Mr. Chairman, the vote which I shall give on the question before us, will, in some degree, be influenced by a constitutional principle, which I consider as involved in the decision. On the resolution calling for the instructions given to Mr. Jay, and other papers relative to the Treaty, it was insisted on by members of this House, that the Executive has a right, by Treaty, to supersede all Legislative powers vested in Congress by the constitution. The Executive gives the same construction to the constitution. If, under these circumstances, I vote for the resolution before you, I consider myself as admitting, as recognizing the principle contended for. This I cannot do. On the admission, or rejection of this principle, I am of opinion, the future course, the future operations of Government materially depend. By this it will be decided, whether it is wholly Executive or not: whether this House depends on the courtesy of the Executive for their right to interfere in legislation.
It has been argued, that this extensive, unlimited power, was necessarily vested in the Executive, subject only to the control of the Senate. In order to support the sovereignty and independence of the small States, I do conceive that a branch of the Legislature in which the States are equally represented, was all that could be claimed. Can it be conceived to be necessary, just, or proper, that the regulation of all the important interests of the Union should be at the disposal of the Executive? Can gentlemen seriously believe that the citizens of the United States, who opposed, at so great an expense of blood and treasure, the claim of Great Britain to tax us unrepresented, would admit all their interest to be represented by so unequal a representation as that contended for? It has been asked, Is not the Senate as worthy of the confidence of the citizens of the United States as this House? I will ask, are they more? This Legislative power is restrained and checked by the constitution; particular modes and restrictions are prescribed, but no checks are imposed on the Executive. Were the people jealous of this House, and not of the other branches? Did they suspect the Legislature of doing wrong? When this House was connected with the other branches, were they to regulate their interests; and have they reposed unlimited confidence in the other branches when acting without this? Did they consider this House as the only branch from which any danger was to be apprehended? It is impossible, yet this must have been the fact, if the construction given to the constitution is a just one.
A gentleman from Connecticut has said, that gentlemen had prejudged the Treaty; they come forward with prejudices against it, determined to vote against it. It is not so with me. I was strongly inclined to vote for it; to make some degree of sacrifice rather than defeat it.
Gentlemen, on reflection, must be convinced that the question has not been prejudged. The Envoy was appointed at the moment when this House was deliberating on means for preventing further spoliations on our commerce. Commercial regulations were proposed, and other means from which they might have been forced to abandon their unjust and oppressive system. I remember well the arguments then used were convincing to my mind; that those were the only weapons of defence within our power; that they would be effectual. But these were arrested by the despatch of an Envoy Extraordinary. Some of the leading features of the Treaty were then predicted; the event has corresponded with those predictions. Principles were then discussed, which the Treaty contains, before the negotiator was appointed.
This shows there was no prejudging in the manner gentlemen have stated. By this Treaty all the measures then contemplated by the Legislature are arrested; an eternal veto is imposed against our ever carrying the measures then contemplated into effect. This shows that the Executive claims not only the constitutional right of forcing this House to pass what laws they please, but also, by Treaty, to declare what they shall not do.
We have passed a resolution, which is now on your files, declarative of the sense of this House as to their constitutional rights. The question is, however, undecided. The Executive and Senate will proceed to act on their own construction. They may, on their own construction, make a Treaty, which will imply a still more imperious and commanding necessity to provide for its execution, than even the present case. This necessity may force a relinquishment of the right contended for by this House. It may force an acquiescence in the Executive regulating all the interests of the Union. I believe it was not the sense of the framers of the constitution. It is not the sense of the people who adopted it. It never can be mine.
The merits of the Treaty have been ably and accurately discussed. I will make but a few remarks on it. I must disagree with the gentleman from Connecticut, who mentioned, as a well-known principle in judging of Treaties, that all property, (by fair construction, and by the established law of nations,) if not excepted particularly in a Treaty, remains in the same state in which it was found when the Treaty was made. Those in possession retain the possession. From this he has concluded, that negroes, taken during the war, had become the property of the captors, or rather, were emancipated. The words of the Treaty of Peace are, "negroes and other property."
This plainly shows, in his opinion, that, by negroes, was not meant those taken during the war; they were not American property. The property was changed. It could only be intended, such negroes as were taken after the peace. I will ask, was it ever known in a Treaty, that a stipulation was made to give up property plundered after the peace? Is it not an established principle amongst all civilized nations, that plundered property shall be given up? Is it necessary, or was it ever thought so, to make it a stipulation by Treaty? I believe, if his construction is a just one, it is a new case, the provision was at least nugatory.
But if the principle he lays down is a just one, how does it happen that debts due to British subjects, paid by the debtors into the Treasury under the sanction of a law, and appropriated to the use of the State, are now recoverable by the British creditor? An important case of this kind has been decided in the Federal Court, and judgment given for the British creditor. Was the property less changed by the law of a sovereign and independent State, than by the proclamation of a British commander? This cannot be. The fact is, however, that in two cases, found in the same instrument, there are claims founded on the same principle; the one, a British claim, is established, the other, a claim of the United States, is rejected. This involves in it an absurdity. By those opposed modes of construction, an important claim of the citizens of the United States is given up by the Treaty, a claim against them to a great amount is established.
The claim as against us is admitted; our claim is rejected, in cases where the same principle fairly applies, and where, by gentlemen's own showing, there is no dissimilarity which can justify such opposite constructions. There is another provision of the Treaty, by which an important interest has been sacrificed. British subjects held lands within the United States before the war; many of those claims were barred; the claimant being an alien could not recover; his being an alien was the only bar. It was effectual—such has been the decision of the Courts. But by the Treaty, being aliens shall not bar the claim of British subjects—thus, many of the extensive claims are restored. In some of the States more than half their territory will be revested in proprietors. What could induce this grant? What equivalent do we receive for this sacrifice? Sir, I am constrained to think the Treaty a bad one, in those instances I have mentioned, more so than in any others. And when I connect with the Treaty itself the important constitutional question which has been discussed, I cannot vote for the resolution before you.