2. From the practice of the Government since that period.

3. From the present ideas entertained by the people of the United

States.

1st. As to the construction generally received when the constitution was

adopted, Mr. L. did not conceive it to be conclusive, even if admitted

to be contrary to that now contended for; because he believed we were

now as capable at least of determining the true meaning of that

instrument, as the Conventions were; they were called in haste, they

were heated by party, and many adopted it from expediency, without

having fully debated the different articles. But he did not believe the

general construction at that time differed from the one he had adopted.

A member from Virginia (Mr. BRENT) had shown, by recurring to the

debates in the Convention of that State, and to other contemporaneous

productions, that the framers and friends to the constitution construed

it in the manner that we do; whilst its enemies endeavored to render it

odious and unpopular, by endeavoring to fix on it the contrary

construction. And as the friends to the constitution were the most

numerous, we ought rather to take the explanation under which a majority

accepted the constitution, as the true one, than to look for it in the

bugbears by which anti-Federalism endeavored to prevent its adoption.

2d. The second argument that had been used to deprive the Legislature of

any right of interference, in cases of this kind, was drawn from the

uniform practice of the Government ever since its formation. The

gentleman from South Carolina (Mr. SMITH) who made this objection, had

cited one instance of this practice in the resolution directing Treaties

to be published with the laws, and had adverted to the appropriations

for the Indian Treaties, (under the general head of the Military

Establishment,) as favoring his principle. As to the resolution, Mr. L.

said, there was no doubt that Treaties, when properly sanctioned, ought

to be observed, and therefore the resolution was proper, that they ought

to be promulgated. On the subject of appropriation, it had been well

observed by a gentleman from Virginia (Mr. GILES) that the House

exercised as much discretion in granting the supply, by way of addition

to the military appropriations, as if it had been given specially for

the purposes of the Treaty. But the truth is, said Mr. L., that an

accurate examination into the communications of the Executive in

analogous cases, and the proceedings of this House, will form a strong,

I think an irresistible, argument in favor of the resolution. It would

appear, he said, from the view he was about to take, that from the first

establishment of the constitution until the negotiation of this Treaty

was begun, the Executive had been in habits of free communication with

the Legislature as to our external relations; that their authority in

questions of commerce, navigation, boundary, and intercourse with the

Indian tribes, had been expressly recognized, even when difficulties on

these questions were to be adjusted by Treaty.

The first case related to a provision for an Indian Treaty, and was

suggested by the PRESIDENT, in a Message of the 7th of August, 1789, in

which he says: "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 the

consideration of the expediency of instituting a temporary commission

for that purpose, to consist of three persons, whose authority should

expire with the occasion." In consequence of this Message, Congress took

into consideration the expediency of the measure recommended to them,

and passed the act of the 26th of August, in the same year,

appropriating twenty thousand dollars for defraying the expense of

negotiating and treating with the Indian tribes, and authorizing the

appointment of commissioners. The PRESIDENT having appointed

commissioners to treat under the direction of the act, gave them

instructions, which were communicated to the House, and from which this

is an extract: "You will please to observe, that the whole sum that can

be constitutionally expended is twenty thousand dollars, and that the

same cannot be extended." Nothing having been effected by the

commissioners, the PRESIDENT mentions the subject again in his Address

to both Houses, on the 1st of January, 1792. In the month of March, in

the same year, the House of Representatives adopted the following

resolution, recommended by a select committee: "That provision ought to

be made by law for holding a Treaty to establish peace between the

United States and the Wabash, Miami, and other nations of Indians,

north-west of the river Ohio; also, for regulating trade and intercourse

with the Indian tribes, and the mode of extinguishing their claims to

lands within the limits of the United States." On the 29th March,

following, a bill passed the House of Representatives, the title of

which was amended in the Senate and passed, appropriating twenty

thousand dollars for purposes expressed in the preceding resolution.

Mr. L. said this case was important, as it was the first communication

relative to a Treaty made under the constitution. An attentive

examination of its different parts would show that very different ideas

were then entertained from those which were now enforced. He would first

observe, that the discretion of the House of Representatives as to

commerce with foreign nations, stood precisely on the same footing with

that which they ought to exercise in regulating intercourse with the

Indian tribes; that if one could be done without their concurrence, by

Treaty, the other might also; and that, therefore, when the PRESIDENT

recognized their right to deliberate in one case, he virtually did it in

the other. Let us then attend to the language of the Message, said Mr.

L., and we shall find that right of deliberation most expressly

referred to. "If it should be the judgment of Congress that it would be

most expedient"--what can be more explicit than this language? And

again, "I think proper to suggest the consideration of the expediency of

instituting a temporary commission." Here the same discretion is not

only applied to, but the PRESIDENT, at that time supposing that no

implicated power could deprive Congress of the right to regulate trade

and intercourse with the Indian tribes, submitted to their consideration

the expediency of appointing commissioners. They passed the necessary

laws, and he instructed the commissioners, not in the language that is

now held, that they might stipulate for the payment of any sum, and that

Congress would be obliged to find the means; but he tells them, "the

only sum that can be constitutionally expended is twenty thousand

dollars, and that the same cannot be extended." Why, (if the doctrine is

true that we are under an obligation to comply with the terms of every

Treaty made by the PRESIDENT and Senate,) why did he say no further sum

could constitutionally be expended? If that doctrine were indeed true,

his language would have been, Use what money may be necessary, contract

for the payment of it in your Treaty, and Congress are constitutionally

obliged to carry your stipulations into effect.

The resolution above quoted, Mr. L. said, was important, as it proved

that Congress then supposed that they ought not only to provide by law

for holding a Treaty with the Indians, but that they also had the power,

and ought to exercise it, of regulating trade and intercourse with the

same people, and of prescribing the mode of extinguishing their claims

to lands within the United States; but all this, said he, it is now

discovered may be done without their aid, by Treaty.

The second instance of the exercise of this dreaded discretion, was in

the law of March 3d, 1791, appropriating twenty thousand dollars to

enable the PRESIDENT to effect a negotiation of the Treaty with Morocco.

This originated in the Senate, and is a decided proof that neither the

PRESIDENT nor Senate had at that period any idea of the moral obligation

that is now discovered, or they would, without the formality of a law,

have at once stipulated with the new Emperor for the payment of the

necessary sum, which must have been provided by the House.

In a third case, the PRESIDENT had thought proper to take the sense of

that House in a matter that of all others demanded secrecy, and under

circumstances that would have prevented his making the application, if

he had conceived himself at liberty to act without their concurrence. He

adverted to the Message of 30th December, 1790, where the PRESIDENT

says: "I lay before you a Report of the Secretary of State, on the

subject of the citizens of the United States in captivity at Algiers,

that you may provide in their behalf what to you shall seem expedient."

No act having been passed by Congress in consequence of this Message,

the PRESIDENT did not conceive himself authorized to bind the United

States by Treaty, for the necessary ransom of their citizens; and

therefore nothing was concluded until after a subsequent Message and

previous appropriation, in the year 1793, when another Message was sent

relative to the negotiations with Morocco and Algiers, then pending:

"While it is proper (he says) that our citizens should know that

subjects which so much concern their interests and their feelings, have

duly engaged the attention of their Legislature and Executive, it would

still be improper that some part of this communication should be made

known." Part of this Message, therefore, was confidentially

communicated, which shows, Mr. L. said, on some occasions, it was not

deemed imprudent to trust this House with the secrets of the Cabinet;

and in consequence of this Message, a law was passed, appropriating one

hundred thousand dollars for the purchase of a peace with the Algerines.

It was ostensibly appropriated to a more general purpose, but the intent

was well understood.

The next transaction that he should quote, Mr. L. said, as favorable to

his doctrine, was the Message of the PRESIDENT of the 5th December,

1793, and the measure to which it gave rise. The PRESIDENT says: "As the

present situation of the several nations of Europe, and especially those

with which the United States have important relations, cannot but render

the state of things between them and us matter of interesting inquiry to

the Legislature, and may, indeed, give rise to deliberations to which

they alone are competent, I have thought it my duty to communicate to

them certain correspondence which has taken place."

This Message, Mr. L. said, accompanied the papers relative to France, to

Great Britain, and to Spain; and a question would immediately occur,

what were the deliberations to which the PRESIDENT then thought the

Legislature alone was competent, and which he therefore thought it his

duty to communicate. All our disputes with the nations referred to in

the Message, were such as on the new construction of the Treaty power he

could have adjusted by compact, without any reference to the House of

Representatives; but it is plain, by the express words of the Message,

that he did not believe that construction. It was no answer, Mr. L.

said, to the argument drawn from this transaction, to say that the

PRESIDENT only submitted the question of War or Peace to the Legislature

by this Message.

1. Because the Message related to the three principal nations in Europe,

and he never could have imagined that Congress would have deliberated on

going to war with them all.

2. This was evidently not his intention, because as soon as measures

were proposed in that House, which he supposed would lead to a rupture

with one of those nations, all these measures were palsied by the

appointment of an Envoy, and the commencement of negotiation.

It was clear, then, that the PRESIDENT thought the matters communicated

by his Message, which related to commerce and boundary, were

constitutionally vested in the discretion of Congress. The idea was

corroborated by the words of a Message relative to the negotiation with

Spain:

"And, therefore, by and with the advice and consent of the

Senate, I appointed Commissioners Plenipotentiary for

negotiating and concluding a Treaty with that country, on

the several subjects of boundary, navigation, and commerce,

and gave them the instructions now communicated."

Why, said Mr. L., communicate the instructions to the Ministers? Because

they related to commerce, to navigation, to boundary, on all which

subjects the PRESIDENT must have thought the Legislature had a right of

decision. He must have thought so at that period; but, unfortunately,

all precedent of free communication ended here; Mr. Jay's negotiation

began, and a different construction was assumed.

From this view of the acts of Government, Mr. L. said, he trusted that a

far different impression would be made, than that the doctrine he

contended for was a new one, originating in opposition to the English

Treaty, and a desire to disorganize the Government. That, on the

contrary, it had been declared by the PRESIDENT, acquiesced in by the

Senate, and acted upon by the House of Representatives.

MARCH 21.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. WILLIAMS observed much had been said upon the subject of the present

resolution, and so much time consumed, that he should confine his

observations within a narrower compass than he at first intended.

It was contended that in a Republican Government there ought to be no

secrets; but he would ask whether it was not specified in the

constitution that secrecy should be observed on particular occasions?

and, had not his colleague (Mr. LIVINGSTON) quoted the secret Journals

of the House? He believed if the constitution of France were examined,

it would be found that their system admitted of secrets. He had the

honor, he said, to be upon a committee, before whom many papers were

laid, which it would be improper to publish. With respect to the present

papers, he did not think there were any secrets in them. He believed he

had seen them all. For the space of ten weeks any member of that House

might have seen them. It was not merely with respect to the present

papers that he opposed the motion, but because it would be establishing

a bad precedent; and, as they were a young Government, they ought to be

cautious how they established bad precedents. It was well known that in

the negotiations in time of war, confidential communications were

necessary; but if no papers were allowed to be kept secret, what person

would ever venture to make any such communication? Hence this country,

when in the greatest danger, may be much injured by improper

precedents.

He quoted authorities to prove that there never was but one precedent in

Great Britain of a negotiator's papers being given up; that was in the

last year of the reign of Queen Anne when the Ministry were soon

afterwards obliged to fly their country. He was sorry that a gentleman

returned by the Republican interest of one of the first cities of the

Union should have had recourse to a desperate Tory faction for a

precedent.

Some gentlemen had observed that the papers ought to be obtained,

because the PRESIDENT had intimated, in his Speech, that he would lay

the papers before the House with the Treaty; but they were mistaken in

their observations, because the papers had not been laid before us.

A gentleman from Pennsylvania said, because the King of England laid the

papers relative to a negotiation before Parliament along with the Treaty

to which they related, they had also a right to papers, the Governments

being similar; but when the King did this, he informed them that he had

concluded such a Treaty; and after a thing was concluded, he did not

know what could remain for Parliament to do. He would refer to a recent

authority, and not go back to 1714; it was to the case of the Treaty

with Great Britain respecting American loyalists, when papers were

refused to be given up, and it was deemed a most inconsistent thing to

require them. This business caused great debates in Parliament, and the

motion for papers was lost, there being only sixty-three for it, and one

hundred and four against it. Mr. W. read the observations of different

members of Parliament on the occasion, and observed, that although he

was unwilling to quote precedents from a Government not similar to ours,

yet this was a case in point, and this Treaty was negotiated between Mr.

JAY, on the part of the United States, and Mr. OSWALD, on the part of

Great Britain.

The resolution before them called for all papers, whether public or

private, except such as related to any existing negotiation; but as the

Treaty was completed, the resolution included all papers. He should have

had less objection to the motion, if the amendment proposed by the

gentleman from Virginia had been adopted. He did not see the use the

papers would be of if they were got. The House was not vested with

either the power to alter or amend the Treaty. But, say gentlemen, they

are wanted for information. But he believed they ought to form their

judgments of the Treaty from the instrument itself. Suppose I were to

employ an agent, and give him instructions to make a contract for me, on

condition that it should not be binding until I had approved it; and my

agent return and I approve of the contract, what light can be thrown

upon it by the instructions which were given to the agent? The

instrument alone was what must be had recourse to; because he had it in

his power to have withheld his sanction.

If his information was right, when certain resolutions were brought

forward in the year 1793, a gentleman from Virginia said that Great

Britain would refuse to negotiate with this country; but immediately

upon the Treaty being made known, it was every thing that was bad.

He would endeavor to answer some observations which had fallen from a

gentleman from Virginia, (Mr. GILES.) It was asked if the Treaty power

could receive any check? He conceived the will of the people ought to be

obeyed. They had given power to the PRESIDENT and Senate to make

Treaties, which if not complied with, would be to oppose their will. In

speaking of the amendments proposed to the constitution by the

Legislature of Virginia, it was said they were only intended to make the

check more certain than at present; but he read the resolution, viz:

"That no Treaty containing any stipulations upon the subject of the

powers vested in Congress by the eighth section of the first article,

shall become the supreme law of the land, until it shall have been

approved in those particulars by a majority in the House of

Representatives. That the PRESIDENT, before he shall ratify any Treaty,

shall submit the same to the House of Representatives; and insisted that

it might be clearly deduced from them, that they did not conceive the

Treaty power to have any check in that House. That State had kept

uniformly the same ground in all their actions; but the different State

Legislatures to which their amendments had been proposed, had determined

the Treaty power rightly placed where it is at present. But because the

people will not agree that they should have a check upon the Treaty

power, gentlemen seem disposed to usurp it by their present doctrines."

The same gentleman (Mr. GILES) observed, that the checks in the

Government of the United States had been completely routed for these six

years. He was exceedingly sorry that the PRESIDENT could bind that

House, but he said that was a sword that cut two ways. It was too late

in the day to assert this doctrine, when the people were become so

enlightened as to be better acquainted with the nature of Government,

and better educated, than the people of any other nation in the world.

They would, therefore, take care of themselves.

He said that a gentleman from South Carolina had observed that the

Treaty was put into operation by the Proclamation of the PRESIDENT, and

made a part of the laws of the land. An honorable gentleman from

Virginia (Mr. GILES) granted that, when completed, the Treaty ought to

be annexed to the laws. Mr. W. asked, was this not done? It had been

promulgated in the way in which Treaties are directed to be promulgated;

and he would ask, if a case were to come before the Judges upon it,

whether they would not be bound to consider it as the law of the land?

If the member from Virginia (Mr. GILES) had been opposed to the Treaty

going into operation, why did he not take the proper mode to prevent it?

He knew of the resolution which directed how Treaties are to be

promulgated and annexed to our code of laws, he knew the Treaty had

arrived, and he might have had the subject discussed. If a majority were

for preventing the Treaty from being promulgated in the ordinary way,

then the resolution might have been done away, and some other mode

adopted which was thought most prudent.

The same gentleman next contended that law can annul Treaties. But he

believed that the constitution decided that there was no other way of

repealing Treaties but by mutual agreement of the parties, or by war. To

break one article of a Treaty was to break the whole, and war, or a new

Treaty must be the consequence. The reason he gave why laws could repeal

Treaties, was, because laws were the will of the people. Treaties, Mr.

W. said, were as much the will of the people as laws. The people had

fixed barriers to the different branches of the constitution, which

could not be overleaped without endangering the whole fabric.

In speaking of power, gentlemen say it is more likely to be abused in

the Executive than in that House. But, in the year 1789, when amendments

were first proposed to the States, a gentleman from Virginia (Mr.

MADISON) asserted "that it was less necessary to guard against abuse in

the Executive Department than any other, because it was not the stronger

branch of the system, but the weaker; it therefore must be levelled

against the Legislative, for it is the most powerful, and the most

likely to be abused, because it is under the least control;" and Mr. W.

quoted several laws which had originated in that House, by which very

large sums of money had been expended to little purpose, which he would

explain when they were in a Committee of the Whole on the report from

the Committee of Ways and Means.

But gentlemen say, "Have we not as much power as the House of Commons in

Great Britain?" He answered, their powers were limited; the constitution

was their guide. He thought gentlemen proceeded as if they were about to

form a constitution rather than discuss a constitutional question. Some

gentlemen had said, Treaties of Amity ought to be vested in the

PRESIDENT and Senate; others, that Treaties for a cessation of arms

ought to be vested in the Executive; thus they wander, well knowing the

ground they had taken was not tenable. It brought to his mind an

observation made by an Indian Chief, in a Treaty at Albany, since the

late war, who, after thanking the Great Spirit for directing them back

in the good old path, which made them happy, lamented, that ever since

they had wandered from that path, they had been miserable. So it would

be with them if they left the constitution; they would wander from the

right path, and involve themselves in difficulties. Appropriations for

the army and navy in Great Britain must be made annually, without which

they must be discharged. By our constitution we may appropriate for two

years for the army, and no mention as to what time for the navy; so that

we can make appropriations for a longer time for our army and navy than

in Great Britain.

The gentleman (Mr. GILES) further observed, that the opinions

entertained in that House three years ago, were not to influence them

now; it was necessary however, in Mr. W.'s opinion, that whenever

nations changed their customs, some notice ought to be given of the

change, that it might be known by nations with whom they may have any

transactions. To prove this, he quoted _Marten's_ Law of Nations. The

Treaty had been laid before them, that they might appropriate money for

carrying it into effect. On the first of June, the British were to give

up the Western posts; if money was not appropriated, would they not be

deceived?

Before he proceeded to remark on what had fallen from his colleague (Mr.

LIVINGSTON) he would mention, that they had, for some years, in general

concurred in their political opinions, and during the present session

they had varied very little; in the question before the House, however,

they should differ very considerably. Soon after the constitution was

framed, a Convention was held in the State of New York, in which he had

the honor to be a member. He was fully of opinion at that time, as he

was now, that the Treaty power was a dangerous power, and, in

consequence, gave his dissent to it.

He would proceed to remark on what had fallen from his colleague. He had

said, how could they determine whether the Treaty was constitutional or

not, or whether an impeachment was necessary, without information? The

papers, as he had said before, were open for ten weeks, during which

time gentlemen might have had access to them. But that gentleman said,

they had denied him of late, and so they had been to him; but he

understood they were at the Secretary of State's office, and might be

seen there. He mentioned a case of a Treaty with a foreign country, in

which their Minister might have received presents; but declared, that he

did not believe there was any corruption in the negotiation of the

Treaty in question. It appeared to him, therefore, inconsistent still to

talk of impeachment.

Suppose, for instance, his colleague was Attorney General of the State

of New York, and a man were to charge another with being guilty of

burglary, whose character, reputation, and standing in life were

irreproachable, would he subpoena him to meet the charge? No, he would

not. And still the case is exactly similar to the present.

If, said Mr. W., his colleague or any member of the House wanted the

papers, they had only to rise in their place and declare there were

grounds of suspicion for an impeachment; would any member refuse the

call? But he presumed no such thing was thought of. Why, then, expend so

much precious time unnecessarily? The gentleman believed that the

Minister had deviated from the instructions originally given him; but

that he received new instructions. Whatever instructions were given to

him, it appears, by the Treaty being ratified, that he executed them to

the satisfaction of his employer.

It may be, said Mr. W., that this House may determine that it has a

check on the Treaty-making power; but the next Congress may say there is

no such thing. Whether there is, or there is not this check, it is

necessary for the stability of the Government to have it determined; and

he would join in sentiment with the gentleman from Maryland in a wish

that it might be settled. But he would have the amendment

constitutionally made; for, if we ourselves do not understand the

constitution, it is not likely that our constituents at large should

understand it. If I am wrong now in the true meaning of the

constitution, I have been wrong since its adoption. The people are the

sovereign; their will shall be my guide, from which I will not,

knowingly, depart. I live in the midst of a body of plain but

intelligent freemen, whose employment is the cultivation of the earth,

and who prize nothing beyond the freedom they enjoy. They are jealous of

their liberties, but they are obedient to, and willing to respect and

support the laws of the land. How will they know the laws, if we do not

understand the constitution after it has been in operation for nearly

eight years?

Gentlemen observed, that if the Treaty-making power was meant to be

vested solely in the PRESIDENT and Senate, it would have been said so

explicitly; but, he thought, if the constitution had intended that House

to have interfered in Treaties, that would have been expressed, as a few

words would have done it.

His colleague asserted, that that House had the power of carrying into

effect or not any Treaty; but he thought the House obliged to carry into

effect all Treaties constitutionally and completely made. To support his

doctrine, Mr. LIVINGSTON had referred to the practice of Great Britain,

and singled out the Treaty of Utrecht.

In England, said Mr. W., the Treaty-making power is in the King. A

Treaty, when made by him, pledges the public faith and binds the nation;

but the Courts of Law and the officers of the revenue do not consider

Treaties as the supreme law (when they change the regulations of

commerce or interfere with previous acts of Parliament) until Parliament

has passed acts conformably to such stipulations of a Treaty. The

propriety, and, indeed, necessity of this rule, results from the

monarchical form of that Government, the power of the King alone to

repeal existing laws being a just ground of apprehension. From a like

apprehension, a Treaty, though negotiated and made in all its parts by

the PRESIDENT, must be submitted to the Senate for their ratification.

The Senate is a popular assembly, and representing the States. The

concurrence of two-thirds is equal on every principle of combining the

public will with the acts of the constituted authorities to the sanction

of Parliament.

In England, Treaties of Peace, of Alliance, and, perhaps, many others,

are perfect and binding without co-operation of Parliament. The opinion

of some is understood to be, and _Blackstone_ seems to be of the number,

that every Treaty, when made by the King, is obligatory without the

concurrence of Parliament. The practice, however, is to lay Treaties

before Parliament when laws are necessary to carry them into effect, and

for Parliament to pass such laws. And, although a very broad discretion

has been claimed in Parliament to pass or reject such laws, the uniform

practice, except in one instance, has been to pass them. The faith of

the nation is considered as pledged. The case where laws to carry the

Treaty into effect have been refused, is the Treaty of Utrecht, in 1714.

The credit of the example is much abated by the circumstances of the

times when it happened. The Duke of Marlborough had been displaced, but

his friends were powerful; a Tory Minister was in power and much hated;

Queen Anne was decaying, and died that year, and the succession to the

Crown was doubtful. Parties were ready to draw the sword against each

other, and the most distinguished Ministers were soon proscribed and

fled the country. A civil war broke out in 1715, the next year. One only

example in such times, and the forerunner and cause of such events,

weighs little against the course of practice in numberless cases, all

issuing another way. It proves that the practice of Parliament

corresponds with our doctrine. If, however, their maxims are different,

so is their constitution in this particular. The act of the King should

be compared with the act of the PRESIDENT alone; and the ratification of

the Senate should be, and, by our constitution, it must be, considered

equal to the sanction of Parliament. The doctrine ascribed by Mr.

GALLATIN to the Parliament affords a reason for their calling for

papers; because, he says, they are to act upon them. Yet such call is

seldom made, and would probably be refused, if made without manifest

occasion for the papers. Our constitution has settled a different

doctrine; and, as the papers cannot be needed, they cannot properly be

asked for.

He doubted not that the Treaty lately concluded with Great Britain had

ere now been laid before Parliament, and a sum of money granted for

recompensing spoliations committed in this country. Should they then

attempt to refuse appropriations for carrying the Treaty into effect, on

their part, where would be their national honor, their national faith?

Suppose the Treaty were a bad bargain, that would not authorize them to

break it. No: if a bad bargain be made to-day, make a better to-morrow.

Neither should they determine the thing before it came before them.

Probably they may not find it so bad as it had been represented; for

though it might, in some respects, narrow our commercial intercourse,

yet, perhaps, by so doing, the agricultural interest would be

proportionally benefited. He was convinced that the agricultural

interest was the true interest of this country. If by the Treaty we find

that it tends to the welfare of the farmer, we may conclude our

negotiator had the true interest of his country in view; and it was his

(Mr. W.'s) opinion that a man taken from the plough and put on board a

vessel was a man lost to the true interest of this country. This country

is not like that of Great Britain: they are confined to small islands;

we have a country extensive and fertile, and it is our duty to encourage

settlers, increase our numbers, and, by so doing, we shall soon be in a

situation to bid defiance to all the world. He was willing to encourage

commerce to its full proportion, but not so as to injure the

agricultural interest. The third article in the Treaty had been quoted

by a gentleman from Maryland (Mr. S. SMITH) as having a tendency to

operate unequally in our impost duties; Mr. W. observed he did not think

that was very exceptionable, so far as it had been explained. He did not

think the third clause of the Treaty a bad one: it only went to this,

that when Great Britain carried goods through our country they were to

pay the same duty as American citizens. And would not this be a greater

advantage to the United States than if they went up the rivers St.

Lawrence or Mississippi, and paid no duty? All the duty received of them

would be so much gain to the country.

His colleague (Mr. LIVINGSTON) went on too contemporaneous a

construction, and said that the House were better able to judge of the

meaning of the constitution than the conventions which were held to

consider upon its adoption. He did not think so. He said, he had always

been called an anti-Federalist, and was so considered to this day. He

would willingly join to obtain an amendment to the constitution with

respect to the Treaty power; but, because he did not believe the

constitution contemplated an interference in that House in respect to

Treaties, he could not agree to the proposed doctrine.

Mr. W. said, it was not necessary for him to go into the argument which

induced the convention to fix the Treaty-making power: it need only be

mentioned that they knew how and where that power was exercised in Great

Britain; and, in order to avert the difficulties which had arisen there,

the convention vested the power with the PRESIDENT and Senate; and, to

guard against undue influence, directed that two-thirds of the Senators

present should concur with the PRESIDENT. The convention had many

difficulties to surmount in this article; they had to do away the equal

power the small States shared, under the Confederation, with the large

States. But, to do away the discordant interests of the different States

and to give the small States satisfaction, agreed that all the States

should be equally represented in the Senate. In the Treaty-making power

each State hath an equal voice. To extend it further, for another check,

without the consent of the smaller States, would be doing away, in part,

that power which the small States had retained.

He read the observations of one of the Judges of the Supreme Court of

the State of New York, when debating on the merits of the constitution

in the convention held in that State, to prove that Treaties were

considered to be paramount to any law. Among the several passages from

the debates of the Convention of New York, Mr. W. read the following

proposed amendment of Mr. Lansing, who was a member of the convention

that formed the constitution of the United States, whose abilities and

candor were not doubted by any who knew him:

"_Resolved_, As the opinion of this committee, that no

Treaty ought to operate so as to alter the constitution of

any State; nor ought any commercial Treaty to operate so as

to abrogate any law of the United States."

He believed that the amendments proposed in the Virginia Convention

arose from their considering that there was no check in that House: the

contrary supposition, he said, would be like rowing a boat one way and

looking another.

His colleagues read extracts from the journals to prove that the

PRESIDENT had laid before that House instructions which he had given his

Ministers employed on the Treaty business. He believed, when much money

was likely to be wanted, it was prudent and right to do so. It was as if

he asked that House whether it would agree to a proposed negotiation or

declare war--as if he had said, "I cannot unlock your Treasury; which

way would you have me act?" It was inconsistent to say that he had

diminished his power by asking advice. Books, he said, might be produced

without number; but nothing could be brought to justify the breaking of

a contract constitutionally made. It has become the law of the land. The

House has, indeed, the physical power to refuse to appropriate to carry

such a Treaty into effect; but the constitution meant that what was done

by one branch of the Legislature should be confirmed by the others,

except the act was unconstitutional. If a Treaty was constitutional,

they were therefore impliedly bound to carry it into effect.

His colleague denied that any danger lay in the popular part of the

Government; he thought differently. To say there was more danger to be

apprehended from the Executive than the Legislative branch of Government

was unsound doctrine. He should enlarge on this subject when the Treaty

came before the House, and he trusted he should clearly show that the

greatest danger of abuse lay in that House. Have there not bills

originated in this House which have caused the expenditure of much money

to very little purpose? Is there not more responsibility in one man than

in large bodies? and was not the member from Virginia (Mr. MADISON) of

this opinion, as I have before stated?

Where have (said Mr. W.) the acts originated that have cost so much

money to be expended, by reason of which the report of the Committee of

Ways and Means states the necessity of borrowing such large sums to meet

the necessary demands--the laying additional taxes and duties? Did

these acts originate with the Executive? No. Where then? In this House.

All money-bills must originate in this House, being so directed by the

constitution.

Though his colleague represented Great Britain as being in chains, yet

he was drawing precedents from their Government. At first, he thought he

had fallen in love with the Government, but he afterwards found his

mistake. In that Government, said Mr. W., one precedent creates another,

and they soon accumulate and form laws; but his friend was drawing

precedents from that nation to support the checks, which, Mr. GILES

said, had been for six years completely routed from the Government of

the United States. He feared, if the gentlemen were permitted to take

their course, we should soon have a curious sort of constitution.

But, to conclude, the ruin or prosperity of the nation depended much on

the present Government. He said, if the people flourish and are happy;

if they are industrious and at peace, they will not complain of their

Government. If this be the case, it will scarcely be admitted that the

checks in the Government have been completely routed for these six

years; if they were, however, he thought the nation could not be better

than happy.

Mr. MILLEDGE observed, that as the hour of adjournment was drawing near,

he would not detain the committee long. The length of the debates, on

both sides of the question, had left him little room for observation;

but as a constitutional question had been involved in the resolution

before the committee, and as all constitutional questions were important

in their nature, he could not think of giving a silent vote. He

perfectly agreed with the gentleman who had spoken last, from the State

of Connecticut, that we ought not to put our foot from off the

constitution, and on that, he said, he would stand. Nor did he think it

necessary to resort to this or that Government to know their usages, or

to know what was said in this or that State, or what was written by this

or that man--but, according to the common and most obvious meaning of

words contained in the constitution, to draw our conclusion. That part

of the constitution which had been often mentioned, he begged that he

might be permitted to read--that all Treaties made by the authority of

the United States should be the supreme law of the land. He asked, what

was the authority of the United States? Powers derived from the

constitution. What are these powers? Legislative, Executive, and

Judicial. The better to understand these, let us see, said he, in what

order they present themselves to us. In the constitution we find that in

the very first section all Legislative powers herein granted shall be

vested in a Congress of the United States, which shall consist of a

Senate and House of Representatives. This, then, is the Legislative

power, the statute making power, the ordaining power, the enacting

power, or any other name by which it may be called. Now, then, said he,

let us see the extent of this power. In the 8th section, Congress shall

have power to make _all_ laws. It would be necessary, he said, to attend

to the monosyllable _all_. If the PRESIDENT and two-thirds of the Senate

have a right to make a law, do Congress make all laws? Certainly not.

The constitution being his guide, he felt supported by a just confidence

in his opinion; but he would not say but he might be mistaken, and was

unwilling to commit himself. It was his opinion, then, that Treaties

ought to be bottomed on a law before they can have any binding

influence. To elucidate this, he said, it would be necessary to read the

whole of the clause: Congress shall have power to make all laws which

shall be necessary and proper for carrying into execution the foregoing

powers, (which are, he said, seventeen in number, particularly

expressed,) and _all_ other powers vested by this constitution in the

Government of the United States, or in any _department_ or officer

thereof. Here, again, he observed, we find the monosyllable _all_. What

does it import? Every one--the whole. Of what? Of all other powers

vested by this constitution in the Government of the United States, or

in any _department_ or officer thereof. What is the PRESIDENT and

two-thirds of the Senate? The Treaty-making _department_. Therefore,

being a _department_, whatever powers are vested in them by the

constitution cannot be carried into execution but by a law, otherwise

the clause in the constitution means nothing. What is a law? The will of

the people made known. Where is that will to be found? In the Senate and

House of Representatives of the United States in Congress assembled. Are

the PRESIDENT and two-thirds of the Senate Congress? No; therefore they

cannot make a law.

The gentleman from New Hampshire asked, what do the PRESIDENT and

two-thirds of the Senate operate upon? I answer, with him, on Treaties;

but in their nature they are only a department, and whatever a

department does cannot, he repeated, be carried into execution but by a

law. The Treaty-making power is an intermediate department, and no

instrument they can make can operate the repeal of a law, the same force

being required for a repeal as to enact. The gentleman from Rhode Island

observed, that if the House of Representatives was to have a control

over Treaties, small States might be injured in their commerce, because

the representation on that floor was unequal. Mr. M. observed, that

though his State was not a small State, yet it was small in

representation, but he apprehended no danger. Under the Articles of

Confederation, it was a Government of States; under the present

Government, it was a Government of departments, of checks. He said, the

local interest of one State was so blended with another that the

security of the one became the security of the whole, founded on a

proportion of sovereignty surrendered by each to the whole, and each

drawing from the whole its proportion of security. Let us then, said

he, examine the compact made by each with the whole on the score of

commerce. Here he read part of the 9th section: No tax or duty shall be

laid on articles exported from any State; no preference shall be given

by any regulation of commerce or revenue to the ports of one State over

those of another. He said, the negotiators of the Treaty, in the 12th

article, had laid a prohibition on the exportation of cotton to any part

of the world, except in British vessels--cotton, the growth of our own

soil, an important staple in the two Southern States, particularly in

the one he had the honor to represent. But it is said, and so we find

it, that this article is suspended, and open to further negotiation. He

called on the committee for any member to deny that the principle did

not still exist. He said, then, if a principle still exists in that

Treaty which militates with a fundamental principle, a principle in the

constitution, he left to the committee, which ought to yield. Were this

principle to prevail, it would destroy a vital part of the constitution,

and injure the agriculture of the States. He called on that gentleman to

beware of admitting such a principle; for, if once allowed, it would

extend not only to the cotton of Georgia, but to the flaxseed of Rhode

Island, the flour of Pennsylvania, and the tobacco of Virginia.

Mr. M. concluded by observing, that, from all he had said, it was to be

understood that the powers of legislation were only with Congress, and

that the House of Representatives could not, on the subject before them,

legislate without information. Before he sat down, he could not help

observing that it was somewhat strange that the first Treaty negotiated

under the present Government with a European nation, should produce such

a contrariety of sentiment on the meaning of the constitution, and that

he was reminded by this circumstance of the pertinent words of a

celebrated writer:

"The works of human invention are progressive, and are not completed but

by degrees. At the last improvement we are apt to sit down satisfied,

and vainly imagine that we have accomplished the end we have proposed,

but time soon unravels the fine-spun system, and we find ourselves

obliged to interweave fresh materials to repair the disordered texture."

Mr. KITCHELL observed, that he could not think of giving a silent vote

on so important a question as this had become; but he should not go into

an argumentative discussion on the subject, nor should he inquire into

the opinions held in different conventions at the adoption of the

constitution, or refer to Great Britain for precedents. He would look at

the constitution alone, and see what were the powers given to the

different branches of Government. When it says that such and such powers

are vested in Congress, and such in the Executive, he would abide by

that decision. Where that instrument says Congress shall lay and collect

taxes, regulate commerce with foreign nations, establish a uniform rule

of naturalization, provide for the common defence, &c., and that the

Executive shall have power, by and with the consent of two-thirds of the

Senate, to make Treaties, appoint Ambassadors, &c., the directions of

the constitution must be abided by.

He would inquire what Treaties could be entered into by the PRESIDENT

and Senate, without infringing upon the powers placed in Congress? He

believed Treaties of Peace, of Amity, and Friendship, could be made by

them. If this could be done, he said, those were the powers meant to be

vested in the PRESIDENT and Senate, and not that Treaties should embrace

objects which are expressly appointed to the management of Congress. In

this view, the PRESIDENT and Senate would not have the power to

influence that House in their proceedings; but commercial or other

Treaties which embraced objects the regulation of which was placed in

Congress, must be laid before them for the purpose of their passing or

refusing to pass laws to carry them into effect, in the same way as

Treaties with the Indians had been laid before them.

He did not think the question of itself before the House important, as

it related to the production of papers, but only as it involved in it an

important principle, viz: that when Treaties were made by the PRESIDENT

and Senate, and presented to that House, they had nothing to do but

appropriate money to carry them into effect. It was true gentlemen had

seemed willing to allow them what they called discretion; but it was

such a sort of discretion as a criminal might be said to have, who was

told he might choose this or that posture of suffering, but that he must

die.

It had been said that the PRESIDENT and Senate were equally the

Representatives of the people with that House. He would inquire how they

became so? The constitution has appointed that Representatives shall be

chosen by the people in proportion to their population. Were the Senate

so chosen? No. The people have no vote at all in choosing them. Are they

amenable to the people for their conduct? No. Therefore, in no shape can

they be called the Representatives of the people. The Senate, he said,

represented the several State Legislatures, and that House the people at

large. He was sure, therefore, that every thing in which the interests

of the people at large were concerned should be submitted to their

consideration, before it was carried into effect.

A great deal, he observed, had been said upon this subject, some things

well said, and a good deal that might have been as well unsaid, for any

good effect it was likely to produce. He was sorry to hear what had

fallen from a gentleman from Rhode Island with respect to the interests

of small States. He said he was himself a Representative of a small

State, and he believed his constituents were well satisfied with the

present distribution of power, and did not wish that of the PRESIDENT or

Senate to be increased.

He did not think what fell from his colleague, when he said gentlemen

wished to amuse the people with the cry of liberty, liberty, and spoke

of the groans of three or four hundred thousand slaves assailing his

ears, was meant as a reflection upon any gentleman in that House who

might hold slaves; but an earnest wish that the people at large might

never bend their necks to slavery.

He did not think the subject of the Treaty at all before the House. He

should give his vote for the papers; not so much on account of their

being of great importance in themselves, but in order to repel the

doctrine, that they had no right to discuss the merits of any Treaty

whatever.

MARCH 22.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. COIT said, the attention of the committee was doubtless fatigued

with the subject before it; to those gentlemen who had already delivered

their sentiments upon the occasion, he need not make any apology; and to

those who had not done so, he would assure them that he would not occupy

much of their time.

Most of the gentlemen who had gone before him, he observed, had

regretted that the debate had taken the turn it had, but he was happy it

had taken such a turn. It appeared to him, that the motion was intended

as a stepping-stone to a violation of the rights of the other branches

of the Government by that House. It became him when he made a

declaration of this kind to say, that he did not impute other than pure

motives to any member of that House. He believed the general wish was to

discover the true sense of the constitution; yet it was not

extraordinary if in doing this men were actuated by the sentiments which

they had long been in the habit of considering as well-founded, to lean

to that construction which most favored their favorite opinions. He had

no idea that any gentleman meant to make inroads on the constitution;

but it was his opinion that if the doctrines now insisted upon

prevailed, they would have that effect.

He was happy, for two reasons, that the true ground of the present

motion was made to appear. Because, if the resolution had passed without

discussion, the motives which led to it would not have been seen; and

because he wished the question of what were the powers of that House,

with respect to Treaty-making, to be discussed, independent of the

Treaty, which was likely soon to come before them. They stood now on the

pure ground of an abstract constitutional question.

Some obscurity, Mr. C. thought, had arisen from not distinguishing the

application of arguments to the different principles on which the

resolution had been advocated, which he should endeavor to avoid. He

considered the Treaty-making power as absolutely vested in the PRESIDENT

and Senate; still, that when Legislative acts were necessary to carry a

Treaty into effect, the Legislature were not without discretion in the

passing of them; if the Legislature had a hand in making Treaties, there

could be no question of the propriety of calling for papers; he should

then, in the first place, examine the propriety of calling for papers,

taking for granted that the Legislature had no hand in making Treaties.

If they were to consider the power by which a Treaty was made, there

would be found two nations concerned, whose consent would be also

necessary to repeal it. But were there no other ways of cancelling a

Treaty? There were certainly ways of breaking a Treaty. There were

circumstances in which the breaking of a Treaty would be justifiable.

For instance, if, before a Treaty was carried into effect, there was

such a change of circumstances as to make it necessary to declare war;

could they not discuss the subject, whether it were more advisable to

carry into effect the Treaty, and keep at peace, or break it and declare

war? If a question of this kind came up, there could be no impropriety

in looking into it; not with an idea of having any concern in making the

Treaty, but because such alterations had taken place in the state of

affairs, as to make it necessary to discuss the propriety of going to

war.

There was another point of view in which that House had a check on

Treaties. Granting that a Treaty is completely made, the subject of

appropriation must come before them. Gentlemen had been understood to

say, that no discretion could be exercised in appropriating the

necessary money for carrying a Treaty into effect. But he was of a

different opinion; he believed, that though they had nothing to do with

the making of Treaties, yet when they were called upon to appropriate,

they must exercise their discretion. It was true, that in general when

Treaties were made, it would be the duty of that House to carry them

into effect, in the same way as they found it their duty to carry into

effect existing laws; but he said, there were justifiable grounds of

refusing to appropriate money to carry into effect both laws and

Treaties.

Mr. C. referred to the case of appropriations for the army. Suppose,

said he, an army was raised for four years; at the end of two years a

fresh appropriation is requisite to support it; but the Legislature has

a discretion in doing this, or where was the use of the constitutional

regulation of confining appropriations to two years? He considered, that

there was some analogy between such cases of appropriation, and those

requisite for Treaties. When a Treaty is made, the nation is bound by

it, and its organ has an obligation upon it to carry it into effect. It

might, in general, be said that there was an absolute obligation; but

still there were particular cases in which that obligation did not hold.

It appeared to him that a Treaty might possibly be of so ruinous a

nature, as to justify the refusing to carry it into effect. Nay, he

would say, that if half the lies and calumnies which had been spread

throughout the

Union with respect to the late Treaty with Great Britain were true; if

the negotiator had been bribed; if he had given up the rights of his

country; if their liberty and independence had been sacrificed; if the

PRESIDENT and Senate had been bribed by British gold; if he had any idea

of that kind, he would not agree to carry the Treaty into effect; nor

should he conceive the national faith bound by such an instrument; no

matter what grounds were taken to justify the refusal, whether

constitutional or revolutionary.

If these principles were just, he said, it would be allowed that that

House had a discretionary power with respect to appropriating to carry a

Treaty into effect, though it had nothing to do with making it. No

cause, he said, had been shown for calling for papers. Why, then, call

for them? Gentlemen talked about impeachment? They might impeach without

papers. But did they want to bring forward an impeachment? No such

thing; it was only to cover the real drift of the motion that this was

mentioned.

Did any gentleman think there was sufficient evil in the late Treaty

with Great Britain to authorize them in refusing to carry it into

effect? It appeared to him, that that House had a right to call for any

papers which might throw light on their deliberations. But they must

also consider, that there was a discretion to be used by the Executive

in giving up papers in his hands. When there are papers in his hands

which that House had real occasion for, it was important that they

should be brought forward; but, he said, as long as a proper confidence

subsisted between the two branches of the Government, if that House

asked for papers which the PRESIDENT thought it improper to send them,

he would decline doing it. But it is not contended, that the papers

which are the object of the present resolution will be of any real use

to the House. The gentleman who brought forward the motion had read them

through, and the most that he said on the subject was, that the

negotiator had not complied with some of the first instructions which

were given to him. Another ground of calling for the papers, which was

to him a pleasing ground, was that of publicity; for he fully agreed

with the gentleman from Georgia, that the more public Governmental

proceedings could with propriety be made, the better; but that House had

not the right to direct the PRESIDENT on that head; they ought rather to

leave it to him to publish the papers, or not, as he pleased; for, if

they considered the PRESIDENT as attentive at all times to the duties of

his office, it would be arrogancy in that House to attempt to influence

him in that particular.

But the main point in dispute was the force and effect of the

Treaty-making power. What were the powers and privileges of the House on

the subject? In pursuing this inquiry, he was pleased with the remark of

the gentleman from Georgia, that in examining into the meaning of the

words and phrases, they must take the meaning that was generally given

to them, and if they could find out the true import of the phrase _make_

Treaties, it would remove all doubts on the subject. He hoped, for this

purpose, that gentleman would have examined the proceedings of his own

country; but, instead of doing this, they find him referring to the

practices of Great Britain.

The PRESIDENT and Senate, Mr. C. observed, were expressly authorized to

make Treaties. To what should they compare Treaties? Might they not say

that they were betwixt nations what bargains were betwixt individuals?

And, after he had employed an agent to make a contract, with full

discretion, and he had in pursuance of his authority made it, was it not

binding? Though in public as well as in private contracts he

acknowledged there might be circumstances which would justify a

non-compliance with the terms of the bargain; yet, in case all the

circumstances had been fair, the contract must be complied with.

It appeared to him not unimportant to consider whether, when Treaties

were made, they were not the laws of the land. A power to make, carried

in his mind a power to complete. But if this were doubtful, where should

they look for information? He expected the gentleman from

Georgia--knowing him to be well acquainted with the proceedings of

Government for a long time--would have referred them to the old

Confederation. It would certainly have been more natural to have

referred them to the old Congress than to the Parliament of Great

Britain. If they looked into the powers of the old Congress they would

find that they had the power to enter into Treaties and alliances, which

he apprehended to be the same power as that placed in the PRESIDENT and

Senate in the present Government; and it was natural to conclude that a

Treaty made by the present power was equally binding with those made

under the old government; for it will be recollected that the general

power was delegated to the General Government; and if they had the same

powers, he could not see that there should be any difference in the

exercise of them. If it had been intended otherwise, the convention at

the forming of the constitution, would have added a proviso that no

Treaty should be made by the PRESIDENT and Senate which included

commercial regulations.

It appeared to him that a subject of such recent date as their

constitution could not receive much elucidation from the opinions held

concerning it in the conventions, at or about the time of passing it. He

confessed he found little aid to assist his mind to form a judgment on

the matter from any other source than the constitution itself; indeed he

thought the light was there so clear that nothing more was wanted. There

were four members, he said, in that House who were members of the

convention who formed the constitution. The sentiments of two of those

gentlemen he was not acquainted with; but two of them had spoken on

this subject. If those gentlemen had come forward and declared that such

a power as the Treaty power was contended to be was not intended to be

placed in the hands of the PRESIDENT and Senate, but that that House was

meant to have certain powers with respect to Treaties, he would not say

but that such a declaration would have shook his faith on the subject;

for, though he should still have been guided by the instrument itself,

yet authority so respectable would have its weight on his mind. But what

did the gentlemen who have delivered their sentiments say? The gentleman

from Georgia (Mr. BALDWIN) mentioned the necessity of inquiring into the

true meaning of the phrase, "make Treaties;" and, instead of telling

them what had been the practice in the old government, he went over the

water to Great Britain. What did they get from the gentleman from

Virginia, (Mr. MADISON?) He produced five sets of doubts and one problem

upon the construction of the constitution. This had the same effect on

his mind as if they had declared that the meaning of the constitution

was well understood, in the convention which formed it, to vest the

Treaty-making power completely in the PRESIDENT and Senate. It was

certainly matter of great importance where the different powers of

Government were placed, and caused considerable debates in the

convention. Some thought the Treaty-making power should be placed in the

Legislature, but that was greatly objected to; it was urged by others

that the powers should be in the PRESIDENT and a majority of the Senate;

it was again proposed that two-thirds of the whole number of the

Senators should consent to a Treaty--but finally passed as it is found

in the constitution. He was far from accusing those gentlemen with

impropriety of conduct on the occasion. If they think it would be better

for the interests of the people that that House should have a share in

the making of certain Treaties, and believe the constitution will bear

that construction, it was not for him to impeach the purity of their

motives or propriety of their conduct; but it would require strong

arguments to convince his mind that the constitution placed any such

power in that House, contrary to the unanimous understanding of the

members of the convention who formed it.

The arguments which had been urged for placing certain powers in that

House with respect to Treaties were drawn from the practice of Great

Britain, and from the danger of the Treaty power being vested wholly in

the PRESIDENT and Senate. He did not think that the Government of Great

Britain had been introduced for any other purpose than illustration,

though other use had been made of it out of doors. With respect to the

principles of that government, let them inquire into its sovereign

power; for it was a just position that Treaties must be made by the

sovereign power of a nation. Where should they find that power in Great

Britain? The King and Parliament were allowed to be omnipotent.

Parliament have altered the continuation of their existence from three

to seven years. Where must they look in the United States for the

sovereign power? They must go to the people at large; for in them it lay

alone. Their constitution limited the powers of every branch of

government, and it was therefore improper to apply foreign ideas to

their constitution. But if a Treaty was made by the agents of a

sovereign power, authorized for the purpose, the end was answered: in

the United States, the sovereign power can act only by its agents.

The Legislature of Great Britain, he said, it was true, consisted of

three branches, and that was almost the only feature in that Government

resembling that of the United States. In Great Britain, their Executive

is an hereditary Monarch, whereas the PRESIDENT OF THE UNITED STATES is

elected every four years. Their House of Lords consisted of bishops and

an hereditary nobility--the bishops appointed by the Crown, and the

nobility were increased at the King's pleasure; whilst the Senate of the

United States is elected every six years. Gentlemen say the Senators are

not elected by the people, but they are chosen by the Legislatures of

the different States, who are elected by the people. The House of

Commons in Britain, which is the only representation of the people their

Government contains, is elected by a very small part of the people; and

the Crown has such an influence in it as to be able to carry most

questions at its pleasure. How could it then bear a comparison with that

House, who were chosen by the whole people every two years? The

absurdity might be admitted, in that Government, that the King had the

power to make Treaties, and that the sanction of the Legislature was

still necessary to give them legal validity, because the influence of

the Crown was so great in both Houses as to carry any measure it pleased

through them. But it would not do in this country. The comparison,

therefore, betwixt the two Governments fails, and no arguments can be

drawn from it.

The other argument respecting the danger of the power being placed

solely in the Executive arose from the comparison with Great Britain. If

the powers of the PRESIDENT and Senate of this country could with any

tolerable degree of justice be compared to those of the King and House

of Lords in Great Britain, as little taste as he had for revolutions, he

would not say but he should be induced to join gentlemen, either by

fraud or force, to overturn the constitution. He looked on the

representation in the Senate to be as complete as in that House.

Gentlemen were very fond of calling that House the popular branch of

government. He agreed that a criticism on words was in general trifling.

That gentlemen from Virginia might assert this, he allowed, as they had

nineteen members out of the hundred and five in that House, and in the

Senate only a fifteenth part of the body; but gentlemen did not mean,

when they spoke on that subject, to have reference to particular

States, but to the whole. The Senators and Representatives were

regularly apportioned for the whole Union; and, though on different

principles, were as completely represented in the one House as in the

other.

Mr. C. concluded with saying, that he had no doubt the powers vested by

the constitution were well vested; and if the constitution was fairly

considered, little doubt could remain on the subject. But if the House

passed the resolution now before the committee, he should not consider

the question as decided; but if the construction was still insisted

upon, he was happy the constitution was not wholly in their hands--that

there were joined with them in the guardianship of it, the PRESIDENT,

the Senate, and the people of the United States.

Mr. HILLHOUSE said, it was with diffidence he rose to speak on a subject

which had been so copiously and ably handled by gentlemen who had

preceded him. It had been his intention to have given a silent vote on

the resolution on the table, but the turn which the debates had

taken--involving an important constitutional question, relative to the

powers vested in the different branches of Government--seemed to create

a necessity of expressing his sentiments, lest by his vote he might seem

to subscribe to certain doctrines in the latitude in which they had been

laid down. And as he should differ in some respects from most of the

gentlemen that had spoken, he asked the indulgence of the committee

whilst he made a few remarks on a subject which he conceived to be of

vast importance, as a wrong decision might give a direction to their

government which might be of serious consequence.

On the one hand, he did not think that Treaties could not, under any

circumstances, be the subject of Legislative consideration or

discussion, and that they were not to look into them. It appeared to

him, that they not only had the right, but that it was their

indispensable duty to look into every Treaty, when called upon to aid in

its operation; to see whether it had the constitutional forms; whether

it related to objects within the province of the Treaty-making power, a

power which is not unlimited. The objects upon which it can operate are

understood and well defined, and if the Treaty-making power were to

embrace other objects, their doings would have no more binding force

than if the Legislature were to assume and exercise judicial powers

under the name of legislation. It might be proper, also, to examine the

merits of a Treaty, so far as to see whether it be of such a ruinous

nature as, according to the law of nations, it would be null, and

whether they would be justified in withholding Legislative provision to

carry it into effect. He also considered Treaties as subject to

Legislative control, so that their operation, so far as related to the

people of the United States, might be suspended or annulled whenever, in

the opinion of the Legislature, there was sufficient cause. And

further, that the clause in the constitution which provides that no

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

appropriations made by law," as vesting in the different branches of

Government a check adequate to every purpose of security.

On the other hand, he did not consider the House of Representatives as

having a constitutional right to interfere in making Treaties, or that a

Treaty needed any concurrence of that House, or Legislative sanction, to

make it the law of the land. He had always supposed that Treaties were

exactly on the footing of laws in their operation on antecedent laws,

suspending and repealing such as were repugnant. Treaties may sometimes

require Legislative aid to carry them into effect; so may laws, and they

were constantly in the habit of making laws to carry into effect laws

heretofore made.

After these preliminary observations, Mr. H. proceeded to inquire, not

what ought to be, but what was the Constitution of the United States? We

were not, he said, in Convention, but in the discharge of Legislative

functions under the constitution; and to understand the extent of the

powers intended to be granted in the second article, section two, by

these words, "the PRESIDENT shall have power, by and with the advice and

consent of the Senate, to make Treaties, provided two-thirds of the

Senators present concur," we must advert to the general definition of

the Treaty-making power--what objects it may embrace, and how far it can

interfere with Legislative power. A Treaty is a compact entered into by

two independent nations, for mutual advantage or defence. Nothing can,

therefore, come within the Treaty-making power but what has a relation

to both nations, and in which they have a mutual interest. The object of

this power is to secure to our citizens advantages in foreign countries

which are without or beyond our Legislative jurisdiction, to enable the

Treaty-making power to obtain which, it must necessarily be authorized

to give some consideration or equivalent therefor. If the United States

authorize an agent to make a bargain or purchase, the power of binding

the United States for a reasonable consideration is necessarily given.

Whenever the Treaty-making power departs from these rules, it is without

its jurisdiction, and such a Treaty would be of no validity. Under this

view of the subject, if we look into our code of laws, we shall find few

of them that can be affected, to any great degree, by the Treaty-making

power. All laws regulating our own internal police, so far as the

citizens of the United States alone are concerned, are wholly beyond its

reach; no foreign nation having any interest or concern in that

business, every attempt to interfere would be a mere nullity, as much as

if two individuals were to enter into a contract to regulate the conduct

or actions of a third person, who was no party to such contract. He

could, he said, illustrate his idea more readily by adverting to a law,

mentioned as being affected by the present Treaty, which was the

revenue law; which provides that certain duties shall be paid on goods

imported into the United States, and on goods coming in foreign bottoms

ten per cent. advance on the amount of such duties. This is a law no

Treaty can repeal, admitting the repealing power in its fullest

latitude, because no foreign nation can have any interest or concern in

the duties payable by our own citizens into our own Treasury. All that a

Treaty could do, would be to suspend or arrest its operation, so far as

the citizens or subjects of the nations with whom we treated, were or

might be affected by it. The only operation which the British Treaty has

upon that law is, that in consideration of our being freely admitted to

the fur trade and the trade into Canada, which opens to the enterprise

of our citizens a vast source of wealth and advantage, we only give in

return to the subjects of the King of Great Britain the privilege of

bringing, by land or inland navigation, into the United States, goods

for which they pay no more duties than our citizens pay on goods

imported in American bottoms. British subjects have always been

permitted to reside and trade in the United States, and peltry is to be

duty free in the territories of each. According to this definition of

the Treaty-making power, and as far as he could judge, he said, it was

correct; it cannot have that unlimited extension which has been ascribed

to it. It cannot be that monster which has been described as about to

swallow up all the Legislative powers of Congress; nor can there be any

danger of the PRESIDENT and Senate having it in their power, by forming

Treaties with an Indian tribe or a foreign nation, to legislate over the

United States. The Treaty-making power cannot affect the Legislative

power of Congress but in a very small and limited degree. Because a

Treaty or an Executive act may, in some instances, arrest the operation

or progress of a law, it is no argument against the existence of the

power. In article first, section eighth, of the constitution, a specific

power is granted to Congress to provide for the punishment of the

counterfeiters of the securities or coins of the United States. In

another article, the PRESIDENT is authorized generally to grant

reprieves or pardons for offences against the United States, excepting

in cases of impeachment. Can any one seriously contend that the

PRESIDENT has not the power of granting a pardon to a counterfeiter of

securities or coins, because it would suspend and defeat the operation

of a law, on a subject, specially delegated to Congress? If this

doctrine be true, that all Legislative power may be exercised by the

Treaty-making power, Congress, under the old Confederation, had

unlimited Legislative power over the States. The old Confederation

vested in Congress an unlimited power to make Treaties, excepting only

that the States were to be at liberty to impose like duties on

foreigners as on their own people, and that the exportation or

importation of goods was not to be prohibited. Was it ever imagined

that, by this general power, Congress had a right, by forming a Treaty

with a foreign power, to legislate over the States to any extent?

Suppose Congress, instead of taking so much pains to persuade the States

to consent to their laying the five per cent. impost, and in obtaining

which they were finally defeated by the refusal of one State, after

every possible exertion, had undertaken to have it done by Treaty? Would

not the measures have been reprobated with one voice, and the Treaty

considered as a nullity?

In the first place, in Art. I., organizing a Legislative body, and

delegating to them, not all, but a part only of the Legislative power of

the States, in these words: "All Legislative powers herein granted shall

be vested in a Congress;" and among the specified powers, the right of

regulating commerce with foreign nations. How were they to regulate

commerce? Not by the exercise of the Treaty-making power. This article

of the constitution has not the least relation to that kind of power: it

was Legislative power only that was meant: it vested Congress with the

whole power, as far as the object could be accomplished by a Legislative

act; but this power would embrace but a small part of the objects which

come within the term of regulating commerce with foreign nations; it

could extend no further than the bounds of our own jurisdiction. There

is not a single expression that looks like authorizing them to act in

any other than their Legislative character.

The constitution then proceeds, in the second Article, to the

establishment of an Executive power, to be vested in a PRESIDENT, and in

the second section, says: "The PRESIDENT shall have power, by and with

the advice and consent of the Senate, to make Treaties, provided

two-thirds of the Senators present concur." The most general terms are

used, and such as under the old Confederation had been understood to

embrace every kind of Treaty, commercial as well as others, and had been

exercised in the most ample and unlimited manner, and the Treaties thus

formed had been declared and adjudged to have the force and operation of

a law, and that they repealed all laws that were opposed to them; and

these Treaties were then in full force and operation, and were the

supreme law of the land. It cannot be presumed that the framers of our

constitution were ignorant of the laws of the land, or that they had not

well attended to and examined Treaties, which, by the constitution, they

were again about to declare to be the supreme law of the land under the

new Government. Now, if it really was intended that the Treaty-making

power should not be as broad, and have the same extension and operation

as had been exercised under the old Confederation, or that there was to

be a distinction between commercial Treaties and others, or that

Treaties generally should not so operate as to repeal pre-existing laws,

or that the concurrence of the House of Representatives, or sanction of

Congress, should, under any circumstances, be necessary to give

validity or force to a Treaty, how can we account for the total silence

of the constitution on this subject, and that there should not be a

single sentence in the whole instrument that even looks that way? If any

limitation was intended, the convention certainly knew that it was

necessary it should be inserted. When we examine the constitution, and

see with what accuracy and care it is drawn up, how wonderfully every

part of it is guarded, that there is not a single word but appears to

have been carefully examined, and when we call to mind the members of

that convention, and find them to have been the ablest and most accurate

men of our country, we cannot presume that we should have been left to

the sad alternative, for the purpose of explaining so important an

article of our constitution, which might have been so easily made

definite, to be obliged to resort to the British House of Commons for

precedents, and those too which were derived from the most turbulent

periods of the Government of that nation; when, it is a possible case,

that the change of a Ministry, or the rage of party, might have been

more immediately the object of pursuit than the true interest of the

nation; more especially as the practice of our own Government, and the

legal opinion of our own country, were directly opposed to such a

construction. But if all this might be supposed not to have had

sufficient weight to have induced the convention to have introduced such

a limitation, or some intimation that such limitation was intended, they

must have supposed it necessary when they handed out with the

constitution, which were declared by the ratification thereof to be the

supreme law of the land, Treaties of every description, commercial as

well as others. To me, the language of this transaction is, we have, by

one article of this constitution, granted the Treaty-making power, in

general terms, to the PRESIDENT and Senate.

MARCH 24.--[The question was taken on Mr. LIVINGSTON's

resolution, which is in the following words:]

"_Resolved_, That the President of the United States be

requested to lay before this House a copy of the

instructions to the Minister of the United States, who

negotiated the Treaty with the King of Great Britain,

communicated by his Message of the first of March, together

with the correspondence and other documents relative to the

said Treaty; excepting such of said papers as any existing

negotiation may render improper to be disclosed."

The division on this resolution, in Committee of the Whole, was--for the

resolution 61, against it 38--majority 23.

The resolution was then taken up in the House, and the yeas and nays

being called upon it, were taken, and stood yeas 62, nays 37, as

follows:

YEAS.--Theodorus Bailey, David Bard, Abraham Baldwin,

Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan,

Dempsey Burges, Samuel J. Cabell, Gabriel Christie, Thomas

Claiborne, John Clopton, Isaac Coles, Henry Dearborn,

George Dent, Gabriel Duvall, Samuel Earle, William Findlay,

Jesse Franklin, Albert Gallatin, William B. Giles, James

Gillespie, Andrew Gregg, Christopher Greenup, William B.

Grove, Wade Hampton, George Hancock, Carter B. Harrison,

John Hathorn, Jonathan N. Havens, John Heath, James

Holland, George Jackson, Aaron Kitchell, Edward Livingston,

Matthew Locke, William Lyman, Samuel Maclay, Nathaniel

Macon, James Madison, John Milledge, Andrew Moore,

Frederick A. Muhlenberg, Anthony New, John Nicholas,

Alexander D. Orr, John Page, Josiah Parker, John Patton,

Francis Preston, John Richards, Robert Rutherford, John S.

Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John

Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B.

Varnum, Abraham Venable, and Richard Winn.

NAYS.--Benjamin Bourne, Theophilus Bradbury, Daniel Buck,

Joshua Coit, William Cooper, Abiel Foster, Dwight Foster,

Nathaniel Freeman, jr., Ezekiel Gilbert, Nicholas Gilman,

Henry Glenn, Benjamin Goodhue, Chauncey Goodrich, Roger

Griswold, Robert Goodloe Harper, Thomas Hartley, James

Hillhouse, William Hindman, John Wilkes Kittera, Samuel

Lyman, Francis Malbone, William Vans Murray, John Reed,

Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith,

Nathaniel Smith, Isaac Smith, William Smith, Zephaniah

Swift, George Thatcher, Richard Thomas, Mark Thompson,

Uriah Tracy, John E. Van Allen, Peleg Wadsworth, John

Williams.

RECAPITULATION.--Yeas 62, nays 37, absent 5--104--the Speaker 1--whole

number of Representatives 105.[72]

Mr. DAYTON, the Speaker, in Committee of the Whole, voted against the

resolution.

MARCH 25.--The committee, (Messrs. LIVINGSTON and GALLATIN,) appointed

to present the resolution agreed to yesterday to the PRESIDENT,

reported, that the PRESIDENT answered, that he would take the resolution

into consideration.

MARCH 30.--The following Message was received from the PRESIDENT in

answer to the resolution of the House:

_Gentlemen of the House of Representatives:_

With the utmost attention I have considered your resolution

of the 24th instant, requesting me to lay before your House

a copy of the instructions to the Minister of the United

States, who negotiated the Treaty with the King of Great

Britain, together with the correspondence and other

documents relative to that Treaty, excepting such of the

said papers as any existing negotiation may render improper

to be disclosed.

In deliberating upon this subject, it was impossible for

me to lose sight of the principle which some have avowed in

its discussion, or to avoid extending my views to the

consequences which must flow from the admission of that

principle.

I trust that no part of my conduct has ever indicated a

disposition to withhold any information which the

constitution has enjoined upon the President, as a duty, to

give, or which could be required of him by either House of

Congress as a right; and, with truth, I affirm, that it has

been, as it will continue to be, while I have the honor to

preside in the Government, my constant endeavor to

harmonize with the other branches thereof, so far as the

trust delegated to me by the people of the United States,

and my sense of the obligation it imposes, to "preserve,

protect, and defend the constitution," will permit.

The nature of foreign negotiations requires caution; and

their success must often depend on secrecy; and even, when

brought to a conclusion, a full disclosure of all the

measures, demands, or eventual concessions which may have

been proposed or contemplated would be extremely impolitic;

for this might have a pernicious influence on future

negotiations; or produce immediate inconveniences, perhaps

danger and mischief, in relation to other Powers. The

necessity of such caution and secrecy was one cogent reason

for vesting the power of making Treaties in the President

with the advice and consent of the Senate; the principle on

which the body was formed confining it to a small number of

members. To admit, then, a right in the House of

Representatives to demand, and to have, as a matter of

course, all the papers respecting a negotiation with a

foreign Power, would be to establish a dangerous precedent.

It does not occur that the inspection of the papers asked

for can be relative to any purpose under the cognizance of

the House of Representatives, except that of an

impeachment; which the resolution has not expressed. I

repeat, that I have no disposition to withhold any

information which the duty of my station will permit, or

the public good shall require; to be disclosed; and, in

fact, all the papers affecting the negotiation with Great

Britain were laid before the Senate, when the Treaty itself

was communicated for their consideration and advice.

The course which the debate has taken on the resolution of

the House, leads to some observations on the mode of making

Treaties under the Constitution of the United States.

Having been a member of the General Convention, and knowing

the principles on which the constitution was formed, I have

ever entertained but one opinion on this subject, and from

the first establishment of the Government to this moment,

my conduct has exemplified that opinion, that the power of

making Treaties is exclusively vested in the President, by

and with the advice and consent of the Senate, provided

two-thirds of the Senators present concur; and that every

Treaty so made, and promulgated, thenceforward becomes the

law of the land. It is thus that the Treaty-making power

has been understood by foreign nations, and in all the

Treaties made with them, _we_ have declared, and _they_

have believed, that when ratified by the President, with

the advice and consent of the Senate, they became

obligatory. In this construction of the constitution every

House of Representatives has heretofore acquiesced, and

until the present time not a doubt or suspicion has

appeared to my knowledge that this construction was not the

true one. Nay, they have more than acquiesced; for until

now, without controverting the obligation of such Treaties,

they have made all the requisite provisions for carrying

them into effect.

There is also reason to believe that this construction

agrees with the opinions entertained by the State

Conventions, when they were deliberating on the

constitution, especially by those who objected to it,

because there was not required in Commercial Treaties the

consent of two-thirds of the whole number of the members of

the Senate, instead of two-thirds of the Senators present,

and because, in Treaties respecting territorial and certain

other rights and claims, the concurrence of three-fourths

of the whole number of the members of both Houses

respectively was not made necessary.

It is a fact, declared by the General Convention, and

universally understood, that the Constitution of the United

States was the result of a spirit of amity and mutual

concession. And it is well known that, under this

influence, the smaller States were admitted to an equal

representation in the Senate, with the larger States; and

that this branch of the Government was invested with great

powers; for, on the equal participation of those powers,

the sovereignty and political safety of the smaller States

were deemed essentially to depend.

If other proofs than these, and the plain letter of the

constitution itself, be necessary to ascertain the point

under consideration, they may be found in the Journals of

the General Convention, which I have deposited in the

office of the Department of State. In those Journals it

will appear, that a proposition was made, "that no Treaty

should be binding on the United States which was not

ratified by a law," and that the proposition was explicitly

rejected.

As, therefore, it is perfectly clear to my understanding,

that the assent of the House of Representatives is not

necessary to the validity of a Treaty; as the Treaty with

Great Britain exhibits in itself all the objects requiring

Legislative provision, and on these the papers called for

can throw no light; and as it is essential to the due

administration of the Government, that the boundaries fixed

by the constitution between the different departments

should be preserved--a just regard to the constitution and

to the duty of my office, under all the circumstances of

this case, forbid a compliance with your request.