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.