Mr. W. SMITH (of South Carolina) said, he would not at that time go into

an extensive review of the arguments of the gentleman from Virginia,

(Mr. MADISON,) but would only notice some points which he had dwelt on.

Before he went into a consideration of the subject, he would call the

attention of the committee to the true question now before them; for

though it was originally only a call for papers, it had now assumed a

very important shape, and was nothing less than this, Whether that House

had a concurrent power with the PRESIDENT and Senate in making Treaties?

The gentleman last up had followed others in referring to the practice

under the British constitution; but had concluded his remarks on that

argument with allowing, that, after all, our own constitution must be

our sole guide. He heartily joined in that sentiment, and was satisfied

that the merits of the question should be tested by that alone. In order

to show that the Treaty power was solely delegated to the PRESIDENT and

Senate by the constitution, Mr. S. said, he should not confine himself

to a mere recital of the words, but he should appeal to the general

sense of the whole nation at the time the constitution was formed,

before any Treaty was made under it, which could, by exciting passion

and discontent, warp the mind from a just and natural construction of

the constitution. By referring to the contemporaneous expositions of

that instrument, when the subject was viewed only in relation to the

abstract power, and not to a particular Treaty, we should come at the

truth. He would then confidently appeal to the opinions of those who,

when the constitution was promulgated, were alarmed at the Treaty power,

because it was by the constitution vested in the PRESIDENT and Senate,

and to its advocates, who vindicated it by proving that the power was

safely deposited with these branches of the Government. The discussions

which took place at the time of its adoption by the Convention of the

several States, proved, beyond a doubt, that the full extent of the

power was then well understood, and thought, by those who approved of

the constitution, to be sufficiently guarded. He would further appeal to

the amendments which had been proposed by the discontented. The

Convention of Virginia had proposed an amendment, which of itself

overturned all the reasonings of the gentleman. It was, "that no

commercial Treaty should be valid, unless ratified by two-thirds of all

the Senators." This was the only check which that State required, and

was a conclusive evidence of their opinions: had that State conceived

that the check which is now contended for existed in the constitution,

they could not have been guilty of such an absurdity as the amendment

would involve. All the possible dangers which might ensue from the

unlimited nature of the Treaty power were well considered before the

constitution was adopted, and Virginia required no further check than

the one above recited. All, therefore, that they required had, in the

present case, been done, for the Treaty was ratified by two-thirds of

all the Senators.

Mr. S. said, he could refer to many further proofs derived from a

similar source. He would not, however, fatigue the committee at this

time with reading them. He would only recall the recollection of some

gentlemen present to the protest of the Pennsylvania minority, where the

same ideas and amendments were contained, and to the proceedings of a

meeting at Harrisburg, which the gentleman from Pennsylvania (Mr.

GALLATIN) must well remember, (having been one of the meeting,) where,

after stating objections to the extensive powers delegated by the

constitution, the following amendment was proposed, as necessary to

limit and restrain the powers: "Provided always, that no Treaty which

shall hereafter be made, shall be deemed or construed to alter or affect

any law of the United States, or of any particular State, until such

Treaty shall have been laid before and assented to by the House of

Representatives in Congress." This amendment was the most satisfactory

evidence that the proposers of it did then believe that, without that

amendment, such Treaty would be valid and binding, although not assented

to by this House, and that they had, at that day, no idea that there

existed in the constitution the check which is now discovered by this

_ex post facto_ construction.

Having stated the general opinion of the public, as manifested by the

friends as well as the enemies of the constitution, Mr. S. said he would

proceed to show that the practice of Congress had, from the commencement

of its existence, been conformable to that opinion. Several treaties had

been concluded with Indian tribes under the present constitution. These

Treaties embraced all the points which were now made a subject of

contest--settlement of boundaries, grants of money, &c.; when ratified

by the PRESIDENT and Senate, they had been proclaimed by the Executive

as the law of the land; they had not even been communicated to the

House; but the House, considering them as laws, had made the

appropriations as matters of course, and as they did in respect to other

laws. The Treaties were never discussed, but the requisite sums, as

reported in the annual estimates, were included, as matters of course,

in the general mass of moneys voted for the War Establishment in the

item of Indian Department. It was not pretended that the constitution

made any distinction between Treaties with foreign nations and Indian

tribes; and the clause of the constitution which gives to Congress the

power of regulating commerce with foreign nations, and on which the

modern doctrine is founded, includes as well Indian tribes as foreign

nations.

That this House considered a Treaty, when ratified by the PRESIDENT and

Senate, as the law of the land, was further evident from a resolve of

the House, of the 4th of June, 1790, in these words;

"_Resolved_, That all Treaties made, or which shall be made

and promulged under the authority of the United States,

shall from time to time be published and annexed to their

code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had

annexed the Treaties which had been made to the code of laws, as soon as

they were ratified by the PRESIDENT and Senate, and promulged by the

PRESIDENT.

Mr. S. repeated his former assertion, that there were cases where that

House had not the right of withholding appropriations; if they had the

power, indeed, they might stop the proceedings of Government altogether;

and so, individuals had the power of resisting the laws. Gentlemen had

said, that if this doctrine prevailed, the House would lose its capacity

of judging. He denied it; they would still retain, in such cases, a

discretion, guided by morality, good faith, and the constitution; the

members were as much bound by the laws in their Legislative, as in their

individual capacity; if an existing law (or Treaty, which was a law of

the highest nature) prescribed a certain duty, they were bound to

perform it, and their discretion could only be called in to regulate the

mode and circumstances of discharging that duty; it could not be a

matter of discretion whether or not they should perform that duty. Thus,

unless they intended to arrest the operations of Government, their

discretion could not be requisite to determine whether they should

appropriate the moneys necessary for its support; but out of what fund,

and when the moneys shall be paid, and other matters of detail. So, when

a Treaty was concluded, and became a compact binding the nation, the

discretion of the House (unless it was intended to violate our faith)

could not determine whether the moneys contracted for should be paid,

but the mode, the fund, and such questions of detail, would alone be

considered. The distinction, which was an obvious one, between power and

right, had not been attended to. The House had certainly the power to do

many things which they had not the right to do; they had the power to do

wrong, but they certainly had not the right to do wrong; and whether the

wrong was committed by acting where they ought not to act, or refusing

to act where they ought, was immaterial; both were equally

reprehensible. It had been boldly said, that there was no case which

could possibly come before them, where they would not be at liberty to

answer aye or no: he would produce a case--by the constitution, on the

application of a certain number of States, wishing for amendments,

Congress must call a Convention; where is this boasted discretion, of

which so much has been said? Could the House, in this case, exercise its

discretion, whether or no a Convention should be called? Why not?

Because the constitution says it must call a Convention: and does not

the constitution say, "Treaties made by the PRESIDENT and Senate are

laws, and that laws must be obeyed?" The same injunctions of the

constitution are imposed in both cases; and as in the first, all this

House could do, would be to regulate the time and place of holding the

Convention; so, in the latter, their discretion would be limited to the

mode, and fund, and other details. The gentleman had mentioned the

article in the constitution respecting appropriations for military

services--they were to be limited to two years; this article proved

itself that appropriations might be unlimited in every other case. When

a Military Establishment was instituted, it was known that an

appropriation law for that purpose could not be in force more than two

years; no inconvenience, then, could result. But there was no such

limitation in respect to any other branch of expenditure; from custom,

appropriations for the support of Government were annual; appropriations

even for pensions were annual, and yet no one doubted that, as the

pension was a contract, the appropriation for it was always a thing of

course; no discretion could be exercised, in respect to the payment,

without a breach of faith.

MARCH 11.--In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. GILES said, he expected, when the present motion was made, that it

would not be opposed. The expected agency of the House respecting the

Treaty, or some subjects relating to it, made him imagine that the

propriety of having the papers called for could not be denied. The

Treaty has been referred to a Committee of the Whole, surely in order to

act on it in some shape or other. Indeed, the PRESIDENT, in his Speech,

at the opening of the session, expressly says, that he will lay the

subject before them. This he considered as full evidence, that the

PRESIDENT conceived it must come under the notice of the House. If the

papers could serve to explain any point relative to that instrument,

surely the possession of them was desirable.

The right of the House to consider of the expediency of Treaties, so far

as the provisions of them clash with their specific powers, had been

indirectly brought in in considering the present motion. He regretted

that this important constitutional question should be about to be

decided indirectly; but, this being the situation of the debate, he

should state his reasons why he conceived the argument on this ground

ought not to be considered as of sufficient strength to cause a negative

of the motion before the committee.

The question is, whether there be any provisions in the constitution by

which this House can in any case check the Treaty-making power; and, of

consequence, whether it can question the merits of Treaties under any

circumstances?

Various considerations had been advanced to show that the House cannot

question the merits of a Treaty. Some of these considerations had grown

out of the subject extrinsically, others from the provisions of the

constitution. Though at first he had intended to have stated simply his

own opinion of the constitution on the important question now in view,

yet, as gentlemen had gone fully into the question in that shape, and

others had stated a variety of objections to the construction the

friends of the motion contended for, he should proceed to answer them,

and suffer his opinion of the meaning of the constitution to be

incidental.

The gentleman from South Carolina had referred to the opinions of the

Conventions of the States at the time of adopting the constitution. As

to Virginia, the gentleman had stated that that State had considered the

checks as provided by the constitution as inadequate, and proposed an

amendment, purporting to require two-thirds of the whole number of

Senators, instead of two-thirds of the number present. This was true, he

believed; but how would it apply in the sense the gentleman wished? The

objection of that State was, that the check in the Senate, provided in

the Treaty-making power, was not sufficient, and they proposed a

greater: from which he would argue that they conceived the Treaty-making

power to be a subject of extreme delicacy, and that they wished

additional checks consequently added. How this was to prove that the

Convention of Virginia did not construe the present clauses of the

constitution under debate as the friends of the present motion did, he

was at a loss to determine. The gentleman who cited this instance had

not quoted any part of the proceeding on the subject, or of the reasons

that led to the amendment. He had merely mentioned the result to the

House.

The practice of the House had been referred to yesterday by the member

last up, (Mr. SMITH, of South Carolina.) He had remarked that the House

had passed a general resolution directing the Clerk to place in the code

of laws of the United States Treaties made under the authority of the

United States. Was this, he asked, an exposition of the meaning of the

constitution? He believed the resolution a very proper one, and would

vote now for its adoption, if it was yet to be passed. It is certainly

proper, when a Treaty is concluded under the authority of the United

States, that it should be annexed to their code of laws; but this could

not weigh against the exercise of discretion in the House on important

Legislative subjects.

The practice of the House, with respect to appropriation laws, in the

cases of Indian Treaties, had been mentioned by the member from South

Carolina. In the first place, observing upon this, he would remark, that

he always conceived there was a distinction between an Indian Treaty and

a Treaty with a foreign nation. The English had always made a

distinction when we were Colonies. The constitution establishes an

express difference. He should not, however, found his objections to the

inference of the gentleman upon this, but would examine it unconnected

with this distinction. Provisions had been made by this House to carry

Indian Treaties into effect; but why? No doubt because the House

conceived it wise so to do, not because they had not a right to use

their discretion in the business. Suppose, on any of those occasions, a

motion had been made to strike out the sum proposed to be appropriated,

would it have been said that the motion was out of order? A similar

motion was made lately with respect to the Mint, and it was not

considered as out of order. If, on that occasion, it had been the

opinion of the House that the Mint was an improper establishment, by

refusing the appropriation they could have defeated the law. It was

certainly the opinion of the House that they could exercise their

discretion in the business, for it was not even hinted that the motion

for striking out was out of order.

On another head the gentleman appeared to plume himself much. He had

asked, why, since the PRESIDENT had proclaimed a Treaty as the law of

the land, which was not the law of the land, why he was not impeached?

This question, the member exultingly remarked, had not been answered,

because, he imagined, it could not be answered.

Suppose I should tell the gentleman, said Mr. G., that I could not now

give him an answer, would it show that the House had not the authority

contended for by the friends of the present motion? Why was the subject

mentioned? Not with a view, I believe, to the discovery of the truth. I

fear it is calculated to produce an opposite effect--to check

investigation. It is too often the case that the names of persons are

brought into view, not to promote the development of principles, but as

having a tendency to destroy freedom of inquiry. I will go further with

the gentleman, and admit for a moment (a position, however, I shall by

and by controvert) that the PRESIDENT conceived that he had a right,

after the exchange of ratifications, to promulgate the Treaty as the

supreme law of the land; what would this amount to? Why, only that this

was his opinion; but is that authority here? In any other case rather

than the present, I should be inclined to pay a greater respect to

opinions from that source; but now, when the question is about the

division of powers between two departments, are we to be told of the

opinions of one of those departments, to show that the other has no

right to the exercise of power in the case. Such appeals are not

calculated to convince, but to alarm.

Having examined the objections to the construction contended for by the

friends of the motion, drawn from collateral sources, he should turn his

attention next, he said, to the intrinsic meaning of the constitution.

He would attempt to interpret the constitution from the words of it. It

was a misfortune the clauses were not more clear and explicit, so far as

to force the same meaning upon every mind, however they might differ in

opinion in other respects. However, from the imperfection of language,

it was no wonder, he observed, that on an instrument providing for so

many different objects, and providing such a variety of checks, various

opinions as to construction should arise; but he considered the present

clauses of as plain import as any part of the instrument. The

construction contended for by the opposers of the motion is, beyond

denial, the most dangerous in its effects, and the least probable, as he

thought, in its meaning. It is contended by them that the Treaty-making

power is undefined in its nature, unlimited as to its objects, and

supreme in its operation; that the Treaty-making power embraces all the

Legislative powers; operates by controlling all other authorities, and

that it is unchecked. When he had asserted this power, as contended by

the gentlemen to be unlimited in its objects, he meant, however, that

they had confined it only within the limits of the constitution; but

even admitting it in that extent, is certainly a doctrine sufficiently

alarming. When the gentlemen contend for its supremacy, they also admit

in this point some qualifications; according to their doctrine, it is

not to be supreme over the head of the constitution, but in every other

respect they contend that it shall be unlimited, supreme, undefined.

Gentlemen who insist that Treaties are supreme, next to the

constitution, must also grant that there is no necessity for the House

to trouble themselves with making laws.

The construction contended for by the friends of the resolution is

derived from two sources--from the constitution, and the nature of

things. The constitution says, the PRESIDENT, with the advice and

consent of two-thirds of the Senators present, shall make Treaties.

Perhaps, if there was no other clause, the Treaty-making power might be

considered as unlimited. Another clause declares that the constitution,

the laws made under it, and Treaties, shall be the supreme law of the

land. Here the gentlemen, when they quote this clause, stop, as if there

were no other words in it; and from all this it would appear that the

people had, in fact, delegated an unchecked power. But, if we go on, it

will be found that the last-mentioned clause adds that the judges in the

respective States shall cause them to be executed, any thing in the

constitution or laws of the individual States to the contrary

notwithstanding. From the jealousy which individual States showed under

the Old Confederation for the preservation of their powers, and the

inconveniences which were experienced in consequence, it was found

necessary, when organizing a new Government, to declare, explicitly,

that their constitutions and laws must yield to the _Constitution_,

_laws_ and _Treaties_ of the United States, and for this purpose this

clause was introduced.

The checks on the Treaty-making power he considered as divisible into

two classes; the first, consists in the necessary concurrence of the

House to give efficacy to Treaties; which concurrent power they derive

from the enumeration of the Legislative powers of the House. Where the

Treaty-making power is exercised, it must be under the reservation, that

its provisions, so far as they interfere with the specified powers

delegated to Congress, must be so far submitted to the discretion of

that department of the Government. The PRESIDENT and Senate, by the

constitution, have the power of making Treaties, Congress the power of

regulating commerce, raising armies, &c.; and these, he contended, must

form so many exceptions to the general power. Gentlemen had said that

the constitution was the exposition of the will of the people, and, as

such, that they would obey its injunctions. There could be no difference

of opinion on this ground; for his own part, he confessed if he adored

any thing on earth, it is that will. But the question is, what is that

will, as expressed in the constitution? That instrument, to his mind,

explained this question very clearly. It enumerates certain powers which

it declares specifically vested in Congress; and where is the danger to

be apprehended from the doctrine laid down by the friends of the

resolution? The contrary construction must produce the most pernicious

consequences; agreeably to that, there would remain no check over the

most unlimited power in the Government. The gentlemen contend, that the

House must remain silent spectators in the business of a Treaty, and

that they have no right to the exercise of an opinion in the matter;

they must then abandon their constitutional right of legislation; they

must abandon the constitution and cling to Treaties as supreme.

The other check over the Treaty-making power, he noticed, was the power

of making appropriations, the exercise of which is specifically vested

in Congress. He begged leave to call the particular attention of the

committee to this part of the subject. The constitution says, that no

money shall be drawn from the Treasury, but in consequence of

appropriations made by law. This is no doubt intended as a check in

addition to those possessed by the House. It is meant to enable the

House, without the concurrence of the other branches, to check, by

refusing money, any mischief in the operations carrying on in any

department of the Government. But what is a law? It is a rule prescribed

by competent authority. The word law in the clause of the constitution

he had last noticed, was not meant in reference to the Treaty-making

power; but in reference to Congress. A law prescribes a rule of conduct;

it is the expression of the will of the proper authority; it is the

result of discretion. Legislation implies deliberation. If a law is the

expression of the will, must not an appropriation law be equally so? But

gentlemen had found out a new-fashioned exposition of the word

discretion, and, according to their definition in fact, it was no

discretion at all. They had mentioned a part of the constitution which

provides that the salaries of the Judicial Department shall be fixed;

and asked, whether the House should conceive itself at liberty to use a

discretion in appropriations for that department? Before he could

consider this case, and that before the House, now parallel, he must beg

gentlemen would point out any part of the constitution that declared the

House should not exercise their discretion when called upon to make

appropriations to carry into effect a Treaty. He could find nowhere,

that, in this case, the right of opinion of the House is constrained.

The uniform practice of the British Government had been cited to have

been, in the case of Treaties, the same as that contended for by the

friends of the present motion. The greatest security for the liberties

of the people established in that Government, depends on the control

which their Parliament has over the purse-strings. In England, this

power rests merely on custom; here, the House are expressly intrusted

with it; what is custom in England, is reduced to writing in our

constitution. Then, if this power is in England a ground for Parliament

to judge of Treaties, it is a fair inference that it ought to be

exercised here. The practice of the British Government, he observed, had

often been quoted here, in support of doctrines very different from

those in aid of which it is now cited; it has been deemed orthodox when

it favored Executive prerogative. He confessed, he never did expect

that, as early as 1796, a reference would be made to practices, under

the British Government, in support of the rights of the popular branch

of our Government. It was painful to be obliged to have resort to that

Government on such an occasion; but the authority of that Government

should not be rejected for once, because its practice could be quoted in

favor of the popular branch. The ground of the practice in England, and

of the right claimed here, rests upon the sound maxim, that all public

money is from the pockets of the people, and that it should be expended

by none but their Representatives. No maxim had been more instrumental

than this, in preserving the remnants of British freedom; and thus early

is the House called upon to abandon it here.

Treaties are contended to be paramount to the laws; the PRESIDENT and

Senate make these Treaties, and when made and proclaimed as the supreme

law, there is a predestinated necessity in the House to make the

requisite provisions for carrying them into effect. The danger of this

doctrine, he said, could not be better exemplified, than by a reference

to the circumstances that attended the late Treaty in its progress.

Three years ago, a difference took place between the different branches

of Government, as to the policy that should obtain in reference to the

conduct of one foreign nation. The House were unwilling to trust solely

to the magnanimity of the King, and wished to make some exertions

themselves for self-protection. With this view several measures were

proposed, viz: commercial restrictions, non-importation, embargo,

sequestration, or rather arrestation upon the ground of the _status

quo_. One of the measures passed the House by a respectable majority,

but was rejected in the Senate by the casting vote of the VICE

PRESIDENT. The PRESIDENT appointed an Envoy Extraordinary, who entered

into certain stipulations, which, being sanctioned by two-thirds of the

Senate, it is now contended, are to operate the destruction of the

powers specifically vested in the House.

If the above was a true statement, he said, and he did not see in what

particular it could be contradicted, then the Executive had been exerted

as a check upon the Legislative power, for the negotiation necessarily

foreclosed any further Legislative proceedings. It did more than this;

the Executive legislated against legislation, and overruled them on the

subject in contest. He should not advert at this time, he said, to the

collateral circumstances which attended this business, nor go further in

detail; he wished only to remark generally on the dangerous operation of

the doctrines contended for. Now, it is said, the House have nothing to

do but to obey, to appropriate the necessary money, leaving all

deliberation aside.

If the PRESIDENT, said Mr. GILES, can, by the assistance of a foreign

power, legislate against the rights of the House to legislate, and his

proceedings are to be binding on the House, it necessarily destroys

their right to the exercise of discretion. If he can by Treaty declare,

that commerce shall not be regulated, that property shall not be

sequestrated, and that piracies shall be judged and punished as he

thinks fit; if he is to exercise the unlimited Treaty-making power

contended for, what security have we that he may not go further when the

negotiations are renewed with Great Britain, agreeably to the

stipulations of the present Treaty? What security have we that he will

not agree with Great Britain, that if she will keep up an army of ten

thousand men in Canada, he will do the same here? How could such a

stipulation be got over by the House, when they are told that in matters

of Treaty they must not pretend to exercise their will, but must obey?

How will this doctrine operate upon the power of appropriation? A

military establishment may be instituted for twenty years, and as their

moral sense is to prevent their withholding appropriations, they can

have no power over its existence.

Gentlemen had gone so far as to declare, that an attempt to examine the

merits of the Treaty was rebellion, was treason against the

constitution. What justifies these harsh epithets? Such assertions could

only create ill-will, and could not tend to the investigation of truth.

Another argument of the same nature had been used. It was said, that the

attempt at exercising a control over the Treaty-making power was

disorganizing the Government. He believed the contrary would be found to

be the case. The doctrine advocated by the friends to the motion, only

goes to claim a negative voice in the business of Treaty-making; whereas

the doctrine of its opposers claims the exercise of a power, that would

supersede the specific authority delegated to the Legislature in all

cases whatever.

Mr. SEDGWICK said, that, after the length of time which had been

consumed, and the talents which had been so ably exerted in the

discussion of this subject, he should not think himself authorized to

call the attention of the committee to any observations of his; but,

that he considered it in principle, and in its consequences, as the most

important question which had ever been debated in this House. It was no

less than whether this House should, by construction and implication,

extend its controlling influence to subjects which were expressly, and

he thought exclusively, delegated by the people to another department of

the Government. We had heretofore been warned emphatically against

seizing on power by construction and implication. He had known no

instance in which the caution that warning enforced, deserved more

attention than on the present occasion.

It would be taken for granted, and it would be conceded on all hands,

that we were to resort to the constitution, to know the extent and

limits of our power, and if we found not there a clear evidence of its

existence, we ought to abandon the exercise. It was certain we had not

any express delegation to make or to control the public will in any of

our relations with foreign nations. On the other hand, we found it

declared, that the PRESIDENT should have power to make Treaties by and

with the advice and consent of the Senate, provided two-thirds of the

Senators present concurred. Treaties, to attain the ends for which they

were designed, were, from their nature, supreme laws; but the

constitution had, in another place, declared, Treaties made under the

authority of the United States should be supreme laws. Gentlemen had

said, that it was not declared that Treaties made by the PRESIDENT and

Senate should have this effect; but those made under the authority of

the United States. The question then recurred, what Treaties were made

under the authority of the United States? The true answer undoubtedly

was, Treaties made by those to whom the people, by their constitution,

had delegated the power. The PRESIDENT, qualified as had been mentioned,

had expressly, and none else had such power. If we were to rest the

subject here, it would seem to follow irresistibly, and to be incapable

almost of higher proof, that whenever a compact was formed by the

PRESIDENT with a foreign nation, and had received the advice and consent

of the Senate, if it was of such a nature as to be properly denominated

a Treaty, all its stipulations would thereby, and from that moment,

become "supreme laws."

The power of treating between independent nations might be classed under

the following heads: 1. To compose and adjust differences, whether to

terminate or to prevent war. 2. To form contracts for mutual security or

defence; or to make Treaties, offensive or defensive. 3. To regulate an

intercourse for mutual benefit, or to form Treaties of commerce. Without

the first, war and contention could only be terminated by the

destruction of one of the parties; without the second, there could be no

defence, by means of union and concert, against superior force; and

without the last, a profitable and beneficial intercourse could not be

arranged on terms of reciprocity. Hence, then, it must be evident to

every unprejudiced mind, that by a grant of power to make Treaties,

authority was given to bind the nation by stipulations; to preserve

peace or terminate war; to enter into alliances, offensive and

defensive, and to form commercial Treaties.

This power, he held, unlimited by the constitution, and he held, too,

that in its nature, to the extent he had mentioned, it was illimitable.

Did a serious difference exist with a foreign nation, in determining on

the nature and extent of the stipulations which might be necessary to

adjust it, the cause of injury, national rights and honor, the evils of

war, and all circumstances of relation between the two countries, must

be taken into account. In forming alliances, the threatened pressure,

your own and your enemy's relative strength, the objects of acquisition

or defence, must be considered. And, in adjusting an equitable

intercourse for commercial purposes, a thousand circumstances present

themselves for nice calculations. A thousand circumstances of foreign

relations would occur in the history of every country, under which

nothing short of unlimited powers of negotiation would be adequate to a

prevention of enormous, perhaps ruinous evils.

But it might be objected that a power so enormous, and comprehending

such essential interests, might be abused, and thence asked, where is

the remedy? To this he answered, that a national association required,

for the great purpose of preservation, an unlimited confidence on many

subjects. Hence, not only this, but perhaps every other national

government, had delegated to it an unlimited control over the persons

and property of the nation.

It might, by the express power given to it of raising armies, convert

every citizen into a soldier, and, by a single assessment of a tax, it

might command the use of all the property in the country.

The power to raise armies and taxes was limited in its exercise by

nothing but the discretion of the Legislature, under the direction of

its prudence, wisdom, and virtue. Was there no security against a wanton

abuse of these enormous powers? Yes, it was to be hoped that the people,

in electing the members of this House, and the States in choosing those

of the other, would not select characters, who, regardless of the public

good, would wantonly impose on their constituents unnecessary burdens.

It would be an additional security, that the interests of the rulers

were inseparably connected with those of the people; that they could

impose no burdens in which themselves did not equally participate. But,

should all these guards be insufficient, was there no dependence to be

placed in the PRESIDENT?--the man elected by a refined process,

pre-eminent in fame and virtue as in rank! Was there no security in the

watchful guardianship of such a character? Responsible by every thing

dear and valuable to man--his reputation, his own and his

fellow-citizens' happiness--was there no well-founded reliance on all

these considerations, for security against oppression? If not, we had

not the requisite materials by which to administer a republican

government, and the project might be abandoned. After all, however,

should the unlimited powers he had mentioned (and such powers must

always be unlimited) be wantonly abused, was there no remedy? Yes, in

the good sense and manly independent spirit of the people. If

intolerable burdens were wantonly imposed; if necessary to defeat the

oppression, opposition and insurrection would not only be authorized,

but become a duty. And if any man could honestly lay his hand on his

heart, and in sincerity declare, that a compliance with any existing

Treaty was worth more than our Government, our constitution, our Union,

and the liberty protected by them; to that man he was ready to declare,

that opposition had become a duty. But, in every instance of opposition,

whether in defeat of a Legislative act, or of a Treaty, the right of

resistance resulted not from the constitution itself, for it had

declared no such right; no constitution could declare it. It existed in

original principles, and never could be exercised but by resorting to

them.

The gentleman from Virginia (Mr. MADISON) had stated five different

constructions which possibly might be given to the constitution on this

subject; three of which, (and for none of them to Mr. S.'s knowledge had

any man ever contended,) the gentleman had proved to be unfounded. The

fourth, that which he had given to the constitution, if admitted, and it

should be abused, might produce mischievous effects. Was not this true

of all the great and essential powers of government? If the controlling

influence of this House was added, would the power be less? And if,

under these circumstances, abused, would the injury be more tolerable?

In short, was not this a kind of argument infinitely more tending to the

production of prejudice than to the discovery of truth?

The gentleman has really given no decisive opinion what was the true

construction. He had, however, seemed to incline to a belief that to the

stipulations of a Treaty relative to any subject committed to the

control of the Legislature, to give them validity, Legislative

co-operation was necessary. Of consequence, if this was withheld, the

operation of the Treaty would be defeated. That it was at the will, and

within the discretion, of the Legislature to withhold such co-operation,

and of course the House might control and defeat the solemn engagements

of the PRESIDENT and Senate.

The gentleman who had suggested this opinion was well known to the

committee, and throughout America. Mr. S. could not but observe that it

was perfectly unaccountable to his mind, that that gentleman had yet to

form an opinion to whom was delegated that power, the nature, extent,

and effects of which he had so strongly and perspicuously detailed. The

capacity of that gentleman's mind, long exercised on political subjects,

his known caution and prudence, would authorize a request that he or his

friends would explain how it was possible, if such as he states should

have been the intention of those who framed the constitution, that the

true meaning should not have been expressed in the instrument? That when

the gentleman went from the Assembly which framed the constitution,

immediately afterwards, to one of those which ratified it, he should

have admitted an opposite construction? As Mr. S. would undertake, by

and by, to prove that, in the Convention of Virginia, he did admit the

very construction for which we now contended, he would take the liberty

further to inquire, how it happened, that, if such was really the

intention of the instrument, that such was the meaning of the people,

no man had heard of it until the discovery was produced by the British

Treaty? Strange national intention, unknown for years to every

individual!

As the gentleman had been pleased to dwell on the idea of a co-operation

between the powers of the Government, he would take the liberty to

state, what had been ably explained by other gentlemen, that the power

of making Treaties was wholly different from that of making ordinary

laws; originating from different motives; producing different effects,

and operating to a different extent. In all those particulars, the

difference had been perfectly understood. For instance, the ordinary

legal protection of property, and the punishment of its violation, could

never be extended beyond your own jurisdiction; but, by Treaty, the same

protection could be extended within the jurisdiction of a foreign

government. You could not legislate an adjustment of disputes, nor a

peace with another country; but, by Treaty, both might be effected. Your

laws, in no instance, could operate except in your own jurisdiction, and

on your own citizens. By Treaty, an operation was given to stipulations

within the jurisdiction of both the contracting parties.

It had been said that Treaties could not operate on those subjects which

were consigned to Legislative control. If this be true, said he, how

impotent in this respect is the power of the Government! What, then,

permit me to inquire, can the power of treating effect? I will tell you

what it cannot do; it can make no alliances, because any stipulations

for offensive or defensive operations, will infringe on the Legislative

power of declaring war, laying taxes, or raising armies, or all of them.

No Treaty of peace can probably be made, which will not either ascertain

boundaries, stipulate privileges to aliens, the payment of money, or a

cession of a territory, and certainly no Treaty of commerce can be made.

Was it not strange, that, to this late hour, it should have been

delayed, and that now, all at once, it should have been discovered, that

no power was delegated to any person to regulate our foreign relations?

That, although a power was granted to the PRESIDENT and Senate to form

Treaties, that yet there were such reservations and restrictions, that

there remained nothing on which this power could operate? Or was it

true, that this power was competent to treat with every government on

earth but that of Great Britain? Might he not be permitted further to

inquire, if this Treaty had been formed with any other power, with the

precise stipulations it now contained, whether there ever would have

existed this doubt of constitutionality.

MARCH 14.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. SAMUEL LYMAN said he rose only to make a few observations. He was

against the resolution now on the table, as involving a doctrine, in his

opinion, not only inconsistent with the principles of the constitution,

but also inconsistent with the laws of nations. In debating the merits

of this resolution, an exceedingly important abstract constitutional

question had arisen, viz: How far that House had a right to exercise

their Legislative discretion and judgment relative to carrying a Treaty

into effect. In order to answer this question, he would raise two

premises. And, first, by the constitution, the Legislative powers of

that House, in co-operation with the other branches of the Legislature,

extend to all objects within the reach of their sovereignty, excepting

the reservations to the distinct sovereignties of the several States

which compose the Union; but beyond those boundaries their powers could

not extend. Secondly, there is, by the constitution, attached to the

Legislature a subordinate kind of power, of a limited and ministerial,

or Executive nature. At present, it did not occur to him that this

subordinate power was to be exercised in its simplicity, excepting in

two instances, viz: 1st, for calling a Convention under certain

circumstances to amend the constitution; and, 2dly, for carrying into

effect Treaties which are constitutionally made; for these two purposes,

the people, who are the source of power, had stripped that House of all

Legislative authority, and made them only the executors of their will;

therefore, upon these premises he answered, if a Treaty was

unconstitutional, they had an undoubted right to exercise a Legislative

discretion and judgment relative to carrying it into operation, for they

were sent there as the guardians of the rights of their fellow-citizens,

and, for that purpose, are sworn to support the constitution; but if the

Treaty was constitutional, they had not a right to exercise that

discretion; for, without their intervention, it becomes the supreme law

of the land, and virtually repeals all laws which are repugnant to it;

and in that case that House is bound to obey it, and to carry it into

complete execution; for, by the constitution, the power of making

Treaties is vested solely and exclusively in the Executive Department.

In the former case, they have a right to exercise a deliberative or

Legislative power, but not in the latter case; they could there only

exercise a ministerial or Executive power. So that herein, said he, lies

the true distinction, and it arises from the nature and principles of

the constitution.

He had not the least doubt of the constitutionality of a treaty, when

the stipulations in it were of such a nature as not to respect objects

of legislation, but only objects which lay beyond the bounds of their

sovereignty; for beyond those limits their laws could not extend as

rules to regulate the conduct of subjects of foreign Powers; and

although some stipulations in a Treaty may respect objects which were

within the reach of their sovereignty, yet it may be in such manner as

to be strictly constitutional; for such stipulations may be not only

pertinent, but absolutely necessary in forming the Treaty. This

conclusion, he thought, was the natural and necessary result of a fair

and liberal construction of the principles of the constitution, and

especially of that paragraph which vests the power of making Treaties in

the Supreme Executive, with the advice of the Senate.

Mr. L. said he was sensible he had been delivering an unpopular

doctrine, but that he was deeply impressed with its truth, its reality,

and its importance; and that the obligations of an oath had prevented

his silence on the occasion.

Mr. BALDWIN said he had before expressed his opinion, in general terms,

in favor of this question. It must have been observed that he had been

for several days noting the debates, and preparing to take part in them.

He had intended to have introduced the debate on Friday morning last,

but a singular incident prevented him, which he felt it to be his duty

to take this earliest opportunity to state to the House. Mr. B. then

said: about five minutes before I expected to rise on the question, I

was called out of the House by a person then unknown to me, who said his

name was FRELINGHUYSEN, and whom I found to be a Senator of the United

States. After a number of interviews, he observed, with great

expressions of pain and regret, that he was at last obliged to the

unwelcome office of delivering me that letter, which I opened and found

to be a challenge directed to me from JAMES GUNN, who is also a Senator

of the United States. The pretext for this transaction was, to extort

from me some private letters which I had received early in the session

from a number of my constituents, expressing their wish that I would

endeavor to prevent any thing being done in Congress to validate the

Mississippi Yazoo Land Speculation before the meeting of the State

Legislature. There was no complaint of any personal indecorum or

disrespect at all; whether they were actuated in their conduct solely by

interest in Yazoo speculations, I will not pretend to judge. The revival

of a transaction of so old a date at that particular moment, was to me

surprising. Not knowing their degree of relation to this question

between the two Houses, and not knowing the cast of character but of one

of them, I am left only to conjecture. It was so peculiarly timed, and

the professed object also of so peculiar a nature, to interrupt the

channels of confidence for free communication between me and my

constituents, that I have thought it my duty not to let the treatment of

it depend on my own individual discretion. I consider it as in the

discretion of the House. Mr. B. also observed that he felt himself under

the necessity of using this as an apology for the apparent neglects of

Friday, after the particular attention he had before appeared to pay to

the discussion; and for his not being able to notice any of the

proceedings in the debate of Friday, he had supposed he had lost the

opportunity of offering his opinion, but was glad to find the question

had not been taken, as he was unwilling to suffer this, or even a

greater interruption, to prevent him from declaring his opinion, as he

had before intended.

He said, it was remarkable that several gentlemen rose with very

different expressions which had been said to contain the subject in

discussion. It was certainly important to agree exactly on that point.

The least variation in the point of departure would soon diverge till

they were out of sight of each other, and yet each one keep a straight

direction. One gentleman had stated, that the question was, whether this

House should feel itself at liberty to judge over the heads of PRESIDENT

and Senate on the subject of Treaties without restraint: his reasoning

seemed to be built on that proposition. Another gentleman had said that

the question was, whether the power of making Treaties was given by the

constitution to the PRESIDENT and two-thirds of the Senate, or to the

PRESIDENT and both branches of the Legislature. He might mention several

others, but he called the attention of the House to the fact, to settle

the point, that they might at least agree what they were talking about.

The question, said he, on the table is, to request of the PRESIDENT

papers respecting the Treaty: the objection is, you ought not to ask for

the papers, because you have no right to touch the subject. He begged

leave then to ask, with the utmost candor and respect, whether the real

question now depending and brought into dispute by this motion, is not

whether all questions relating to this subject are not so definitely and

perfectly settled by the constitution, that there was nothing for that

House to deliberate upon on the occasion, but only punctually to provide

the funds to carry the Treaty into effect. If it were allowed that there

might be any possible or extraordinary cases on the subject of

Treaty-making, in which it might ever be proper for that House to

deliberate--as, for instance, offensive Treaties which might bring the

country into a war--subsidies and support of foreign

armies--introduction of an established religion from a foreign country,

or any other of those acts which are by the constitution prohibited to

Congress, but not prohibited to the makers of Treaties; if it were

allowed that there might possibly exist any such case, in which it might

ever be proper for Congress to deliberate, it would seem to be giving up

the ground on which the discussion of the present question has been

placed; what agency the House should take, and when, would be other

questions. Whether a case would probably occur once in a hundred years

that would warrant the House in touching the subject, is of no

consequence to the debate. The right is denied in the largest sense. The

assertion is, that the House has no right to deliberate or to look into

any papers on the subject; that the people have, by the constitution,

reposed the whole of their confidence on this subject elsewhere; that,

to attempt to deliberate upon it, or to ask for any papers respecting

it, is treason and anarchy.

If this ground were once given up, he should be infinitely less anxious

what the House might do in any particular case: these would rest on

their individual merits. For his own part, he was by no means disposed

to carry the interference of the House to any extreme; but he could not

express his abhorrence of the doctrine in the extent to which some

gentlemen have carried it in this discussion. He begged leave to entreat

gentlemen again candidly to review the few words in the constitution on

which they rested so much, and to ask whether they appeared to be such

labored expressions as they supposed--so apt and definite as to mean

exactly what they contend for, and nothing else; and whether all the

words may not well be satisfied without, and stand more harmoniously

connected with the other parts of the constitution.

How much they intended to incorporate with this power of Treaty-making,

under cover of contract with foreign nations, he had not heard any one

attempt to explain; it seemed designed to stand distinguished as an

indefinite, uncontrolled branch of the Government, the extent of whose

powers was to be known only by its own acts. Its definition was to be,

that it was indefinite--like what is said of some branches of the powers

of Parliament; that no one has pretended or ought to pretend to know

their extent; that they are not to be submitted to the judgment of any

one but themselves; and that they never develope them but by the

particular exercise of them; that they were to be left in this state,

because, if they were defined, they might be eluded. However this might

be found respecting a foreign constitution, it is making a monster of

our own. There was not another part or lineament in it which appeared to

be in the same mould or proportion.

Mr. B. then undertook to state his own view of the subject, and what he

thought ought to be done. Much, he said, depended on the words "make

Treaties and supreme law of the land;" as to the words supreme law of

the land, he had not much doubt for what purpose solely they were

introduced. The words were satisfied, and he thought most naturally, by

not suffering them to disturb the balance of the Federal Constitution,

for that is not the subject which the section where these words are used

is speaking of; but to consider them as giving to the Treaty-making

power the same paramount authority over the laws and constitutions of

the several States, that they give at the same time to the Constitution

and laws of the United States. The words appear to be introduced for the

express purpose of making the Constitution, laws, and Treaties of the

United States, paramount to the constitutions and laws of the several

States, and for no other purpose; this is all that the section appears

to be speaking of; it satisfies the words, is the most obvious and

natural meaning, and leaves the other parts of the constitution

harmonious and undisturbed. As to the words "power to make Treaties," it

was more difficult to ascertain precisely what the constitution meant to

give by them. It had been argued that from the nature of governmental

powers, the Treaty-making power must be paramount, and from the nature

of contract it must be paramount. The truth is, the Treaty-making power

must be what the constitution has made it. He did not hesitate to say,

that the most natural meaning to give these words, was to consider them

as borrowed from former use, and to give them the meaning which they had

always before given them. Gentlemen had said that nothing useful could

be derived from English books and explanations on these terms. This

seemed to him an unreasonable assertion. It might as well be said that

they could not use an English Dictionary to ascertain the meaning of

words. In many sciences, said he, there are definite and appropriate

phrases as well as definite and appropriate words; and, in fact, books

which are dictionaries of phrases, ascertain the meaning of phrases with

as much precision as dictionaries ascertain the meaning of words. It is

exceedingly useful that it should be so. When such a precise meaning is

fixed to a phrase, and publicly known, it is apt to remain a long time

exact, as it is frequently employed, and is very useful as a medium of

certainty. Many instances of this kind might be quoted, particularly

from English books on law and government. He would observe further,

these appropriate phrases had been for their certainty in many instances

transferred into our constitution, and their meaning must be manifestly

sought in those sources as in a dictionary. One remarkable instance

occurred to him, and which, from the singularity of its garb, would be

very discernible in the constitution--he meant the definition of treason

in the third section of the third article of the constitution. The

phrase is levying war, adhering to enemies, giving them aid and comfort.

These are the very words of the English books, which have been so

critically judged that they are not capable of the least variation in

their meaning on that tremendous subject; but this meaning is to be

sought from those sources; he might mention several instances, but it

was unnecessary. He thought the phrase, power to make Treaties, should

be ascertained in the same manner; and the English meaning, as it would

naturally be understood at the time of making the constitution, should

be affixed to it; that it should be considered as giving to the

PRESIDENT and two-thirds of the Senate the same kind of power as the

King of England possesses on the subject of Treaties, which it is known

is in several cases subject to the control of Parliament. Here it is

qualified by the powers specifically given to Congress.

Mr. HOLLAND said: It is with great diffidence I rise on this important

subject, to submit some considerations to this committee. As it has now

become a constitutional question, not with respect to the merits of the

Treaty, but with respect to the constitutional right of this House to

request the Executive to furnish us with papers that related to the

Treaty antecedent to its ratification.

To this it is objected that this House has no discretionary power over

the Treaty, and, on that account, has nothing to do with the papers.

The question is not whether the Treaty is a good or bad Treaty, but it

is whether we have a right to exercise our judgments upon it. Then,

without any regard to the Treaty, we must be governed by the rational

construction of the fundamental principles of government.

To illustrate which, it may be necessary to examine what has been

incident to the different kinds of government, according to the

histories of those nations governed by despotism, monarchs, or

republics; and from the Constitution of the United States as the

fundamental maxims of the Republic, draw that construction that is most

rational and natural.

It will also be proper to examine which of those governments preserves

the most power in the people.

First, then, of monarchy. Where has that power been placed? According to

the theory of the English Government it has been lodged in the

Sovereign, for it is there expressly said (nor has it been denied on

this floor) that the King is the source of all power; and it is also

expressly declared that the King of Great Britain has sovereign and

exclusive right to make Treaties. That, when they are made, they cannot

be impeded or annulled by any existing power in the kingdom. This is the

theory of that Government. But what has been the practice? I answer, the

contrary; for it ever has been that, when a Treaty was made, the same

has been submitted to the Parliament for concurrence; and Parliament, if

they thought proper, admitted and sometimes annulled them, as in the

Treaty of Utrecht, and sundry instances that the history of that nation

affords us. The English Government, therefore, is in practice what it is

not in theory. By the construction of the constitution, as contended

for, by giving uncontrollable power to twenty Senators and the

PRESIDENT, our Government will be in practice what the English

Government is in theory. If this doctrine had been believed, that this

was the true construction of the constitution, previous and at the time

of its adoption, would the people of the United States have adopted it?

If they had been informed that, by this instrument, they were ceding

more power to two-thirds of the Senators and PRESIDENT, than even could

be practised by the King of England, with his lords spiritual and

temporal, under that impression would they have ceded that power? Or, if

they had been told that the House of Representatives, under this

constitution, had less power than was exercised by the House of Commons

in England; that they would be less able to secure their liberties in

this country against the approaches of prerogative, would they have,

under that belief, accepted of this constitution? I think, Mr. Chairman,

I may venture to say they would not.

With respect to the more absolute government of France, where has this

power been lodged? In this, as in the monarchy of England, it was, in

theory, lodged in a prince; but the theory, even in that despotic

government, never could be carried into practice. According to

_Vattel_, in the Treaty made by Francis I., in the Treaty of Madrid, on

account of that Treaty encroaching on the fundamentals of their

government, it was set aside. How was this done? It was not done by

Parliament, for they had none; but the principal people of the kingdom

met together at Cogniac and annulled it. I ask again, Mr. Chairman, if

the people of this country possess less power than the people of that

despotic Government? Or do they possess less power to withstand the

usurpations of the Executive, on the subject of Treaties, in their

Representatives in Congress, than has ever been maintained in the

cramped situation of the people of England by the House of Commons?

Why were these rights ever maintained and so scrupulously attended to by

the people of those countries? It was because they considered them as

the palladium of their remaining liberty,--they therefore, would not let

them go.

Then, with respect to a Republic, the sovereign power is in the people.

It therefore follows that whatever can be effected by the people in

those countries can be done here--they being the source of power.

Then, with regard to the constitution, it must be construed naturally

and liberally in behalf of the people. Not as giving all power that can

be given, but as retaining all power and natural right that ought to be

retained. It would have been extremely improper to have wantonly

discarded natural privilege, or ceded more power than was essential to

government; nor was any more intended to be given.

The constitution, upon the face of it, shows that this is the

case--limits are prescribed to governmental power. Not so in the

countries spoken of, yet the people exercise it. But it is said our

constitution has not retained this privilege, and it is the law and the

testimony, sacred volume, &c. The sacredness depends upon the attention

to the principles that procured its adoption; when that is contravened a

violence is made upon the rights of the people. If, by any construction

that can be given, these rights can be preserved, it is wise to consider

it as the better opinion. But it is said to be impossible that this

power has been ceded, subject to no control, to the PRESIDENT and

two-thirds of the Senators present; that, whatever may be the practice

in other countries, it will not apply to this; that those countries have

no constitution, and that we have, and must be governed by it.

Unfortunate circumstance! why adopted? Was it wantonly to throw away a

privilege and natural right? Certainly not, but the contrary. It was to

secure natural right, and to establish a Republican form of Government.

I considered that the Executive had absolute power to make peace; as by

the constitution he is declared Commander-in-chief of all the armies,

his situation enabled him to be the best judge of the forces and of the

force he had to contend with, and as secrecy was necessary to effecting

a Treaty of Peace, that power was properly vested in him, guarded by

two-thirds of the Senate. But a Treaty of Commerce presupposes an

existing peace, and in those Treaties secrecy is not essential; but a

competent knowledge of the produce of the respective States in all their

remote situations was necessary; which would be best obtained by an

association of the three branches of Government.

This is a Treaty of Commerce, and therefore has involved Legislative

objects. It consequently requires Legislative sanction; a contrary

construction would be a violation of the constitution and of the

principles upon which it was adopted, and therefore a violation of the

rights of the people.

I confess, on viewing the exception and force of the argument, that I

had some doubt, that when the government became old and corrupt, that

this perversion might be attempted; but had no idea that in the course

of six years it would be contended for.

Mr. BRADBURY observed, that the most plausible reason that he had heard

in support of the resolution under the consideration of the committee

resulted from a principle advanced by a member from Pennsylvania, who

spoke upon the subject last week. The principle was this; that where any

articles of a Treaty were repugnant to prior existing acts of Congress,

those acts must first be repealed by Congress before such Treaty can

become the law of the land; and it was said some of the articles of the

British Treaty were of this nature. He would not stay to examine the

truth of the fact, for admitting it to be true, he altogether denied the

principle; but yet he acknowledged that if it could be made out, it

would afford the best reason yet given for calling for the papers. If

their concurrence was necessary to give existence or legality to the

Treaty, he saw not why they ought not to be favored with the papers as

well as the Senate. But he asserted and would endeavor to prove, that

the Treaty has already a legal existence; that it is now the law of the

land; and that, therefore, no act of Congress is, or can be, necessary

to make it so; and, therefore, that House could have no need of the

papers, nor any right to call for them on that ground.

That the Treaty had already become the law of the land, and that no

Legislative act of Congress was necessary to make it so, he argued

wholly from the constitution itself, by which alone the question must at

last be determined.

That instrument expressly declares, that all Treaties made under the

authority of the United States shall be the supreme law of the land. He

laid no stress upon the word supreme, admitting for argument's sake,

that the supremacy ascribed to the constitution and laws, and Treaties

made under it, meant a supremacy over the constitution and laws of

individual States. All he asked to be granted him, and which he thought

could not be denied, was that a Treaty made under the authority of the

United States was the law of the land. If so, then all that needed to be

proved was, that a Treaty made by the PRESIDENT, with the advice and

consent of two-thirds of the Senate, was a Treaty made under the

authority of the United States. And to prove that, he needed only to

mention another clause in the constitution, which expressly declares

that the PRESIDENT, with such advice and consent, shall have power to

make Treaties.

He nowhere read in the constitution that any act of Congress, in any

possible case, was necessary to make a Treaty, so as that without it

such Treaty could not be the law of the land. He nowhere read that prior

acts of Congress repugnant to a Treaty must first be repealed before a

Treaty could be a law.

But, says the gentleman from Pennsylvania, the same Treaty power is

given to the King by the Constitution and laws of England, that is given

to the PRESIDENT by our constitution, and yet the Parliament have the

power there which he contends for in favor of Congress here; that is,

they must repeal prior laws repugnant to a new Treaty, before it can be

the law of the land; and why is not an act of Congress, it is asked,

necessary for the same purpose, in a similar case here? He would answer,

because our constitution is different from the British in this respect:

it declares that a Treaty made under the authority of the United States,

(and he had shown that a Treaty made by the PRESIDENT, as aforesaid, was

made under such authority,) is the law of the land, and if it is a law,

nothing further can be requisite to make it so. There was no such

declaration in the Constitution and laws of England.

There was no arguing from the power of Parliament to the power of

Congress. The Parliament must have controlled this Treaty power of the

King, and stripped him of his prerogative, by use and custom. There had

been in England a constant struggle between power and privilege; the

prerogatives of the King were not founded in the grant of the people;

they were founded on force, on the right of conquest; whatever,

therefore, was gained from the King by the Commons, was considered as so

much gained by the people from an adverse power.

If the PRESIDENT were an hereditary monarch, deriving his power from his

predecessors by descent, a power originally founded in conquest,

Congress would do well to get as much of it out of his hands as they

could. It would here be, as it was there, a struggle between prerogative

and privilege; it would be the people against the King. But as this was

not the case, and as Congress never had in fact assumed and exercised

the power of confirming, by an act of theirs, Treaties made by the

PRESIDENT, this argument from analogy wholly failed.

Suppose the Parliament of Great Britain should pass a law expressly

delegating the Treaty-making power to the King, with the advice and

consent of two-thirds of his Privy Council, and should declare in the

act, that a Treaty made under such authority should be the supreme law

of the land. They claim a right to make such a law, for Judge

_Blackstone_ affirms, that the denial of a power in every government,

even to alter every part of its constitution, is the height of political

absurdity; and in England, he expressly ascribes this power to

Parliament.

What would be the effect of such an act of Parliament? Would not a

Treaty made under it be clearly the law of England? and would not all

acts of Parliament, prior and repugnant to it, be repealed by it? He was

clearly of opinion they would; and this clause, he said, was inserted in

the American Constitution, probably to guard against that very

construction which is now endeavored to be put upon the Treaty power; on

purpose to cut off all pretence of a power in Congress to control a

Treaty, by refusing to repeal any prior laws that might stand in the way

of it.

But, said the same gentleman, shall a British House of Commons have this

right of controlling the Treaty-making power, and shall it be denied to

the Representatives of a free people? He answered, the PRESIDENT and

Senate of the United States were as much the Representatives of a free

people as that House was; they were as truly, though not so immediately,

chosen by the people as they were. The people distributed their powers

as they pleased. The PRESIDENT, said he, represents the people as their

Executive agent, and is possessed of all Executive power, and the power

of making Treaties. The true question, then, was, shall one constituted

representative authority usurp the power and control the acts assigned

by the constitution to another representative authority of the same free

people? They certainly ought not. If they should attempt it, it would be

opposing one authority of the people to another. It would be dividing a

free people against itself. But he hoped he had said enough to show the

unsoundness of that principle, and fully to establish what he first

undertook to prove, that the Treaty was already completed; that it was

already the law of the land; and that it did, by its own force, repeal

all prior laws, if there were any standing in the way of it; and if so,

they could have no need of the papers to assist them in making it a law.

It had also been laid by the King before his Parliament, and he supposed

the necessary appropriations had been made to carry it into effect. He

did not know that any other Parliamentary provision was necessary.

But it may be said, that it is fit and proper that they should call for

the papers mentioned in the resolution, even if the Treaty were law,

because appropriations by act of Congress would be necessary to carry it

into effect, and they ought to have the papers to judge whether it be

fit for them to make those appropriations.

He answered, whether that be fit or not, in his opinion, must depend

wholly upon the Treaty or law itself, and upon nothing out of it. It

was like all other laws requiring appropriations, in making which they

must be governed by a sound and legal discretion, and that discretion

must be governed by the instrument itself.

Even if a question should arise and be proper for the discussion of that

House, on the constitutionality of the Treaty, yet that question must be

decided by the Treaty itself, and by nothing else; and there could be no

need of any papers for that purpose. If general information were the

object, to allay the public sensibility, he should think the better way

would be to request the PRESIDENT to publish the papers in all the

newspapers throughout the United States. But he believed he must be

considered as the best judge in that matter. He would only add, that the

correspondence between their Envoy and the British Minister was, in its

nature, secret and confidential. It was communicated to the Senate

because they were a part of the Treaty-making power, which the House was

not; but even to them it was communicated in confidence. A request to

the PRESIDENT, said he, to communicate these papers, amounts to a

requirement; but there can be no right to require where there is no

obligation to obey.

Mr. PAGE spoke as follows: I confess, sir, that I had wished that this

House, instead of asking the PRESIDENT for information respecting the

negotiation and ratification of the Treaty, at this late day of its

session, had given him, as soon as possible after its meeting, fully

their opinions, and that of their constituents, respecting the Treaty

itself. But, as time has been afforded for deliberation, and the House

has waited most patiently and respectfully till the PRESIDENT could

"place the subject before them," according to his promise in his Address

to Congress, I think they have shown a spirit of moderation which

deserves credit. The friends of the Treaty cannot complain that it has

been hastily and rudely attacked, and should not object to the request

which is proposed to be made to the PRESIDENT, to furnish a statement of

facts which, from what has been said elsewhere, may be supposed

sufficient to silence the most clamorous opposers of the Treaty.

I think that the Treaty is constitutional, as far as relates to the

powers of the contracting parties to make Treaties; and is

constitutional and valid, also, as far as relates to that part of it

which gives it the name of a Treaty of Amity, and which might be in a

separate and distinct Treaty by itself; for the PRESIDENT, by and with

the advice and consent of two-thirds of the Senators present, has an

undoubted authority, under the express words in the first article of the

constitution, to make Treaties. And I have no doubt that the Treaties

which were in the view of the framers of that article, must have been

principally Treaties of Peace, of Amity, of Neutrality, or of Alliance.

This is the more probable, as the first and principal Treaties in which

nations were concerned, were Treaties of Peace, or Treaties to secure

the blessings of peace; and it is certain that the Treaty of Peace with

Great Britain was the very Treaty which gave rise to the declaration of

the constitution, that all Treaties made and to be made by the authority

of the United States shall be the supreme law of the land: for the

Treaty of Peace with Great Britain was said to be in a state of

inexecution on account of an obstruction thrown in the way by the laws

of certain States. This article, therefore, was intended to remove all

obstacles, which had arisen or might arise from State Legislatures, and

might, I will here remark, as easily have been extended to remove all

obstructions from the General Legislature by adding to the words "any

Constitution or law of the States," these words, "or the Constitution or

laws of the United States notwithstanding." The power to make Treaties

of Commerce and Navigation, I humbly conceive, could scarcely be within

the view and design of the Convention, at least not as a primary object,

when they formed the article respecting Treaties; because they knew,

that the extent, situation, population, and productions of the United

States, were such as would command them a sufficient share of the

commerce of the world, without the aid of Commercial Treaties. They knew

that almost all Europe stood in need of their productions, and that

Great Britain and her islands could scarcely exist without them; they

knew more, they knew this, sir, that the almost universal belief of

their constituents, that giving a power to Congress to regulate

commerce, which would answer every purpose of Commercial Treaties, gave

existence to the very powers under which they were acting at the moment

they framed that article. This mode of regulating commerce was favored

by the opinion of the people, who celebrated the adoption of the

constitution with so much exultation and expensive parade in the great

commercial cities of the United States. They had no doubt that the new

Congress would use the power with which it was invested, so as to oblige

Great Britain to open her ports to them in the West Indies, and to put

their trade with them upon a more equitable and stable footing. Indeed,

sir, the people thought, as associations not to import certain articles

from Great Britain, entered into by them when they were poor helpless

Colonists, with halters about their necks, repealed the Stamp act, that

acts of Congress regulating commerce, so as to retaliate on Great

Britain, would at least prevent the enacting of the law by which the

British King was authorized to regulate the commerce of the United

States with Great Britain and her Islands.

I acknowledge, sir, that whenever a Treaty is to be made, the PRESIDENT

and Senate are the proper agents to make it. I think it an excellence in

our constitution that the PRESIDENT and Senate, though not allowed to

declare war, have authority to put a stop to its horrors. This is a

wise provision against the injury which the pride and ambition of the

larger States might do to the smaller, by continuing a war. But I cannot

conceive that when Congress is authorized to make all laws necessary and

proper to carry into effect all the powers granted by the constitution,

the Treaty-making power as well as others, and are to provide for the

general welfare, which is not confided to the PRESIDENT and Senate, nor

can be intrusted to them alone by the people upon any principle which

has ever had weight in the formation of a Republican Government,--I

cannot conceive, I say, that as this is the case, and the House of

Representatives is composed of members proportioned to a certain ratio

of the number of persons to be represented, and has the sole right to

originate money bills, how it can possibly be supposed that the

PRESIDENT and Senate, without their concurrence, can make regulations of

commerce, which may be injurious to the general welfare, ruinous to the

commerce of certain, and even the largest, States; and by a Treaty, too,

which may, moreover, deprive that House, which, by the supposition of

those who have defended the Treaty is at least a Committee of Ways and

Means, (and, indeed, nothing more,) of the resources of revenue to

which, by the constitution, they might have recourse.

But we are told, sir, that the power given to Congress by the

constitution to regulate commerce cannot extend to that regulation which

depends upon the will of a foreign nation or government, and which can

only be regulated by compact, or by the Treaty-making or pactitious

powers. Granting that this assertion be true, which, however, may be

denied, as the general belief which I have alluded to, and on which the

existence of the present Government was founded, seemed to contradict

it; for it was almost universally believed that an act of Congress

regulating the commerce of the United States with Great Britain, as had

been proposed to the former Congress, or Congress under the

Confederation, or as proposed to this House on the 3d of January, 1794,

and well known by the name of MADISON's propositions, or as proposed by

Mr. CLARK, 7th April, 1794, would have brought about a more advantageous

commercial intercourse with Great Britain than any direct negotiation

with the British Minister. It was thought highly probable that the

Parliament of Great Britain would (if any of these propositions had been

adopted by Congress) have refused to have renewed their act, by which

the trade with these United States (as if they were more degraded than

Colonies) was regulated by the King's Proclamation. I say, granting,

however, that assertion to be true, how does it prove, or what other

assertion can prove, that Congress has not a right, under the express

words of the constitution, which declares that it shall have power to

regulate commerce with foreign nations, to be a party to that compact,

or to have some share, either previously or subsequently, in the

Treaty-making business, when it regulates the commerce of the United

States with foreign powers?

I may agree that a Treaty is necessary to establish a commercial

intercourse between two nations, to their mutual advantage and

satisfaction, but I must affirm, that as that Treaty would be a

commercial regulation, and as Congress is expressly empowered by the

constitution to regulate commerce, whenever such Treaty shall be made

between the United States and any other nation, Congress must either

direct that the negotiation be commenced upon conditions approved, or

sanction the ratification of such Treaty by some act showing that the

regulation of commerce, by the Treaty, was made by the authority of

Congress, in conformity to the constitution.

Besides, sir, if the PRESIDENT and Senate can regulate the commerce of

the United States with one nation, they can with all nations, and if

they can with all, what nation can there be with whom Congress can

regulate commerce? This argument, therefore, must fall to the ground. We

are told, however, that the Treaty-making power, from its nature, is

competent to all the objects at least of the Treaty under consideration,

and is not to be controlled or checked by this House. Let me examine

this assertion. If this be true, sir, we find that although the British

King, from whose tyranny we revolted, cannot force upon his subjects,

against the will of their Representatives, a Treaty, which it is

acknowledged, too, he has a right to make, the PRESIDENT OF THE UNITED

STATES can, by his Proclamation, force upon the people who are his

constituents a Treaty which their direct Representatives wish to

suspend, alter, or annul. Can this possibly be a true construction of

the Treaty-making power? Surely it cannot. If it be true, then, can the

PRESIDENT repeal, as he has by the Treaty, the laws of Congress,

although by the constitution he cannot negative them? He can oblige

Congress to levy taxes; can withdraw impost and tonnage from their

reach; prohibit the exportation of sundry articles, the produce of the

United States, although the constitution forbids, the Senate and

Representatives concurring, to lay the smallest duty on the exportation

of any article; he can create offices and annex salaries thereto;

destroy the rights of this House; provoke war; in short, he can do any

thing; but this we are sworn to deny. The absurdity of that

construction, then, must be evident, and the recollection of our oaths

to support the constitution, of which we have been reminded, must force

us to revolt at the thoughts of adopting such a monstrous construction

of the constitution. We are reminded also of the PRESIDENT's

Proclamation. I will attend to it. I look upon it as a proper

notification of the ratification of the Treaty of Amity with Great

Britain, but it can have no effect on the Treaty of Commerce and

Navigation, till sanctioned by the votes of Congress. The evacuation of

the posts on our frontiers held by the British, if intended in

consequence of the Treaty of Amity, ought to take place, or if in

conformity to the Treaty of Peace; but, if intended as a compliance with

conditions annexed to the Treaty of Commerce and Navigation, good faith

requires that they ought not to be evacuated until the final adjustment

of the differences which may arise in the course of the discussion of

the merits of that Treaty, and this with me is one reason why I wish for

information from the PRESIDENT respecting the Treaty. I confess too,

sir, that I wish for a full and free conference with the Senate on the

important subject of the Treaty.

Mr. BOURNE said he would have given a silent vote on this question, had

it not have been for some strange doctrines which had been asserted, for

he did not consider the question in itself as necessarily involving any

constitutional question. The doctrine, that the formal assent of the

House of Representatives was essential to the legal existence of a

Treaty, struck him as a perfect novelty. That the PRESIDENT and Senate

had power under the constitution to make Treaties, and that these

Treaties were the laws of the land, he had never heard denied until this

debate. It was true he had heard it said, that the House might control

the PRESIDENT and Senate in the exercise of this power, by refusing to

carry Treaties into effect by withholding appropriations of money; but

he did not expect to hear the assertion, that the ratification of the

House was necessary to a Treaty, before it became the law of the land.

As a Representative of a small State, he felt himself much interested in

opposing the doctrine contended for. Under the former Confederation

Rhode Island had an equal vote with any State in the making of Treaties.

This right was thought to have been fully preserved under the present

constitution. But, if the sentiments he was combating prevailed, the

small States would be deprived of one of their most essential rights;

for the power of making Treaties, as one of the principal rights of

sovereignty, was vested in all the States separately when they became

independent, was afterwards, and in the old Confederation, vested in

Congress, each State having an equal vote. It was now, in his opinion,

exclusively vested in the PRESIDENT and Senate, in which body the great

and small States had the same equality of suffrage. The opinion which he

advanced was not merely the opinion of Rhode Island when the

constitution was adopted. A gentleman from Massachusetts had already

shown from the debates of the Virginia Convention, that that Assembly

entertained the same opinion. He was sure the opinion prevailed in the

Convention of Massachusetts--he had attended their debates when this

part of the constitution was the subject of discussion. Objections were

raised against it, from the indefiniteness of the power vested in the

PRESIDENT and Senate of making Treaties. No one suggested that the House

of Representatives had any control over, much less a participation in

this power. It was urged, from the nature of the power, that it ought

to be placed where it was--in the PRESIDENT and Senate. The Senate

represented the sovereignty of the States; besides, from their small

numbers, they were better adapted to the exercise of this power in

respect to secrecy and despatch, necessary in negotiations. Objections

were raised on the ground of the possible abuses to which the power of

making Treaties, unlimited and undefined as it was, might be carried. No

one said the PRESIDENT and Senate did not possess the power, nor was it

pretended that Congress had any power to control it.

He then called the attention of the committee to the debates of the

Convention of North Carolina. He had been a little surprised to hear a

member from that State yesterday say he was a member of the Convention,

and that it was understood that Congress could control the PRESIDENT and

Senate in making Treaties, so far as respected commerce; the power of

legislating on commercial regulations being given to Congress. What

created his surprise was, that he had read the debates of the first

Convention, and found no such sentiment. The gentleman had explained

himself by saying, there was a second Convention called in that State,

of which he was a member, and there the doctrine alluded to had been

advanced. The debates of this Convention Mr. B. had not seen.

Mr. BRENT said he should not in the present debate touch on the merits

of the Treaty, which he conceived foreign to this question. On a motion

to ask for papers with respect to the Treaty, he did not conceive with

what propriety the fitness of the instrument could be brought into view.

The turn which the debate had taken had given rise, he said, to an

important constitutional question; he did not believe its decision of

consequence to the decision on the present motion; but as the debate had

taken that turn, he should pursue the same road in answer to the

arguments of gentlemen. He laid this down as a sound inference from the

provisions of the constitution on the subject of the Treaty power: that

the PRESIDENT and Senate possess the right of forming Treaties, and of

carrying on the necessary negotiations with foreign countries; but when

these contain stipulations bearing a relation to the specific power

vested in the Legislature, the House had a right to take cognizance of

it, and such a Treaty could not become the supreme law of the land until

sanctioned by the Legislature. To show the justness of this position, he

should examine this subject, he said, in a threefold light. He should

examine it by a recurrence to the words of the constitution; then to the

opinions which prevailed as to its meaning at the time it was framed and

adopted; and, lastly, he should examine what construction was best

calculated to preserve the liberties of this country.

The constitution contains two clauses in reference to the Treaty-making

power. The first declares that the PRESIDENT, with two-thirds of the

Senate, shall have power to make Treaties. He proceeded to inquire

whether this clause gives them the right to make Treaties the supreme

law of the land? To determine this it was necessary to examine the

import of the word in those countries where the Treaty power had been

frequently exercised, and to consult the opinions of the best civilians.

The general power of making Treaties is under the control of the

constitution. In despotic countries, where all power, Legislative,

judicial, and Executive, is in the hands of one person, there the

Treaty-making power is without control, and a Treaty as soon as made

becomes, _ipso facto_, the supreme law of the land; but in all limited

governments, the Treaty power is subject to the limitations in the

constitution. The practice of this principle may be found even in the

British Government. There, though the King originates Treaties, as the

PRESIDENT and Senate do here, they do not become the supreme law of the

land, respecting Legislative subjects, until the co-operation of

Parliament is obtained. Thus the power of making Treaties does not imply

the power of making those Treaties in all cases the supreme law of the

land. If the Executive make a Treaty involving none but Executive powers

strictly, then it becomes immediately the supreme law; but if they

contain provisions, which involve the Legislative authority, the

Executive can make them but conditionally, and they do not become

supreme until the Legislature choose to make them so. The British

Government furnishes an example where this doctrine has been practised,

and it is by a reference to the practice of despotic Governments, that

the mistaken idea is taken up that all Treaties, as soon as made, become

the supreme law of the land. The clause in our constitution, he

concluded, does not give authority to the PRESIDENT and Senate to make a

supreme law of the land.

When this clause of the constitution is compared with the other parts of

it, it will be found, he said, that the above interpretation is just;

for the Treaty-making power is delegated as a general power, while to

Congress specific powers are granted. The rational and admitted rule of

construction in these cases is, that specific power restrains general

powers; and here, then, the general Treaty power must be restrained by

the specific powers of Congress. He admitted that the Executive had full

power, under the general authority vested in them by the constitution,

to originate Treaties and to carry on negotiations with foreign powers;

but that if the provisions of a Treaty so negotiated clashed with

specific powers granted, the authority exercising those specific powers

must give it their sanction before it becomes the supreme law of the

land.

He next turned to the second clause of the constitution respecting

Treaties, which had been noticed in the debate. It says, that the

constitution, laws, and Treaties, shall be the supreme law of the land;

and gentlemen contend, he remarked, that though the first clause does

not make the Treaties entered into by the Executive the supreme law of

the land, yet that this does; but its obvious and only meaning, when the

whole of it is taken into view, is, that the Constitution, laws, and

Treaties of the United States, are only meant to be declared supreme to

constitutions and laws of the individual States. It is admitted, as a

sound rule of construction, that to discover the true meaning of any

instrument, it is fair to have recourse to the existing circumstances

that produced it. When the constitution was formed, it was under a

strong impression of the inconveniences experienced under the

Confederation, when great obstruction was thrown in the way of the

Treaty power, by the States refusing to carry into execution those

agreed to by the constitutional authority. This was the evil the framers

of the constitution had in view when they inserted this clause, and it

has no relation to the powers of the General Government, which stand

precisely in the same situation with or without it. It does not declare

that Treaties shall abrogate laws, but that the States shall not have it

in their power to throw impediments in the way of their execution. The

words of the constitution cannot be understood otherwise than that the

constitution, laws, and Treaties, shall exist together; it does not say

that a Treaty shall repeal a law, or a law repeal a treaty. Then the

constitution certainly contemplated that they never should be in

opposition, for contradictory and opposing laws cannot exist at the same

time; if they exist at the same time, they cannot be in opposition to

each other. If it can be supposed that the PRESIDENT and Senate can make

a Treaty in opposition to a law of the Legislature, and yet both the

Treaty and the law be at the same time the supreme law of the land, an

absurdity is supposed. But if it be admitted that the House shall have a

participation in the business of Treaties, in cases which involve the

Legislative authority, then the words of the constitution become

intelligible, and both Treaties and laws may be at the same time the

supreme law of the land.

Gentlemen say, that Treaties, _ipso facto_, repeal anterior laws

clashing with their provisions: they say, that the constitution, laws,

and Treaties, stand upon the same footing in the constitution, being all

declared the supreme law of the land. If Treaties can repeal laws, then

laws can repeal the constitution, for the second (laws) are to the first

(constitution) what the third (Treaties) are to the second (laws); then,

also, by parity of reasoning, Treaties may repeal the constitution. If

all stand on the same footing, and the precedence is according to the

point of time, the last always prevailing, then Treaties may change the

fundamental principles of our Government; then the PRESIDENT and Senate,

by entering into stipulations with a foreign government, may give us a

monarchy, may convert our PRESIDENT into a king, and our Senate into a

nobility; for, say the gentlemen, Treaties are the law of the land as

well as the constitution, and a subsequent law repeals those which are

anterior. But these positions are false in all their parts; a law or a

Treaty cannot repeal the constitution, nor can a Treaty repeal a law. If

the manner in which the three words are placed in the constitution is to

have any force, it would not favor the construction of the gentlemen;

they contend for the supremacy of Treaties, whereas Treaties are last

named, and the true construction from this source would be the reverse,

when there was clashing. He next adverted to the lengths to which the

mode of interpretation contended for by the gentlemen would carry them.

It was never intended, he asserted, by the people, when they instituted

this Government, that the Treaty power should possess this omnipotence.

It was never intended that the PRESIDENT and Senate should have it in

their power to effect a radical change in our Government, and stipulate

with a foreign nation for a guarantee of the change. Laws contrary to

the constitution are nugatory, and Treaties contrary to existing laws,

the same; because, when in that stage, they are not concluded under the

authority of the United States, but are only so (and then there is no

longer any clashing) when once they have received the sanction of the

Legislature. From the above, he concluded that the PRESIDENT and Senate

originate Treaties, and that the Legislature to a certain extent should

exercise a check upon this power. And upon these principles the British

Treaty is not the supreme law of the land until a decision on it was had

in the Legislature.

Mr. FINDLAY.--It seems to be agreed by both parties that the express

words of the constitution will not support either position without a

liberty of construction. The difference of opinion is now confined to

what construction is most agreeable to the general principles of the

constitution.

That the construction which gives the fullest scope to all the powers

vested in the different departments of the Government, and which, by

combining their operation, is the best calculated for the preservation

of the Government itself, offers fairest to be the true one, cannot

reasonably be doubted.

The Legislative powers, to regulate commerce with foreign nations, to

levy taxes, appropriate money, &c., are specifically vested in Congress,

and as deposited in the Legislature, are secured by numerous negative

checks, declaring what things Congress shall not do, and guards

regulating the manner in which it shall exercise its powers on the

proper subjects.

The Treaty-making power is not vested in Congress; the negotiating part

of making Treaties is partly of an Executive nature, and can be most

conveniently exercised by that department, and is, therefore, vested in

the PRESIDENT and Senate. The PRESIDENT shall have the power to make

Treaties, two-thirds of the Senate agreeing therewith.

Even the power of negotiating, which includes the timing of Treaties,

the appointment of Envoys, and instructing them, and approving of

Treaties, so far as to present them for ratification, are powers of

great importance, and may put the Government in such circumstances as to

render it expedient to ratify a Treaty, which, if it had not been agreed

to by the negotiating agents, it would have rejected--are powers of

great importance of themselves; but it is acknowledged that more than

this is vested by the constitution in the Treaty-making powers.

The power of making treaties is admitted to be so extensive as to

embrace all subjects arising under the law of nations, for securing

amity and friendship betwixt nations, and for the mutual protection of

the citizens in their correspondence with each other. Authority for this

purpose is not vested in Congress among the enumerated powers, but

expressly given to the PRESIDENT and Senate; therefore, Treaties to this

extent, ratified under their authority, are the laws of the land,

according to the constitution.

The powers specifically vested in Congress are so explicitly checked and

guarded as to form an unequivocal limitation to the Treaty-making power,

when it extends to powers specifically vested in the Legislature,

consisting of the Senate and House of Representatives, with the

approbation of the PRESIDENT.

The Legislature cannot transfer its essential powers, nor evade them;

the exercise of its privileges it may dispense with, but if it may

dispense with or transfer any one Legislative power, it may, on the same

principle, dispense with or transfer every power with which it is

vested, and for the exercise of which the Legislature only are

responsible.

The Executive cannot assume or exercise any power expressly vested in

the Legislature. If the Executive may, by an extension of the

Treaty-making power, regulate commerce, make laws to raise and

appropriate money, &c., or, which is the same thing, command laws to be

made for carrying Treaties, which interfere with the Legislative powers,

into effect; or if, as is contended, the Legislature has no moral power

of discretion, no power to refuse to make laws to carry Treaties into

effect, or even to form an opinion on the goodness or badness of

Treaties, when they relate to powers explicitly intrusted to its

deliberation: on the same principle all Legislative discretion may be

exercised by the Treaty-making power without regard to the

constitutional guards provided to prevent the abuses of those powers.

For there is no Legislative power vested in Congress but what may be

either directly or indirectly exercised by the Treaty-making power.

If the Treaty-making power is admitted to the extent pleaded for, and

the specific powers vested in Congress are admitted in the extent in

which they are unequivocally expressed, we are reduced to a dilemma, and

the constitution is necessarily admitted to have instituted two

interfering Legislative authorities, acting in direct competition with

each other on the same subjects, and both making supreme laws of the

land; which though they may be nominally distinct, have the same effect

on the citizens, with this difference only, that we may be relieved from

the oppression of laws by a repeal of them, but cannot be relieved from

the hardships resulting from a Treaty, without the consent of another

nation.

In advocating the resolution before the committee, we admit a reasonable

latitude to both the Legislative and Treaty-making powers. Where the

Treaty-making power extends itself to express Legislative objects, and

where Legislative aid is absolutely necessary to carry the Treaty into

effect, we contend that the Legislature in making such laws, exercise

that moral power that is necessary for legislating in all other cases,

and are not reduced to the situation of an executive officer, or mere

treasurers of the United States. In this case, we say, that the powers

are not intended to make war with each other; that the departments ought

to concur in the exercise of them. This method preserves the exercise of

both powers in their proper places; the other destroys the Legislative

authority which is, by the constitution, the most explicitly vested, and

precisely guarded.

Mr. SMITH, of New Hampshire, said, he had not intended to have delivered

his sentiments on the question before the committee, but as he did not

fully agree in opinion with any gentleman who had spoken, it became

necessary for him to express the grounds of his opinion. This he would

do as briefly as possible.

As this question involved the constitutional powers of the House, he

viewed it as important; it was a delicate question. We were called upon

to decide as to our own powers. For these reasons he thought that the

discussion should be conducted with moderation, coolness, and candor;

that such a temper was most favorable to truth. However gentlemen might

differ, he observed, on other subjects, in this we are all agreed, that,

in forming our judgments on all such questions, the constitution must be

our sole guide. It was this instrument, he said, which defines the

powers given to the General Government, and which distributes these

powers among the several departments. If the constitution had not

assigned to each its peculiar portion of power, these departments, like

the original elements, would be engaged in a perpetual war for power.

All would be confusion, disorder, and anarchy. He proposed, in the first

place, to give what he conceived to be the true exposition of the

constitution, on the subject of Treaties in general. He should then, he

said, state as correctly as possible the exposition or construction of

the constitution contended for by the gentleman opposed to him. He

lamented that he could not do this with greater accuracy. The gentlemen

had not agreed among themselves. He could only state what seemed to be

the general current of opinion. The construction which he advocated was,

that, by the Constitution of the United States, the power of making

Treaties is exclusively vested in the PRESIDENT and two-thirds of the

Senate. That this power extends to all kinds of Treaties--of Peace, of

Alliance, of Amity, of Commerce and Navigation, and embraces all those

subjects, and comprehends all those objects, which can with propriety be

the subject of convention or compact between nations; that is, every

thing in which they have a mutual or common interest. That a compact so

made which does not change the constitution, and which does not palpably

and manifestly betray or sacrifice the private interests of the State,

(which is invalid on natural principles,) is binding on the nation

without any sanction on the part of the House of Representatives. That

such a Treaty is by the constitution paramount to the constitution and

laws of the several States; that the Judges in the several States are

bound to obey it. That it is by the reason and nature of the thing

paramount to a law of the United States, and abrogates and annuls all

pre-existing laws contrary to it, and, as long as it remains in force,

limits and restricts the power of the Legislature of the United States

to pass any laws in contravention of it. That, when such a Treaty

requires money to be provided, or rather Legislative acts to be

performed, it is the duty of the Legislature to provide and appropriate

the money in the same manner as it is their duty to provide and

appropriate money for the payment of our debts. That the nation must

judge whether it be constitutionally formed or not; whether the

stipulations contained in it be such as in good faith they are bound to

execute, and whether any circumstances have happened which would justify

a non-observance of it. That on these subjects they must exercise a

sound discretion. That neither the nation, nor any departments of the

Government, are at liberty to reject a Treaty merely because it is a

hard bargain.