UNITED STATES, _February_ 2, 1796.
The said Message and letter were read, and ordered to be referred to the
Committee of the whole House, to whom is committed the bill to regulate
trade and intercourse with the Indian tribes, and to preserve peace on
the frontiers.
WEDNESDAY, February 3.
LEMUEL BENTON, from South Carolina, appeared, was qualified, and took
his seat.
MONDAY, February 8.
_Compensation of Members._
The House resolved itself into a Committee of the Whole, on the bill for
allowing a compensation to the members of both Houses, which proposes an
annual salary of one thousand dollars to each member, instead of six
dollars per day.
Mr. GILES moved that the word "annually" be expunged from the bill. He
thought the present mode of compensating the members of the Legislature
a good one, and could not conceive why an alteration should be made.
Such a mode of payment as was now proposed ought to be sanctioned only
upon the maturest deliberation.
Mr. GOODHUE explained the reasons which induced the committee to propose
an annual instead of a daily payment to members, which was, that members
might be induced to greater despatch in business, and to do away an idea
which had gone abroad amongst many people, that, being paid by the day,
the members of that House protracted their session to an unreasonable
length.
Mr. GILES thought there ought to be no pecuniary inducement to members
to push forward business in too rapid a manner, or to shorten their
sessions. An annual salary would doubtless have this effect, and
business, in consequence, would most certainly be neglected. It would be
an evil of the greatest importance; it would be a constant temptation to
members to neglect their duty; it would tend to embarrass all their
deliberations. Indeed, it was a perfectly new mode of requiting
Representatives, and would be supposed to be introduced for the purpose
of advancing their pay--an idea which he did not wish to prevail, as he
thought the present allowance sufficient. He therefore hoped the
principle would not be agreed to.
Mr. SWANWICK was against the bill, and said, that to pay members in the
way proposed would be to offer them a bounty to neglect the business of
the Legislature.
Mr. HILLHOUSE was in favor of the bill. He said, that the constitution
had provided that Congress should meet once a year, and that more time
was spent during their sitting than was taken up by the Circuits of the
Judges. Yet the Judges had a salary allowed them, and it was not found
to have any bad effect. Complaints are now made out of doors that their
sessions are protracted for the sake of the daily allowance paid to
them. Persons who said this, said he, do not know that we are all the
time deeply engaged in business, which is much lengthened by clashing
interests of different States. A yearly salary would do away this idea,
without making any real difference in the amount paid by the Treasury
for their services. If he thought the mode of payment would cause
members to neglect their duty, as has been observed, he too would be
against the adoption of it; but surely it cannot be supposed that
members would not sit as long as business should require them. He
observed, they had now been in session two months, and but very little
important business had been done. He thought the mode proposed would
tend to remedy this evil: it was an experiment at least worth trying.
Mr. FINDLAY did not object to the bill merely as a novelty, but because
it offered no advantage. Many persons, no doubt, would think one
thousand dollars a year too much; but he believed it best for members to
do their duty, without regarding the misapprehensions and prejudices of
they know not whom. He did not think the pay of members influenced their
sittings. The greatest difficulty, towards the close of the session, was
to keep members together. If, indeed, members would attend better at the
beginning of a session, and take up less time in speaking, sessions
might be shorter; but there must, however, be full liberty given to
every member to express his sentiments in his own way. No law can
regulate people's conceptions. He thought it best that the members
should be paid by the day. He should never boast of passing laws in a
short time, but of passing good laws.
Mr. NICHOLAS was in favor of the present mode of compensating members,
as the period of their sessions was uncertain, and wherever salaries
were paid, they were for certain business. Give members one thousand
dollars, and he did not doubt but some of them would wish to return home
sooner than if they had been paid in proportion to the time spent in
business. Water, though insensibly, wears away stones; and such an
influence, he feared, would have a tendency to undermine the integrity
of members. It was better to be slow than too hasty in business. He
hoped this bill would not pass as an experiment, for the effect must be
corruption; and when once this enemy of all governments is suffered to
take root, it is difficult to eradicate it. Indeed, this bill would be
supposed by many as a cover to advance the pay of members. If there were
any such view, he wished members to propose the measure openly. He
thought the present pay too much, and if the people thought it
influenced the length of their sittings, they were of the same opinion.
Mr. WILLIAMS was against the bill, though he believed it to be brought
in by the committee from the best of motives. It was their opinion it
would shorten the sessions, and, if carried into effect, it might do so.
If our wages were lowered, the measure would shorten our sessions. Every
penny beyond expenses is too much: a medium salary was desirable. If the
pay of members was increased, officers of Government will do the same.
At present, it was true, all the necessaries of life were at a high
price; but when the war in Europe ceases, the case will be different.
Whenever we adjourn our sessions, (said he,) much business is
necessarily left unfinished; and if members were paid by the year
instead of by the day, all those whose business was not completed would
be ready to say that members were hastened away to enjoy their salary at
home.
Mr. SEDGWICK did not think the business before the House important. He
was inclined, however, to favor the bill, not that he would grant a
larger amount in that way than the amount of the present allowance per
day. The argument of novelty, he said, would not apply: we are in the
business of experiment. He would observe a fact well known, that every
member in the House was deprived of the opportunity of pursuing his
occupations at home, and of the emoluments arising therefrom, by his
attendance to public business. He did not believe a yearly allowance
would shorten the sessions, but it would remove the charge brought
against members of protracting the sessions for the sake of their pay.
Whether it is necessary to increase or diminish the present pay is not
the question.
Mr. LIVINGSTON expected stronger motives for the bill than he had heard.
It is acknowledged a perfect novelty. This, though by no means decisive,
is an objection against the measure, and there is nothing else to
recommend it. It has, indeed, been said, it will shorten our sessions;
but would this be a benefit? If to continue in session be an evil, why
are we here? If it could have been proved that expense would have been
saved by the measure, that would have been a real advantage; but this
has not been hinted at. It has, indeed, been said, it will remove from
our constituents a suspicion that we are living here too long. It has
been said, that an idea has gone abroad that we receive six dollars a
day through the year. Few, he believed, were so ill informed; but this
bill, if passed, will cause much more discontent than the present pay
occasions. Deliberation in a Legislative body is necessary. The dearest
interests of the people, he said, were committed to their charge, and he
trusted they would watch over them, and never suffer them to be injured;
and then, it was his opinion their constituents would not think much of
their pay.
Mr. BALDWIN said, that it was a disagreeable business to be employed in
discussing the subject of paying themselves for their services: it would
be a desirable thing to supersede the necessity of doing so. The
committee doubtless thought one thousand per annum would be an
improvement upon the present mode of paying members, but he could not
think so. He thought it best that the allowance should be paid in the
old way.
Mr. GILBERT was willing to try the experiment of the bill proposed. He
did not believe that either the present daily allowance lengthened, or
that an annual salary would shorten, the sessions. He thought to say the
contrary was a base insinuation.
Mr. BOURNE never heard it was the wish of their constituents that their
payment should be annual instead of per day. He had heard it complained
that their pay was too high; but now, since the price of living is so
much advanced, he believed the people were satisfied. He saw no
advantages from the proposed change. It cannot be thought that the pay
is an inducement to members to prolong their sessions: he had not heard
such a complaint. He was in favor of striking out the word "annually,"
and for recommitting the bill.
Mr. MADISON observed, that the present bill proposed no alteration with
respect to the amount of money to be drawn from the Treasury, and it can
make but little difference to members. What had been mentioned as the
advantages of this bill, in his opinion, would operate against it. A
novelty, he said, always called for hesitation.
Mr. SWANWICK thought, if they enacted good laws--laws that should
encourage agriculture and commerce--their constituents would not trouble
themselves about their salary.
Mr. GILES rose to remark upon an expression which fell from Mr. GILBERT,
viz: that, to say members were likely to be influenced by the proposed
salary, was a vile insinuation. He declared that it was a recommendation
of the bill in the committee, that it would tend to shorten their
sessions.
Mr. GILBERT explained, and justified the expression.
The motion for striking out the word "annually" was called for, and
passed.[68]
TUESDAY, February 9.
FISHER AMES, of Massachusetts, appeared, was qualified, and took his
seat.
THURSDAY, February 11.
_Post Roads from Maine to Georgia._
Mr. MADISON moved that the resolution laid upon the table some days ago
be taken up, relative to the survey of the post roads between the
province of Maine and Georgia; which, being read, he observed that two
good effects would arise from carrying this resolution into effect; the
shortest route from one place to another would be determined upon, and
persons, having a certainty of the stability of the roads, would not
hesitate to make improvements upon them.
Mr. BALDWIN was glad to see this business brought forward; the sooner it
could be carried into effect, the better. In many parts of the country,
he said, there were no improved roads, nothing better than the original
Indian track. Bridges and other improvements are always made with
reluctance whilst roads remain in this state, because it is known as the
country increases in population and wealth, better and shorter roads
will be made. All expense of this sort, indeed, is lost. It was properly
the business of the General Government, he said, to undertake the
improvement of the roads, for the different States are incompetent to
the business, their different designs clashing with each other. It is
enough for them to make good roads to the different seaports; the cross
roads should be left to the government of the whole. The expense, he
thought, would not be very great. Let a surveyor point out the shortest
and best track, and the money will soon be raised. There was nothing in
this country, he said, of which we ought to be more ashamed than our
public roads.
Mr. BOURNE thought very valuable effects would arise from the carrying
of this resolution into effect. The present roads may be much shortened.
The Eastern States had made great improvements in their roads, and he
trusted the best effects would arise from having regular mails from one
end of the Union to the other.
Mr. WILLIAMS did not think it right for the revenues of the Post Office
to be applied to this end. He acknowledged the propriety of extending
the post roads to every part of the Union; he thought the House had
better wait for the report of the committee to which business relative
to the Post Office had been referred, which was preparing to be laid
before the House.
Mr. MADISON explained the nature and object of the resolution. He said
it was the commencement of an extensive work. He wished not to extend it
at present. The expense of the survey would be great. The Post Officer,
he believed, would have no objection to the intended regulation.
After some observations from Mr. THATCHER, on the obtaining of the
shortest distance from one place to another, and the comparing old with
new roads, so as to come at the shortest and best, the resolution was
agreed to, as follows:
_Resolved_, That a committee be appointed to report a bill authorizing
the PRESIDENT OF THE UNITED STATES to cause to be examined, and, where
necessary, to be surveyed, the general route most proper for the
transportation of the mail between ----, in Maine, and ----, in the
State of Georgia, and to cause to be laid before Congress the result of
such examination and survey, with an estimate of the expense of
rendering such route fit, in all its parts, to be the established route
of the post; the expense of such examination and survey to be defrayed
out of the surplus revenues of the Post Office.[69]
_Ordered_, That Mr. MADISON, Mr. THATCHER, Mr. BALDWIN, Mr. HENDERSON,
and Mr. SHERBURNE, be appointed a committee pursuant to the said
resolution.
MONDAY, February 22.
_Washington's Birth-Day._
Mr. W. SMITH moved that the House adjourn for half an hour.
This motion occasioned a good deal of conversation upon its propriety.
In favor of it, it was said, that it had been a practice ever since the
commencement of the Government, for that House to make a short
adjournment on that day in order to pay their compliments to the
PRESIDENT, and that several members were absent, from an idea that the
House would adjourn at 12 o'clock as usual. On the other hand, it was
objected that it was the business of the members of that House first to
do their duty, and then attend to the paying of compliments; that just
at that time the house of the PRESIDENT was filled with militia and
others; and that, therefore, it would be better, upon the whole, to wait
upon the PRESIDENT after the business of the day was finished.
Mr. GALLATIN moved that the words "half an hour" be struck out.
The sense of the House was first taken on the amendment, which was lost,
without a division. The motion was then put and negatived, being 38 for
it, and 50 against it.
FRIDAY, February 26.
_Compensation to Members._
Mr. GILES moved that the bill for allowing compensation to the members
of the Senate and House of Representatives, and certain officers of both
Houses, be taken up, which being agreed to, the House resolved itself
into a Committee of the Whole; and the bill being read,
Mr. SWIFT wished to strike out the words making the Speaker a greater
allowance than other members.
Mr. GILES thought a larger allowance ought to be made to the Speaker
than to other members, as his duty was double that of any other member;
but if gentlemen wished to do away the incidental expenses of the
office, he had no objection.
Mr. SWIFT consented to vary his motion according to the ideas of the
member from Virginia. If the Speaker had more duty to perform than other
members, he should be willing to make him a greater allowance, but he
doubted it.
Mr. W. SMITH hoped no alteration would be made in the allowance
heretofore made; he saw no reason for it.
Mr. GOODHUE said, he voted against the additional pay allowed the
Speaker when the act first passed, as he saw no necessity for the
Speaker to give dinners to the members of that House; but though he
objected to this, he was willing to allow him recompense for his
additional services. He hoped, however, the gentleman who now so ably
filled the office, would not consider any thing said on this subject as
alluding personally to him.
Mr. SEDGWICK was willing to give the money to the Speaker which had
heretofore been paid him, and for the same purpose, although he and his
colleague were both against the measure when it originally passed.
Mr. DAYTON wished the business might be discussed without reference to
him personally. Indeed he believed he should not be materially affected
by any regulations which might be agreed to, as, if he might judge by
his present feelings, his health would not permit him to remain in the
chair after this session.
Mr. GILES was confident that no one meant to hurt the feelings of the
gentleman who now filled the chair. The member from Massachusetts had
said, when the measure passed, he was against it, but now he was in
favor of it. He could see no ground for this change of sentiment. Mr. G.
said, he was against the money being paid for incidental expenses, but
not against making the Speaker ample allowance for his services.
Mr. KITCHELL was also for striking out the words, but for making ample
compensation to the Speaker.
Mr. BOURNE did not suppose that the incidental expenses of the Speaker
were confined to the dinners which he gave them; he was put to more
expense in receiving company than other members. He did not think six
dollars a day too much for this.
Mr. MADISON said, it was customary in all the State Governments to make
the Speaker a greater allowance than other members: his services were
far greater; they were uninterrupted. Besides, it was necessary to do so
to invite men of talents to accept of the office; and every one knew the
advantages arising from having a man of talents as Speaker. Without
inquiring whether the compensation was too large or too small, he
doubted whether it was constitutional to make any alteration in it which
might affect the present Speaker. To support his opinions he read a
clause of the constitution.
Mr. HILLHOUSE was of opinion that nothing in the constitution extended
to the present question. He hoped they should agree to strike out the
words alluded to, as the sooner the practice of feasting was abolished,
the better. If members wished to form social acquaintances, it was far
preferable to visit each other at their lodgings. He said, this was the
first time the law had come under review since it had passed, and it was
proper to have the matter settled. He wished to allow a reasonable sum
for the services of the Speaker, but no more. He did not think there was
any weight in the observation, that a large compensation was necessary
to induce men of talents to accept of the chair--he thought the honor
was a sufficient inducement.
Mr. WILLIAMS said there was no office appertaining to the Speaker which
included expense; the words ought therefore to be struck out.
Mr. PAGE was in favor of striking out the words, as he did not
understand their meaning, but in favor of keeping the allowance of the
Speaker the same as usual. The Speaker, he said, ought to be placed in
an independent situation, by a handsome salary. His duties were fourfold
to those of any other member. Indeed, said he, nothing but a sense of
duty could induce a man to undertake such an office.
Mr. GILES said, if it was agreed to strike out the words _for the
incidental expenses of his office_, he should move to introduce in their
place, "_on account of extra services annexed to his office_."
Mr. JEREMIAH SMITH liked the words proposed better than those in the
bill, but did not think it of the importance it was made.
The motion for striking out was put and carried.
Mr. GILES then proposed his motion.
Mr. HILLHOUSE was against the introduction of these words.
Mr. VARNUM hoped the motion would prevail. The services of the Speaker
are extraordinary and laborious. The State Legislatures, he said, always
allowed their Speaker double the pay of other members.
Mr. MURRAY hoped the words would not obtain. He considered the
Speakership of that House as a very elevated situation. In certain
contingencies he believed he was the Chief Executive of the United
States. He thought the calculation of pay too mechanical. The dignity of
the office was sufficient, without extraordinary compensation; the
duties of it were well known.
The question was put, and negatived.
Mr. GILES moved to fill up the blank for the daily allowance of members
of the Senate with six dollars.
Mr. PAGE proposed seven; when, after a few observations from Mr.
WILLIAMS in favor of six, the sense of the House was taken, which was in
favor of six dollars--only twenty-one members rising in favor of seven.
The allowance of the Speaker again coming into consideration, Mr. SWIFT
wished an inquiry might be made into the duties of the office. It was
his opinion that many members upon committees performed greater services
than he; and if the Speaker had an extra allowance, they ought to have
an extra allowance also. Some gentlemen thought, on the score of
dignity, a high salary ought to be paid. He thought differently. Can it
be supposed it would be necessary, said he, to give any member of this
House double pay to accept of the office? No such thing. Being now
discharged from any obligation to treat members, he could not agree to
allow him the usual sum. He should not object to two or three dollars a
day extra, but no more.
Mr. GILES thought the duty of the Speaker three times as arduous as that
of any other member of the House.
Mr. CRABB voted for striking out the words, but he was not for
diminishing the salary of the Speaker.
The motion for the usual allowance was put and carried, and the other
blanks of the bill were filled up with the same sums as heretofore
allowed to the different officers. The committee rose; the bill then
went through the House, and was ordered to be engrossed and read a third
time on Monday.
MONDAY, March 7.
_The Treaty with Great Britain._
[The debate on the subject of the Treaty with Great Britain, and of the
constitutional powers of the House with respect to treaties, having
occupied the time of the House nearly every day for a month, (commencing
the 7th of March and ending on the 7th of April,) it is deemed
preferable, and as being more acceptable to the reader, to present the
whole in one body consecutively, rather than to spread it in detached
parts intermixed with other subjects, through the general proceedings of
each day. This debate, as here given, possesses a character for
authenticity and correctness which does not belong to the newspaper
reports of the day, it having undergone the careful revision of the
Speakers themselves. The debate which took place on making the provision
for carrying the Treaty into effect, will be found subsequently, in the
proceedings of each day as the subject came up before the House.][70]
On the second of March, Mr. LIVINGSTON, after stating that the late
British Treaty must give rise in the House to some very important and
constitutional questions, to throw light upon which every information
would be required, laid the following resolution upon the table.
"_Resolved_, That the President of the United States be
requested to lay before this House a copy of the
instructions to the Minister of the United States, who
negotiated the Treaty with the King of Great Britain,
communicated by his Message of the first of March, together
with the correspondence and other documents relative to the
said Treaty."
MARCH 7.--Mr. LIVINGSTON said he wished to modify the resolution he had
laid on the table, requesting the PRESIDENT to lay before the House
sundry documents respecting the Treaty. It was calculated to meet the
suggestions of gentlemen to whose opinions he paid the highest respect,
and was founded in the reflection that the negotiations on the twelfth
article were probably unfinished; and therefore, he said, a disclosure
of papers relative to that or any other pending negotiation, might
embarrass the Executive. He wished, therefore, to add, at the end of his
former motion, the following words: "Excepting such of said papers as
any existing negotiation may render improper to be disclosed."
The motion of Mr. LIVINGSTON was then taken up.
Mr. TRACY requested gentlemen in favor of the resolution to give their
reasons why the application for papers was to be made.
Mr. LIVINGSTON said, he had no wish to conceal his intentions. The
motives that impelled him to make the motion, were not such as to make
him wish to conceal them, or such as he ought to blush at when
discovered. The gentleman from Connecticut wished to know why he had
brought this resolution before the House? He did it for the sake of
information. That gentleman wished to know to what point this
information was to apply? Possibly to all the points he had enumerated.
It was impossible, however, to say to which or how many of these points
without a recurrence to those very papers. He could not determine now,
he said, that an impeachment would be deemed advisable; yet, when the
papers are obtained, they may make such a step advisable. It was
impossible to declare an impeachment advisable, without having the
necessary lights as to the conduct of officers. The House were, on every
occasion, the guardians of their country's rights. They are, by the
constitution, the accusing organ of the officers employed. The
information called for they ought to possess, as it would tend to
elucidate the conduct of the officers. His principal reason, however,
for proposing the measure, was a firm conviction that the House were
vested with a discretionary power of carrying the Treaty into effect, or
refusing it their sanction.
Mr. MURRAY said, that he was against the resolution for two reasons,
which then struck his mind forcibly. The first was the want of a
declared object within the acknowledged cognizance of the House; the
other was because he believed it was designed as the groundwork of a
very dangerous doctrine, that the House had a right to adjudge, to
adopt, or to reject Treaties generally. Had the gentlemen stated the
object for which they called for the papers to be an impeachment, or any
inquiry into fraud, as a circumstance attending the making of the
Treaty, the subject would be presented under an aspect very different
from that which it has assumed. He considered a Treaty, constitutionally
made, to be the supreme law of the land. The Treaty in view has been
negotiated and ratified, he thought, agreeably to the constitution. It
has been issued, by the PRESIDENT's proclamation, as an act obligatory
upon the United States. If the House mean to go into the merits of that
instrument, and the information be called for with that view, he should
feel himself bound by the constitution to give it every opposition.
Mr. BALDWIN thought the resolution so unexceptionable that he had
expected it would have been agreed to without debate. The PRESIDENT has
sent the House the Treaty; petitions have come forward on the subject;
the House must act in the business. It is yet unaccompanied with any
documents to throw light upon it. No person concerned in the negotiation
has a seat on the floor of the House; so that no oral information can be
expected. Implicit faith was not to be reposed, he imagined, in public
officers. It would be unfair to take up the subject naked and
unexplained.
Mr. GALLATIN said, he should not now enter into the merits of the
question, but merely state that pertain powers are delegated by the
constitution to Congress. They possess the authority of regulating
trade. The Treaty-making power delegated to the Executive may be
considered as clashing with that. The question may arise, whether a
Treaty made by the PRESIDENT and Senate, containing regulations touching
objects delegated to Congress, can be considered binding, without
Congress passing laws to carry it into effect. A difference of opinion
may exist as to the proper construction of the several articles of the
constitution, so as to reconcile those apparently contradictory
provisions. But all those questions would occur in future discussions.
What is now wanted is information on the subject, to elucidate the
different views which may be taken of the Treaty. It must do good to
obtain it, and could do no harm to ask for it. If it would be improper
to communicate any part of the information on the subject, the PRESIDENT
will say so. He had hoped, he said, that the resolution would have
passed without objection. He concluded by observing, that the House were
the grand inquest of the nation, and that they had the right to call for
papers on which to ground an impeachment; but he believed, that if this
was intended, it would be proper that the resolution should be
predicated upon a declaration of that intention. At present, he did not
contemplate the exercise of that right.
Mr. MADISON admitted that every proposition, however distantly related
to a question on the Treaty, drew from the importance of that subject
considerable importance to itself. In a discussion of this subject, he
felt strongly the obligation of proceeding with the utmost respect to
the decorum and dignity of the House, with a proper delicacy to the
other departments of Government, and, at the same time, with fidelity
and responsibility for our constituents. The proposition now before the
House, he conceived, might be considered as closely connected with this
important question. It was to be decided whether the general power of
making Treaties supersedes the powers of the House of Representatives,
particularly specified in the constitution, so as to take to the
Executive all deliberative will, and leave the House only an Executive
and ministerial instrumental agency?
Mr. SMITH (of South Carolina) said, that he had listened attentively to
the reasons advanced in favor of this resolution, and that he had heard
nothing to convince him of its propriety. The PRESIDENT and Senate have,
by the constitution, the power of making Treaties, and the House have no
agency in them, except to make laws necessary to carry them into
operation; he considered the House as bound, in common with their
fellow-citizens, to do every thing in their power to carry them into
full execution. He recognized but one exception to this rule, and that
was, when the instrument was clearly unconstitutional. In this case, he
remarked, it had not been said that the Treaty was unconstitutional.
When the resolution was first brought forward, it had indeed been
observed, that the discussion might involve certain constitutional
points, and, therefore, the papers called for by the resolution were
necessary; but it was obvious, the question of constitutionality should
be determined from the face of the instrument, and that a knowledge of
the preparatory steps which led to its adoption, could throw no light
upon it; that ground was therefore abandoned even by the friends of the
resolution, and others were resorted to.
He was surprised that gentlemen who displayed such zeal for the
constitution should support a proposition, the tendency of which went
indirectly to break down the constitutional limits between the Executive
and Legislative Departments. The constitution had assigned to the
Executive the business of negotiation with foreign powers; this House
can claim no right by the constitution to interfere in such
negotiations; every movement of the kind must be considered as an
attempt to usurp powers not delegated, and will be resisted by the
Executive; for a concession would be a surrender of the powers specially
delegated to him, and a violation of his trust. The proposition calls
upon the PRESIDENT to lay before the House the instructions given to Mr.
Jay, and the correspondence between him and Lord Grenville; and for what
purpose? Is this House to negotiate the Treaty over again? Has the
constitution made this House a diplomatic body, invested with the powers
of negotiation? Is not this House excluded? for, if the maxim that "the
expression of one is the exclusion of another," applies to this case,
the assignment of the Treaty-making power to the PRESIDENT and Senate,
is a manifest exclusion of this House. This call, then, on the
PRESIDENT, is an attempt to obtain indirectly what the constitution has
expressly assigned to others.
After Mr. S. had sat down, it was moved by Mr. GILES, to take the
resolution up in Committee of the Whole for the purpose of more ample
discussion.
This motion was agreed to; sixty-one members rising in the affirmative.
The House immediately resolved itself into a Committee of the Whole, on
the resolution.
Mr. NICHOLAS remarked, that the member from Connecticut, first up, when
inquiring for the reason of a call for papers, had suggested two. The
one, relating to the merits of the instrument; the other, an inquiry
into the conduct of officers concerned. On the latter ground, gentlemen
conceded that the House had a right to require the papers, and yet
seemed willing to adhere to that, on which they conceived a call could
not be, with propriety, grounded, as the one that influenced the conduct
of the friends to the resolution. All gentlemen admitted, that the House
had the superintendence over the officers of Government, as the grand
inquest of the nation; but persisted that the resolution calling for
papers, if intended for the purpose of exercising that authority, must
be predicated on an expression of the intention.
He took a view of the prominent features of the arguments of the members
up before him. It had been said that, if the power of the PRESIDENT and
Senate, as to Treaties, was complete, then the House had no right to
claim a participation; this could not be denied; but the question was,
whether the Executive had that right unqualifiedly, in all cases. In the
present case, he contended, the House had a voice. To elucidate: Suppose
that, in the constitution of the United States, which has been so
guarded about the expenditure of money, a clause had been inserted,
positively declaring that the House have a control over the money
matters stipulated in a Treaty; would not this constitute a
qualification of the powers of the PRESIDENT and Senate with respect to
Treaties? The constitution, on this head, he contended, though less
explicit than his supposed case would make it, was not the less
positive, if tested by all the fair rules of construction; and if
compared with the practice of the government from which we had borrowed,
with many other matters, this part of our constitution. In England, the
country alluded to, their House of Parliament had exercised a control
over the moneyed articles of Treaties; and he contended, the House of
Representatives had an equal authority here, as chief guardians of the
purse-strings. It was unnecessary, at this time, he said, to touch on
the other parts of the Treaty which clashed with the constitutional
powers of the House.
He again adverted to the power of control that the House of Commons have
over Treaties; and contended, that that provision of the British
constitution had been accurately copied in our own with this deviation
only, that the Senate have the power of making amendments to money bills
here, which the House of Lords there have not. He could show, from the
best authority, the acknowledgment of the British Crown officers
themselves, that the Parliament has a right to discuss and decide on
Treaties which involved moneyed stipulations.
The same power, he argued, resided in the House here; for shall it be
said, that we have borrowed only the form from Great Britain, and not
touched the substance? Shall it be said, that the House have a
discretion as to appropriations, and yet they must make them as directed
by a Treaty? If the House have no discretion to use in the business,
they are the most unfit body to regulate money-matters; for complete
regularity in so large a body must be one of the least of their valuable
properties. But, with the power of appropriating money, the House have
certainly the right to judge of the propriety of the appropriation. The
constitution explains itself fully on this head. He instanced the
specific power in the constitution, with respect to appropriations for
the army, to explain from that instrument its meaning in other parts.
The constitution says, that no appropriations for the support of armies
shall be for more than two years; this is, no doubt, that the House may
periodically have before them the question of the propriety of
supporting an armed force, with all its consequences, and that they may,
by refusing or granting an appropriation, determine on its existence.
The power thus cautiously lodged must have been for some purpose, and
that he had suggested could alone explain this clause of the
constitution. This will show what was expected of this House in
appropriating money; that they should judge of the usefulness of the
expenditure. In the case of the army, the constitution does not say that
we may disband an army by withholding money; but for the purpose of
investing us with the same power, only requires that the appropriation
should recur every two years; taking it for granted, that in this as
well as in every other Legislative act, we will duly weigh every
consequence.
Having thus explained from the constitution itself the true meaning of
this power of appropriation, he proceeded to elucidate it by a reference
to the practice of the Government. He found an instance in the permanent
appropriations made for the payment of the public debt. If the House in
this and analogous cases, could exercise no discretion as to
appropriations, why this permanent provision, in preference to an annual
appropriation? The permanency of the provision took its rise from the
idea, that the House possessed a discretionary power as to
appropriations. Thus, he had shown that the practice of the Government,
the provisions of the constitution, and the example of the British, from
whom we had exactly copied the control over money transactions, all
proved a discretion in the House as to appropriations. This must be
considered as a sufficient answer to the gentleman from South Carolina,
when he said, that the PRESIDENT and Senate possessed the Treaty-making
power; for they possessed it with qualification, in matters of money;
and unless the House chose to grant that money, it was so far no Treaty.
It was said, that if the Treaty was not the law of the land, the
PRESIDENT should be impeached for declaring it as such. Parts of the
Treaty the PRESIDENT and Senate had, no doubt, a right to make without
any control of the House--those parts he might be considered as
proclaiming; he proclaims it, limited as his authority, and under the
qualifications provided by the constitution. It was said, that no
instance of such a call as that now contemplated could be produced. No;
nor of such a Treaty, he answered.
Mr. SWANWICK expressed his sense of the importance of the subject before
the House, and the pleasure which he experienced at observing the
calmness and temper with which the discussion had been carried on. He
had not conceived, however, that the decision of the present question
involved the sense of the House as to the merits of the Treaty; the
object of the resolution was only to obtain that knowledge necessary for
an enlightened decision; it had been observed, that the Treaty had been
censured by assemblages of people with precipitancy, and without proper
information. They did this on the best information that could by them be
obtained. But if the House should go into a Committee of the Whole, to
take into consideration the Treaty, without obtaining all the
information in their power, they would be justly to blame.
He adverted to the constitution; according to that instrument, the
Legislative power is completely vested in Congress. By the 8th section
of the 1st article, not only a certain specification of powers are
granted to Congress, to lay and collect taxes, regulate commerce, &c.,
but the very extensive further power, not only to make all laws which
shall be necessary and proper for carrying into execution the foregoing
powers, but, also, all other powers vested by this constitution in the
Government of the United States, or in any department or officer
thereof. If, then, Congress have the power to pass laws to carry into
execution all powers vested by the constitution in the Government of the
United States, or in any department or officer thereof, how is it
possible that there can be any authority out of the purview of this
general and extensive Legislative control? Is the Treaty-making power
not a power vested by the constitution in the Government of the United
States, or in a department or officer thereof? If it is, is the
conclusion not obvious, that Congress have power to pass laws for
carrying these powers into effect? But in the power to pass laws,
discretion is necessarily implied; of course, this House must judge when
it is to act; whether it will, or will not, carry into effect the object
in question. It is a power, it is true, of great delicacy and
responsibility, but it is not less a power constitutionally given.
The member from South Carolina construed this part of the constitution
in a different way, and insisted that, as the PRESIDENT and Senate had
the power of making Treaties, the House were divested of the right of
exercising their judgment upon the subject. If this doctrine prevails,
to what a situation would the Representatives of a free people be
reduced? The constitution especially gives them the power of originating
money bills; but to what purpose would this power be granted, if another
authority may make a contract, compelling the House to raise money?
Suppose that authority were in this way to grant millions upon millions,
must the House, at all events, be compelled to provide for their
payment? In this case the House become mere automatons, mere mandarine
members, like those who nod on a chimney-piece, as directed by a power
foreign to themselves.
Great stress is laid upon the constitution declaring Treaties laws of
the land. This article has often been quoted partially, but not at
large. It is in these words: "This constitution, and the laws of the
United States, which shall be made in pursuance thereof, and all
Treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land." Had the clause stopped
here, there might have been some plea for the gentlemen's doctrine; but,
unfortunately for them, the article goes on to say: "And the Judges in
every State shall be bound thereby, any thing in the constitution or
laws of any State, to the contrary notwithstanding." Hence, it is
obvious that the supremacy of the law is over the constitution and laws
of the separate States, which was necessary to prevent these interfering
with those. But it does not affect the powers of this House, as a
component part of the General Legislature, and authority of the United
States. It is also worth while to notice the gradation in the article.
First. This constitution.
Secondly. The laws which shall be made in pursuance thereof, clothed
with the highest sanction of the nation, the consent of the three
branches.
Thirdly. Treaties. How absurd the doctrine, then, that these last, third
in order, can repeal the second: at that rate, all power whatever would
remain vested in two branches only of the Government; the third, with
all its powers of originating bills for raising revenue, would be
dwindled into a mere board of assessors.
The gentleman from Vermont said, yesterday, that if the PRESIDENT and
Senate were to make a Treaty, and that House were to refuse to make due
appropriations for carrying it into effect, it would become a nullity,
and no foreign nation would in future treat with such an uncertain
Government. Mr. S. observed, that that gentleman would probably be
surprised, when he was told, that the British House of Commons possesses
the same power which he reprobates in the Legislative Assembly of the
United States. This, Mr. S. proved, by reading the King's Speech to both
Houses of Parliament, in which he informs them of this Treaty, and
promises to lay it before them when ratified, in order that they might
judge of the propriety of making provision to carry it into effect.
What, judge of the propriety of passing laws to carry into effect a
Treaty ratified! And shall it be said, exclaimed he, that the
Representative Assembly of the United States does not possess a
privilege enjoyed by an English House of Commons! He hoped not.
Mr. HARPER said, that it had not been his intention to trouble the
committee, in this stage of the debate at least; nor should he now
depart from his resolution on that head, had he not observed that the
discussion was turning more and more on points, which it appeared to him
unnecessary to decide. He did not conceive that the powers of the House
respecting Treaties were necessary to be considered; the question
appeared capable of a satisfactory decision on different grounds.
When the motion was first proposed, he thought it innocent at least, and
was in doubt whether it might not be proper, because he was in doubt how
far these papers might be necessary for enabling the House to exercise
that discretion on the subject of Treaties, which he admitted it to
possess; but on a more accurate and extensive view of the subject, and
after carefully attending to the discussion which had already taken
place, he was thoroughly persuaded that these papers were no way
necessary, and, that being unnecessary, to call for them was an improper
and unconstitutional interference with the Executive department. Could
it be made to appear that these papers are necessary for directing or
informing the House on any of those Legislative questions respecting the
Treaty which came within its powers, he should propose to change the
milk-and-water style of the present resolution. The House, in that case,
would have a right to the papers; and he had no idea of requesting as a
favor what should be demanded as a right. He would demand them, and
insist on the demand. But, being persuaded that no discretion hitherto
contended for, even by the supporters of the resolution themselves, made
these papers necessary to the House, to call for them would be an
unconstitutional intermeddling with the proper business of the
Executive.
It had been said, that this motion was of little consequence; that it
was only a request which might be refused, and that the privileges of
that House were narrow indeed, if it could not request information from
the Executive department. But it would be observed, he said, that
requests from bodies like that, carry the force of demands, and imply a
right to receive. Legislative bodies often make the most formidable
expressions of their will in the shape of requests. It would be further
observed, that an honorable member from Pennsylvania, (Mr. GALLATIN,)
after declaring that this indeed was only a request which might be
refused, had added, that in case it were refused, it would then be
proper to consider how far we ought to make the demand, and insist on
receiving these papers as a matter of right. After this avowal of the
system, after this notice that the present request is no more than a
preliminary measure, a preparatory step, and in case of a refusal, is to
be followed up by a demand, could it be wondered that they who think the
measure improper, should oppose it in the threshold?
Mr. GALLATIN conceived that, whether the House had a discretionary power
with respect to Treaties, or whether they were absolutely bound by those
instruments, and were obliged to pass laws to carry them fully into
effect, still there was no impropriety in calling for the papers. Under
the first view of the subject, if the House has a discretionary power,
then no doubt could exist that the information called for is proper;
and, under the second, if bound to pass laws, they must have a complete
knowledge of the subject, to learn what laws ought to be passed. This
latter view of the subject, even, must introduce a discussion of the
Treaty, to know whether any law ought to be repealed, or to see what
laws ought to be passed. If any article in the instrument should be
found of doubtful import, the House would most naturally search for an
explanation, in the documents which related to the steps which led to
the Treaty. If one article of the Treaty only be doubtful, the House
would not know how to legislate without the doubt being removed, and its
explanation could certainly be found nowhere with so much propriety as
in the correspondence between the negotiating parties.
Gentlemen had gone into an examination of an important constitutional
question upon this motion. He hoped this would have been avoided in the
present stage of the business; but as they had come forward on that
ground, he had no objection to follow them in it, _and to rest the
decision of the constitutional powers of Congress on the fate of the
present question_. He would, therefore, state his opinion, that the
House had a _right_ to ask for the papers proposed to be called for,
because their co-operation and sanction was necessary to carry the
Treaty into full effect, to render it a binding instrument, and to make
it, properly speaking, a law of the land; because they had a full
discretion either to give or to refuse that co-operation; because they
must be guided, in the exercise of that discretion, by the merits and
expediency of the Treaty itself, and therefore had a _right_ to ask for
every information which could assist them in deciding that question.
One argument repeatedly used by every gentleman opposed to the present
motion was, "That the Treaty was unconstitutional or not; if not, the
House had no agency in the business, but must carry it into full effect;
and if unconstitutional, the question could only be decided from the
face of the instrument, and no papers could throw light upon the
question." He wished gentlemen had defined what they understood by a
constitutional Treaty; for, if the scope of their arguments was referred
to, it would not be found possible to make an unconstitutional treaty.
He would say what he conceived constituted the unconstitutionality of a
treaty. A treaty is unconstitutional if it provides for doing such
things, the doing of which is forbidden by the constitution; but if a
treaty embraces objects within the sphere of the general powers
delegated to the Federal Government, but which have been exclusively and
specially granted to a particular branch of Government, say to the
Legislative department, such a Treaty, though not unconstitutional, does
not become the law of the land until it has obtained the sanction of
that branch. In this case, and to this end, the Legislature have a right
to demand the documents relative to the negotiation of the Treaty,
because that Treaty operates on objects specially delegated to the
Legislature. He turned to the constitution. It says that the PRESIDENT
shall have the power to make Treaties, by and with the advice and
consent of two-thirds of the Senate. It does not say what Treaties. If
the clause be taken by itself, then it grants an authority altogether
undefined. But the gentlemen quote another clause of the constitution,
where it is said that the constitution, and the laws made in pursuance
thereof, and all Treaties, are the supreme law of the land; and thence,
they insist that Treaties made by the PRESIDENT and Senate are the
supreme law of the land, and that the power of making Treaties is
undefined and unlimited. He proceeded to controvert this opinion, and
contended that it was limited by other parts of the constitution.
The power of making Treaties is contended to be undefined, then it might
extend to all subjects which may properly become the subjects of
national compacts. But, he contended, if any other specific powers were
given to a different branch of the Government, they must limit the
general powers; and, to make the compact valid, it was necessary that,
as far as those powers clashed with the general, that the branch holding
the specific should concur and give its sanction. If still it is
insisted that Treaties are the supreme law of the land, the constitution
and laws are also; and it may be asked, which shall have the preference?
Shall a Treaty repeal a law or a law a Treaty? Neither can a law repeal
a Treaty, because a Treaty is made with the concurrence of another
party--a foreign nation--that has no participation in framing the law:
nor can a Treaty made by the PRESIDENT and Senate repeal a law, for the
same reason, because the House of Representatives have a participation
in making the law. It is a sound maxim in Government, that it requires
the same power to repeal a law that enacted it. If so, then it follows
that laws and Treaties are not of the same nature; that both operate as
the law of the land, but under certain limitations; both are subject to
the control of the constitution; they are made not only by different
powers, but those powers are distributed, under different modifications,
among the several branches of the Government. Thus no law could be made
by the Legislature giving themselves power to execute it; and no Treaty,
by the Executive, embracing objects specifically assigned to the
Legislature without their assent.
To what, he asked, would a contrary doctrine lead? If the power of
making Treaties is to reside in the PRESIDENT and Senate unlimitedly: in
other words, if, in the exercise of this power, the PRESIDENT and Senate
are to be restrained by no other branch of the Government, the PRESIDENT
and Senate may absorb all Legislative power--the Executive has, then,
nothing to do but to substitute a foreign nation for the House of
Representatives, and they may legislate to any extent. If the
Treaty-making power is unlimited and undefined, it may extend to every
object of legislation. Under it money may be borrowed, as well as
commerce regulated; and why not money appropriated? For, arguing as the
gentlemen do, they might say the constitution says that no money shall
be drawn from the Treasury but in consequence of appropriations made by
law. But Treaties, whatever provision they may contain, are law;
appropriations, therefore, may be made by Treaties. Then it would have
been the shortest way to have carried the late Treaty into effect by the
instrument itself, by adding to it another article, appropriating the
necessary sums. By what provision of the constitution is the
Treaty-making power, agreeably to the construction of the gentlemen,
limited? Is it limited by the provisions with respect to appropriations?
Not more so than by the other specific powers granted to the
Legislature. Is it limited by any law past? If not, it must embrace
every thing, and all the objects of legislation. If not limited by
existing laws, or if it repeals the laws that clash with it, or if the
Legislature is obliged to repeal the laws so clashing, then the
Legislative power in fact resides in the PRESIDENT and Senate, and they
can, by employing an Indian tribe, pass any law under the color of
Treaty. Unless it is allowed that either the power of the House over the
purse-strings is a check, or the existing laws cannot be repealed by a
Treaty, or that the special powers granted to Congress limit the general
power of Treaty-making, there are no bounds to it, it must absorb all
others, repeal all laws in contravention to it, and act without control.
To the construction he had given to this part of the constitution, no
such formidable objections could be raised. He did not claim for the
House a power of making Treaties, but a check upon the Treaty-making
power--a mere negative power; whilst those who are in favor of a
different construction advocate a positive and unlimited power.
He read a quotation from _Blackstone_, page 257, vol. i., to show that
the power of Treaty-making in England is as extensively vested in the
King, as it can possibly be said to be here in our Executive.
The following is the passage alluded to:
"II. It is also the King's prerogative to make Treaties,
leagues, and alliances with foreign States and Princes. For
it is, by the law of nations, essential to the goodness of
a league, that it be made by the sovereign power, and then
it is binding upon the whole community; and, in England,
the sovereign power, _quo ad hoc_, is vested in the person
of the King. Whatever contracts, therefore, he engages in,
no other power in the kingdom can legally delay, resist, or
annul."
After such a latitude as this clause gives, it would be supposed that
there could be no check reserved upon this power; yet it will be found
that Parliament have a participation in it. And the apparent
inconsistency is easily reconciled, by observing that the power given
generally to the Executive of making contracts with other nations, does
not imply that of making Legislative regulations, but that when the
contract happens to embrace Legislative objects, the assistance of the
Legislature becomes necessary to give it effect.
He proceeded to show the operation of this limitation of the
Treaty-making power in England by the practice of Parliament. It was
always considered as discretionary with Parliament to grant money to
carry Treaties into effect or not, and to repeal or not to repeal laws
that interfere with them. In citing instances of the exercise of this
power, he should not go further back than their Revolution.
He then read several extracts from _Anderson's_ History of Commerce,
vol. iii. pages 269, '70, '71, '72. They are so much in point that we
transcribe the most material passages:
"But we could not omit our animadversions on the eighth and
ninth articles, as they were so extraordinary in
themselves, and as they occasioned so great a stir and
uneasiness at that time, as to have brought the whole
Treaty of Commerce to miscarry then and ever since.
"ART. IX. That within the space of two months after a law
shall be made in Great Britain, whereby it shall be
sufficiently provided that not more customs or duties be
paid for goods and merchandise brought from France into
Great Britain than what are payable for goods and
merchandise of the like nature, imported into Great Britain
from any other country in Europe; and that all laws made in
Great Britain since the year 1664 for prohibiting the
importation of any goods or merchandise coming from France,
which were not prohibited before that time, be repealed,
the general tariff in France, on the 18th of September, in
the said year 1664, shall take place there again, and the
duties payable in France by the subjects of Great Britain
for goods imported and exported, shall be paid according to
the tenor of the tariff above mentioned.
"When the said two articles came to be known by the
merchants of Great Britain, they were received with the
utmost surprise and indignation, and the clamor was loud
and universal.
"That the complying with those two articles would
effectually ruin the commerce we carried on to
Portugal--the very best branch of all our European
commerce. That the said eight articles did, in general
terms, put France on an equal footing with Portugal or any
other of our best allies, in point of commerce."
"This is, in brief, the sum of this mercantile controversy,
which when brought into Parliament, it was so apparent that
our trade to France had ever been a ruinous one, and that
if, in consequence of accepting the said eighth and ninth
articles, the British Parliament should consent to reduce
the high duties and take off the prohibitions so prudently
laid on French commodities, it would effectually ruin the
very best branches of our commerce, and would thereby
deprive many hundred thousand manufacturers of their
subsistence; which was also supported by petitions from
many parts of the kingdom: that, although a great majority
of that House of Commons was in other respects closely
attached to the ministry, _the bill for agreeing to the
purport of the said two articles was rejected by a majority
of nine voices_, after the most eminent merchants had been
heard at the bar of that House, to the great joy of the
whole trading part of the nation, and of all other
impartial people."
Thus it must be clearly seen, that the consent of Parliament was not
only deemed necessary to the completion of the Treaty, but that that
consent was refused, and that in consequence the Treaty fell to the
ground, and was not revived for a period of near eighty years, and all
notwithstanding the plenitude of the Treaty-making power, said by the
best English authority, _Blackstone_, to be vested in the King; which
was, however, he repeated, necessarily checked by the special powers
vested in Parliament; for none but they could grant money, or repeal the
laws clashing with the provisions of Treaties.
He cited another instance of the exercise of this controlling power in
Parliament of even a later date, viz: in the year 1739, in the case of a
Treaty between Spain and Great Britain, which was sanctioned by a very
small majority indeed in Parliament. He cited a third example from
_Anderson_, vol. vi., page 828, in the case of the Treaty of Commerce
between France and Great Britain, to show that the practice of the
Parliament's interfering in Treaties is not obsolete.
The following is an article of the said Treaty, which Mr. GALLATIN read:
"XIV. The advantages granted by the present Treaty to the
subjects of His Britannic Majesty shall take effect, as far
as relates to the kingdom of Great Britain, as soon as laws
shall be passed there, for securing to the subjects of His
Most Christian Majesty the reciprocal enjoyment of the
advantages which are granted to them by the Treaty.
"And the advantages by all these articles, except the
tariff, shall take effect with regard to the kingdom of
Ireland, as soon as laws shall be passed there, for
securing to the subjects of His Most Christian Majesty the
reciprocal enjoyment of the advantages which are granted
to them by this Treaty: and, in like manner, the advantages
granted by the tariff shall take effect in what relates to
the said kingdom, as soon as laws shall be passed there for
giving effect to the said tariff."
Upon this principle, founded on almost immemorial practice in Great
Britain, did the Minister of that kingdom, when introducing the late
Treaty with Prussia into Parliament, tell the House that they will have
to consider the Treaty and make provision for carrying it into effect.
On the same principle, when the debate took place on that instrument, it
was moved to strike out the sum proposed to be voted, which would have
defeated it, and afterwards to strike out the appropriation clause,
which would have rendered the bill a mere vote of credit, and would also
have caused the Treaty to fall to the ground. On the same principle, the
King of Great Britain, when he mentioned the American Treaty, promised
to lay it before them in proper season, that they might _judge of the
propriety_ of enacting the necessary provisions to carry it into effect.
It remains to be examined, said Mr. G., whether we are to be in a worse
situation than Great Britain; whether the House of Representatives of
the United States, the substantial and immediate Representatives of the
American people, shall be ranked below the British House of Commons;
whether the Legislative power shall be swallowed up by the Treaty-making
authority, as contended for here, though never claimed even in Great
Britain?
In Great Britain, he remarked, the Treaty-making power is as undefined
as in America. The constitution here, declares that the PRESIDENT and
Senate shall make Treaties; there, custom says as loudly, that the King
shall make them. In Great Britain, however, the power is limited, by
immemorial custom, by the exercise of the Legislative authority by a
branch distinct from the regal; in the same manner is it limited here,
not however merely by custom and tradition, but by the words of the
constitution, which gives specifically the Legislative power to
Congress; and he hoped this authority would be exercised by the House
with as much spirit and independence as any where.
If this doctrine is sanctioned, if it is allowed, that Treaties may
regulate appropriations and repeal existing laws, and the House, by
rejecting the present resolution declare, that they give up all control,
all right to the exercise of discretion, it is tantamount to saying,
that they abandon their share in legislation, and that they consent the
whole power should be concentred in the other branches. He did not
believe such a doctrine could be countenanced by the House. If gentlemen
should insist upon maintaining this doctrine, should deny the free
agency of the House, and their right to judge of the expediency of
carrying the Treaty into effect, the friends to the independence of the
House will be driven to the necessity to reject the Treaty, whether good
or bad, to assert the contested right. If the gentlemen abandoned this
ground, then the policy of the measure could be weighed on fair ground,
and the Treaty carried into affect, if reconcilable to the interests of
the United States.
MARCH 10.--In Committee of the Whole, on Mr. LIVINGSTON's resolution,
Mr. HARTLEY delivered his sentiments as follows:
As I was not present when this subject was first introduced, it cannot
be expected that I should take any great share in the debate; but some
observations I have heard, chiefly from the gentleman last up yesterday
from Pennsylvania, have induced me to show a few grounds for my vote.
That gentleman has strongly combined this resolution with the Treaty,
and wishes that every one who holds that there should be a co-operation
of this House respecting that instrument, should vote for the
resolution. I think differently.
The gentlemen who contend for the mighty power of the Executive and
Senate, as well as those who argue for the great authority of this
House, perhaps are on extremes; but the Treaty ought not now to be so
largely under consideration. I am willing, if it is thought proper, to
take it up at an early day, and, after a full hearing, will vote as I
hold right.
The gentleman I referred to, from Pennsylvania, argued most strenuously
that the laws and customs of Great Britain and the Constitution of the
United States were analogous--nay, that the powers were precisely the
same.
The gentlemen who hold this doctrine have made researches, and have
quoted several authorities; but why have not those ingenious gentlemen
discovered a single instance where the British House of Commons have had
the instructions given by the Executive to the negotiating Minister laid
before them. If there was such a power, no doubt that body would at some
period have exercised it; for no men on earth have extended the power of
privileges which they had further than the members of the House of
Commons of Britain.
As those gentlemen who contend for the likeness--indeed, sameness of the
Treaty-making powers of both countries--can show no precedent, it may be
fairly contended, that no such right exists as is contemplated by the
resolution.
Treaties are made under the Executive in almost all countries, and when
the Ministers have gone through their part of the business, the Treaty
is commonly laid before the nation. If any national act is further
necessary, it would pass in conformity to the principles of good faith;
if any thing is necessary (consistent with the constitution) on the part
of the House, it will be the discussion of another day.
Mr. GRISWOLD said, that the resolution on the table appeared at first
view to be perfectly innocent, and, he might add, of very little
importance. It amounted to no more than a request to the PRESIDENT to
furnish the House with papers relating to the negotiation with Great
Britain, which he might either satisfy or reject. But the discussion
which had taken place in the committee, had given the subject a very
serious aspect, and involved a question of the first importance; and
although some gentlemen had thought that the committee had prematurely
involved itself in the examination of the question, he could not see how
the discussion could have been avoided. For gentlemen would not say that
any resolution--more particularly a resolution calling on the PRESIDENT
for documents belonging to the Executive Department--was to pass the
House without a conclusive reason, much less without any reason for its
passing. On this principle gentlemen had been called on at an early
period for the reasons on which they grounded the resolution. They had
attempted to assign reasons, but those reasons had been generally
abandoned; and it could not at that time be seriously contended that the
objects of general information or publicity, which had been first
mentioned, could justify the House in calling on the PRESIDENT for
papers relating to the British Treaty, or that those papers were
necessary to enable the House to judge of the constitutionality of the
Treaty. The friends of the resolution, aware of this, had at last come
forward and assigned a new and a very important reason. It had been now
said, that the House of Representatives have a right to judge over the
heads of the PRESIDENT and Senate on the subject of Treaties; that no
Treaty can become a law until sanctioned by the House; and, in fine,
that the House of Representatives is a constitutional part of the
Treaty-making power.
If these facts and the principles which grow out of them are true, he
could not say that the resolution was improper; and although he did not
know to what part of the Treaty the papers would particularly apply,
yet, if the House were to take this extensive view of the Treaty, and
ultimately to sanction or reject it, it would seem that the papers
relating to the negotiation ought to be laid before them. But if these
facts are not true, and the House is not a constitutional part of the
Treaty-making power, and the Treaty is already a law without its
sanction, then the reason falls to the ground, and the resolution ought
to be rejected.
This inquiry into the powers of the House of Representatives must be
confined, and the question arising out of it must be decided by a fair
construction of the constitution. The powers of each branch of the
Government are there limited and defined, and an accurate understanding
of that instrument would enable gentlemen to decide the question.
In comparing these questions with the constitution, gentlemen were not,
however, to inquire whether that constitution was a good or a bad one;
whether too much power had been given to this or to that branch of the
Government. The question will only be, what powers has the constitution
given, and to what departments have the same been distributed?
To render the subject as clear and distinct as possible, he thought it
would not be improper to take an abstract view of those two powers in
all governments having foreign relations which are immediately connected
with the inquiry, viz: the Legislative and the Treaty-making power. And
if gentlemen can clearly fix in their minds the limits of each, they
will become better enabled to see their operation, and to decide on the
powers of the House in the exercise of them.
The Legislative power in all governments is extremely broad; it occupies
the most extensive ground; it extends to every object which relates to
the internal concerns of the nation; it regulates the life, the liberty,
and the property of every individual living within its jurisdiction; it
can control commerce within its jurisdiction; govern the conduct of the
nation towards aliens, in whatever capacity they may appear; and, in
short, as certain English writers have said of the British Government,
its power is almost omnipotent. Thus broad and extensive are the general
powers of legislation, subject, however, to such particular restrictions
as are prescribed by forms of government, or which occasionally arise
from the nature of government itself, and limit the objects of its
operation.
It is easy to see, that in the exercise of these Legislative powers, it
will frequently happen that laws are enacted, which, in their operation,
will embarrass the intercourse of two nations. Such are always the
effect of retaliating laws, and aliens within the limits of a foreign
jurisdiction are frequently, by those regulations, subjected to great
and unreasonable embarrassments.
The Treaty-making power operates in a very different manner; its power
is limited and confined to the forming of Treaties with foreign nations;
its objects are to facilitate the intercourse between nations; to remove
by contract, those impediments which embarrass that intercourse, and to
place the same on a fair and just foundation. In the exercise of this
power, it will unavoidably happen that the laws of the Legislature are
sometimes infracted. The Legislature, for certain causes,--perhaps to
compel a foreign nation to form a treaty on terms of reciprocity,--may
prohibit all intercourse, or embarrass that intercourse with regulations
so burdensome as to produce the same effect; the foreign nation finally
becomes willing to treat, and to establish an intercourse on equitable
terms. If, in this case, the Treaty power cannot touch the laws of the
Legislature, the object which gave rise to those very laws can never be
attained; no Treaty can be formed, because it will oppose existing laws;
those laws cannot be repealed, because the object for which they were
enacted has not been attained. Such a construction of the Treaty power
would defeat every object for which that power was established; and
instead of possessing an authority to remove embarrassments in a foreign
intercourse, it cannot touch them; and, although expressly created for
the attainment of a single object, it can never attain it.
From these considerations, he contended that, in the exercise of that
power which related to the intercourse with foreign nations, the
Treaty-making was paramount to the Legislative power; and that the
positive institutions of the Legislature must give place to compact.
On this construction, a perfect harmony is introduced into the
departments of Government. Both the Legislative and the Treaty power are
necessary, on many occasions, to accomplish the same objects. The
Legislative power to establish regulations, or declare war, for the
purpose of compelling a nation to agree to a reasonable compact; and the
Treaty power, when that nation is compelled to agree to such reasonable
compact, to remove by Treaty those very regulations, and the war itself,
on fair and equitable terms.
Mr. MADISON said, that the direct proposition before the House, had been
so absorbed by the incidental question which had grown out of it,
concerning the constitutional authority of Congress in the case of
Treaties, that he should confine his present observations to the latter.
The true question, therefore, before the committee, was, not whether the
will of the people expressed in the constitution was to be obeyed, but
how that will was to be understood; in what manner it had actually
divided the powers delegated to the Government; and what construction
would best reconcile the several parts of the instrument with each
other, and be most consistent with its general spirit and object.
On comparing the several passages in the constitution, which had been
already cited to the committee, it appeared, that if taken literally,
and without limit, they must necessarily clash with each other. Certain
powers to regulate commerce, to declare war, to raise armies, to borrow
money, &c., are first specially vested in Congress. The power of making
Treaties, which may relate to the same subjects, is afterwards vested in
the PRESIDENT and two-thirds of the Senate; and it is declared in
another place, that the constitution and the Laws of the United States,
made in pursuance thereof, and Treaties made, or to be made under the
authority of the United States, shall be the supreme law of the land.
And the judges, in every State, shall be bound thereby, any thing in the
constitution or laws of any State to the contrary notwithstanding.
The term _supreme_, as applied to Treaties, evidently meant a supremacy
over the State constitutions and laws, and not over the Constitution and
Laws of the United States. And it was observable, that the judicial
authority, and the existing laws, alone of the States, fell within the
supremacy expressly enjoined. The injunction was not extended to the
Legislative authority of the States, or to laws requisite to be passed
by the States for giving effect to Treaties; and it might be a problem
worthy of the consideration, though not needing the decision of the
committee, in what manner the requisite provisions were to be obtained
from the States.
It was to be regretted, he observed, that on a question of such
magnitude as the present, there should be any apparent inconsistency or
inexplicitness in the constitution, that could leave room for different
constructions. As the case, however, had happened, all that could be
done was to examine the different constructions with accuracy and
fairness, according to the rules established therefor, and to adhere to
that which should be found most rational, consistent, and satisfactory.
He stated the five following, as all the constructions, worthy of
notice, that had either been contended for, or were likely to occur:
I. The Treaty power, and the Congressional power, might be regarded as
moving in such separate orbits, and operating on such separate objects,
as to be incapable of interfering with, or touching each other.
II. As concurrent powers relating to the same objects; and operating
like the power of Congress, and the power of the State Legislatures, in
relation to taxes, on the same articles.
III. As each of them supreme over the other as it may be the last
exercised; like the different assemblies of the people, under the Roman
Government, in the form of centuries, and in the form of tribes.
IV. The Treaty power may be viewed, according to the doctrine maintained
by the opponents of the proposition before the committee, as both
unlimited in its objects, and completely paramount in its authority.
V. The Congressional power may be viewed as co-operative with the Treaty
power, on the Legislative subjects submitted to Congress by the
constitution, in the manner explained by the member from Pennsylvania
(Mr. GALLATIN) and exemplified in the British Government.
The objection to the first construction is, that it would narrow too
much the Treaty power, to exclude from Treaties altogether the
enumerated subjects submitted to the power of Congress; some or other of
this class of regulations being generally comprised in the important
compacts which take place between nations.
The objection to the second is, that a concurrent exercise of the Treaty
and Legislative powers, on the same objects, would be evidently
impracticable. In the case of taxes laid both by Congress and by the
State Legislatures on the same articles, the constitution presumed, that
the concurrent authorities might be exercised with such prudence and
moderation as would avoid an interference between their respective
regulations. But it was manifest that such an interference would be
unavoidable between the Treaty power and the power of Congress. A Treaty
of Commerce, for example, would rarely be made, that would not trench on
existing legal regulations, as well as be a bar to future ones.
To the third, the objection was equally fatal. That it involved the
absurdity of an _imperium in imperio_, of two powers, both of them
supreme, yet each of them liable to be superseded by the other. There
was, indeed, an instance of this kind found in the government of ancient
Rome, where the two authorities of the _comitia curiata_, or meetings by
centuries, and the _comitia tributa_, or meetings by tribes, were each
possessed of the supreme Legislative power, and could each annul the
proceedings of the other. For, although the people composed the body of
the meetings in both cases, yet, as they voted in one, according to
wealth, and in the other, according to numbers, the organizations were
so distinct as to create, in fact, two distinct authorities. But it was
not necessary to dwell on this political phenomenon, which had been
celebrated as a subject of curious speculation only, and not as a model
for the institutions of any other country.
The fourth construction, is that which is contended for by the opponents
of the proposition depending; and which gives to the Treaty power all
the latitude which is not necessarily prohibited by a regard to the
general form and fundamental principles of the constitution.
In order to smooth the way for this doctrine, it had been said that the
power to make Treaties was laid down in the most indefinite terms; and
that the power to make laws, was no limitation to it, because the two
powers were essentially different in their nature. If there was
ingenuity in this distinction, it was all the merit it could have; for
it must be obvious that it could neither be reduced to practice, nor be
reconciled to principles. Treaties and laws, whatever the nature of them
may be, must, in their operation, be often the same. Regulations by
Treaty, if carried into effect, are laws. If Congress pass acts relating
to provisions in a Treaty, so as to become incorporated with the Treaty,
they are not the less laws on that account. A Legislative act is the
same whether performed by this or that body, or whether it be grounded
on the consideration, that a foreign nation agrees to pass a like act,
or on any other consideration.
It must be objected to this construction, therefore, that it extends the
power of the PRESIDENT and Senate too far, and cramps the powers of
Congress too much.
He did not admit that the term "Treaty" had the extensive and unlimited
meaning which some seemed to claim for it. It was to be considered as a
technical term, and its meaning was to be sought for in the use of it,
particularly in governments which bore most analogy to our own. In
absolute governments, where the whole power of the nation is usurped by
the governments, and all the departments of power are united in the same
person, the Treaty power has no bounds; because the power of the
sovereign to execute it has none. In limited governments, the case is
different; the Treaty power, if undefined, is not understood to be
unlimited. In Great Britain, it is positively restrained on the subjects
of money and dismembering the empire. Nor could the Executive there, if
his recollection was right, make an alien a subject by means of a
Treaty.
But the question immediately under consideration, and which the context
and spirit of the constitution must decide, turned on the extent of the
Treaty power in relation to the objects; specifically and expressly
submitted to the Legislative power of Congress.
It was an important, and appeared to him to be a decisive, view of the
subject, that if the Treaty power alone could perform any one act for
which the authority of Congress is required by the constitution, it may
perform every act for which the authority of that part of the Government
is required. Congress have power to regulate trade, to declare war, to
raise armies, to levy, to borrow, and to appropriate money, &c. If, by
Treaty, therefore, as paramount to the Legislative power, the PRESIDENT
and Senate can regulate trade, they can also declare war, they can raise
armies to carry on war, and they can procure money to support armies.
These powers, however different in their nature or importance, are on
the same footing in the constitution, and must share the same fate. A
member from Connecticut (Mr. GRISWOLD) had admitted that the power of
war was exclusively vested in Congress; but he had not attempted, nor
did it seem possible, to draw any line between that and the other
enumerated powers. If any line could be drawn, it ought to be presented
to the committee; and he should, for one, be ready to give it the most
impartial consideration. He had not, however, any expectation that such
an attempt could succeed; and, therefore, should submit to the serious
consideration of the committee, that, although the constitution had
carefully and jealously lodged the power of war, of armies, of the
purse, &c. in Congress, of which the immediate Representatives of the
people formed an integral part, yet, according to the construction
maintained on the other side, the PRESIDENT and Senate, by means of a
Treaty of Alliance with a nation at war, might make the United States
parties in the war. They might stipulate subsidies, and even borrow
money to pay them; they might furnish troops to be carried to Europe,
Asia, or Africa; they might even attempt to keep up a standing army in
time of peace, for the purpose of co-operating, on given contingencies,
with an ally, for mutual safety or other common objects. Under this
aspect the Treaty power would be tremendous indeed.
The force of this reasoning is not obviated by saying, that the
PRESIDENT and Senate would only pledge the public faith, and that the
agency of Congress would be necessary to carry it into operation. For,
what difference does this make, if the obligation imposed be, as is
alleged, a constitutional one; if Congress have no will but to obey, and
if to disobey be treason and rebellion against the constituted
authorities? Under a constitutional obligation with such sanctions to
it, Congress, in case the PRESIDENT and Senate should enter into an
alliance for war, would be nothing more than the mere heralds for
proclaiming it. In fact, it had been said that they must obey the
injunctions of a Treaty, as implicitly as a subordinate officer in the
Executive line was bound to obey the Chief Magistrate, or as the Judges
are bound to decide according to the laws.
As a further objection to the doctrine contended for, he called the
attention of the committee to another very serious consequence from it.
The specific powers, as vested in Congress by the constitution, are
qualified by sundry exceptions, deemed of great importance to the safe
exercise of them. These restrictions are contained in section 9 of the
constitution, and in the articles of amendment which have been added to
it. Thus, the "migration or importation of such persons as any of the
States shall think proper to admit, shall not be prohibited by
Congress." He referred to several of the other restrictive paragraphs
which followed, particularly the 5th, which says, that no tax shall be
laid on exports, no preference given to ports of one State over those of
another, &c. It was Congress, also, he observed, which was to make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or of the press;
or of the right of the people peaceably to assemble, &c. Now, if the
Legislative powers, specifically vested in Congress, are to be no
limitation or check to the Treaty power, it was evident that the
exceptions to those powers could be no limitation or check to the Treaty
power.
Returning to the powers particularly lodged in Congress, he took notice
of those relating to war, and money, or the sword and the purse, as
requiring a few additional observations, in order to show that the
Treaty power could not be paramount over them.
It was well known that, with respect to the regulation of commerce, it
had long remained under the jurisdiction of the States; and that in the
establishment of the present Government the question was, whether, and
how far, it should be transferred to the general jurisdiction. But with
respect to the power of making war, it had, from the commencement of the
Revolution, been judged and exercised as a branch of the general
authority, essential to the public safety. The only question, therefore,
that could arise, was whether the power should be lodged in this or that
department of the Federal Government. And we find it expressly vested in
the Legislative, and not in the Executive department; with a view, no
doubt, to guard it against the abuses which might be apprehended, from
placing the power of declaring war in those hands which would conduct it
when declared; and which, therefore, in the ordinary course of things,
would be most tempted to go into war. But, according to the doctrine now
maintained, the United States, by means of an alliance with a foreign
power, might be driven into a state of war by the PRESIDENT and Senate,
contrary both to a sense of the Legislature, and to the letter and
spirit of the constitution.
On the subject, also, of appropriating money, particularly to a military
establishment, the provision of the constitution demanded the most
severe attention. To prevent the continuance of a military force for a
longer term than might be indispensable, it is expressly declared, that
no appropriation for the support of armies shall be made for more than
two years. So that, at the end of every two years, the question, whether
a military force ought to be continued or not, must be open for
consideration; and can be decided in the negative, by either the House
of Representatives or the Senate's refusing to concur in the requisite
appropriations. This is a most important check and security against the
danger of standing armies, and against the prosecution of a war beyond
its rational objects; and the efficacy of the precaution is the greater,
as, at the end of every two years a re-election of the House of
Representatives gives the people an opportunity of judging on the
occasion for themselves. But if, as is contended, the House of
Representatives have no right to deliberate on appropriations pledged by
the PRESIDENT and Senate, and cannot refuse them, without a breach of
the constitution and of their oaths, the case is precisely the same, and
the same effects would follow, as if the appropriation were not limited
to two years, but made for the whole period contemplated, at once. Where
would be the check of a biennial appropriation for a military
establishment raised for four years, if, at the end of two years, the
appropriation was to be continued by a constitutional necessity for two
years more? It is evident that no real difference can exist between an
appropriation for four years at once, and two appropriations for two
years each, the second of which, the two Houses would be
constitutionally obliged to make.
It had been said that, in all cases, a law must either be repealed, or
its execution provided for. Whatever respect might be due to this
principle in general, he denied that it could be applicable to the case
in question. By the provision of the constitution, limiting
appropriations to two years, it was clearly intended to enable either
branch of the Legislature to discontinue a military force at the end of
every two years. If the law establishing it must be necessarily repealed
before an appropriation could be withheld, it would be in the power of
either branch to keep up an establishment by refusing to concur in
repeal. The construction and reasoning, therefore, opposed to the rights
of the House, would evidently defeat an essential provision of the
constitution.
The constitution of the United States is a constitution of limitations
and checks. The powers given up by the people for the purposes of
Government, had been divided into two great classes. One of these formed
the State Governments; the other, the Federal Government. The powers of
the Government had been further divided into three great departments;
and the Legislative department again subdivided into two independent
branches. Around each of these portions of power were seen also
exceptions and qualifications, as additional guards against the abuses
to which power is liable. With a view to this policy of the
constitution, it could not be unreasonable, if the clauses under
discussion were thought doubtful, to lean towards a construction that
would limit and control the Treaty-making power, rather than towards one
that would make it omnipotent.
He came next to the fifth construction, which left with the PRESIDENT
and Senate the power of making Treaties, but required at the same time
the Legislative sanction and co-operation, in those cases where the
constitution had given express and specific powers to the Legislature.
It was to be presumed, that in all such cases the Legislature would
exercise its authority with discretion, allowing due weight to the
reasons which led to the Treaty, and to the circumstances of the
existence of the Treaty. Still, however, this House, in its Legislative
capacity, must exercise its reason: it must deliberate; for deliberation
is implied in legislation. If it must carry all Treaties into effect, it
would no longer exercise a Legislative power; it would be the mere
instrument of the will of another department, and would have no will of
its own. Where the constitution contains a specific and peremptory
injunction on Congress to do a particular act, Congress must, of course,
do the act, because the constitution, which is paramount over all the
departments, has expressly taken away the Legislative discretion of
Congress. The case is essentially different where the act of one
department of Government interferes with a power expressly vested in
another, and nowhere expressly taken away: here the latter power must be
exercised according to its nature; and if it be a Legislative power, it
must be exercised with that deliberation and discretion which is
essential to the nature of Legislative power.