That the power to make Treaties is limited to such objects as are not
comprehended and included in the specified powers given to Congress by
the constitution; or, that a Treaty which comprehends or embraces any
such object is not valid; that is, not the supreme law of the land,
until the House of Representatives have added their sanction to it; or,
if this be not admitted, that the House of Representatives, by the
theory of our constitution, have check on the Treaty-making power, in
providing and appropriating money necessary to carry a Treaty into
effect; which power, it is admitted on all hands, they possess; and thus
in this way control the doings of the PRESIDENT and Senate, and can
reject a Treaty, or at least certain parts of it. That they can and
ought to do this if they believe the Treaty to be a bad one, though not
injurious in an extreme, such as manifestly betraying or sacrificing the
private interest of the State, (which by the Law of Nations nullifies
such a compact,) and which on all hands would readily be admitted as a
sufficient cause for refusing to carry it into execution.
Mr. WILLIAM LYMAN began with remarking, that the gentlemen opposed to
the resolution had at first contended, that the House had not a
constitutional right to require papers of the Executive, relative to any
subject whatever; and that if a requisition was made, it would be
discretionary with the Executive, whether it should be complied with or
not.
To this he replied, that the House possessed the power of impeachment
solely, and that this authority certainly implied the right to inspect
every paper and transaction in any department, otherwise the power of
impeachment could never be exercised with any effect. But not to rely
solely on this, he recollected one case, he said, perfectly in point,
which was in the correspondence of the former Secretary of State (Mr.
JEFFERSON) with the British Minister, communicated to the House. From
dates and references, there appeared in that correspondence a chasm. The
House, therefore, passed a resolution requesting the Executive to lay
before them what had been omitted; and further, the resolution in that
case was offered by the gentleman from South Carolina, (Mr. SMITH,) who
was now so vehemently opposed to the present. The right of calling for
papers was sanctioned, he said, by the uniform and undeniable practice
of the House ever since the organization of the Government; they had
called for papers and information whenever it was judged expedient; and
he asserted, that the House had the fullest right to the possession of
any papers in the Executive department; they were constituted the
especial guardians of the people for that purpose; and he would
undertake to say, that this was the first time it had ever been
controverted.
In order to ascertain the powers of the House, he would advert to the
constitution. In the first article and first section, it was declared,
"that all Legislative powers therein granted, were vested in a Congress,
to consist of a Senate and House of Representatives;" and in the eighth
section of the same article, the powers granted were defined and
specified, such as to lay and collect taxes, borrow money, regulate
commerce, and to exercise other important powers enumerated in the
several clauses of that important section. He said it was unnecessary to
read them, as they had been so frequently referred to in the course of
the debate; but he would request gentlemen to pause and reflect whether
it could be supposed that this section was not to be efficacious and
operative; was it possibly conceivable that a section so definite and so
important had been introduced in the constitution merely for the purpose
of being nullified and rendered nugatory by a subsequent article or
section? The very supposition, he said, appeared to him the height of
absurdity, and an affront to common sense; and yet this would be the
case, if the doctrines advanced were true, viz: that Treaties, when made
and ratified by the PRESIDENT and Senate, were supreme law, and that
they controlled and repealed all laws that stood in their way. Congress
could neither regulate commerce, borrow money, prescribe rules of
naturalization, nor legislate on any other subject, because the
PRESIDENT and Senate, by Treaty, would abrogate them all. It was in vain
to consult the House of Representatives in the formation of laws, if
they thus were liable to be annulled at the pleasure of the PRESIDENT
and Senate. The present question, he said, was not, whether the House
should make Treaties, but whether the PRESIDENT and Senate should make
laws; all the power contended for on the part of the House was the power
of self-preservation; it was a repelling power, a power to prevent the
PRESIDENT and Senate, under the color of making Treaties, from making
all the laws. A gentleman from Connecticut (Mr. GRISWOLD) had said, that
the Legislative power occupied all ground, and was vested in Congress;
and that the Treaty-making power occupied all ground, and was vested in
the PRESIDENT and Senate; and that although Congress, who were the
agents for the people, should make laws, yet, that the PRESIDENT and
Senate, who were also their agents, might, by Treaty, repeal them. This,
Mr. L. said, contradicted a sound axiom, and one he had never before
heard controverted, viz: that it required the same power to repeal as to
make a law. Such incongruities as the gentleman had advanced, Mr. L.
said, could never be reduced to practice; two persons could not be
possessed fully and completely of the same thing and at the same time.
The gentleman could never reconcile his positions, the one would
certainly defeat the other; upon his construction, the Treaty-making
power must absorb the Legislative power, or the Legislative power would
absorb the Treaty-making power.
It appeared, therefore, to him, that constitutions, laws, and all
writings, ought to receive such interpretation and construction as to
render them consistent with themselves; and that it was highly
presumptive a construction was erroneous when it produced an absurd
conclusion. If the several parts of the constitution were compared and
critically examined, the determination must be, that, although the
PRESIDENT and Senate could make Treaties, yet it could not be intended,
those Treaties that entrenched on the specific Legislative powers of
Congress, unless with their concurrence and consent; otherwise, it
followed, that, although the three branches were consulted in the
enacting laws, two might repeal them. But it had been asserted that this
power, insisted upon on the part of the House, was a novel doctrine,
introduced merely upon the spur of the present occasion; notwithstanding
which, it had been proved by several gentlemen who had spoken upon the
question, that this interpretation was given to the constitution in most
of the State Conventions at the time of its adoption; that the same
interpretation had also been given, at that time, by the writers both
for and against its adoption. It had appeared, from the extracts of
publications at that period, that whatever might have been the diversity
of opinion in other respects relative to the constitution, that, in this
construction, at least, both its friends and opposers perfectly agreed.
This principle, then, being thus settled and understood, it remained
only to show that it had been invariably admitted and recognized from
the first organization of the Government until this time. The first
Treaty that had been made under this constitution, he said, was that
with the Creek Indians, in the year 1789; previously to the making of
which, the PRESIDENT communicated the subject to Congress; an extract
from which communication he would read, viz: "If it should be the
judgment of Congress, that it would be most expedient to terminate all
differences in the Southern district, and to lay the foundation for
future confidence by an amicable Treaty with the Indian tribes in that
quarter, I think proper to suggest," &c. Here, Mr. L. said, he wished it
might be particularly noticed, that this subject was expressly referred
to the judgment of Congress to determine on its expediency or
inexpediency, and for what purpose, he would ask, was it referred? If
the Senate and PRESIDENT possessed the full power of making Treaties,
there could be no occasion for consulting the House of Representatives;
and yet, in this case, the first that presented itself, it had been
conceived necessary. In consequence of this communication, Congress had
judged it expedient to hold the Treaty; and on the 20th of August, the
same year, enacted a law in which the sum of twenty thousand dollars was
appropriated for that purpose; and, in conformity thereto, the PRESIDENT
appointed Commissioners and gave them instructions, which instructions
had been also communicated to Congress, from which he would also read
one paragraph; it was as follows: "You will observe that the whole sum
that can be constitutionally expended for the proposed Treaty shall not
exceed twenty thousand dollars." On this, he said, any commentary was
unnecessary, as the principle that the Legislative power operated to
restrain the power of making Treaties, was so fully and explicitly
recognized and admitted by the PRESIDENT himself. By pushing inquiry
further, it would be found that, in January, 1790, in consequence of
communications from the Executive which were referred to a select
committee, and a report made thereon, the House came to the following
resolution, to wit: "That provision ought to be made by law for holding
a Treaty with the Wabash, Miami, and other Indian tribes north-west of
the river Ohio." In March following, a law was made, the title of which
was "An act entitled an act providing for holding a Treaty to establish
peace with certain Indian tribes."
In March, 1791, the sum of twenty thousand dollars was appropriated for
obtaining a recognition of the Treaty with the Emperor of Morocco. In
March, 1793, one hundred thousand dollars were appropriated to defray
the expense of a Treaty with the Indian tribes north-west of the river
Ohio.
Thus it was apparent that laws had always been deemed necessary to
provide for holding Treaties and for defraying the expenses thereof.[71]
MARCH 17.--In Committee of the Whole, on Mr. LIVINGSTON's resolution.
Mr. REED said, he saw no necessity for the papers referred to in the
resolution. If the constitutionality of the Treaty should be questioned,
or the propriety of making appropriations, these questions, he
conceived, must be determined by comparing the Treaty with the
constitution, and by attending to those stipulations contained in the
Treaty itself.
It was not his intention to have troubled the committee by speaking on
this occasion; but perceiving that some gentlemen, in the course of the
debate, had gone further into the opposite extremes than he was prepared
at present to follow them, he felt as if he ought to express his own
sentiments with regard to the constitutional rights of that House
relative to the Treaty in question. The Treaty was undoubtedly
negotiated, ratified, and promulgated by constitutional authority. The
PRESIDENT, with the advice and consent of two-thirds of the Senate, was,
in his opinion, unquestionably that authority which the United States
had authorized to make Treaties. But still it seemed taken for granted
that some agency of that House, in its Legislative capacity, would be
needed in order to carry the aforesaid Treaty into effect. A question,
therefore, arose, viz: Was that House, in all such cases, bound and
obliged to put so implicit and absolute a confidence in the Executive or
in Treaties as would render it entirely unnecessary to have any opinion
of their own about them, or the probable consequences of their
operation? For his part, if he had never seen the Treaty in
contemplation, and were perfectly ignorant of its contents, or, if he
fully believed, as a citizen, that it was unconstitutional, or
calculated to ruin, or very materially injure the country, he should not
think himself justifiable in voting to appropriate money for the purpose
of carrying it into effect. It had been conceded by gentlemen that if a
Treaty were evidently unconstitutional, it would not be wrong to
withhold appropriations; and he conceived that a Treaty might possibly
be so injurious in its effects as to justify such a measure. Supposing
such a possible event should ever actually happen, did not the right of
refusing to legislate in support of the said Treaty involve the right of
previously examining all Treaties which need the aid of the Legislature,
and of judging for themselves whether it would be proper or improper to
make laws for the purpose of carrying them into effect?
In making Treaties the Executive would use his own discretion, keeping
within the limits prescribed for him by the constitution. In making laws
the Legislature must use their own discretion, always keeping within
those limits and bounds which the constitution had fixed for them. He
said, the discretionary right here contended for was not the right of
doing wrong; it was not the right of violating the constitution; it was
not the right of supporting a Treaty which ought to be defeated, nor of
defeating a Treaty which ought to be supported; but, simply the right of
judging for themselves, whether they ought, by their own act and deed,
in the character of Legislators, to appropriate by law such sums of
money as would be needed in order to support an existing Treaty, all
things and circumstances relating thereto being suitably examined and
properly considered. Perhaps it would be objected, that the constitution
nowhere expressly gave the Legislators that right. He answered, the
right was not precluded, but implied, and, in some respects, evidently
one of the original and essential rights of man; a law of nature, prior
and superior to all other laws; a law never to be transgressed in any
station whatsoever. Individuals, in many cases at least, had a right to
exercise their own discretion with respect to the propriety of
submitting to a civil law or of risking the penalty, the consequence of
disobedience; and, as a branch of the Legislature, he believed they had
a right to deliberate and consult, among other things, the expediency
and duty of making or of refusing to make appropriations, even in the
case of a Treaty. It appeared to him that, in legislating, the
Legislature should have this right of judging for themselves with
respect to the propriety of making or refusing to make any law
whatsoever. In most cases their duty would perhaps appear plain and
obvious, particularly in the case of appropriating money where a law or
Treaty actually existed. However, the obligation did not arise wholly
from the circumstance of an existing law, but partly from the nature,
reasonableness, and tendency of the thing itself.
A Treaty negotiated by constitutional authority was, he contended, a
solemn compact between two nations. It was an important consideration;
but he thought they might, with propriety, attend to other
considerations, for and against it, especially when their own aid was
required, in order to carry it fully into effect. This he conceived was
the right of the House, and no encroachment upon the prerogative of the
other branches. An appropriation was a specific sum, appropriated by a
particular law to a particular purpose.
The right of appropriating the public money was not a natural right, but
a right derived from the constitution; and the Legislature were to
exercise that right according to the honest dictates of their own best
discretion; excepting those instances in which they were expressly
restricted by the constitution itself, as in the cases of compensation
for the services of the President of the United States, and for the
services of the Judges. Congress might deliberate and act discretionally
in stating at first their salaries.
Mr. TRACY said, he felt a diffidence in giving his sentiments in that
House, which was much increased when he considered the ability with
which the question had already been discussed, and the length of time it
had consumed; but the magnitude of the question would justify him, in
his own opinion, for asking of the committee to indulge him with a small
portion of their time and attention.
This was the first time, since the adoption of the present Government,
that a discussion of the important constitutional question of the extent
of the Treaty-making power could have taken place, as it respected a
foreign nation; and, of course, would probably form a precedent for all
future inquiries of a similar nature.
The constitutional rights of the House of Representatives to interfere
with Treaties, might properly be considered in two points of view:
1. Had they a right to assist in the formation of Treaties in such a
manner as that a Treaty would be incomplete without their sanction
officially given? And,
2. Had they a right to refuse appropriations of moneys, (if necessary to
carry into effect some provisions in a Treaty,) and in that way defeat
its operation?
He acknowledged, if the first position could be supported, the right to
call for the papers would be conclusive; but, he contended, they could
not be wanted on the latter ground.
If the constitution was examined, it would be found the Treaty-making
power was given to the PRESIDENT; and no interference, or right given to
any other men or body of men but to two-thirds of the Senate, and that
by way of consent or advice. Could it be pretended there was a shadow of
authority given to the House of Representatives?
In the constitution it is said, "all Legislative powers herein granted
shall be vested in a Congress," &c. Would it be pretended, had the
constitution gone no further, that the then thirteen independent
sovereign States, by that part of it, had parted with the Treaty-making
power? No! they reserved a great share of Legislative power to
themselves, and delegated it to Congress only in certain cases, best
calculated, in their opinions, to advance their own happiness; and
unquestionably reserved every right, power, and sovereignty, which they
did not expressly give away by the constitution itself. The powers of
legislation are the powers of making statutes in all cases respecting
men and things within the jurisdiction of the Legislature; but it could
by no means in its nature comprehend the Treaty-making power, which is
the power of contracting or making bargains in the name of a nation, as
a moral person, with another nation or moral person, for their mutual
benefit, and to be binding and operative on them, as parties to the
contract or bargain. And although this had binding force on the nation,
when once formed and completed, yet it was not a Legislative act. But
the constitution went further: it had actually designated the PRESIDENT,
with the advice of the Senate, to be a Plenipotentiary for the formation
of Treaties. _Vattel_, page 179, speaking of the various customs of
nations, in the deposit of this power, says:
"All conductors of States (meaning the Executives) have not
the powers, of themselves, of making public Treaties: some
are obliged to take the advice of a Senate, or of the
Representatives of a nation. In the fundamental laws of
each State we must see what is the power of contracting,
with validity, in the name of a State."
He supposed, by "fundamental laws," _Vattel_ must mean the constitution
of a State; if so, it will not follow that the supreme Legislative or
Executive power of a State, as such, have necessarily the power of
making Treaties; it might be, and in most countries was, an object of
precise delegation, and probably always, or certainly more commonly,
given to the Executive. This constitution had precisely given it to the
Executive, subjoining the advice and consent of the Senate; and in this
particular, and in no other, had the individual sovereignties delegated
all their power without limitation. It was necessary and proper this
power should be lodged somewhere, and equally necessary it should be
entire and unlimited, to meet every exigency that the welfare of the
nation might require. It had been said, that general expressions of
power would be limited by specific: this was a general truth, but he
denied the application which had been attempted. It was said, the
Treaty-making power is a general power; the Congress has a specific
power to regulate commerce, &c. Of course, the specific power to
regulate commerce will check the operation of a Treaty of a commercial
nature. He said this part of the subject had been so ably and
conclusively managed by a gentleman from New Hampshire, yesterday, (Mr.
SMITH,) that he would not exhaust the patience of the committee by going
over the same ground. He would however observe, that by the common rule
of construction, all the powers given to the PRESIDENT which could, and
in their nature would, check or operate on legislation, must be
considered as a specific portion of power carved out of the general
power given in the former part of the instrument. The general powers of
legislation first given to Congress, and in the next place specific
powers given to the PRESIDENT, could not fail to lead the mind directly
to such a construction. "All Legislative powers, &c., are vested in a
Congress," but the PRESIDENT has a qualified and specific check. Power
to regulate commerce with foreign nations is vested in Congress, yet the
specific power of contracting, bargaining, or making a Treaty, is, so
far forth as it may touch Legislative points, a specific check upon it.
Yet he acknowledged this was not his chief reliance. The nature of the
case was such, that whatever internal regulations, or those relating to
external and foreign commercial subjects, which may have become objects
of Legislative attention, oppose or come in competition with a contract
or bargain about the same things, must give way. It does not exclude
legislation from the object of foreign commerce, but establishes certain
points within which it shall operate, and which it cannot violate. The
thirteen sovereignties possessing all the power, gave to Congress a
certain portion of Legislative authority; but they certainly could give
to the Executive, or any other body, the power to make Treaties. This he
contended they had done, by the words of the constitution, in an
unlimited manner.
It had been said, that the constitution was similar to that of Great
Britain in the part respecting Treaties. This, he contended, was an
incorrect statement: in his opinion they were very different. The
constitution of Great Britain was formed almost entirely of usages. It
had been, for a great length of time, the usage for the King to lay
before Parliament, for their approbation, Treaties--especially those of
a commercial nature. If this was a usage, all that could be said of it
was, that it was a part of their constitution. He supposed this right
had been given by the Crown, at some time, to obtain a grant of money;
but he could not recollect that the Parliament, with all their
pretensions to a right of rejecting Treaties, had ever exercised it.
They generally made a pretext of dislike to a Treaty to change the
Administration. This had been often done; it was on the Treaty of Peace
of 1783. The Treaty of Utrecht, which was concluded in 1713, had been
cited as an instance of rejection by the British Parliament. It was a
fact, in that instance, that nothing was rejected but a conditional
Treaty. In forming the Treaty, there were many distinct parts: one part
of it was a Commercial Treaty between England and France, separately
signed and conditional--that is, "within the space of two months after a
law shall pass in Great Britain, whereby it shall be sufficiently
provided, &c., the general tariff made in France, &c., shall take place
there again, &c." The law did not pass in Great Britain, and of course
the Commercial Treaty failed. Mr. T. said he had searched all the
Treaties made by Great Britain since the Treaty of Munster, which, if
his memory was accurate, was concluded in 1648, and could not find an
instance of the Parliament's refusing their assent to a Treaty made
unconditionally; and he really believed, if they practised fully on the
right they claimed, it would very soon destroy their Government. It had
been said, _Blackstone_ in his Commentaries had defined the powers of
the King of Great Britain to be unlimited in the making of Treaties. He
observed, that, let _Blackstone_ or any other Crown lawyer say what he
would in favor of prerogative, it was well known the usage had been to
submit to Parliament the consideration of Treaties, and that usage was a
part of their constitution; and he rejoiced, that in that particular the
constitution of his country was different. Gentlemen had said, Shall
this House not have as much power respecting Treaties as the House of
Commons in Great Britain? This question was both improper in itself, and
calculated to mislead. Were we in convention, and forming a
constitution, it might have weight; but in a cool discussion of a
constitution already formed and adopted, and the question is, What
powers are given? it could not be proper. And it ought to be remembered
that Parliament, and not the Commons alone, had this right in Great
Britain. In defining the relative powers given by the Constitution,
there was danger of the popular branch making encroachments on the other
branches, under pretence of favoring the liberties of the people. This
pretence, however grateful it might sound in debate, he thought was but
a pretence. It was the duty of the House to make a stand against all
encroachments on their own rights, if any were attempted, but it must
equally be their duty to exercise great caution not to encroach on
others. He said, he considered the responsibility which was so very
necessary on those in the exercise of the Treaty-making power could not
exist if it was extended to the House of Representatives.
He acknowledged if a Treaty was unconstitutional, it was not then a
contract of binding force, and of course contained no obligation of any
kind whatever; if a Treaty was so terrible in itself, and manifested
consequences ruinous to the nation, no argument could be drawn from such
a statement to establish general rules. The moral law had said, we shall
not kill, and yet a man may be placed in such a situation, as that he
not only may, but it becomes his duty to kill; could it be said a
general right to kill is proved by this concession? But could gentlemen
seriously say, we now wanted these papers, mentioned in the resolution,
to assist us in determining upon the question of appropriation? He
thought not. He supposed the first extensive and unlimited right of
interfering in the making of a Commercial Treaty could alone justify the
call, and he believed that ground must be given up. He said his
colleagues (Messrs. SMITH and GRISWOLD) had asserted no other doctrines
than such as he now advocated, and yet they had been accused of saying
that this House had no will of their own, but must in all cases
implicitly obey the PRESIDENT and Senate. The construction he had given
to the constitution he believed to be just, and trusted he could be
under no necessity of declaring the purity of his intentions, as he did
not doubt but every member of the House was guided in the investigation
by the purest motives.
Mr. S. SMITH said, that at the present state of the discussion, little
was left but gleanings, and to bear testimony against a doctrine that
appeared to him big with consequences fatal to the true interests of the
country. He would not pursue the sophistry of the gentleman last up (Mr.
TRACY) through all its windings and turnings; he would only observe that
the gentleman had read some, and quoted much to prove that Treaties were
the supreme law--a doctrine that was admitted by all, that is, when
under the authority of the United States.
He said the resolution requested certain papers to be laid before the
House. What had been the custom of the House heretofore? Invariably to
ask for all and every paper that might lead to information. He well
recollected that, in 1793, a great ferment had arisen in the public mind
in consequence of the Proclamation of Neutrality, (which had always
appeared to him to be a wise measure,) that on the meeting of Congress a
great number of useful papers relative to our situation with respect to
foreign nations were submitted, some of them of a most confidential
nature, relating to Treaties then depending, particularly that with
Spain. The PRESIDENT was not afraid to place his confidence in that
House, and he was right; the public mind was restored to quiet, and the
people of Kentucky (then restless) were satisfied that the Executive
were doing every thing in their power to obtain the free navigation of
the Mississippi. The PRESIDENT went further; he sent a special agent to
Kentucky to communicate to that Government the line of conduct then
pursuing for their welfare. Had the public mind been less disturbed on
the late Treaty than in 1793? He thought not; and that every paper which
would tend to satisfy that the Treaty was expedient, or to give
information on a subject that must be discussed before that House, might
with propriety be asked for.
A gentleman from Vermont (Mr. BUCK) repeated by another from South
Carolina (Mr. SMITH) said, to vote for this resolution would be treason
against the laws and constitution. Why this harsh language? Did it lead
to a discovery of truth? Where did these gentlemen find that definition
of treason? Not in the constitution, for there it was properly defined.
Mr. S. said, gentlemen had taken a ground that appeared alarming, viz:
That the PRESIDENT and two-thirds of the Senate may, by the aid of a
Treaty, do any thing, and every thing, not morally impossible, (provided
they do not infringe on the constitution,) and that the immediate
Representatives forming this House, have only to be informed thereof,
and to obey.
Let us pause for a moment, and ask, Was this possible? Could this be the
fair construction of our so much boasted constitution? If it should be,
he would not regret the services rendered his country during the late
glorious Revolution, nor the part he had taken to promote the adoption
of the constitution; nor would he, by inflammatory speeches within, nor
his actions without doors, do any thing that should tend to destroy the
harmony then subsisting, or to disunite a people whom nature and
relative wants seemed to have connected together; but he would endeavor,
in a constitutional manner, to obtain amendments to the constitution,
which would prevent the evil in future. But is there occasion for
amendments to the Treaty-making power? He thought not. There were checks
and balances sufficient in the constitution to prevent the evils that
might arise out of it. He said, he could offer nothing new, but would
pursue the train of reasoning began by a gentleman from Virginia, (Mr.
MADISON.)
In the eighth section of the first article of the constitution, Congress
have power to lay duties, &c., &c., but all duties shall be uniform
throughout the United States:
Can regulate trade with foreign nations:
Can establish a uniform rule of naturalization.
Congress, then, although they have the power to lay taxes and duties,
and to make laws of naturalization, are bound to make them uniform; and
in another article, are prevented from giving a preference by any
regulation of commerce or revenue to the ports of one State over those
of another. But the Treaty-making power is not so confined; it may
relieve one of our ports from this uniformity of duties, or one of the
States from the uniformity of naturalization; that is, it may relieve
goods imported in British bottoms into New York, from the one-tenth
extra duty, and let it remain on all the other ports of the Union. But,
say gentlemen, it is unfair to reason against the use of power by its
probable abuses. He thought it advisable to guard against abuses; but
has this abuse not already taken place? He thought it had. Not with
respect to a port of the consequence of New York; that would have been
too palpable; but on the Lakes, by the third article of the Treaty,
goods imported to the territory in that quarter, in British bottoms, are
subjected to no higher duty than goods imported in American vessels to
the Atlantic ports. Here appeared a departure from that uniformity
required by the constitution; here appeared a preference given to the
ports of one State over those of another; and yet gentlemen contend,
that the House have no right to inquire into the business. Indeed, so
delicate was one gentleman (Mr. BUCK) on the subject, that he opposed
committing the Algerine Treaty, lest it should establish a claim to
investigation! It was true, the trade on the Lakes was small, but it
would increase. Thus, although Congress were very wisely restricted,
when laying duties, to make them uniform, yet the PRESIDENT and Senate
would be capable, by the assistance of a foreign power, to destroy that
uniformity.
Mr. S. then stated, that he did not mean, and he hoped he should not be
understood to preclude himself from voting to carry the Treaty into
effect. He held himself entirely open to conviction; and if he should
find that the same was expedient, whatever might be his opinion at
present on the instrument, (and in truth he did not think it good,) yet
he would keep himself at full liberty to act as he might think most to
the interest of this country, when that subject should come before the
House.
MARCH 18.--In Committee of the Whole, on Mr. LIVINGSTON's resolution:
Mr. ISAAC SMITH did not pretend to prescribe limits to other men's
faith, but he never could believe that men, as wise as those who compose
the convention, would have left so important a regulation, as was now
contended for by some gentlemen, to mere uncertain construction. He
believed, if they intended that House should have had an agency in the
making of Treaties, they would have said so in express terms. Had they
done so? Nothing like it. So far from it, that they had unequivocally
appropriated the Treaty-making power to the PRESIDENT and two-thirds of
the Senate, in terms as express and positive as words could form: and
the gentleman in opposition could not, did not deny it. But, say they,
this power may be abused, shamefully abused, and, therefore, we will
construe it out of the hands the people have placed it in. We will
assume and declare ourselves the sole guardians of the people, and we
will cry out liberty, liberty; and, as the people love the sound, (he
hoped they would always love the substance,) perhaps they will believe
us. Here rests the fallacy. The people knew, whether they knew or not,
that they chose the PRESIDENT, and they firmly believe, as well they
may, that he is their guardian. The people knew, also, that they chose
the Senators, and they likewise think they are their guardians. How we,
said he, became sole guardians, will require a modesty superior to that
of New England to explain. The people have declared that the PRESIDENT
and Senate shall make Treaties, without a single exception, and, lest
there should be any mistake or cavilling about it, they have put it in
written words, as they thought, too plain to be doubted, too positive to
be contradicted. It appeared to him that it was a sufficient answer,
though a short one, to all the laborious arguments had in favor of their
interference, to say, that the people wills it otherwise: _sic volo, sic
jubeo, stat pro ratione voluntas_. If they had under consideration
alterations or amendments to the constitution, those arguments might,
perhaps, be proper; but, as matters now stand, they are mere
inapplicable declamation.
Mr. LIVINGSTON said, that the very able support this resolution had
received, might seem to release him from any obligation of speaking in
its defence; nor would he now trouble the committee with any
observations on the subject, if those he made on the introduction of the
business had not been misstated, and his subsequent explanation partly
suppressed. He had stated, when he had laid the resolution on the table,
as a reason for requesting the papers, that important and
constitutional questions would probably arise on the discussion of the
Treaty. It had been represented, (certainly from misapprehension, not
design,) that he confined the use of the papers to the elucidation of a
constitutional question only; and it had been asked, with an air of
great triumph, how the instructions and correspondence could throw any
light on the question of constitutionality, to decide which nothing was
necessary but a comparison of the Treaty with the constitution? Mr. L.
said he had not confined the utility of the papers to that point, but
that, if he had, it would not be difficult to suppose a case in which
they were necessary to determine the constitutionality of the Treaty.
The constitution, he said, gave to the PRESIDENT the power to make
Treaties, "by and with the advice and consent of the Senate." Men,
respectable for their talents and patriotism, had supposed that, by the
true construction of this clause, the PRESIDENT could make no Treaty
unless by the previous advice and consent of the Senate; in other words,
that the Senate should advise the making of a Treaty, which they could
only do before it was commenced; and should consent to it by a
ratification after it was concluded. He would give no positive opinion
on this subject, but supposed it a point worthy the attention of the
House. The construction, he said, appeared reasonable, and had been
heretofore sanctioned by practice. Two instances he could recollect; one
was in the Treaty of Holston, where Governor Blount was "vested with
full powers and specially empowered by and with the advice and consent
of the Senate." The other instance was found in the answer of the
PRESIDENT to the French Minister, who offered to enter into negotiations
for a Treaty of Commerce, which the PRESIDENT declined, by referring him
to the meeting of the Senate, which was not then in session. If the
PRESIDENT supposed he could not commence a negotiation without the
concurrence of the Senate, it gave force to this construction; and, if
it was a true one, nothing was more demonstrable than that the papers
were necessary to determine whether the Treaty in this point had been
constitutionally made.
Two positions had been assumed, differing not materially in the power
ascribed to Treaties, but distinguished chiefly by the mode of applying
this power.
By some it was contended, that the interference of the Legislature was
necessary in some instances, but that the Treaty operated by way of
moral obligation, to enforce the necessary steps to give it validity;
and that though there is a physical power of refusal, yet it ought in no
case to operate against the superior obligation.
Others had asserted, that Treaties being the supreme law, might operate
directly, without the intervention of any other body. That where
existing Legislative acts opposed their execution, the Treaty was
paramount, and could repeal them.
These positions were in fact the same, because, if a Treaty was, at all
events, to have effect, it was perfectly immaterial, whether it operated
directly by its own power, or indirectly by the instrumentality of
another body; both, he thought, equally subversive of the principles of
the Government; but the first was most degrading to the Legislative
dignity. Nor could he discover from what part of the constitution it was
inferred. Wherever, in that instrument, a duty was imposed, it was
clearly and explicitly assigned, as in case of the PRESIDENT's
compensation, that of the judges, and many other instances. It is not,
then, to be conceived, that so important an obligation as this should
have been left to implication. If it had been intended so to annihilate
this discretion, the same language would have been used, "Congress shall
pass laws to carry every Treaty into effect," but nothing of this kind
appears. Again, if it had been intended to make Treaties paramount over
laws, it would seem to have been the more simple mode, to have dispensed
with their interference. Why leave a phantom of discretion, an unreal
mockery of power, in the hands of the Legislature? In order to get rid
of this difficulty, some gentlemen seem willing to allow a species of
volition, but it was a pittance that would be scarcely worth accepting.
In cases of extreme necessity, and in others, where, from corruption or
other good cause, the compact is void, this House, they say, may refuse
to carry it into effect. In the first case, where it is impossible to
give efficacy to a Treaty, the power of refusing it was surely of little
value. And where the compact is void in itself, the liberty of not being
bound by it, would scarcely be contended for. If the subject were less
serious, Mr. L. said, one would be tempted to smile at the efforts that
are made to reconcile the constitutional predestination contended for,
with the free agency of discretion. It was as difficult to be
understood, as the most entangled theological controversy, and, like
most disputants in that science, they concluded with anathemas against
all who could not comprehend, or would not believe them. We have a
discretion, whether to act or not, say they; but we are under an
obligation to act, and if we do not, we are guilty of treason and
rebellion. This was the same kind of discretion a man has, whether he
will commit murder or let it alone; he may do it, but if he does, he
will be hanged. This was a worse alternative than that generally called
Hobson's choice--that was, "this or nothing;" but here we are told, "do
this, or be hanged for a traitor." So that hereafter, when any one
intended to express an inevitable necessity, he would call it
Congressional discretion.
If, then, the Treaty does not operate by way of obligation on the
Legislative power, let us, said Mr. L., examine, whether, as is
contended, "a Treaty is paramount to a law, and can repeal it, though
it, itself, cannot be acted on by the Legislative power;" this, he said,
was the most important question that had ever been agitated within
these walls. It evidently tended to the substitution of a foreign power,
in lieu of the popular branch; it was replete with the most serious
evils. He could never suppose so great and pernicious an absurdity was
contemplated by the constitution; but, if such was the true
construction, great as the evil was, we must submit, until it could be
legally amended.
The constitution gave all Legislative power to the Congress of the
United States; vested the power of making Treaties in the PRESIDENT and
Senate, and declared that the constitution, the laws made in pursuance
thereof, and Treaties made under the authority of the United States,
should be the supreme law of the land. He had always considered the
order in which this enumeration was made as descriptive of the relative
authority of each. 1st. The constitution, which no other act could
operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when
they contradicted neither; for, if no weight was given to this argument,
Treaties would be superior, both to the constitution and the laws, as
there is no restriction with respect to them, as in the case of laws,
that they be made pursuant to the constitution. He did not believe
gentlemen would contend for this absurdity; they must therefore refer to
the order of the enumeration, to measure the relative effect of the
constitution, laws, and Treaties. If the objects of Legislation and of
Treaty compact could be kept distinct, no question would arise, there
would be no pretext for interference; but they could not; almost every
object of legislation might also become that of compact with a foreign
power.
But it was probable, Mr. L. said, that the Treaty power was intended to
be placed in the PRESIDENT and Senate to the same extent only in which
it existed in the Executive of Great Britain. The words of our
constitution on this point were the same made use of by British writers
in defining the corresponding power in their Government, and it seemed
evident that some of its features (and this was none of the least
prominent) were drawn from that original. He was happy that the parallel
was not perfect in other instances. He thought it completely so in this;
and that the practice therefore of that Government would, in some
measure, lead to the true construction of this. Aware of the weight of
precedents drawn from English history, gentlemen endeavored to weaken
them by a very ingenious argument: "The British Constitution," say they,
"is not written, it is formed of usages; if you prove, therefore, that
it is the usage for British Parliaments to sanction Treaties, you prove
it to be their constitution, but you do not prove it to be ours." It was
true, Mr. L. observed, that the English Constitution was formed partly
of immemorial usages; but it was also true, that those usages were
collected in books of authority, and that the different powers of
Government were generally designated, so that the leading points in
their constitution were as well known and defined as they were in that
of America. It had been shown by a reference to writers of the best
authority, that, by the Constitution of England, the power of making all
Treaties was in the King; but as the power of making all laws was in the
Parliament, this latter, as the greater power, controlled the former,
whenever it affected objects of legislation. Thus, in the Constitution
of the United States, he contended, the power of making Treaties, that
is, all Treaties, vested in the PRESIDENT and Senate; but, as all
Legislative power is vested in Congress, no Treaty operating upon any
object of legislation can take effect until it receives the sanction of
Congress. The practice, too, was the same. The King asserted his right
of making and completing Treaties, by not only concluding, but ratifying
them, before they were submitted to Parliament, but he believed no
Commercial Treaty was proclaimed as the law of the land before it had
received the sanction of Parliament. Indeed, it was impossible, in any
country, and under any constitution, where the Legislative and
Treaty-making powers are lodged in different hands, that any other
construction can be given without running into the absurdity he had
before hinted at, of making two different powers supreme over the same
object at the same time. Our ideas had been confounded by referring to
the practice of Governments where the two powers were united, and where
a ratification gave the consent of both.
If, then, there was a perfect analogy between the power vested in the
Crown in England, and that delegated to the PRESIDENT and Senate in
America, on the subject of Treaties; and if the Parliament, by virtue of
its general Legislative authority, was in the practice of giving or
withholding its sanction to Treaties concluded by the King, it was but a
fair inference to say, that the same discretion existed in Congress.
Some instances of the exercise of this power by Parliament, had been
before quoted by others. The inexecution of the Treaty of Utrecht, in
consequence of Parliamentary opposition, and the difficulties with which
the Commercial Treaty with France was carried through the House of
Commons, in 1787, had been already noticed. He would mention two other
precedents drawn from the same source equally striking, or perhaps more
so, as the course of proceeding there followed was precisely that which
was proposed by the resolution in debate. The first was the proceeding
on the Barrier Treaty, taken from the 5th vol. Parl. Debates, p. 43,
where the House of Commons began, by a resolution to address the Queen,
"that all instruction and orders given to the Plenipotentiaries that
transacted the Barrier Treaty, and also all Treaties mentioned and
referred to in the said Treaty, might be laid before the House, except
such Treaties as they already had." We are told in the subsequent page,
that on the 13th, that is, only two days after the request, "Mr.
Secretary St. John presented to the House, by Her Majesty's command, a
copy of the instructions to the Duke of Marlborough and Lord Townsend,
about the Barrier Treaty, extracts of letters from Mr. Boyle to Lord
Townsend, concerning the said Treaty; also a copy of the Preliminary
Articles, signed at the Hague; the titles of which copies and extracts
of letters were referred to the Committee of the whole House. After
this, it was resolved to present an address to Her Majesty, that the
letters written by Lord Townsend to Mr. Boyle, the Secretary of State,
dated the 1st and 26th of November, 1709, might be laid before the
House, which Mr. Secretary St. John accordingly did on the 14th of
February." After having obtained the papers, Mr. L. said, the House of
Commons proceeded to the consideration of the Treaty in Committee of the
Whole, and voted, 1st. That the Treaty contained articles destructive to
the trade and interest of Great Britain. 2d. That the negotiator had
acted without authority. 3d. That the advisers and negotiators were
enemies to the Queen and Kingdom.
The Treaty being thus obstructed, the States General remonstrated to the
Queen on the subject; but, conscious that the Parliament were only
exercising a constitutional power, they make no complaints in their
memorial of any breach of faith, though the Treaty had been ratified.
They enter into the merits of the Treaty, offer to negotiate on the
obnoxious articles, and conclude with "entreating the continuance of Her
Majesty's friendship."
This instance, then, said Mr. L., is complete to show the propriety of a
call for papers by the House of Commons; a ready compliance on the part
of the Crown, a deliberation on a ratified Treaty, a rejection of it,
and an acquiescence on the part of the foreign nation, without
remonstrance.
The other instance was an address in the year 1714, requesting "the
Treaties of Peace and Commerce between Her Majesty and the King of
Spain, and the instructions given to Her Majesty's Ambassadors
thereupon, together with the copies of the King of Spain's ratifications
of the said Treaties, and the preliminaries signed by the Lord Lexington
and the Marquis of Bedmar, at Madrid, and all other agreements and
stipulations which had been made concerning the commerce between Great
Britain and Spain. 2dly. An account of what engagements of guaranty Her
Majesty had entered into by virtue of any Treaty with any foreign Prince
or State, from the year 1710. And 3dly. An account of what instances had
been used by Her Majesty for restoring to the Catalans their ancient
privileges, and all letters relating thereto. And then it was resolved,
to take into further consideration the Message that day sent from the
Lords upon Thursday next following."
Objections had been raised to this construction, drawn from three
different sources.
1. From the prevalent construction at the time of establishing the
constitution.