. Congress might deliberate and act discretionally in stating at first their salaries.

Mr. Tracy said, he felt a diffidence in giving his sentiments in that House, which was much increased when he considered the ability with which the question had already been discussed, and the length of time it had consumed; but the magnitude of the question would justify him, in his own opinion, for asking of the committee to indulge him with a small portion of their time and attention.

This was the first time, since the adoption of the present Government, that a discussion of the important constitutional question of the extent of the Treaty-making power could have taken place, as it respected a foreign nation; and, of course, would probably form a precedent for all future inquiries of a similar nature.

The constitutional rights of the House of Representatives to interfere with Treaties, might properly be considered in two points of view:

1. Had they a right to assist in the formation of Treaties in such a manner as that a Treaty would be incomplete without their sanction officially given? And,

2. Had they a right to refuse appropriations of moneys, (if necessary to carry into effect some provisions in a Treaty,) and in that way defeat its operation?

He acknowledged, if the first position could be supported, the right to call for the papers would be conclusive; but, he contended, they could not be wanted on the latter ground.

If the constitution was examined, it would be found the Treaty-making power was given to the President; and no interference, or right given to any other men or body of men but to two-thirds of the Senate, and that by way of consent or advice. Could it be pretended there was a shadow of authority given to the House of Representatives?

In the constitution it is said, "all Legislative powers herein granted shall be vested in a Congress," &c. Would it be pretended, had the constitution gone no further, that the then thirteen independent sovereign States, by that part of it, had parted with the Treaty-making power? No! they reserved a great share of Legislative power to themselves, and delegated it to Congress only in certain cases, best calculated, in their opinions, to advance their own happiness; and unquestionably reserved every right, power, and sovereignty, which they did not expressly give away by the constitution itself. The powers of legislation are the powers of making statutes in all cases respecting men and things within the jurisdiction of the Legislature; but it could by no means in its nature comprehend the Treaty-making power, which is the power of contracting or making bargains in the name of a nation, as a moral person, with another nation or moral person, for their mutual benefit, and to be binding and operative on them, as parties to the contract or bargain. And although this had binding force on the nation, when once formed and completed, yet it was not a Legislative act. But the constitution went further: it had actually designated the President, with the advice of the Senate, to be a Plenipotentiary for the formation of Treaties. Vattel, page 179, speaking of the various customs of nations, in the deposit of this power, says:

"All conductors of States (meaning the Executives) have not the powers, of themselves, of making public Treaties: some are obliged to take the advice of a Senate, or of the Representatives of a nation. In the fundamental laws of each State we must see what is the power of contracting, with validity, in the name of a State."

He supposed, by "fundamental laws," Vattel must mean the constitution of a State; if so, it will not follow that the supreme Legislative or Executive power of a State, as such, have necessarily the power of making Treaties; it might be, and in most countries was, an object of precise delegation, and probably always, or certainly more commonly, given to the Executive. This constitution had precisely given it to the Executive, subjoining the advice and consent of the Senate; and in this particular, and in no other, had the individual sovereignties delegated all their power without limitation. It was necessary and proper this power should be lodged somewhere, and equally necessary it should be entire and unlimited, to meet every exigency that the welfare of the nation might require. It had been said, that general expressions of power would be limited by specific: this was a general truth, but he denied the application which had been attempted. It was said, the Treaty-making power is a general power; the Congress has a specific power to regulate commerce, &c. Of course, the specific power to regulate commerce will check the operation of a Treaty of a commercial nature. He said this part of the subject had been so ably and conclusively managed by a gentleman from New Hampshire, yesterday, (Mr. Smith,) that he would not exhaust the patience of the committee by going over the same ground. He would however observe, that by the common rule of construction, all the powers given to the President which could, and in their nature would, check or operate on legislation, must be considered as a specific portion of power carved out of the general power given in the former part of the instrument. The general powers of legislation first given to Congress, and in the next place specific powers given to the President, could not fail to lead the mind directly to such a construction. "All Legislative powers, &c., are vested in a Congress," but the President has a qualified and specific check. Power to regulate commerce with foreign nations is vested in Congress, yet the specific power of contracting, bargaining, or making a Treaty, is, so far forth as it may touch Legislative points, a specific check upon it. Yet he acknowledged this was not his chief reliance. The nature of the case was such, that whatever internal regulations, or those relating to external and foreign commercial subjects, which may have become objects of Legislative attention, oppose or come in competition with a contract or bargain about the same things, must give way. It does not exclude legislation from the object of foreign commerce, but establishes certain points within which it shall operate, and which it cannot violate. The thirteen sovereignties possessing all the power, gave to Congress a certain portion of Legislative authority; but they certainly could give to the Executive, or any other body, the power to make Treaties. This he contended they had done, by the words of the constitution, in an unlimited manner.

It had been said, that the constitution was similar to that of Great Britain in the part respecting Treaties. This, he contended, was an incorrect statement: in his opinion they were very different. The constitution of Great Britain was formed almost entirely of usages. It had been, for a great length of time, the usage for the King to lay before Parliament, for their approbation, Treaties—especially those of a commercial nature. If this was a usage, all that could be said of it was, that it was a part of their constitution. He supposed this right had been given by the Crown, at some time, to obtain a grant of money; but he could not recollect that the Parliament, with all their pretensions to a right of rejecting Treaties, had ever exercised it. They generally made a pretext of dislike to a Treaty to change the Administration. This had been often done; it was on the Treaty of Peace of 1783. The Treaty of Utrecht, which was concluded in 1713, had been cited as an instance of rejection by the British Parliament. It was a fact, in that instance, that nothing was rejected but a conditional Treaty. In forming the Treaty, there were many distinct parts: one part of it was a Commercial Treaty between England and France, separately signed and conditional—that is, "within the space of two months after a law shall pass in Great Britain, whereby it shall be sufficiently provided, &c., the general tariff made in France, &c., shall take place there again, &c." The law did not pass in Great Britain, and of course the Commercial Treaty failed. Mr. T. said he had searched all the Treaties made by Great Britain since the Treaty of Munster, which, if his memory was accurate, was concluded in 1648, and could not find an instance of the Parliament's refusing their assent to a Treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their Government. It had been said, Blackstone in his Commentaries had defined the powers of the King of Great Britain to be unlimited in the making of Treaties. He observed, that, let Blackstone or any other Crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to Parliament the consideration of Treaties, and that usage was a part of their constitution; and he rejoiced, that in that particular the constitution of his country was different. Gentlemen had said, Shall this House not have as much power respecting Treaties as the House of Commons in Great Britain? This question was both improper in itself, and calculated to mislead. Were we in convention, and forming a constitution, it might have weight; but in a cool discussion of a constitution already formed and adopted, and the question is, What powers are given? it could not be proper. And it ought to be remembered that Parliament, and not the Commons alone, had this right in Great Britain. In defining the relative powers given by the Constitution, there was danger of the popular branch making encroachments on the other branches, under pretence of favoring the liberties of the people. This pretence, however grateful it might sound in debate, he thought was but a pretence. It was the duty of the House to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. He said, he considered the responsibility which was so very necessary on those in the exercise of the Treaty-making power could not exist if it was extended to the House of Representatives.

He acknowledged if a Treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a Treaty was so terrible in itself, and manifested consequences ruinous to the nation, no argument could be drawn from such a statement to establish general rules. The moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may, but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? But could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? He thought not. He supposed the first extensive and unlimited right of interfering in the making of a Commercial Treaty could alone justify the call, and he believed that ground must be given up. He said his colleagues (Messrs. Smith and Griswold) had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this House had no will of their own, but must in all cases implicitly obey the President and Senate. The construction he had given to the constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the House was guided in the investigation by the purest motives.

Mr. S. Smith said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. He would not pursue the sophistry of the gentleman last up (Mr. Tracy) through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that Treaties were the supreme law—a doctrine that was admitted by all, that is, when under the authority of the United States.

He said the resolution requested certain papers to be laid before the House. What had been the custom of the House heretofore? Invariably to ask for all and every paper that might lead to information. He well recollected that, in 1793, a great ferment had arisen in the public mind in consequence of the Proclamation of Neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of Congress a great number of useful papers relative to our situation with respect to foreign nations were submitted, some of them of a most confidential nature, relating to Treaties then depending, particularly that with Spain. The President was not afraid to place his confidence in that House, and he was right; the public mind was restored to quiet, and the people of Kentucky (then restless) were satisfied that the Executive were doing every thing in their power to obtain the free navigation of the Mississippi. The President went further; he sent a special agent to Kentucky to communicate to that Government the line of conduct then pursuing for their welfare. Had the public mind been less disturbed on the late Treaty than in 1793? He thought not; and that every paper which would tend to satisfy that the Treaty was expedient, or to give information on a subject that must be discussed before that House, might with propriety be asked for.

A gentleman from Vermont (Mr. Buck) repeated by another from South Carolina (Mr. Smith) said, to vote for this resolution would be treason against the laws and constitution. Why this harsh language? Did it lead to a discovery of truth? Where did these gentlemen find that definition of treason? Not in the constitution, for there it was properly defined.

Mr. S. said, gentlemen had taken a ground that appeared alarming, viz:

That the President and two-thirds of the Senate may, by the aid of a Treaty, do any thing, and every thing, not morally impossible, (provided they do not infringe on the constitution,) and that the immediate Representatives forming this House, have only to be informed thereof, and to obey.

Let us pause for a moment, and ask, Was this possible? Could this be the fair construction of our so much boasted constitution? If it should be, he would not regret the services rendered his country during the late glorious Revolution, nor the part he had taken to promote the adoption of the constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do any thing that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a constitutional manner, to obtain amendments to the constitution, which would prevent the evil in future. But is there occasion for amendments to the Treaty-making power? He thought not. There were checks and balances sufficient in the constitution to prevent the evils that might arise out of it. He said, he could offer nothing new, but would pursue the train of reasoning began by a gentleman from Virginia, (Mr. Madison.)

In the eighth section of the first article of the constitution, Congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the United States:

Can regulate trade with foreign nations:

Can establish a uniform rule of naturalization.

Congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one State over those of another. But the Treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the States from the uniformity of naturalization; that is, it may relieve goods imported in British bottoms into New York, from the one-tenth extra duty, and let it remain on all the other ports of the Union. But, say gentlemen, it is unfair to reason against the use of power by its probable abuses. He thought it advisable to guard against abuses; but has this abuse not already taken place? He thought it had. Not with respect to a port of the consequence of New York; that would have been too palpable; but on the Lakes, by the third article of the Treaty, goods imported to the territory in that quarter, in British bottoms, are subjected to no higher duty than goods imported in American vessels to the Atlantic ports. Here appeared a departure from that uniformity required by the constitution; here appeared a preference given to the ports of one State over those of another; and yet gentlemen contend, that the House have no right to inquire into the business. Indeed, so delicate was one gentleman (Mr. Buck) on the subject, that he opposed committing the Algerine Treaty, lest it should establish a claim to investigation! It was true, the trade on the Lakes was small, but it would increase. Thus, although Congress were very wisely restricted, when laying duties, to make them uniform, yet the President and Senate would be capable, by the assistance of a foreign power, to destroy that uniformity.

Mr. S. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the Treaty into effect. He held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good,) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the House.

March 18.—In Committee of the Whole, on Mr. Livingston's resolution:

Mr. Isaac Smith did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who compose the convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. He believed, if they intended that House should have had an agency in the making of Treaties, they would have said so in express terms. Had they done so? Nothing like it. So far from it, that they had unequivocally appropriated the Treaty-making power to the President and two-thirds of the Senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. But, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. We will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. Here rests the fallacy. The people knew, whether they knew or not, that they chose the President, and they firmly believe, as well they may, that he is their guardian. The people knew, also, that they chose the Senators, and they likewise think they are their guardians. How we, said he, became sole guardians, will require a modesty superior to that of New England to explain. The people have declared that the President and Senate shall make Treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. It appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: sic volo, sic jubeo, stat pro ratione voluntas. If they had under consideration alterations or amendments to the constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation.

Mr. Livingston said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. He had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and constitutional questions would probably arise on the discussion of the Treaty. It had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the Treaty with the constitution? Mr. L. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the Treaty. The constitution, he said, gave to the President the power to make Treaties, "by and with the advice and consent of the Senate." Men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the President could make no Treaty unless by the previous advice and consent of the Senate; in other words, that the Senate should advise the making of a Treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. He would give no positive opinion on this subject, but supposed it a point worthy the attention of the House. The construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. Two instances he could recollect; one was in the Treaty of Holston, where Governor Blount was "vested with full powers and specially empowered by and with the advice and consent of the Senate." The other instance was found in the answer of the President to the French Minister, who offered to enter into negotiations for a Treaty of Commerce, which the President declined, by referring him to the meeting of the Senate, which was not then in session. If the President supposed he could not commence a negotiation without the concurrence of the Senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the Treaty in this point had been constitutionally made.

Two positions had been assumed, differing not materially in the power ascribed to Treaties, but distinguished chiefly by the mode of applying this power.

By some it was contended, that the interference of the Legislature was necessary in some instances, but that the Treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation.

Others had asserted, that Treaties being the supreme law, might operate directly, without the intervention of any other body. That where existing Legislative acts opposed their execution, the Treaty was paramount, and could repeal them.

These positions were in fact the same, because, if a Treaty was, at all events, to have effect, it was perfectly immaterial, whether it operated directly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the Government; but the first was most degrading to the Legislative dignity. Nor could he discover from what part of the constitution it was inferred. Wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the President's compensation, that of the judges, and many other instances. It is not, then, to be conceived, that so important an obligation as this should have been left to implication. If it had been intended so to annihilate this discretion, the same language would have been used, "Congress shall pass laws to carry every Treaty into effect," but nothing of this kind appears. Again, if it had been intended to make Treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. Why leave a phantom of discretion, an unreal mockery of power, in the hands of the Legislature? In order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. In cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this House, they say, may refuse to carry it into effect. In the first case, where it is impossible to give efficacy to a Treaty, the power of refusing it was surely of little value. And where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. If the subject were less serious, Mr. L. said, one would be tempted to smile at the efforts that are made to reconcile the constitutional predestination contended for, with the free agency of discretion. It was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. We have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. This was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. This was a worse alternative than that generally called Hobson's choice—that was, "this or nothing;" but here we are told, "do this, or be hanged for a traitor." So that hereafter, when any one intended to express an inevitable necessity, he would call it Congressional discretion.

If, then, the Treaty does not operate by way of obligation on the Legislative power, let us, said Mr. L., examine, whether, as is contended, "a Treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the Legislative power;" this, he said, was the most important question that had ever been agitated within these walls. It evidently tended to the substitution of a foreign power, in lieu of the popular branch; it was replete with the most serious evils. He could never suppose so great and pernicious an absurdity was contemplated by the constitution; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended.

The constitution gave all Legislative power to the Congress of the United States; vested the power of making Treaties in the President and Senate, and declared that the constitution, the laws made in pursuance thereof, and Treaties made under the authority of the United States, should be the supreme law of the land. He had always considered the order in which this enumeration was made as descriptive of the relative authority of each. 1st. The constitution, which no other act could operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when they contradicted neither; for, if no weight was given to this argument, Treaties would be superior, both to the constitution and the laws, as there is no restriction with respect to them, as in the case of laws, that they be made pursuant to the constitution. He did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration, to measure the relative effect of the constitution, laws, and Treaties. If the objects of Legislation and of Treaty compact could be kept distinct, no question would arise, there would be no pretext for interference; but they could not; almost every object of legislation might also become that of compact with a foreign power.

But it was probable, Mr. L. said, that the Treaty power was intended to be placed in the President and Senate to the same extent only in which it existed in the Executive of Great Britain. The words of our constitution on this point were the same made use of by British writers in defining the corresponding power in their Government, and it seemed evident that some of its features (and this was none of the least prominent) were drawn from that original. He was happy that the parallel was not perfect in other instances. He thought it completely so in this; and that the practice therefore of that Government would, in some measure, lead to the true construction of this. Aware of the weight of precedents drawn from English history, gentlemen endeavored to weaken them by a very ingenious argument: "The British Constitution," say they, "is not written, it is formed of usages; if you prove, therefore, that it is the usage for British Parliaments to sanction Treaties, you prove it to be their constitution, but you do not prove it to be ours." It was true, Mr. L. observed, that the English Constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of Government were generally designated, so that the leading points in their constitution were as well known and defined as they were in that of America. It had been shown by a reference to writers of the best authority, that, by the Constitution of England, the power of making all Treaties was in the King; but as the power of making all laws was in the Parliament, this latter, as the greater power, controlled the former, whenever it affected objects of legislation. Thus, in the Constitution of the United States, he contended, the power of making Treaties, that is, all Treaties, vested in the President and Senate; but, as all Legislative power is vested in Congress, no Treaty operating upon any object of legislation can take effect until it receives the sanction of Congress. The practice, too, was the same. The King asserted his right of making and completing Treaties, by not only concluding, but ratifying them, before they were submitted to Parliament, but he believed no Commercial Treaty was proclaimed as the law of the land before it had received the sanction of Parliament. Indeed, it was impossible, in any country, and under any constitution, where the Legislative and Treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different powers supreme over the same object at the same time. Our ideas had been confounded by referring to the practice of Governments where the two powers were united, and where a ratification gave the consent of both.

If, then, there was a perfect analogy between the power vested in the Crown in England, and that delegated to the President and Senate in America, on the subject of Treaties; and if the Parliament, by virtue of its general Legislative authority, was in the practice of giving or withholding its sanction to Treaties concluded by the King, it was but a fair inference to say, that the same discretion existed in Congress.

Some instances of the exercise of this power by Parliament, had been before quoted by others. The inexecution of the Treaty of Utrecht, in consequence of Parliamentary opposition, and the difficulties with which the Commercial Treaty with France was carried through the House of Commons, in 1787, had been already noticed. He would mention two other precedents drawn from the same source equally striking, or perhaps more so, as the course of proceeding there followed was precisely that which was proposed by the resolution in debate. The first was the proceeding on the Barrier Treaty, taken from the 5th vol. Parl. Debates, p. 43, where the House of Commons began, by a resolution to address the Queen, "that all instruction and orders given to the Plenipotentiaries that transacted the Barrier Treaty, and also all Treaties mentioned and referred to in the said Treaty, might be laid before the House, except such Treaties as they already had." We are told in the subsequent page, that on the 13th, that is, only two days after the request, "Mr. Secretary St. John presented to the House, by Her Majesty's command, a copy of the instructions to the Duke of Marlborough and Lord Townsend, about the Barrier Treaty, extracts of letters from Mr. Boyle to Lord Townsend, concerning the said Treaty; also a copy of the Preliminary Articles, signed at the Hague; the titles of which copies and extracts of letters were referred to the Committee of the whole House. After this, it was resolved to present an address to Her Majesty, that the letters written by Lord Townsend to Mr. Boyle, the Secretary of State, dated the 1st and 26th of November, 1709, might be laid before the House, which Mr. Secretary St. John accordingly did on the 14th of February." After having obtained the papers, Mr. L. said, the House of Commons proceeded to the consideration of the Treaty in Committee of the Whole, and voted, 1st. That the Treaty contained articles destructive to the trade and interest of Great Britain. 2d. That the negotiator had acted without authority. 3d. That the advisers and negotiators were enemies to the Queen and Kingdom.

The Treaty being thus obstructed, the States General remonstrated to the Queen on the subject; but, conscious that the Parliament were only exercising a constitutional power, they make no complaints in their memorial of any breach of faith, though the Treaty had been ratified. They enter into the merits of the Treaty, offer to negotiate on the obnoxious articles, and conclude with "entreating the continuance of Her Majesty's friendship."

This instance, then, said Mr. L., is complete to show the propriety of a call for papers by the House of Commons; a ready compliance on the part of the Crown, a deliberation on a ratified Treaty, a rejection of it, and an acquiescence on the part of the foreign nation, without remonstrance.

The other instance was an address in the year 1714, requesting "the Treaties of Peace and Commerce between Her Majesty and the King of Spain, and the instructions given to Her Majesty's Ambassadors thereupon, together with the copies of the King of Spain's ratifications of the said Treaties, and the preliminaries signed by the Lord Lexington and the Marquis of Bedmar, at Madrid, and all other agreements and stipulations which had been made concerning the commerce between Great Britain and Spain. 2dly. An account of what engagements of guaranty Her Majesty had entered into by virtue of any Treaty with any foreign Prince or State, from the year 1710. And 3dly. An account of what instances had been used by Her Majesty for restoring to the Catalans their ancient privileges, and all letters relating thereto. And then it was resolved, to take into further consideration the Message that day sent from the Lords upon Thursday next following."

Objections had been raised to this construction, drawn from three different sources.

1. From the prevalent construction at the time of establishing the constitution.

2. From the practice of the Government since that period.

3. From the present ideas entertained by the people of the United States.

1st. As to the construction generally received when the constitution was adopted, Mr. L. did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument, as the Conventions were; they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. But he did not believe the general construction at that time differed from the one he had adopted. A member from Virginia (Mr. Brent) had shown, by recurring to the debates in the Convention of that State, and to other contemporaneous productions, that the framers and friends to the constitution construed it in the manner that we do; whilst its enemies endeavored to render it odious and unpopular, by endeavoring to fix on it the contrary construction. And as the friends to the constitution were the most numerous, we ought rather to take the explanation under which a majority accepted the constitution, as the true one, than to look for it in the bugbears by which anti-Federalism endeavored to prevent its adoption.

2d. The second argument that had been used to deprive the Legislature of any right of interference, in cases of this kind, was drawn from the uniform practice of the Government ever since its formation. The gentleman from South Carolina (Mr. Smith) who made this objection, had cited one instance of this practice in the resolution directing Treaties to be published with the laws, and had adverted to the appropriations for the Indian Treaties, (under the general head of the Military Establishment,) as favoring his principle. As to the resolution, Mr. L. said, there was no doubt that Treaties, when properly sanctioned, ought to be observed, and therefore the resolution was proper, that they ought to be promulgated. On the subject of appropriation, it had been well observed by a gentleman from Virginia (Mr. Giles) that the House exercised as much discretion in granting the supply, by way of addition to the military appropriations, as if it had been given specially for the purposes of the Treaty. But the truth is, said Mr. L., that an accurate examination into the communications of the Executive in analogous cases, and the proceedings of this House, will form a strong, I think an irresistible, argument in favor of the resolution. It would appear, he said, from the view he was about to take, that from the first establishment of the constitution until the negotiation of this Treaty was begun, the Executive had been in habits of free communication with the Legislature as to our external relations; that their authority in questions of commerce, navigation, boundary, and intercourse with the Indian tribes, had been expressly recognized, even when difficulties on these questions were to be adjusted by Treaty.

The first case related to a provision for an Indian Treaty, and was suggested by the President, in a Message of the 7th of August, 1789, in which he says: "If it should be the judgment of Congress that it would be most expedient to terminate all differences in the Southern District, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion." In consequence of this Message, Congress took into consideration the expediency of the measure recommended to them, and passed the act of the 26th of August, in the same year, appropriating twenty thousand dollars for defraying the expense of negotiating and treating with the Indian tribes, and authorizing the appointment of commissioners. The President having appointed commissioners to treat under the direction of the act, gave them instructions, which were communicated to the House, and from which this is an extract: "You will please to observe, that the whole sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Nothing having been effected by the commissioners, the President mentions the subject again in his Address to both Houses, on the 1st of January, 1792. In the month of March, in the same year, the House of Representatives adopted the following resolution, recommended by a select committee: "That provision ought to be made by law for holding a Treaty to establish peace between the United States and the Wabash, Miami, and other nations of Indians, north-west of the river Ohio; also, for regulating trade and intercourse with the Indian tribes, and the mode of extinguishing their claims to lands within the limits of the United States." On the 29th March, following, a bill passed the House of Representatives, the title of which was amended in the Senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution.

Mr. L. said this case was important, as it was the first communication relative to a Treaty made under the constitution. An attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. He would first observe, that the discretion of the House of Representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the Indian tribes; that if one could be done without their concurrence, by Treaty, the other might also; and that, therefore, when the President recognized their right to deliberate in one case, he virtually did it in the other. Let us then attend to the language of the Message, said Mr. L., and we shall find that right of deliberation most expressly referred to. "If it should be the judgment of Congress that it would be most expedient"—what can be more explicit than this language? And again, "I think proper to suggest the consideration of the expediency of instituting a temporary commission." Here the same discretion is not only applied to, but the President, at that time supposing that no implicated power could deprive Congress of the right to regulate trade and intercourse with the Indian tribes, submitted to their consideration the expediency of appointing commissioners. They passed the necessary laws, and he instructed the commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that Congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Why, (if the doctrine is true that we are under an obligation to comply with the terms of every Treaty made by the President and Senate,) why did he say no further sum could constitutionally be expended? If that doctrine were indeed true, his language would have been, Use what money may be necessary, contract for the payment of it in your Treaty, and Congress are constitutionally obliged to carry your stipulations into effect.

The resolution above quoted, Mr. L. said, was important, as it proved that Congress then supposed that they ought not only to provide by law for holding a Treaty with the Indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the United States; but all this, said he, it is now discovered may be done without their aid, by Treaty.

The second instance of the exercise of this dreaded discretion, was in the law of March 3d, 1791, appropriating twenty thousand dollars to enable the President to effect a negotiation of the Treaty with Morocco. This originated in the Senate, and is a decided proof that neither the President nor Senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new Emperor for the payment of the necessary sum, which must have been provided by the House.

In a third case, the President had thought proper to take the sense of that House in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. He adverted to the Message of 30th December, 1790, where the President says: "I lay before you a Report of the Secretary of State, on the subject of the citizens of the United States in captivity at Algiers, that you may provide in their behalf what to you shall seem expedient."

No act having been passed by Congress in consequence of this Message, the President did not conceive himself authorized to bind the United States by Treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent Message and previous appropriation, in the year 1793, when another Message was sent relative to the negotiations with Morocco and Algiers, then pending: "While it is proper (he says) that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their Legislature and Executive, it would still be improper that some part of this communication should be made known." Part of this Message, therefore, was confidentially communicated, which shows, Mr. L. said, on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet; and in consequence of this Message, a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the Algerines. It was ostensibly appropriated to a more general purpose, but the intent was well understood.

The next transaction that he should quote, Mr. L. said, as favorable to his doctrine, was the Message of the President of the 5th December, 1793, and the measure to which it gave rise. The President says: "As the present situation of the several nations of Europe, and especially those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may, indeed, give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondence which has taken place."

This Message, Mr. L. said, accompanied the papers relative to France, to Great Britain, and to Spain; and a question would immediately occur, what were the deliberations to which the President then thought the Legislature alone was competent, and which he therefore thought it his duty to communicate. All our disputes with the nations referred to in the Message, were such as on the new construction of the Treaty power he could have adjusted by compact, without any reference to the House of Representatives; but it is plain, by the express words of the Message, that he did not believe that construction. It was no answer, Mr. L. said, to the argument drawn from this transaction, to say that the President only submitted the question of War or Peace to the Legislature by this Message.

1. Because the Message related to the three principal nations in Europe, and he never could have imagined that Congress would have deliberated on going to war with them all.

2. This was evidently not his intention, because as soon as measures were proposed in that House, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an Envoy, and the commencement of negotiation.

It was clear, then, that the President thought the matters communicated by his Message, which related to commerce and boundary, were constitutionally vested in the discretion of Congress. The idea was corroborated by the words of a Message relative to the negotiation with Spain:

"And, therefore, by and with the advice and consent of the Senate, I appointed Commissioners Plenipotentiary for negotiating and concluding a Treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated."

Why, said Mr. L., communicate the instructions to the Ministers? Because they related to commerce, to navigation, to boundary, on all which subjects the President must have thought the Legislature had a right of decision. He must have thought so at that period; but, unfortunately, all precedent of free communication ended here; Mr. Jay's negotiation began, and a different construction was assumed.

From this view of the acts of Government, Mr. L. said, he trusted that a far different impression would be made, than that the doctrine he contended for was a new one, originating in opposition to the English Treaty, and a desire to disorganize the Government. That, on the contrary, it had been declared by the President, acquiesced in by the Senate, and acted upon by the House of Representatives.

March 21.—In Committee of the Whole on Mr. Livingston's resolution:

Mr. Williams observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended.

It was contended that in a Republican Government there ought to be no secrets; but he would ask whether it was not specified in the constitution that secrecy should be observed on particular occasions? and, had not his colleague (Mr. Livingston) quoted the secret Journals of the House? He believed if the constitution of France were examined, it would be found that their system admitted of secrets. He had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. With respect to the present papers, he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that House might have seen them. It was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young Government, they ought to be cautious how they established bad precedents. It was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? Hence this country, when in the greatest danger, may be much injured by improper precedents.

He quoted authorities to prove that there never was but one precedent in Great Britain of a negotiator's papers being given up; that was in the last year of the reign of Queen Anne when the Ministry were soon afterwards obliged to fly their country. He was sorry that a gentleman returned by the Republican interest of one of the first cities of the Union should have had recourse to a desperate Tory faction for a precedent.

Some gentlemen had observed that the papers ought to be obtained, because the President had intimated, in his Speech, that he would lay the papers before the House with the Treaty; but they were mistaken in their observations, because the papers had not been laid before us.

A gentleman from Pennsylvania said, because the King of England laid the papers relative to a negotiation before Parliament along with the Treaty to which they related, they had also a right to papers, the Governments being similar; but when the King did this, he informed them that he had concluded such a Treaty; and after a thing was concluded, he did not know what could remain for Parliament to do. He would refer to a recent authority, and not go back to 1714; it was to the case of the Treaty with Great Britain respecting American loyalists, when papers were refused to be given up, and it was deemed a most inconsistent thing to require them. This business caused great debates in Parliament, and the motion for papers was lost, there being only sixty-three for it, and one hundred and four against it. Mr. W. read the observations of different members of Parliament on the occasion, and observed, that although he was unwilling to quote precedents from a Government not similar to ours, yet this was a case in point, and this Treaty was negotiated between Mr. Jay, on the part of the United States, and Mr. Oswald, on the part of Great Britain.

The resolution before them called for all papers, whether public or private, except such as related to any existing negotiation; but as the Treaty was completed, the resolution included all papers. He should have had less objection to the motion, if the amendment proposed by the gentleman from Virginia had been adopted. He did not see the use the papers would be of if they were got. The House was not vested with either the power to alter or amend the Treaty. But, say gentlemen, they are wanted for information. But he believed they ought to form their judgments of the Treaty from the instrument itself. Suppose I were to employ an agent, and give him instructions to make a contract for me, on condition that it should not be binding until I had approved it; and my agent return and I approve of the contract, what light can be thrown upon it by the instructions which were given to the agent? The instrument alone was what must be had recourse to; because he had it in his power to have withheld his sanction.

If his information was right, when certain resolutions were brought forward in the year 1793, a gentleman from Virginia said that Great Britain would refuse to negotiate with this country; but immediately upon the Treaty being made known, it was every thing that was bad.

He would endeavor to answer some observations which had fallen from a gentleman from Virginia, (Mr. Giles.) It was asked if the Treaty power could receive any check? He conceived the will of the people ought to be obeyed. They had given power to the President and Senate to make Treaties, which if not complied with, would be to oppose their will. In speaking of the amendments proposed to the constitution by the Legislature of Virginia, it was said they were only intended to make the check more certain than at present; but he read the resolution, viz: "That no Treaty containing any stipulations upon the subject of the powers vested in Congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority in the House of Representatives. That the President, before he shall ratify any Treaty, shall submit the same to the House of Representatives; and insisted that it might be clearly deduced from them, that they did not conceive the Treaty power to have any check in that House. That State had kept uniformly the same ground in all their actions; but the different State Legislatures to which their amendments had been proposed, had determined the Treaty power rightly placed where it is at present. But because the people will not agree that they should have a check upon the Treaty power, gentlemen seem disposed to usurp it by their present doctrines."

The same gentleman (Mr. Giles) observed, that the checks in the Government of the United States had been completely routed for these six years. He was exceedingly sorry that the President could bind that House, but he said that was a sword that cut two ways. It was too late in the day to assert this doctrine, when the people were become so enlightened as to be better acquainted with the nature of Government, and better educated, than the people of any other nation in the world. They would, therefore, take care of themselves.

He said that a gentleman from South Carolina had observed that the Treaty was put into operation by the Proclamation of the President, and made a part of the laws of the land. An honorable gentleman from Virginia (Mr. Giles) granted that, when completed, the Treaty ought to be annexed to the laws. Mr. W. asked, was this not done? It had been promulgated in the way in which Treaties are directed to be promulgated; and he would ask, if a case were to come before the Judges upon it, whether they would not be bound to consider it as the law of the land? If the member from Virginia (Mr. Giles) had been opposed to the Treaty going into operation, why did he not take the proper mode to prevent it? He knew of the resolution which directed how Treaties are to be promulgated and annexed to our code of laws, he knew the Treaty had arrived, and he might have had the subject discussed. If a majority were for preventing the Treaty from being promulgated in the ordinary way, then the resolution might have been done away, and some other mode adopted which was thought most prudent.

The same gentleman next contended that law can annul Treaties. But he believed that the constitution decided that there was no other way of repealing Treaties but by mutual agreement of the parties, or by war. To break one article of a Treaty was to break the whole, and war, or a new Treaty must be the consequence. The reason he gave why laws could repeal Treaties, was, because laws were the will of the people. Treaties, Mr. W. said, were as much the will of the people as laws. The people had fixed barriers to the different branches of the constitution, which could not be overleaped without endangering the whole fabric.

In speaking of power, gentlemen say it is more likely to be abused in the Executive than in that House. But, in the year 1789, when amendments were first proposed to the States, a gentleman from Virginia (Mr. Madison) asserted "that it was less necessary to guard against abuse in the Executive Department than any other, because it was not the stronger branch of the system, but the weaker; it therefore must be levelled against the Legislative, for it is the most powerful, and the most likely to be abused, because it is under the least control;" and Mr. W. quoted several laws which had originated in that House, by which very large sums of money had been expended to little purpose, which he would explain when they were in a Committee of the Whole on the report from the Committee of Ways and Means.

But gentlemen say, "Have we not as much power as the House of Commons in Great Britain?" He answered, their powers were limited; the constitution was their guide. He thought gentlemen proceeded as if they were about to form a constitution rather than discuss a constitutional question. Some gentlemen had said, Treaties of Amity ought to be vested in the President and Senate; others, that Treaties for a cessation of arms ought to be vested in the Executive; thus they wander, well knowing the ground they had taken was not tenable. It brought to his mind an observation made by an Indian Chief, in a Treaty at Albany, since the late war, who, after thanking the Great Spirit for directing them back in the good old path, which made them happy, lamented, that ever since they had wandered from that path, they had been miserable. So it would be with them if they left the constitution; they would wander from the right path, and involve themselves in difficulties. Appropriations for the army and navy in Great Britain must be made annually, without which they must be discharged. By our constitution we may appropriate for two years for the army, and no mention as to what time for the navy; so that we can make appropriations for a longer time for our army and navy than in Great Britain.

The gentleman (Mr. Giles) further observed, that the opinions entertained in that House three years ago, were not to influence them now; it was necessary however, in Mr. W.'s opinion, that whenever nations changed their customs, some notice ought to be given of the change, that it might be known by nations with whom they may have any transactions. To prove this, he quoted Marten's Law of Nations. The Treaty had been laid before them, that they might appropriate money for carrying it into effect. On the first of June, the British were to give up the Western posts; if money was not appropriated, would they not be deceived?

Before he proceeded to remark on what had fallen from his colleague (Mr. Livingston) he would mention, that they had, for some years, in general concurred in their political opinions, and during the present session they had varied very little; in the question before the House, however, they should differ very considerably. Soon after the constitution was framed, a Convention was held in the State of New York, in which he had the honor to be a member. He was fully of opinion at that time, as he was now, that the Treaty power was a dangerous power, and, in consequence, gave his dissent to it.

He would proceed to remark on what had fallen from his colleague. He had said, how could they determine whether the Treaty was constitutional or not, or whether an impeachment was necessary, without information? The papers, as he had said before, were open for ten weeks, during which time gentlemen might have had access to them. But that gentleman said, they had denied him of late, and so they had been to him; but he understood they were at the Secretary of State's office, and might be seen there. He mentioned a case of a Treaty with a foreign country, in which their Minister might have received presents; but declared, that he did not believe there was any corruption in the negotiation of the Treaty in question. It appeared to him, therefore, inconsistent still to talk of impeachment.

Suppose, for instance, his colleague was Attorney General of the State of New York, and a man were to charge another with being guilty of burglary, whose character, reputation, and standing in life were irreproachable, would he subpœna him to meet the charge? No, he would not. And still the case is exactly similar to the present.

If, said Mr. W., his colleague or any member of the House wanted the papers, they had only to rise in their place and declare there were grounds of suspicion for an impeachment; would any member refuse the call? But he presumed no such thing was thought of. Why, then, expend so much precious time unnecessarily? The gentleman believed that the Minister had deviated from the instructions originally given him; but that he received new instructions. Whatever instructions were given to him, it appears, by the Treaty being ratified, that he executed them to the satisfaction of his employer.

It may be, said Mr. W., that this House may determine that it has a check on the Treaty-making power; but the next Congress may say there is no such thing. Whether there is, or there is not this check, it is necessary for the stability of the Government to have it determined; and he would join in sentiment with the gentleman from Maryland in a wish that it might be settled. But he would have the amendment constitutionally made; for, if we ourselves do not understand the constitution, it is not likely that our constituents at large should understand it. If I am wrong now in the true meaning of the constitution, I have been wrong since its adoption. The people are the sovereign; their will shall be my guide, from which I will not, knowingly, depart. I live in the midst of a body of plain but intelligent freemen, whose employment is the cultivation of the earth, and who prize nothing beyond the freedom they enjoy. They are jealous of their liberties, but they are obedient to, and willing to respect and support the laws of the land. How will they know the laws, if we do not understand the constitution after it has been in operation for nearly eight years?

Gentlemen observed, that if the Treaty-making power was meant to be vested solely in the President and Senate, it would have been said so explicitly; but, he thought, if the constitution had intended that House to have interfered in Treaties, that would have been expressed, as a few words would have done it.

His colleague asserted, that that House had the power of carrying into effect or not any Treaty; but he thought the House obliged to carry into effect all Treaties constitutionally and completely made. To support his doctrine, Mr. Livingston had referred to the practice of Great Britain, and singled out the Treaty of Utrecht.

In England, said Mr. W., the Treaty-making power is in the King. A Treaty, when made by him, pledges the public faith and binds the nation; but the Courts of Law and the officers of the revenue do not consider Treaties as the supreme law (when they change the regulations of commerce or interfere with previous acts of Parliament) until Parliament has passed acts conformably to such stipulations of a Treaty. The propriety, and, indeed, necessity of this rule, results from the monarchical form of that Government, the power of the King alone to repeal existing laws being a just ground of apprehension. From a like apprehension, a Treaty, though negotiated and made in all its parts by the President, must be submitted to the Senate for their ratification. The Senate is a popular assembly, and representing the States. The concurrence of two-thirds is equal on every principle of combining the public will with the acts of the constituted authorities to the sanction of Parliament.

In England, Treaties of Peace, of Alliance, and, perhaps, many others, are perfect and binding without co-operation of Parliament. The opinion of some is understood to be, and Blackstone seems to be of the number, that every Treaty, when made by the King, is obligatory without the concurrence of Parliament. The practice, however, is to lay Treaties before Parliament when laws are necessary to carry them into effect, and for Parliament to pass such laws. And, although a very broad discretion has been claimed in Parliament to pass or reject such laws, the uniform practice, except in one instance, has been to pass them. The faith of the nation is considered as pledged. The case where laws to carry the Treaty into effect have been refused, is the Treaty of Utrecht, in 1714. The credit of the example is much abated by the circumstances of the times when it happened. The Duke of Marlborough had been displaced, but his friends were powerful; a Tory Minister was in power and much hated; Queen Anne was decaying, and died that year, and the succession to the Crown was doubtful. Parties were ready to draw the sword against each other, and the most distinguished Ministers were soon proscribed and fled the country. A civil war broke out in 1715, the next year. One only example in such times, and the forerunner and cause of such events, weighs little against the course of practice in numberless cases, all issuing another way. It proves that the practice of Parliament corresponds with our doctrine. If, however, their maxims are different, so is their constitution in this particular. The act of the King should be compared with the act of the President alone; and the ratification of the Senate should be, and, by our constitution, it must be, considered equal to the sanction of Parliament. The doctrine ascribed by Mr. Gallatin to the Parliament affords a reason for their calling for papers; because, he says, they are to act upon them. Yet such call is seldom made, and would probably be refused, if made without manifest occasion for the papers. Our constitution has settled a different doctrine; and, as the papers cannot be needed, they cannot properly be asked for.

He doubted not that the Treaty lately concluded with Great Britain had ere now been laid before Parliament, and a sum of money granted for recompensing spoliations committed in this country. Should they then attempt to refuse appropriations for carrying the Treaty into effect, on their part, where would be their national honor, their national faith? Suppose the Treaty were a bad bargain, that would not authorize them to break it. No: if a bad bargain be made to-day, make a better to-morrow. Neither should they determine the thing before it came before them. Probably they may not find it so bad as it had been represented; for though it might, in some respects, narrow our commercial intercourse, yet, perhaps, by so doing, the agricultural interest would be proportionally benefited. He was convinced that the agricultural interest was the true interest of this country. If by the Treaty we find that it tends to the welfare of the farmer, we may conclude our negotiator had the true interest of his country in view; and it was his (Mr. W.'s) opinion that a man taken from the plough and put on board a vessel was a man lost to the true interest of this country. This country is not like that of Great Britain: they are confined to small islands; we have a country extensive and fertile, and it is our duty to encourage settlers, increase our numbers, and, by so doing, we shall soon be in a situation to bid defiance to all the world. He was willing to encourage commerce to its full proportion, but not so as to injure the agricultural interest. The third article in the Treaty had been quoted by a gentleman from Maryland (Mr. S. Smith) as having a tendency to operate unequally in our impost duties; Mr. W. observed he did not think that was very exceptionable, so far as it had been explained. He did not think the third clause of the Treaty a bad one: it only went to this, that when Great Britain carried goods through our country they were to pay the same duty as American citizens. And would not this be a greater advantage to the United States than if they went up the rivers St. Lawrence or Mississippi, and paid no duty? All the duty received of them would be so much gain to the country.

His colleague (Mr. Livingston) went on too contemporaneous a construction, and said that the House were better able to judge of the meaning of the constitution than the conventions which were held to consider upon its adoption. He did not think so. He said, he had always been called an anti-Federalist, and was so considered to this day. He would willingly join to obtain an amendment to the constitution with respect to the Treaty power; but, because he did not believe the constitution contemplated an interference in that House in respect to Treaties, he could not agree to the proposed doctrine.

Mr. W. said, it was not necessary for him to go into the argument which induced the convention to fix the Treaty-making power: it need only be mentioned that they knew how and where that power was exercised in Great Britain; and, in order to avert the difficulties which had arisen there, the convention vested the power with the President and Senate; and, to guard against undue influence, directed that two-thirds of the Senators present should concur with the President. The convention had many difficulties to surmount in this article; they had to do away the equal power the small States shared, under the Confederation, with the large States. But, to do away the discordant interests of the different States and to give the small States satisfaction, agreed that all the States should be equally represented in the Senate. In the Treaty-making power each State hath an equal voice. To extend it further, for another check, without the consent of the smaller States, would be doing away, in part, that power which the small States had retained.

He read the observations of one of the Judges of the Supreme Court of the State of New York, when debating on the merits of the constitution in the convention held in that State, to prove that Treaties were considered to be paramount to any law. Among the several passages from the debates of the Convention of New York, Mr. W. read the following proposed amendment of Mr. Lansing, who was a member of the convention that formed the constitution of the United States, whose abilities and candor were not doubted by any who knew him:

"Resolved, As the opinion of this committee, that no Treaty ought to operate so as to alter the constitution of any State; nor ought any commercial Treaty to operate so as to abrogate any law of the United States."

He believed that the amendments proposed in the Virginia Convention arose from their considering that there was no check in that House: the contrary supposition, he said, would be like rowing a boat one way and looking another.

His colleagues read extracts from the journals to prove that the President had laid before that House instructions which he had given his Ministers employed on the Treaty business. He believed, when much money was likely to be wanted, it was prudent and right to do so. It was as if he asked that House whether it would agree to a proposed negotiation or declare war—as if he had said, "I cannot unlock your Treasury; which way would you have me act?" It was inconsistent to say that he had diminished his power by asking advice. Books, he said, might be produced without number; but nothing could be brought to justify the breaking of a contract constitutionally made. It has become the law of the land. The House has, indeed, the physical power to refuse to appropriate to carry such a Treaty into effect; but the constitution meant that what was done by one branch of the Legislature should be confirmed by the others, except the act was unconstitutional. If a Treaty was constitutional, they were therefore impliedly bound to carry it into effect.

His colleague denied that any danger lay in the popular part of the Government; he thought differently. To say there was more danger to be apprehended from the Executive than the Legislative branch of Government was unsound doctrine. He should enlarge on this subject when the Treaty came before the House, and he trusted he should clearly show that the greatest danger of abuse lay in that House. Have there not bills originated in this House which have caused the expenditure of much money to very little purpose? Is there not more responsibility in one man than in large bodies? and was not the member from Virginia (Mr. Madison) of this opinion, as I have before stated?

Where have (said Mr. W.) the acts originated that have cost so much money to be expended, by reason of which the report of the Committee of Ways and Means states the necessity of borrowing such large sums to meet the necessary demands—the laying additional taxes and duties? Did these acts originate with the Executive? No. Where then? In this House. All money-bills must originate in this House, being so directed by the constitution.

Though his colleague represented Great Britain as being in chains, yet he was drawing precedents from their Government. At first, he thought he had fallen in love with the Government, but he afterwards found his mistake. In that Government, said Mr. W., one precedent creates another, and they soon accumulate and form laws; but his friend was drawing precedents from that nation to support the checks, which, Mr. Giles said, had been for six years completely routed from the Government of the United States. He feared, if the gentlemen were permitted to take their course, we should soon have a curious sort of constitution.

But, to conclude, the ruin or prosperity of the nation depended much on the present Government. He said, if the people flourish and are happy; if they are industrious and at peace, they will not complain of their Government. If this be the case, it will scarcely be admitted that the checks in the Government have been completely routed for these six years; if they were, however, he thought the nation could not be better than happy.

Mr. Milledge observed, that as the hour of adjournment was drawing near, he would not detain the committee long. The length of the debates, on both sides of the question, had left him little room for observation; but as a constitutional question had been involved in the resolution before the committee, and as all constitutional questions were important in their nature, he could not think of giving a silent vote. He perfectly agreed with the gentleman who had spoken last, from the State of Connecticut, that we ought not to put our foot from off the constitution, and on that, he said, he would stand. Nor did he think it necessary to resort to this or that Government to know their usages, or to know what was said in this or that State, or what was written by this or that man—but, according to the common and most obvious meaning of words contained in the constitution, to draw our conclusion. That part of the constitution which had been often mentioned, he begged that he might be permitted to read—that all Treaties made by the authority of the United States should be the supreme law of the land. He asked, what was the authority of the United States? Powers derived from the constitution. What are these powers? Legislative, Executive, and Judicial. The better to understand these, let us see, said he, in what order they present themselves to us. In the constitution we find that in the very first section all Legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. This, then, is the Legislative power, the statute making power, the ordaining power, the enacting power, or any other name by which it may be called. Now, then, said he, let us see the extent of this power. In the 8th section, Congress shall have power to make all laws. It would be necessary, he said, to attend to the monosyllable all. If the President and two-thirds of the Senate have a right to make a law, do Congress make all laws? Certainly not.

The constitution being his guide, he felt supported by a just confidence in his opinion; but he would not say but he might be mistaken, and was unwilling to commit himself. It was his opinion, then, that Treaties ought to be bottomed on a law before they can have any binding influence. To elucidate this, he said, it would be necessary to read the whole of the clause: Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which are, he said, seventeen in number, particularly expressed,) and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. Here, again, he observed, we find the monosyllable all. What does it import? Every one—the whole. Of what? Of all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. What is the President and two-thirds of the Senate? The Treaty-making department. Therefore, being a department, whatever powers are vested in them by the constitution cannot be carried into execution but by a law, otherwise the clause in the constitution means nothing. What is a law? The will of the people made known. Where is that will to be found? In the Senate and House of Representatives of the United States in Congress assembled. Are the President and two-thirds of the Senate Congress? No; therefore they cannot make a law.

The gentleman from New Hampshire asked, what do the President and two-thirds of the Senate operate upon? I answer, with him, on Treaties; but in their nature they are only a department, and whatever a department does cannot, he repeated, be carried into execution but by a law. The Treaty-making power is an intermediate department, and no instrument they can make can operate the repeal of a law, the same force being required for a repeal as to enact. The gentleman from Rhode Island observed, that if the House of Representatives was to have a control over Treaties, small States might be injured in their commerce, because the representation on that floor was unequal. Mr. M. observed, that though his State was not a small State, yet it was small in representation, but he apprehended no danger. Under the Articles of Confederation, it was a Government of States; under the present Government, it was a Government of departments, of checks. He said, the local interest of one State was so blended with another that the security of the one became the security of the whole, founded on a proportion of sovereignty surrendered by each to the whole, and each drawing from the whole its proportion of security. Let us then, said he, examine the compact made by each with the whole on the score of commerce. Here he read part of the 9th section: No tax or duty shall be laid on articles exported from any State; no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. He said, the negotiators of the Treaty, in the 12th article, had laid a prohibition on the exportation of cotton to any part of the world, except in British vessels—cotton, the growth of our own soil, an important staple in the two Southern States, particularly in the one he had the honor to represent. But it is said, and so we find it, that this article is suspended, and open to further negotiation. He called on the committee for any member to deny that the principle did not still exist. He said, then, if a principle still exists in that Treaty which militates with a fundamental principle, a principle in the constitution, he left to the committee, which ought to yield. Were this principle to prevail, it would destroy a vital part of the constitution, and injure the agriculture of the States. He called on that gentleman to beware of admitting such a principle; for, if once allowed, it would extend not only to the cotton of Georgia, but to the flaxseed of Rhode Island, the flour of Pennsylvania, and the tobacco of Virginia.

Mr. M. concluded by observing, that, from all he had said, it was to be understood that the powers of legislation were only with Congress, and that the House of Representatives could not, on the subject before them, legislate without information. Before he sat down, he could not help observing that it was somewhat strange that the first Treaty negotiated under the present Government with a European nation, should produce such a contrariety of sentiment on the meaning of the constitution, and that he was reminded by this circumstance of the pertinent words of a celebrated writer:

"The works of human invention are progressive, and are not completed but by degrees. At the last improvement we are apt to sit down satisfied, and vainly imagine that we have accomplished the end we have proposed, but time soon unravels the fine-spun system, and we find ourselves obliged to interweave fresh materials to repair the disordered texture."

Mr. Kitchell observed, that he could not think of giving a silent vote on so important a question as this had become; but he should not go into an argumentative discussion on the subject, nor should he inquire into the opinions held in different conventions at the adoption of the constitution, or refer to Great Britain for precedents. He would look at the constitution alone, and see what were the powers given to the different branches of Government. When it says that such and such powers are vested in Congress, and such in the Executive, he would abide by that decision. Where that instrument says Congress shall lay and collect taxes, regulate commerce with foreign nations, establish a uniform rule of naturalization, provide for the common defence, &c., and that the Executive shall have power, by and with the consent of two-thirds of the Senate, to make Treaties, appoint Ambassadors, &c., the directions of the constitution must be abided by.

He would inquire what Treaties could be entered into by the President and Senate, without infringing upon the powers placed in Congress? He believed Treaties of Peace, of Amity, and Friendship, could be made by them. If this could be done, he said, those were the powers meant to be vested in the President and Senate, and not that Treaties should embrace objects which are expressly appointed to the management of Congress. In this view, the President and Senate would not have the power to influence that House in their proceedings; but commercial or other Treaties which embraced objects the regulation of which was placed in Congress, must be laid before them for the purpose of their passing or refusing to pass laws to carry them into effect, in the same way as Treaties with the Indians had been laid before them.

He did not think the question of itself before the House important, as it related to the production of papers, but only as it involved in it an important principle, viz: that when Treaties were made by the President and Senate, and presented to that House, they had nothing to do but appropriate money to carry them into effect. It was true gentlemen had seemed willing to allow them what they called discretion; but it was such a sort of discretion as a criminal might be said to have, who was told he might choose this or that posture of suffering, but that he must die.

It had been said that the President and Senate were equally the Representatives of the people with that House. He would inquire how they became so? The constitution has appointed that Representatives shall be chosen by the people in proportion to their population. Were the Senate so chosen? No. The people have no vote at all in choosing them. Are they amenable to the people for their conduct? No. Therefore, in no shape can they be called the Representatives of the people. The Senate, he said, represented the several State Legislatures, and that House the people at large. He was sure, therefore, that every thing in which the interests of the people at large were concerned should be submitted to their consideration, before it was carried into effect.

A great deal, he observed, had been said upon this subject, some things well said, and a good deal that might have been as well unsaid, for any good effect it was likely to produce. He was sorry to hear what had fallen from a gentleman from Rhode Island with respect to the interests of small States. He said he was himself a Representative of a small State, and he believed his constituents were well satisfied with the present distribution of power, and did not wish that of the President or Senate to be increased.

He did not think what fell from his colleague, when he said gentlemen wished to amuse the people with the cry of liberty, liberty, and spoke of the groans of three or four hundred thousand slaves assailing his ears, was meant as a reflection upon any gentleman in that House who might hold slaves; but an earnest wish that the people at large might never bend their necks to slavery.

He did not think the subject of the Treaty at all before the House. He should give his vote for the papers; not so much on account of their being of great importance in themselves, but in order to repel the doctrine, that they had no right to discuss the merits of any Treaty whatever.

March 22.—In Committee of the Whole on Mr. Livingston's resolution:

Mr. Coit said, the attention of the committee was doubtless fatigued with the subject before it; to those gentlemen who had already delivered their sentiments upon the occasion, he need not make any apology; and to those who had not done so, he would assure them that he would not occupy much of their time.

Most of the gentlemen who had gone before him, he observed, had regretted that the debate had taken the turn it had, but he was happy it had taken such a turn. It appeared to him, that the motion was intended as a stepping-stone to a violation of the rights of the other branches of the Government by that House. It became him when he made a declaration of this kind to say, that he did not impute other than pure motives to any member of that House. He believed the general wish was to discover the true sense of the constitution; yet it was not extraordinary if in doing this men were actuated by the sentiments which they had long been in the habit of considering as well-founded, to lean to that construction which most favored their favorite opinions. He had no idea that any gentleman meant to make inroads on the constitution; but it was his opinion that if the doctrines now insisted upon prevailed, they would have that effect.

He was happy, for two reasons, that the true ground of the present motion was made to appear. Because, if the resolution had passed without discussion, the motives which led to it would not have been seen; and because he wished the question of what were the powers of that House, with respect to Treaty-making, to be discussed, independent of the Treaty, which was likely soon to come before them. They stood now on the pure ground of an abstract constitutional question.

Some obscurity, Mr. C. thought, had arisen from not distinguishing the application of arguments to the different principles on which the resolution had been advocated, which he should endeavor to avoid. He considered the Treaty-making power as absolutely vested in the President and Senate; still, that when Legislative acts were necessary to carry a Treaty into effect, the Legislature were not without discretion in the passing of them; if the Legislature had a hand in making Treaties, there could be no question of the propriety of calling for papers; he should then, in the first place, examine the propriety of calling for papers, taking for granted that the Legislature had no hand in making Treaties.

If they were to consider the power by which a Treaty was made, there would be found two nations concerned, whose consent would be also necessary to repeal it. But were there no other ways of cancelling a Treaty? There were certainly ways of breaking a Treaty. There were circumstances in which the breaking of a Treaty would be justifiable. For instance, if, before a Treaty was carried into effect, there was such a change of circumstances as to make it necessary to declare war; could they not discuss the subject, whether it were more advisable to carry into effect the Treaty, and keep at peace, or break it and declare war? If a question of this kind came up, there could be no impropriety in looking into it; not with an idea of having any concern in making the Treaty, but because such alterations had taken place in the state of affairs, as to make it necessary to discuss the propriety of going to war.

There was another point of view in which that House had a check on Treaties. Granting that a Treaty is completely made, the subject of appropriation must come before them. Gentlemen had been understood to say, that no discretion could be exercised in appropriating the necessary money for carrying a Treaty into effect. But he was of a different opinion; he believed, that though they had nothing to do with the making of Treaties, yet when they were called upon to appropriate, they must exercise their discretion. It was true, that in general when Treaties were made, it would be the duty of that House to carry them into effect, in the same way as they found it their duty to carry into effect existing laws; but he said, there were justifiable grounds of refusing to appropriate money to carry into effect both laws and Treaties.

Mr. C. referred to the case of appropriations for the army. Suppose, said he, an army was raised for four years; at the end of two years a fresh appropriation is requisite to support it; but the Legislature has a discretion in doing this, or where was the use of the constitutional regulation of confining appropriations to two years? He considered, that there was some analogy between such cases of appropriation, and those requisite for Treaties. When a Treaty is made, the nation is bound by it, and its organ has an obligation upon it to carry it into effect. It might, in general, be said that there was an absolute obligation; but still there were particular cases in which that obligation did not hold. It appeared to him that a Treaty might possibly be of so ruinous a nature, as to justify the refusing to carry it into effect. Nay, he would say, that if half the lies and calumnies which had been spread throughout the

Union with respect to the late Treaty with Great Britain were true; if the negotiator had been bribed; if he had given up the rights of his country; if their liberty and independence had been sacrificed; if the President and Senate had been bribed by British gold; if he had any idea of that kind, he would not agree to carry the Treaty into effect; nor should he conceive the national faith bound by such an instrument; no matter what grounds were taken to justify the refusal, whether constitutional or revolutionary.

If these principles were just, he said, it would be allowed that that House had a discretionary power with respect to appropriating to carry a Treaty into effect, though it had nothing to do with making it. No cause, he said, had been shown for calling for papers. Why, then, call for them? Gentlemen talked about impeachment? They might impeach without papers. But did they want to bring forward an impeachment? No such thing; it was only to cover the real drift of the motion that this was mentioned.

Did any gentleman think there was sufficient evil in the late Treaty with Great Britain to authorize them in refusing to carry it into effect? It appeared to him, that that House had a right to call for any papers which might throw light on their deliberations. But they must also consider, that there was a discretion to be used by the Executive in giving up papers in his hands. When there are papers in his hands which that House had real occasion for, it was important that they should be brought forward; but, he said, as long as a proper confidence subsisted between the two branches of the Government, if that House asked for papers which the President thought it improper to send them, he would decline doing it. But it is not contended, that the papers which are the object of the present resolution will be of any real use to the House. The gentleman who brought forward the motion had read them through, and the most that he said on the subject was, that the negotiator had not complied with some of the first instructions which were given to him. Another ground of calling for the papers, which was to him a pleasing ground, was that of publicity; for he fully agreed with the gentleman from Georgia, that the more public Governmental proceedings could with propriety be made, the better; but that House had not the right to direct the President on that head; they ought rather to leave it to him to publish the papers, or not, as he pleased; for, if they considered the President as attentive at all times to the duties of his office, it would be arrogancy in that House to attempt to influence him in that particular.

But the main point in dispute was the force and effect of the Treaty-making power. What were the powers and privileges of the House on the subject? In pursuing this inquiry, he was pleased with the remark of the gentleman from Georgia, that in examining into the meaning of the words and phrases, they must take the meaning that was generally given to them, and if they could find out the true import of the phrase make Treaties, it would remove all doubts on the subject. He hoped, for this purpose, that gentleman would have examined the proceedings of his own country; but, instead of doing this, they find him referring to the practices of Great Britain.

The President and Senate, Mr. C. observed, were expressly authorized to make Treaties. To what should they compare Treaties? Might they not say that they were betwixt nations what bargains were betwixt individuals? And, after he had employed an agent to make a contract, with full discretion, and he had in pursuance of his authority made it, was it not binding? Though in public as well as in private contracts he acknowledged there might be circumstances which would justify a non-compliance with the terms of the bargain; yet, in case all the circumstances had been fair, the contract must be complied with.

It appeared to him not unimportant to consider whether, when Treaties were made, they were not the laws of the land. A power to make, carried in his mind a power to complete. But if this were doubtful, where should they look for information? He expected the gentleman from Georgia—knowing him to be well acquainted with the proceedings of Government for a long time—would have referred them to the old Confederation. It would certainly have been more natural to have referred them to the old Congress than to the Parliament of Great Britain. If they looked into the powers of the old Congress they would find that they had the power to enter into Treaties and alliances, which he apprehended to be the same power as that placed in the President and Senate in the present Government; and it was natural to conclude that a Treaty made by the present power was equally binding with those made under the old government; for it will be recollected that the general power was delegated to the General Government; and if they had the same powers, he could not see that there should be any difference in the exercise of them. If it had been intended otherwise, the convention at the forming of the constitution, would have added a proviso that no Treaty should be made by the President and Senate which included commercial regulations.

It appeared to him that a subject of such recent date as their constitution could not receive much elucidation from the opinions held concerning it in the conventions, at or about the time of passing it. He confessed he found little aid to assist his mind to form a judgment on the matter from any other source than the constitution itself; indeed he thought the light was there so clear that nothing more was wanted. There were four members, he said, in that House who were members of the convention who formed the constitution. The sentiments of two of those gentlemen he was not acquainted with; but two of them had spoken on this subject. If those gentlemen had come forward and declared that such a power as the Treaty power was contended to be was not intended to be placed in the hands of the President and Senate, but that that House was meant to have certain powers with respect to Treaties, he would not say but that such a declaration would have shook his faith on the subject; for, though he should still have been guided by the instrument itself, yet authority so respectable would have its weight on his mind. But what did the gentlemen who have delivered their sentiments say? The gentleman from Georgia (Mr. Baldwin) mentioned the necessity of inquiring into the true meaning of the phrase, "make Treaties;" and, instead of telling them what had been the practice in the old government, he went over the water to Great Britain. What did they get from the gentleman from Virginia, (Mr. Madison?) He produced five sets of doubts and one problem upon the construction of the constitution. This had the same effect on his mind as if they had declared that the meaning of the constitution was well understood, in the convention which formed it, to vest the Treaty-making power completely in the President and Senate. It was certainly matter of great importance where the different powers of Government were placed, and caused considerable debates in the convention. Some thought the Treaty-making power should be placed in the Legislature, but that was greatly objected to; it was urged by others that the powers should be in the President and a majority of the Senate; it was again proposed that two-thirds of the whole number of the Senators should consent to a Treaty—but finally passed as it is found in the constitution. He was far from accusing those gentlemen with impropriety of conduct on the occasion. If they think it would be better for the interests of the people that that House should have a share in the making of certain Treaties, and believe the constitution will bear that construction, it was not for him to impeach the purity of their motives or propriety of their conduct; but it would require strong arguments to convince his mind that the constitution placed any such power in that House, contrary to the unanimous understanding of the members of the convention who formed it.

The arguments which had been urged for placing certain powers in that House with respect to Treaties were drawn from the practice of Great Britain, and from the danger of the Treaty power being vested wholly in the President and Senate. He did not think that the Government of Great Britain had been introduced for any other purpose than illustration, though other use had been made of it out of doors. With respect to the principles of that government, let them inquire into its sovereign power; for it was a just position that Treaties must be made by the sovereign power of a nation. Where should they find that power in Great Britain? The King and Parliament were allowed to be omnipotent. Parliament have altered the continuation of their existence from three to seven years. Where must they look in the United States for the sovereign power? They must go to the people at large; for in them it lay alone. Their constitution limited the powers of every branch of government, and it was therefore improper to apply foreign ideas to their constitution. But if a Treaty was made by the agents of a sovereign power, authorized for the purpose, the end was answered: in the United States, the sovereign power can act only by its agents.

The Legislature of Great Britain, he said, it was true, consisted of three branches, and that was almost the only feature in that Government resembling that of the United States. In Great Britain, their Executive is an hereditary Monarch, whereas the President of the United States is elected every four years. Their House of Lords consisted of bishops and an hereditary nobility—the bishops appointed by the Crown, and the nobility were increased at the King's pleasure; whilst the Senate of the United States is elected every six years. Gentlemen say the Senators are not elected by the people, but they are chosen by the Legislatures of the different States, who are elected by the people. The House of Commons in Britain, which is the only representation of the people their Government contains, is elected by a very small part of the people; and the Crown has such an influence in it as to be able to carry most questions at its pleasure. How could it then bear a comparison with that House, who were chosen by the whole people every two years? The absurdity might be admitted, in that Government, that the King had the power to make Treaties, and that the sanction of the Legislature was still necessary to give them legal validity, because the influence of the Crown was so great in both Houses as to carry any measure it pleased through them. But it would not do in this country. The comparison, therefore, betwixt the two Governments fails, and no arguments can be drawn from it.

The other argument respecting the danger of the power being placed solely in the Executive arose from the comparison with Great Britain. If the powers of the President and Senate of this country could with any tolerable degree of justice be compared to those of the King and House of Lords in Great Britain, as little taste as he had for revolutions, he would not say but he should be induced to join gentlemen, either by fraud or force, to overturn the constitution. He looked on the representation in the Senate to be as complete as in that House. Gentlemen were very fond of calling that House the popular branch of government. He agreed that a criticism on words was in general trifling. That gentlemen from Virginia might assert this, he allowed, as they had nineteen members out of the hundred and five in that House, and in the Senate only a fifteenth part of the body; but gentlemen did not mean, when they spoke on that subject, to have reference to particular States, but to the whole. The Senators and Representatives were regularly apportioned for the whole Union; and, though on different principles, were as completely represented in the one House as in the other.

Mr. C. concluded with saying, that he had no doubt the powers vested by the constitution were well vested; and if the constitution was fairly considered, little doubt could remain on the subject. But if the House passed the resolution now before the committee, he should not consider the question as decided; but if the construction was still insisted upon, he was happy the constitution was not wholly in their hands—that there were joined with them in the guardianship of it, the President, the Senate, and the people of the United States.

Mr. Hillhouse said, it was with diffidence he rose to speak on a subject which had been so copiously and ably handled by gentlemen who had preceded him. It had been his intention to have given a silent vote on the resolution on the table, but the turn which the debates had taken—involving an important constitutional question, relative to the powers vested in the different branches of Government—seemed to create a necessity of expressing his sentiments, lest by his vote he might seem to subscribe to certain doctrines in the latitude in which they had been laid down. And as he should differ in some respects from most of the gentlemen that had spoken, he asked the indulgence of the committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their government which might be of serious consequence.

On the one hand, he did not think that Treaties could not, under any circumstances, be the subject of Legislative consideration or discussion, and that they were not to look into them. It appeared to him, that they not only had the right, but that it was their indispensable duty to look into every Treaty, when called upon to aid in its operation; to see whether it had the constitutional forms; whether it related to objects within the province of the Treaty-making power, a power which is not unlimited. The objects upon which it can operate are understood and well defined, and if the Treaty-making power were to embrace other objects, their doings would have no more binding force than if the Legislature were to assume and exercise judicial powers under the name of legislation. It might be proper, also, to examine the merits of a Treaty, so far as to see whether it be of such a ruinous nature as, according to the law of nations, it would be null, and whether they would be justified in withholding Legislative provision to carry it into effect. He also considered Treaties as subject to Legislative control, so that their operation, so far as related to the people of the United States, might be suspended or annulled whenever, in the opinion of the Legislature, there was sufficient cause. And further, that the clause in the constitution which provides that no money shall be drawn from the Treasury, but "in consequence of appropriations made by law," as vesting in the different branches of Government a check adequate to every purpose of security.

On the other hand, he did not consider the House of Representatives as having a constitutional right to interfere in making Treaties, or that a Treaty needed any concurrence of that House, or Legislative sanction, to make it the law of the land. He had always supposed that Treaties were exactly on the footing of laws in their operation on antecedent laws, suspending and repealing such as were repugnant. Treaties may sometimes require Legislative aid to carry them into effect; so may laws, and they were constantly in the habit of making laws to carry into effect laws heretofore made.

After these preliminary observations, Mr. H. proceeded to inquire, not what ought to be, but what was the Constitution of the United States? We were not, he said, in Convention, but in the discharge of Legislative functions under the constitution; and to understand the extent of the powers intended to be granted in the second article, section two, by these words, "the President shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur," we must advert to the general definition of the Treaty-making power—what objects it may embrace, and how far it can interfere with Legislative power. A Treaty is a compact entered into by two independent nations, for mutual advantage or defence. Nothing can, therefore, come within the Treaty-making power but what has a relation to both nations, and in which they have a mutual interest. The object of this power is to secure to our citizens advantages in foreign countries which are without or beyond our Legislative jurisdiction, to enable the Treaty-making power to obtain which, it must necessarily be authorized to give some consideration or equivalent therefor. If the United States authorize an agent to make a bargain or purchase, the power of binding the United States for a reasonable consideration is necessarily given. Whenever the Treaty-making power departs from these rules, it is without its jurisdiction, and such a Treaty would be of no validity. Under this view of the subject, if we look into our code of laws, we shall find few of them that can be affected, to any great degree, by the Treaty-making power. All laws regulating our own internal police, so far as the citizens of the United States alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. He could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present Treaty, which was the revenue law; which provides that certain duties shall be paid on goods imported into the United States, and on goods coming in foreign bottoms ten per cent. advance on the amount of such duties. This is a law no Treaty can repeal, admitting the repealing power in its fullest latitude, because no foreign nation can have any interest or concern in the duties payable by our own citizens into our own Treasury. All that a Treaty could do, would be to suspend or arrest its operation, so far as the citizens or subjects of the nations with whom we treated, were or might be affected by it. The only operation which the British Treaty has upon that law is, that in consideration of our being freely admitted to the fur trade and the trade into Canada, which opens to the enterprise of our citizens a vast source of wealth and advantage, we only give in return to the subjects of the King of Great Britain the privilege of bringing, by land or inland navigation, into the United States, goods for which they pay no more duties than our citizens pay on goods imported in American bottoms. British subjects have always been permitted to reside and trade in the United States, and peltry is to be duty free in the territories of each. According to this definition of the Treaty-making power, and as far as he could judge, he said, it was correct; it cannot have that unlimited extension which has been ascribed to it. It cannot be that monster which has been described as about to swallow up all the Legislative powers of Congress; nor can there be any danger of the President and Senate having it in their power, by forming Treaties with an Indian tribe or a foreign nation, to legislate over the United States. The Treaty-making power cannot affect the Legislative power of Congress but in a very small and limited degree. Because a Treaty or an Executive act may, in some instances, arrest the operation or progress of a law, it is no argument against the existence of the power. In article first, section eighth, of the constitution, a specific power is granted to Congress to provide for the punishment of the counterfeiters of the securities or coins of the United States. In another article, the President is authorized generally to grant reprieves or pardons for offences against the United States, excepting in cases of impeachment. Can any one seriously contend that the President has not the power of granting a pardon to a counterfeiter of securities or coins, because it would suspend and defeat the operation of a law, on a subject, specially delegated to Congress? If this doctrine be true, that all Legislative power may be exercised by the Treaty-making power, Congress, under the old Confederation, had unlimited Legislative power over the States. The old Confederation vested in Congress an unlimited power to make Treaties, excepting only that the States were to be at liberty to impose like duties on foreigners as on their own people, and that the exportation or importation of goods was not to be prohibited. Was it ever imagined that, by this general power, Congress had a right, by forming a Treaty with a foreign power, to legislate over the States to any extent? Suppose Congress, instead of taking so much pains to persuade the States to consent to their laying the five per cent. impost, and in obtaining which they were finally defeated by the refusal of one State, after every possible exertion, had undertaken to have it done by Treaty? Would not the measures have been reprobated with one voice, and the Treaty considered as a nullity?

In the first place, in Art. I., organizing a Legislative body, and delegating to them, not all, but a part only of the Legislative power of the States, in these words: "All Legislative powers herein granted shall be vested in a Congress;" and among the specified powers, the right of regulating commerce with foreign nations. How were they to regulate commerce? Not by the exercise of the Treaty-making power. This article of the constitution has not the least relation to that kind of power: it was Legislative power only that was meant: it vested Congress with the whole power, as far as the object could be accomplished by a Legislative act; but this power would embrace but a small part of the objects which come within the term of regulating commerce with foreign nations; it could extend no further than the bounds of our own jurisdiction. There is not a single expression that looks like authorizing them to act in any other than their Legislative character.

The constitution then proceeds, in the second Article, to the establishment of an Executive power, to be vested in a President, and in the second section, says: "The President shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." The most general terms are used, and such as under the old Confederation had been understood to embrace every kind of Treaty, commercial as well as others, and had been exercised in the most ample and unlimited manner, and the Treaties thus formed had been declared and adjudged to have the force and operation of a law, and that they repealed all laws that were opposed to them; and these Treaties were then in full force and operation, and were the supreme law of the land. It cannot be presumed that the framers of our constitution were ignorant of the laws of the land, or that they had not well attended to and examined Treaties, which, by the constitution, they were again about to declare to be the supreme law of the land under the new Government. Now, if it really was intended that the Treaty-making power should not be as broad, and have the same extension and operation as had been exercised under the old Confederation, or that there was to be a distinction between commercial Treaties and others, or that Treaties generally should not so operate as to repeal pre-existing laws, or that the concurrence of the House of Representatives, or sanction of Congress, should, under any circumstances, be necessary to give validity or force to a Treaty, how can we account for the total silence of the constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? If any limitation was intended, the convention certainly knew that it was necessary it should be inserted. When we examine the constitution, and see with what accuracy and care it is drawn up, how wonderfully every part of it is guarded, that there is not a single word but appears to have been carefully examined, and when we call to mind the members of that convention, and find them to have been the ablest and most accurate men of our country, we cannot presume that we should have been left to the sad alternative, for the purpose of explaining so important an article of our constitution, which might have been so easily made definite, to be obliged to resort to the British House of Commons for precedents, and those too which were derived from the most turbulent periods of the Government of that nation; when, it is a possible case, that the change of a Ministry, or the rage of party, might have been more immediately the object of pursuit than the true interest of the nation; more especially as the practice of our own Government, and the legal opinion of our own country, were directly opposed to such a construction. But if all this might be supposed not to have had sufficient weight to have induced the convention to have introduced such a limitation, or some intimation that such limitation was intended, they must have supposed it necessary when they handed out with the constitution, which were declared by the ratification thereof to be the supreme law of the land, Treaties of every description, commercial as well as others. To me, the language of this transaction is, we have, by one article of this constitution, granted the Treaty-making power, in general terms, to the President and Senate.

March 24.—[The question was taken on Mr. Livingston's resolution, which is in the following words:]

"Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty; excepting such of said papers as any existing negotiation may render improper to be disclosed."

The division on this resolution, in Committee of the Whole, was—for the resolution 61, against it 38—majority 23.

The resolution was then taken up in the House, and the yeas and nays being called upon it, were taken, and stood yeas 62, nays 37, as follows:

Yeas.—Theodorus Bailey, David Bard, Abraham Baldwin, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, Thomas Claiborne, John Clopton, Isaac Coles, Henry Dearborn, George Dent, Gabriel Duvall, Samuel Earle, William Findlay, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Andrew Gregg, Christopher Greenup, William B. Grove, Wade Hampton, George Hancock, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, James Holland, George Jackson, Aaron Kitchell, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, Anthony New, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robert Rutherford, John S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn.

Nays.—Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, Abiel Foster, Dwight Foster, Nathaniel Freeman, jr., Ezekiel Gilbert, Nicholas Gilman, Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, James Hillhouse, William Hindman, John Wilkes Kittera, Samuel Lyman, Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, John Williams.

Recapitulation.—Yeas 62, nays 37, absent 5—104—the Speaker 1—whole number of Representatives 105.[72]

Mr. Dayton, the Speaker, in Committee of the Whole, voted against the resolution.

March 25.—The committee, (Messrs. Livingston and Gallatin,) appointed to present the resolution agreed to yesterday to the President, reported, that the President answered, that he would take the resolution into consideration.

March 30.—The following Message was received from the President in answer to the resolution of the House:

Gentlemen of the House of Representatives:

With the utmost attention I have considered your resolution of the 24th instant, requesting me to lay before your House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, together with the correspondence and other documents relative to that Treaty, excepting such of the said papers as any existing negotiation may render improper to be disclosed.

In deliberating upon this subject, it was impossible for me to lose sight of the principle which some have avowed in its discussion, or to avoid extending my views to the consequences which must flow from the admission of that principle.

I trust that no part of my conduct has ever indicated a disposition to withhold any information which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress as a right; and, with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof, so far as the trust delegated to me by the people of the United States, and my sense of the obligation it imposes, to "preserve, protect, and defend the constitution," will permit.

The nature of foreign negotiations requires caution; and their success must often depend on secrecy; and even, when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations; or produce immediate inconveniences, perhaps danger and mischief, in relation to other Powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making Treaties in the President with the advice and consent of the Senate; the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand, and to have, as a matter of course, all the papers respecting a negotiation with a foreign Power, would be to establish a dangerous precedent.

It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed. I repeat, that I have no disposition to withhold any information which the duty of my station will permit, or the public good shall require; to be disclosed; and, in fact, all the papers affecting the negotiation with Great Britain were laid before the Senate, when the Treaty itself was communicated for their consideration and advice.

The course which the debate has taken on the resolution of the House, leads to some observations on the mode of making Treaties under the Constitution of the United States.

Having been a member of the General Convention, and knowing the principles on which the constitution was formed, I have ever entertained but one opinion on this subject, and from the first establishment of the Government to this moment, my conduct has exemplified that opinion, that the power of making Treaties is exclusively vested in the President, by and with the advice and consent of the Senate, provided two-thirds of the Senators present concur; and that every Treaty so made, and promulgated, thenceforward becomes the law of the land. It is thus that the Treaty-making power has been understood by foreign nations, and in all the Treaties made with them, we have declared, and they have believed, that when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared to my knowledge that this construction was not the true one. Nay, they have more than acquiesced; for until now, without controverting the obligation of such Treaties, they have made all the requisite provisions for carrying them into effect.

There is also reason to believe that this construction agrees with the opinions entertained by the State Conventions, when they were deliberating on the constitution, especially by those who objected to it, because there was not required in Commercial Treaties the consent of two-thirds of the whole number of the members of the Senate, instead of two-thirds of the Senators present, and because, in Treaties respecting territorial and certain other rights and claims, the concurrence of three-fourths of the whole number of the members of both Houses respectively was not made necessary.

It is a fact, declared by the General Convention, and universally understood, that the Constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known that, under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the Government was invested with great powers; for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend.

If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the Journals of the General Convention, which I have deposited in the office of the Department of State. In those Journals it will appear, that a proposition was made, "that no Treaty should be binding on the United States which was not ratified by a law," and that the proposition was explicitly rejected.

As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not necessary to the validity of a Treaty; as the Treaty with Great Britain exhibits in itself all the objects requiring Legislative provision, and on these the papers called for can throw no light; and as it is essential to the due administration of the Government, that the boundaries fixed by the constitution between the different departments should be preserved—a just regard to the constitution and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.

G. WASHINGTON.[73]

United States, March 80, 1796.