and ought to be, what was the intention of the parties to this instrument? Hence a brief view of some interesting occurrences, which took place at the adoption of the Government, would not be impertinent, but might be useful. [MARCH, 1796. adopted; and if we perceived a correspondence of construction between those who formed and those who received and approved, we might then surely derive all reasonable satisfaction that we had discovered the truth. Here he believed that it might be asserted, without any danger of contradiction, that in the State Conventions it was, on one hand, affirmed that the PRESIDENT and Senate would, by the Constitution, have power to form Treaties on any subject in which the United States and a foreign nation had a common interest; and that Treaties so formed, without any other aid or circumstance whatever, would thereby become the supreme law of the land; and that the exercise of this power was not so guarded as to render it safe to the public interests. On the other hand, it was admitted that such was the extent of the power, and it was attempted, at least, to be proved that it was so guarded that danger could not reasonably be apprehended from its exercise. It would be too tedious, and well might be thought unnecessary, to consult all the materials which might be within our reach on this subject; but he dared to appeal to the recollection of every gentleman who was in a situation to know the facts, for the correctness of the statement which he had made; and he would read some few extracts from the debates of the Convention of Virginia, which would probably be, on this occasion, for many reasons, admitted as the best authority; and particularly, because the subject there was examined by eminent talents, and by minute and A cotemporaneous exposition of any instrument, and especially by those who were agents in its fabrication, had been allowed, and was, in fact, among the best guides to finding its true meaning. Gentlemen who had been members of the Convention, and unfriendly to the Constitution, with an intention of preventing its adoption, had stated to their constituents that the power of making Treaties, as confided to the PRESIDENT and Senate, was as extensive as was now contended for. Their intention could have been no other than to alarm the people with the dangerous extent, and what would be the pernicious exercise of this power. If this charge was unjust and groundless, what would have been the conduct of the friends of that instrument? They would have proved the charge to have been malicious and ill-founded. They would have shown that the Constitution was not liable to such an objection; that it could bear no such construction. They would, in the language of novel discovery, have said, that every subject of legislation was an exception from the power of making Treaties; and thus they would have proved to the world, that the sages of our country had devised and offered to their enlightened countrymen a scheme of Government, destitute, by an express delegation, of the essential attribute of adjusting differences with other na-scrupulous investigation. tions, and of agreeing with them on the terms of amicable intercourse. But they did no such thing; they admitted the power, proved the necessity of it, and contended that it would be safe in practice. Let me here, said he, appeal to any unprejudiced man, if he can possibly believe that the enemies of the Constitution could have made the charge against it, and that its friends would have admitted the truth of it, on the hypothesis that it was unfounded and false? They certainly knew what they had so recently intended, and having opposite objects in view, which excited their strongest wishes, it was impossible they should agree in imposing on the people a false and unwarrantable construction. So far he had extended his reflections as resulting from the conduct of those who formed the Constitution; a conduct from which, he flattered himself, there flowed demonstrationed for, that this House was intended to have a Mr. S. said, that if it was true, as now contendthat the power of making Treaties was as exten-check on the principles which had been mentioned, sive as was that which was now contended for. and which, he had already shown, would extend This being the concurrence of men who could Mr. SEDGWICK read the following passages from the third volume of the "Debates and Proceedings of the Convention of Virginia." From the speech of Mr. George Mason, who was as well a member of the Federal Convention, as of that of Virginia: "That he thought this a most dangerous clause. By the Confederation, nine States were necessary to concur in a Treaty: this secured justice and moderation. His principal fear, however, was not that five, but seven States, a bare majority, would make Treaties to bind the Union." He then read the reply of Mr. George Nicholas to Mr. Mason: local views, being elected by no particular State, but the "That the approbation of the President, who had no people at large, was an additional security." not have united to deceive, with regard to which to some of the stipulations of every Treaty which it was impossible they should be mistaken, formed could be formed, it was utterly impossible it should a guide for our opinion, which could not mislead, not have been mentioned and relied on. which no degree of stupidity could mistake, nor the most ingenious sophistry successfully misrepresent. So much he had thought proper to say, as respected the construction given to this part of the instrument by those who formed, who could not mistake, and who were under no temptation to misrepresent it. It might be necessary, in the next place, to inquire under what opinions it was From a speech of Mr. MADISON he read: "That he thought it astonishing that gentlemen should think that a Treaty could be got with surprise, or that foreign nations should be solicitous to get a Treaty ratified by the Senators of a few States; that should the President summon only a few States, he would, for so atrocious a thing, be impeached." From the speech of another member, Mr. Henry : power." [H. OF R. "That if two-thirds of a quorum would be empow- the empire. The Senate alone ought not to have this ered to make a Treaty, they might relinquish and alienate territorial rights, and our most valuable commercial advantages. In short, should anything be left it would be because the President and Senators were pleased to admit it." [How, Mr. S. asked, could this be true, if the doctrine now laid down, in support of this motion, was well founded?] "The power of making Treaties, ill guarded as it is, extended further than it did in any country in the world. Treaties were to have more force here than in any part of Christendom." From Mr. MADISON's speech he read; "Are not Treaties the law of the land in England? I will refer you to a book which is in every man's hand, 'Blackstone's Commentaries;' it will inform you, that Treaties made by the King are to be the supreme law of the land; if they are to have any efficacy they must be the law of the land. They are so in every country." From Governor Randolph: "It is said, there is no limitation of Treaties. I defy the wisdom of that gentleman to show how they ought to be limited." From Mr. George Nicholas : "Have we not seen, in America, how Treaties are violated, though they are in all countries considered as the supreme law of the land?" That Mr. Mason, speaking of this power, had said: From the speech of Mr. Corbin, who was in favor of the Constitution: "If there be any sound part in the Constitution it is this clause. The Representatives are excluded from interposing in making Treaties, because large popular assemblies are very improper to transact such business, from the impossibility of their acting with sufficient secrecy, despatch, and decision, which can only be found in small bodies; and because such numerous bodies are always subject to faction and party animosities. That it would be dangerous to give this power to the President alone, as the concession of such a power to one individual is repugnant to Republican principles. It is therefore given to the President and Senate (who represent the States in their individual capacities) conjointly. In this it differs from every Government we know. It steers with admirable dexterity between the two extremes, neither leaving it to the Executive, as in most other Governments, nor to the Legislative, which would too much retard such negotiations." That another member of the Convention, (Mr. Henry,) after contending that the Constitution ought to be amended, so as to guard against the abuse of the Treaty-making power, by requiring the consent of the House, concluded his observations by saying: "That when their consent is necessary, there will be a certainty of attending to the public interests." That the debate on this interesting subject was, "It is true it is one of the greatest acts of sovereignty, in that Convention, concluded by a gentleman of and therefore ought to be most strongly guarded. The this House, [Mr. MADISON,] not by insisting on cession of such power, without such checks and guards, that security, which gentlemen had now discovercannot be justified; yet I acknowledge such a powered the Constitution provided against the abuse of must rest somewhere: It is so in all Governments. If, this power. He had stated: He had stated the checks which the Constitution had in fact provided, but it had not then occurred to him that the consent of this House was among them. in the course of an unsuccessful war, we should be com- "That the power was precisely in the new Constitupelled to give up part of our territories or undergo sub-tion as it was in the Confederation." jugation, if the General Government could not make a Treaty to give up such a part, for the preservation of the residue, the Government itself, and consequently the rights of the people must fall. Such a power must, therefore, rest somewhere. For my own part, I never heard it denied that such a power must be vested in the GoOur complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system." vernment. [Strange, Mr. S. said, that this gentleman did not discover, or was not told, that Treaties before they should become laws, must receive Legislative sanction.] "There are other things which the King [meaning the King of Great Britain] cannot do, which may be done by the President and Senate in this case. Could the King, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary, indefeasible title? Will any gentleman say that they [the President and Senate] may not make a Treaty, whereby the subjects of France, England, and other Powers, may buy what lands they please in this country?” "The President and Senate can make any Treaty whatsoWe wish not to refuse, but to guard this power, as it is done in England." "We wish an explicit declaration in that paper, that the power which can make other Treaties, cannot, without the consent of the national Parliament, the national Legislature, dismember ever. He also read the amendment which the Con vention of Virginia proposed to the Constitution: "That no commercial Treaty shall be ratified without the concurrence of two-thirds of the whole number of the Senate; and no Treaty ceding, controlling, restraining, or suspending the territorial rights or claims of the United States or any of them, or their or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made but in cases of the most urgent necessity; nor shall any such Treaty be ratified, without the concurrence of three-fourths of the whole number of the members of both Houses respectively." Mr. SEDGWICK said, that it was manifest, beyond all doubt, from that amendment, that the Convention of that State supposed, that the Constitution as it then stood unamended, delegated to the PRESIDENT and Senate, and to the exclusion of the House, the whole power of making and ratifying Treaties, with all its consequences and effects. He had stated, that the real inquiry was, what opinion was entertained on this subject by those H. OF R.] Treaty with Great Britain. [MARCH, 1796. who ratified the Constitution. If that opinion PRESIDENT and Senate under the Constitution to could be discovered, with honest minds it must be form "Treaties." The Legislative powers of the conclusive on the present debate. He had shown nation, then residing with the several States, were as what opinion was entertained by Virginia; what obstructive to the operation of Treaties (and extendpower she meant to delegate, and to whom. Thated to all the objects which the National and State this opinion remained from that time until she Legislatures now comprehend) as the Congresproposed her late amendments, unaltered, appear- sional Legislative can now be. Yet under the Coned from the amendments themselves. That State federation Treaties of Alliance, of Peace, of Comthen, and her Representatives here, who had ex-merce, were made; nor until the present moment pressed themselves, differed in opinion. He did has their obligations been denied, though they connot mention Virginia with intention of producing tained stipulations, perhaps, on all the subjects to any unpleasant sensation. He was willing to allow which the treating power could extend. No Lethat she was great, wise, intelligent, enlightened, gislative provision had been thought necessary to and, if gentlemen pleased, moral. Her opinion give them validity; and he dared appeal to every derived additional authority from her respectabili- member of the Committee, that every enlightened ty. It was not Virginia alone, but he was persuad- citizen had admitted their binding obligation as ed every other State had given precisely the same supreme laws. That the Treaty of Peace in parconstruction. That the Treaty-making power, ticular, which controlled the most important with all its effects and consequences, was solely and rights of sovereignty, arrested the hand of justice exclusively in the PRESIDENT and Senate. And in inflicting punishment for the highest crime he would dare to challenge gentlemen to produce which a citizen could commit, treason, and stayed a solitary instance of its being adopted under any proceedings in cases of confiscation, for forfeitures other idea. Indeed the agitation which was at that which had been incurred, had always received this time produced, would of all things be the most construction. He would add, that it was well unridiculous, if any of the other constructions were derstood to be the opinion of that tribunal which true. If the power was checked as was now con- the Constitution had authorized to pronounce the tended, it was impossible danger should be appre- law, the Supreme Court, that the Treaty from its hended from its exercise; it could indeed do nei- own powers, repealed all antecedent laws which ther good nor evil. stood in the way of its execution. Here then, he said, we had the evidence of those To proceed further on: Since the adoption of who framed, and of those who received and ap- the Constitution, the powers now denied, had been proved the Constitution. There was another constantly exercised with all the consequences source of inquiry, which would confirm, if it want- and effects now contended for, and, until the preed confirmation, that construction for which he sent moment, unquestioned. Peace had been conhad contended. It was the construction which had cluded, subsidies granted, payment of money stipubeen practically given by those who had adminis-lated, territorial rights discussed and decided on. tered our Government, from the commencement of our foreign relations, to the present session; a construction which had been assumed, admitted, or acquiesced in, by our National and State Governments, and by every individual citizen, until they received new light, by our having accommodated our causes of contention with Great Britain, and escaped the evils with which we had been threatened from that source. Treaties for those purposes had been ratified, not by venal and corrupt majorities, but by virtuous unanimity. Hence, from the moment we had become a nation, under every form of our implied or expressed association, the powers now denied had been exercised, not only without question, but with unqualified approbation. There was one more point of light in which this subject ought to be viewed. In the year 1789, it was proposed to discriminate in the imposition of our duties, between the nations with whom we had, and those with whom we had not, Treaties of Commerce. The author of this proposition renewed the same in the year 1794. This was virtually acknowledging the validity of the Treaties which did exist and inviting those nations who had not already, to form Commercial Treaties, Something more than this was done by the mo tions which some gentlemen of the minority of the Senate are said to have made when this The association which preceded any express contract between the States, was supposed to imply an authority to form national compacts, imposing national obligations, and pledging the public faith. Hence our Treaty with France, which preceded two years our national association, the Confederation, had been supposed binding on us, and not only obliging us to the faithful performance of our express engagements, but as drawing after it undefined, unlimited, and perpetual obligations of gratitude. This seemed, so far as respected defined obligations, to be a rational deduc-very Treaty was in discussion. Their motions tion, from what is an inseparable attendant on national associations, and without which a nation would be destitute of one of the best means of securing its happiness, and even existence. recommended an accommodation by Treaty of all subsisting differences between the two countries. It could not escape remark that these several propositions and motions were supported, by all that description of persons who now opposed the Treaty. To pursue, he said, the history of our country on this subject, in the order of time, it would not be pretended that, under the Confederation, the It would not then be deemed impertinent to inpowers of Congress to form "Treaties and Alli-quire, it was worthy attention, what was imported ances" were more extensive than those of the and admitted by this conduct and those proposi MARCH, 1796.] Treaty with Great Britain. [H. of R. tions? They undoubtedly implied a concession | conduct instead of supporting would tend to subthat the subsisting Treaties were of validity; why else should they be considered as a meritorious cause of favorable discrimination? They implied, too, that there existed in this country a power to treat on commercial relations, and to adjust subsisting differences. If without Legislative aid (and they had received none) those Treaties would authorize the Legislature to derange the commercial pursuits of the nation, and enter into Legislative hostility with that nation with which we had the most extensive relations, it must be from the competency of the Treaty-making power on the principles on which we contended. Strange again, he would say, it must appear that the true construction of the Constitution, on this very important subject, should have escaped the penetration and sagacity of the author of those propositions, during the time of forming and ratifying the instrument, and his whole active public life, from those periods until that of the publication of the British Treaty. vert, and would, if persisted in, annihilate the Constitution. This was undoubtedly one of the most important of the public contracts; but the truth was, in fact, that we were bound to perform all the public engagements. The truth was that our national association was a compact of virtue. To support the Constitution it was necessary to preserve public faith. To promote the public happiness it was essential to hold sacred, and to perform, the public engagements. In this were included all engagements, whether expressed in the form of Constitution, of laws, or of Treaties; in any way, indeed, in which the people had agreed that their will and their duties might be expressed. Mr. S. concluded by observing, that he had intended to have presented the subject in several other important aspects, but he had already trespassed on the patience of the Committee. He would, as the time of adjournment was passed, suspend for the present any further observations; and he hoped that all the grounds which he had left unoccupied would be taken by other gentlemen, so as to supersede the necessity of troubling the Committee with any further observations on this subject. MARCH 14.-In Committee of the Whole on Mr. LIVINGSTON's resolution: If, then, it was true, as he had endeavored to prove, that by the power given by the Constitution to the PRESIDENT and Senate to make Treaties, they had an authority to the extent he had supposed with all its consequences and effects; if Treaties so formed did in fact become supreme law, then being compacts they bound the public Mr. SAMUEL LYMAN said he rose only to make faith and could not be violated without national a few observations. He was against the resoludisgrace and personal dishonor. They might re- tion now on the table, as involving a doctrine, in quire Legislative provision to carry them into ef- his opinion, not only inconsistent with the princifect; but this neither implied nor authorized the ples of the Constitution, but also inconsistent with exercise of discretion, as to refusal. The Consti- the laws of nations. In debating the merits of this tution he had had frequent occasions of saying resolution, an exceedingly important abstract Conprescribed a Government of departments. Each stitutional question had arisen, viz: How far that was intended to be furnished with the means of self- House had a right to exercise their Legislative preservation and defence. For this purpose it was discretion and judgment relative to carrying a declared, that the PRESIDENT should receive a Treaty into effect. In order to answer this quescompensation to be ascertained by law. Laws tion, he would raise two premises. And, first, by were to be made by the Legislature, of which this the Constitution, the Legislative powers of that House was one branch. To support the Constitu- House, in co-operation with the other branches of tion each department must be enabled to perform the Legislature, extend to all objects within the the functions assigned to it. To enable the Exe-reach of their sovereignty, excepting the reservacutive to do its duties, the compensation must be provided. It was then necessary to the support of the Constitution, that the compensation should be made. We have sworn to support the Constitution. The people by their Constitution had solemnly engaged that whoever was the PRESIDENT should receive a compensation. We had been deputed to discharge the duties and engagements which our constituents had assumed. Under these circumstances no man of common honesty could declare that we were at liberty to refuse all provision. tions to the distinct sovereignties of the several States which compose the Union; but beyond those boundaries their powers could not extend. Secondly, there is, by the Constitution, attached to the Legislature a subordinate kind of power, of a limited and ministerial, or Executive nature. At present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: 1st, for calling a Convention under certain circumstances to amend the Constitution; and, 2dly, for carrying into effect Treaties which are constitutionally The gentleman from Virginia [Mr. MADISON] made; for these two purposes, the people, who are had. attempted to make a distinction between the the source of power, had stripped that House of duties we had imposed on us by the Constitution all Legislative authority, and made them only the and such as were enjoined by law. He could per- executors of their will; therefore, upon these ceive no foundation for any such distinction. Af-premises he answered, if a Treaty was unconstiter the salary of the PRESIDENT was ascertained tutional, they had an undoubted right to exercise by law, it could not be paid without an appropria- a Legislative discretion and judgment relative to tion; would any one say he was at liberty to withhold it? No man, he presumed, would wish to risk his reputation by such an assertion. For such carrying it into operation, for they were sent there as the guardians of the rights of their fellow-citiens, and, for that purpose, are sworn to support H. OF. R.] Treaty with Great Britain. [MARCH, 1796. thorities, for every sentiment of their nature en- the Constitution; but if the Treaty was Constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that House is bound to obey it, and to carry it into complete execution; for, by the Constitution, the power of making Treaties is vested solely and exclusively in the Executive department. In the former case, they have a right to exercise a deliberative or Legislative power, but not in the latter case; they could there only exercise a ministerial or Executive power. So that herein, said He had not the least doubt of the constitutionhe, lies the true distinction, and it arises from the ality of a Treaty, when the stipulations in it were nature and principles of the Constitution. Gen- of such a nature as not to respect objects of legistlemen would do well to recollect Miller and De-lation, but only objects which lay beyond the lolme upon the British Constitution, when they bounds of their sovereignty; for beyond those limform a comparison of their Constitution with the its their laws could not extend as rules to regulate Constitution of England, and to advert to one im- the conduct of subjects of foreign Powers; and portant circumstance, which is the source of a although some stipulations in a Treaty may reconsiderable dissimilarity, especially as to the spect objects which were within the reach of their power of making Treaties: The Constitution of sovereignty, yet it may be in such manner as to this country is written, and the powers of the sev- be strictly Constitutional; for such stipulations eral departments of Government are clearly and may be not only pertinent, but absolutely neces accurately defined; but the Constitution of Eng-sary in forming the Treaty. This conclusion, he land is made up of customs and precedents, the in- thought, was the natural and necessary result of a fluence of which has been alternately augment- fair and liberal construction of the principles of ing or decreasing from time immemorial, owing the Constitution, and especially of that paragraph to a perpetual conflict between the Sovereign and which vests the power of making Treaties in the the House of Commons, the Government being in Supreme Executive, with the advice of the Seits origin an absolute monarchy, and founded upon nate. conquest; but the spirit of that great nation, by the subtlety and adroitness of their House of Commons, who have been watchful of favorable junctures, has, as it were, surreptitiously deprived their Sovereign of many of his royal prerogatives. This check upon his Treaty-making power was, among others, an important achievement. In this country they had only a right to exercise a deliberative or Legislative power relative to Treaties which are unconstitutional; but they could only exercise a ministerial or Executive power relative to Treaties which are Constitutional; and in forming an opinion relative to the constitutionality or unconstitutionality of a Treaty, all they want were the Treaty and the Constitution, and then, by comparing the two instruments tegether, and upon that comparison alone, form their judgment. From these premises it conclusively follows, that, as they have no occasion, so they have no right, to call upon the Supreme Executive for the papers in question. This doctrine, he thought, necessarily resulted not only from the principles of their Constitution, but also from an important principle of the Law of Nations. For all nations between whom there are existing Treaties have a kind of property lodged in the secret cabinet of each other, and no nation can, consistently with good faith, publish to the world the secret negotiations which led to forming either of those Treaties. To prove this principle, a recurrence may be had to Paley's Philosophy and Vattel's Law of Nations. This principle of the Law of Nations is predicated upon an important principle of the law of nature. Here, then, is no necessity of recurring to written au Mr. L. said he was sensible he had been delivering an unpopular doctrine, but that he was deeply impressed with its truth, its reality, and its importance; and that the obligations of an oath had prevented his silence on the occasion. Mr. BALDWIN said he had before expressed his opinion, in general terms, in favor of this question. It must have been observed that he had been for several days noting the debates, and preparing to take part in them. He had intended to have introduced the debate on Friday morning last, but a singular incident prevented him, which he felt it to be his duty to take this earliest opportunity to state to the House. Mr. B. then said: About five minutes before I expected to rise on the question, I was called out of the House by a person then unknown to me, who said his name was FRELINGHUYSEN, and whom I found to be a Senator of the United States. After a number of interviews, he observed, with great expressions of pain and regret, that he was at last obliged to the unwelcome office of delivering me that letter, which I opened and found to be a challenge directed to me from JAMES GUNN, who is also a Senator of the United States. The pretext for this transaction was, to extort from me some private letters which I had received early in the session from a number of my constituents, expressing their wish that I would endeavor to prevent any thing being done in Congress to validate the Mississippi Yazoo Land Speculation before the meeting of the State Legislature. There was no complaint of any personal indecorum or disrespect at all; whether they were actuated in their conduct solely by interest in Yazoo speculations, I will not pretend to judge. |