MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

twenty-one men, who may be leagued with a fo-ers supreme over the same object at the same reign Power?

In looking for the true construction of this instrument, we should consider the state of things at the time it was proposed and adopted. The opposition it met was well known, and the power given to the Senate and PRESIDENT was considered as one great cause of opposition. It cannot be supposed, as the sentiments of the people were known by the framers of the Constitution, that they would have proposed any plan more energetic than the Government of Great Britain.

time. Our ideas had been confounded by referring to the practice of Governments where the two powers were united, and where a ratification gave the consent of both.

If, then, there was a perfect analogy between the power vested in the Crown in England, and that delegated to the PRESIDENT and Senate in America, on the subject of Treaties; and if the Parliament, by virtue of its general Legislative authority, was in the practice of giving or withholding its sanction to Treaties concluded by the King, it was but a fair inference to say, that the

Treaty, might be laid before the House, except such Treaties as they already had." We are told in the subsequent page, that on the 13th, that is, only two days after the request, "Mr. Secretary St. John presented to the House, by Her Majes

But it was probable, Mr. L. said, that the Treaty power was intended to be placed in the PRESI-same discretion existed in Congress. DENT and Senate to the same extent only in which Some instances of the exercise of this power by it existed in the Executive of Great Britain. The Parliament had been before quoted by others. The words of our Constitution on this point were the inexecution of the Treaty of Utrecht, in consesame made use of by British writers in defining quence of Parliamentary opposition, and the diffithe corresponding power in their Government, culties with which the Commercial Treaty with and it seemed evident that some of its features France was carried through the House of Com(and this was none of the least prominent) were mons, in 1787, had been already noticed. He drawn from that original. He was happy that the would mention two other precedents drawn from parallel was not perfect in other instances. He the same source equally striking, or perhaps more thought it completely so in this; and that the prac-so, as the course of proceeding there followed was tice therefore of that Government would, in some precisely that which was proposed by the resolumeasure, lead to the true construction of this. tion in debate. The first was the proceeding on Aware of the weight of precedents drawn from the Barrier Treaty, taken from the 5th vol. Parl. English history, gentlemen endeavored to weaken Debates, p. 43, where the House of Commons bethem by a very ingenious argument. "The British gan, by a resolution to address the Queen, "that Constitution," say they, "is not written, it is form- all instruction and orders given to the Plenipotened of usages; if you prove, therefore, that it is tiaries that transacted the Barrier Treaty, and also the usage for British Parliaments to sanction Trea-all Treaties mentioned and referred to in the said ties, you prove it to be their Constitution, but you do not prove it to be ours." It was true, Mr. L. observed, that the English Constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of Go-ty's command, a copy of the instructions to the vernment were generally designated, so that the Duke of Marlborough and Lord Townsend, about leading points in their Constitution were as well the Barrier Treaty, extracts of letters from Mr. known and defined as they were in that of Ame- Boyle to Lord Townsend, concerning the said rica. It had been shown by a reference to writers Treaty; also, a copy of the Preliminary Artiof the best authority, that, by the Constitution of cles, signed at the Hague; the titles of which coEngland, the power of making all Treaties was in pies and extracts of letters were referred to the the King; but as the power of making all laws Committee of the Whole House. After this, it was in the Parliament, this latter, as the greater was resolved to present an address to Her Mapower, controlled the former, whenever it affected jesty, that the letters written by Lord Townsend objects of legislation. Thus, in the Constitution of to Mr. Boyle, the Secretary of State, dated the the United States, he contended, the power of mak- 1st and 26th of November, 1709, might be laid being Treaties, that is, all Treaties, vested in the PRE- fore the House, which Mr. Secretary St. John SIDENT and Senate; but, as all Legislative power accordingly did on the 14th of February." After is vested in Congress, no Treaty operating upon having obtained the papers, Mr. L. said, the House any object of legislation can take effect until it of Commons proceeded to the consideration of the receives the sanction of Congress. The practice, Treaty in Committee of the Whole, and voted, too, was the same. The King asserted his right 1st. That the Treaty contained articles destrucof making and completing Treaties, by not only tive to the trade and interest of Great Britain. concluding, but ratifying them, before they were 2. That the negotiator had acted without authorisubmitted to Parliament, but he believed no Com- ty. 3d. That the advisers and negotiators were mercial Treaty was proclaimed as the law of the enemies to the Queen and Kingdom. land before it had received the sanction of Par- The Treaty being thus obstructed, the States liament. Indeed, it was impossible, in any coun- General remonstrated to the Queen on the subtry, and under any Constitution, where the Legis-ject; but, conscious that the Parliament were only lative and Treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different pow

exercising a Constitutional power, they make no complaints in their memorial of any breach of faith, though the Treaty had been ratified. They enter into the merits of the Treaty, offer to nego

MARCH, 1796.]

Treaty with Great Britain.

[H. of R.

law for holding a Treaty to establish peace be- The second instance of the exercise of this tween the United States and the Wabash, Miami, dreaded discretion, was in the law of March 3d, and other nations of Indians, Northwest of the 1791, appropriating twenty thousand dollars to river Ohio; also, for regulating trade and inter-enable the PRESIDENT to effect a negotiation of course with the Indian tribes, and the mode of ex- the Treaty with Morocco. This originated in the tinguishing their claims to lands within the limits Senate, and is a decided proof that neither the of the United States." On the 29th March, fol- PRESIDENT nor Senate had at that period any idea lowing, a bill passed the House of Representatives, of the moral obligation that is now discovered, or the title of which was amended in the Senate and they would, without the formality of a law, have passed, appropriating twenty thousand dollars for at once stipulated with the new Emperor for the purposes expressed in the preceding resolution. payment of the necessary sum, which must have been provided by the House.

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

Mr. L. said this case was important, as it was the first communication relative to a Treaty made In a third case, the PRESIDENT had thought under the Constitution. An attentive examina- | proper to take the sense of that House in a matter tion of its different parts would show that very that of all others demanded secrecy, and under different ideas were then entertained from those circumstances that would have prevented his which were now enforced. He would first ob- making the application, if he had conceived himserve, that the discretion of the House of Repre-self at liberty to act without their concurrence. sentatives as to commerce with foreign nations, He adverted to the Message of 30th December, stood precisely on the same footing with that which 1790, where the PRESIDENT says: "I lay before they ought to exercise in regulating intercourse you a Report of the Secretary of State, on the with the Indian tribes; that if one could be done subject of the citizens of the United States in without their concurrence, by Treaty, the other captivity at Algiers, that you may provide in their might also; and that, therefore, when the PRESI- behalf what to you shall seem expedient." DENT recognised 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 lan-appropriation, in the year 1793, when another guage? 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.

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 inte-
rests 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 com-
municated, 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 pur-
pose, 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 beThe resolution above quoted, Mr. L. said, was tween them and us matter of interesting inquiry important, as it proved that Congress then sup-to the Legislature, and may, indeed, give rise to posed 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.

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.

[MARCH, 1796.

House to interfere. The Legislatures spoke the
same language; some had approved of the conduct
of those who made the Treaty ; but all he believed
were silent as to the power of this House. As to
the town-meetings, he did not expect to hear them
quoted as authority by the gentleman who had
introduced them. His fellow-citizens of New
York, Mr. L. said, would be surprised when they
heard the name of the gentleman who had ushered
them on the floor of that House; since they were
there, however, said Mr. L., let us hear the lan-
guage of their Address to the PRESIDENT.
need not be ashamed of it, and he would answer
for its contradicting the position of the gentleman
who quoted it. [He then read several extracts from
the New York resolves to show that they thought
the rights of the House were infringed by the
Treaty.]

They

Thus, said Mr. L., to whatever source of argument we refer, we find the Constitutional power of this House fully established; whether we recur to the words of the Constitution, where the power It was clear, then, that the PRESIDENT thought is expressly given, and is to be lost only by implithe matters communicated by his Message, which cation; whether we have recourse to the opinions related to commerce and boundary, were consti- of the majorities who adopted the Constitution; tutionally vested in the discretion of Congress. to the uniform practice of the Government under The idea was corroborated by the words of a it; to the opinions of our constituents, as expressed Message relative to the negotiation with Spain: in their petitions; or, to the analogous proceed"And, therefore, by and with the advice and consentings in a Government constructed, in this partiof the Senate, I appointed Commissioners Plenipoten-cular, like our own. Yet, after all this, we are tiary 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.

told, said he, that if we question the supremacy of the Treaty-making power, we commit treason against the constituted authorities, and were in rebellion against Government. These were serious charges, and made in improper language. He had not been so long in public life as the gentlemen who made them; but he would boldly pronounce it unparliamentary and improper. Besides, said Mr. L., this language is wrong in another view; it may frighten men of weak nerves from a worthy pursuit; for my own part, said he, when I heard the member from Vermont compare the authority of the PRESIDENT and Senate to the From this view of the acts of Government, Mr. majesty of Heaven, and the Proclamation to the L. said, he trusted that a far different impression voice of thunder; when he appealed to his serwould be made, than that the doctrine he con- vices for his country, and showed the wounds retended for was a new one, originating in opposi-ceived in her defence; when he completed his tion to the English Treaty, and a desire to disor-pathetic address by a charge of treason and rebelganize the Government. That, on the contrary, lion, I was, for a moment, astonished at my own it had been declared by the PRESIDENT, acquiesced temerity; his eloquence so overpowered me, that, in by the Senate, and acted upon by the House "Methought the clouds did speak and tell me of it, of Representatives. The winds did sing it to me, and the thunder, That deep and dreadful organ pipe, pronounced The charge of treason."

3. One other test of construction remained for examination. It had been relied on by a member from South Carolina [Mr. SMITH he would I was, however, relieved from this trepidation therefore notice it; it was the present opinion of (continued Mr. L.) by a moment's reflection, the citizens of the United States, as expressed which convinced me that all the dreadful conseby their town-meetings, and by their Legisla-quence arose from the gentleman's taking that for tures. Mr. L. said, he did not suppose that the sense of the people on this subject could be perfectly collected, it could only be known by their applications to this House; and in those, he said, an appeal was made to that very discretion which it was contended did not exist. The petitions in favor of Treaty, and those which were presented against it, both acknowledged the right of the

granted, which remained to be proved. He had only assumed that the measure was unconstitutional, and then the rest followed of course. From my soul, said Mr. L., I honor the veteran who has fought to establish the liberties of his country; I look with reverence on his wounds; I feel humbled in his presence, and regret that a tender age did not permit me to share his glorious deeds. I