FOURTH CONGRESS.—FIRST SESSION. (continued 4)

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.