power to repeal a law that enacted it. If so, then it follows that laws and Treaties are not of the same nature; that both operate as the law of the land, but under certain limitations; both are subject to the control of the Constitution; they are made not only by different powers, but those powers are distributed, under different modifications, among the several branches of the Government. Thus no law could be made by the Legislature giving themselves power to execute it; and no Treaty by the Executive, embracing objects specifically assigned to the Legislature without their

assent.

[MARCH, 1796.

Since this is the striking difference between the doctrine held by the friends and by the opposers of the present motion, why, added Mr. G., with some warmth, are the first endeavored to be stigmatized as rebellious, disorganizers, as traitors against the Constitution? Do they claim a dangerous active power? No, they only claim the right of checking the exercise of a general power when clashing with the special powers expressly vested in Congress by the Constitution.

He should not say that the Treaty is unconstitutional, but he would say that it was not the supreme law of the land until it received the sancTo what, he asked, would a contrary doctrine tion of the Legislature. He turned to the Conlead? If the power of making Treaties is to re-stitution. That instrument declares, that the side in the PRESIDENT and Senate unlimitedly: Constitution, and laws made in pursuance thereof, in other words, if, in the exercise of this power, and Treaties made under the authority of the the PRESIDENT and Senate are to be restrained United States, shall be the supreme law of the by no other branch of the Government, the PRE- land. The words are, "under the authority of SIDENT and Senate may absorb all Legislative the United States," not signed and ratified by power-the Executive has, then, nothing to do the PRESIDENT: So that a Treaty, clashing in any but to substitute a foreign nation for the House of of its provisions with the express powers of ConRepresentatives, and they may legislate to any gress, until it has so far obtained the sanction of extent. If the Treaty-making power is unlimited Congress, is not a Treaty made under the authoand undefined, it may extend to every object of rity of the United States. legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the Constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But Treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by Treaties. Then it would have been the shortest way to have carried the late Treaty into effect by the instrument itself, by adding to it another article, appropriating the necessary sums. By what provision of the Constitution is the Treaty-making power, agreeably to the construction of the gentlemen, limited? Is it limited by the provisions with respect to appropriations? Not more so than by the other specific powers granted to the Legislature. Is it limited by any law past? If not, it must embrace every thing, and all the objects of legislation. If not limited by existing laws, or if it repeals the laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the Legislative power in fact resides in the PRESIDENT and Senate, and they can, by employing an Indian tribe, pass any law under the color of Treaty. Unless it is allowed that either the power of the House over the purse-strings is a check, or the existing laws cannot be repealed by a Treaty, or that the special powers granted to Congress limit the general power of Treaty-making, there are no bounds to it, it must absorb all others, repeal all laws in contravention to it, and act without control.

To the construction he had given to this part of the Constitution, no such formidable objections could be raised. He did not claim for the House a power of making Treaties, but a check upon the Treaty-making power-a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power.

Gentlemen had dwelt much on that part of the Constitution which had declared the Constitution, Laws, and Treaties, laws of the land; but they had avoided reading the whole of the clause, and had not given to it its obvious meaning. Why should the Constitution barely declare the Constitution the law of the land, the laws the law of the land, or Treaties the law of the land? All know that they are so. In all countries they are so, because made by the supreme authority: but, by adverting to the latter part of the clause, the meaning of the former must immediately become obvious. It runs as follows: "And the Judges in every State shall be bound thereby; any thing in the Constitution or laws of the individual States to the contrary notwithstanding." It would have been childish if the Constitution had confined itself to expressing the first part of the clause; because no doubt could arise whether the Constitution, laws, and Treaties, were the supreme law of the land. But, as the General Government sprung out of a confederation of States, it was necessary to give that Government sufficient authority to provide for the general welfare, that the laws of the Union should supersede those of the particular States. There was thus a valuable purpose to be obtained by the latter part of the clause, viz: a positive provision declaring which authority should be supreme in case of clashing powers.

But the clause does not compare a Treaty with the law of the United States, or either of them with the Constitution: it only compares all the acts of the Federal Government with the acts of the individual States, and declares that either of the first, whether under the name of Constitution, law, or Treaty, shall be paramount to and supersede the Constitution and laws of the individual States. In that point of view are Treaties said to be the supreme law, to wit: when standing in competition against acts of the several States;

but the clause by no means expresses that Treaties are equal or superior to the laws of the Union, or that they shall be supreme law when clashing with any of them.

To illustrate: He supposed that the Pennsylvania Legislature were to pass an act incorporating the city of Philadelphia, granting to certain bodies the power to make regulations which should be the supreme law of the land: this would mean only that they were so within their proper sphere, and not that they were paramount to the laws of the State or of the Union. The same of Treaties: they are declared to be the supreme law of the land, within the provisions of the Constitution, and agreeably to the modifications therein provided; but they are not declared to be supreme when compared, or paramount to the laws of the United States. The Constitution is paramount to both laws and Treaties; and, when gentlemen ground their arguments on the position that Treaties are superior or equal to the laws of the Union, they take for granted the very thing which is to be proved. The natural construction of the Treaty-making power was this, he contended, that, as far as a Treaty negotiated by the Executive embraced Legislative objects, so far it required the sanction of the Legislature.

[H. OF R.

community: and, in England, the sovereign power, quo ad hoc, is vested in the person of the King. Whatever contracts, therefore, he engages in, no other power in the Kingdom can legally delay, resist, or annul.”

After such a latitude as this clause gives, it would be supposed that there could be no check reserved upon this power; yet it will be found that. Parliament have a participation in it. And the apparent inconsistency is easily reconciled, by observing that the power given generally to the Executive of making contracts with other nations, does not imply that of making Legislative regulations, but that when the contract happens to embrace Legislative objects, the assistance of the Legislature becomes necessary to give it effect.

He proceeded to show the operation of this limitation of the Treaty-making power in England by the practice of Parliament. It was always considered as discretionary with Parliament to grant money to carry Treaties into effect or not, and to repeal or not to repeal laws that interfere with them. In citing instances of the exercise of this power, he should not go further back than their Revolution.

He then read several extracts from Anderson's

History of Commere, vol. iii., pages 269, 70, 71, 72. They are so much in point that we transcribe the most material passages:

"But we could not omit our animadversions on the eighth and ninth articles, as they were so extraordinary in themselves, and as they occasioned so great a stir and uneasiness at that time, as to have brought the whole Treaty of Commerce to miscarry then and ever

since.

To give some additional weight to this construction of the Constitution, the practice of the British Government had been quoted. It was certainly proper, when about to construe our own Constitution, to compare it with the operation of the Constitutions of other countries that resemble ours in those parts to the construction of which doubts are raised. Whether there is a similarity in general between the British Constitution and ours, is not the question: he hoped they would not be assimilated more than they really were. But, he contended, as to the Treaty-making power, they were, in fact, perfectly similar. Both nations give the power of negotiating Treaties to their Executives: there the King exercises it; here the Senate, being a branch of the Executive, exercises it in conjunction with the PRESIDENT. The only difference here is, that twothirds of the Senate are necessary to their formation. In other respects the power is the same in the two countries. There the Executive authority has enjoyed this power from time immemo-to the tenor of the tariff above mentioned. rial; and here the PRESIDENT and Senate possess it by the letter of the Constitution. It may be said, that Great Britain has no written Constitution: true, but the force of immemorial custom forms their Constitution.

He read a quotation from Blackstone, page 257, vol. i., to show that the power of Treaty-making in England is as extensively vested in the King, as it can possibly be said to be here in our Executive.

The following is the passage alluded to:

"II. It is also the King's prerogative to make Treaties, leagues, and alliances with foreign States and Princes. For it is, by the Law of Nations, essential to the goodness of a league, that it be made by the sovereign power, and then it is binding upon the whole

"ART. IX. That within the space of two months after a law shall be made in Great Britain, whereby it duties be paid for goods and merchandise brought from shall be sufficiently provided that not more customs or France into Great Britain than what are payable for goods and merchandise of the like nature, imported into Great Britain from any other country in Europe; and that all laws made in Great Britain since the year 1664 for prohibiting the importation of any goods or merchandise coming from France, which were not prohibited before that time, be repealed, the general tariff in France, on the 18th of September, in the said year 1664, shall take place there again, and the duties payable in France by the subjects of Great Britain for goods imported and exported, shall be paid according

"When the said two articles came to be known by

the merchants of Great Britain, they were received with the utmost surprise and indignation, and the

clamor was loud and universal.

That the complying with those two articles would effectually ruin the commerce we carried on to Portugal-the very best branch of all our European commerce. That the said eight articles did, in general terms, put France on an equal footing with Portugal or any other of our best allies, in point of commerce."

"This is, in brief, the sum of this mercantile controversy, which, when brought into Parliament, it was so apparent that our trade to France had ever been a ruinous one, and that if, in consequence of accepting the said eighth and ninth articles, the British Parliament should consent to reduce the high duties and take off the prohibitions so prudently laid on French commodities, it would effectually ruin the very best

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

when he mentioned the American Treaty, promised to lay it before them in proper season, that they might judge of the propriety of enacting the necessary provisions to carry it into effect.

branches of our commerce, and would thereby deprive many hundred thousand manufacturers of their subsistence; which was also supported by petitions from many parts of the Kingdom: That, although a great majority of that House of Commons was in other respects It remains to be examined, said Mr. G., closely attached to the ministry, the bill for agreeing whether we are to be in a worse situation than to the purport of the said two articles was rejected by a Great Britain; whether the House of Represenmajority of nine voices, after the most eminent merchants had been heard at the bar of that House, to the tatives of the United States, the substantial and great joy of the whole trading part of the nation, and immediate representatives of the American peoof all other impartial people." ple, shall be ranked below the British House of Commons; whether the Legislative power shall be swallowed up by the Treaty-making authority, in Great Britain? as contended for here, though never claimed even

Thus it must be clearly seen, that the consent of Parliament was not only deemed necessary to the completion of the Treaty, but that that consent was refused, and that in consequence the In Great Britain, he remarked, the TreatyTreaty fell to the ground, and was not revived making power is as undefined as in America. for a period of near eighty years, and all notwith- The Constitution here, declares that the PRESIstanding the plentitude of the Treaty-making DENT and Senate shall make Treaties; there, cuspower, said by the best English authority, Black-tom says as loudly, that the King shall make stone, to be vested in the King; which was, how- them. In Great Britain, however, the power is ever, he repeated, necessarily checked by the spe- limited, by immemorial custom, by the exercise cial powers vested in Parliament; for none but of the Legislative authority by a branch distinct they could grant money, or repeal the laws clash- from the regal; in the same manner is it limited ing with the provisions of Treaties. here, not however merely by custom and tradition, but by the words of the Constitution, which gress; and he hoped this authority would be exgives specifically the Legislative power to Conercised by the House with as much spirit and independence as anywhere.

He cited another instance of the exercise of this controling power in Parliament of even a later date, viz: in the year 1739, in the case of a Treaty between Spain and Great Britain, which was sanctioned by a very small majority indeed in Parliament. He cited a third example from Anderson, Vol. VI., page 828, in the case of the Treaty of Commerce between France and Great Britain, to show, that the practice of the Parliament's interfering in Treaties is not obsolete.

The following is an article of the said Treaty,

which Mr. GALLATIN read:

"XIV. The advantages granted by the present Treaty to the subjects of His Britannic Majesty shall take effect, as far as relates to the Kingdom of Great Britain, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by the Treaty.

"And the advantages by all these articles, except the tariff, shall take effect with regard to the Kingdom of Ireland, as soon as laws shall be passed there, for

securing to the subjects of His Most Christian Majes

ty, the reciprocal enjoyment of the advantages which are granted to them by this Treaty: And, in like manner, the advantages granted by the tariff shall take effect in what relates to the said Kingdom, as soon as laws shall be passed there for giving effect to the said tariff."

Upon this principle, founded on almost immemorial practice in Great Britain, did the Minister of that Kingdom, when introducing the late Treaty with Prussia into Parliament, tell the House, that they will have to consider the Treaty and make provision for carrying it into effect. On the same principle, when the debate took place on that instrument, it was moved to strike out the sum proposed to be voted, which would have defeated it, and afterwards to strike out the appropriation clause, which would have rendered the bill a mere vote of credit, and would also have caused the Treaty to fall to the ground. On the same principle, the King of Great Britain,

He had at first imagined, that the doctrine contended for by the gentlemen, viz: that the House had no discretion in the business; but that, like machines, they were bound to pass the necessary quite new. provisions to carry into effect the Treaty, was He had, however, after much search, found a precedent to keep this strange doctrine in countenance here; at least as far as the right of granting money was concerned. Under the old Government of France, the Courts of Justice, nicknamed Parliaments, had a nominal control over the purse-strings, such as that here contended for. If the King laid a tax, they were to register comply, or the King raised the money without it; but if they refused, they were either forced to them. Thus here, though the House have by the the purse, yet they are told they must register; or Constitution, a particular and express control over that, if they do not, it is treason against the Government.

A gentleman from Connecticut up to-day, had asked, whether the advocates for the doctrine of free agency would refuse appropriating money for a salary fixed by law, in obedience to the Constitution, urging, that if they did, they would commit a breach of the Constitution, and if they did not think themselves authorized to refuse, they must abandon their doctrine.

Mr. G. observed, that the power of raising revenue and appropriating money is vested in Congress, and they are to exercise their discretion in the business; yet as a special clause of the Constitution says, that the salaries of certain officers shall not be increased or diminished during their term of service, so far this operates as a restricting exception upon the general powers; but was this the case as to the Treaty-making power?

Does any clause of the Constitution direct that money shall be appropriated to carry into execution any Treaty made by the PRESIDENT and Senate, however clashing with the special powers of the House? Before the two cases can be considered parallel, it must be proved that Treaties are paramount to the Constitution; for on that supposition alone rests the argument that they, like the Constitutional clauses relative to the salaries of the PRESIDENT and Judges, are special exceptions to that general discretion which the House has a right to exercise on all Legislative subjects, and especially on all money matters.

But if, as it was said, the powers specifically delegated to the House, are not to operate as a limitation of the general powers granted to the PRESIDENT and Senate; if these powers are contended to be as unlimited as they are undefined, then the necessity of a check must strike as doubly necessary. The power of granting money should be exercised as a check on the Treaty-making power. The more unlimited the Treaty-making power is contended to be, the more dangerous it is, and the more should the House consider the power of originating grants of money exclusively vested in them as a precious deposite.

[H. OF R.

whole power should be concentered in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House, and their right to judge of the expediency of carrying the Treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the Treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground, and the Treaty carried into effect, if reconcilable to the interests of the United States. He concluded by observing, that even if the right did not exist in the House to judge of the expediency of carrying the Treaty into effect, yet as they were to be made agents in the business, at least in form, they could not be denied the papers, to see the reasons which led to the formation of the Treaty; and even on that ground it had been said, that we had nothing to do either with the merits of the Treaty, or with the motives of those who made it. He recollected but one late instance of a precedent for sentiments he had lately heard, with so much surprise, on the floor of the House, and that was the sentiment expressed by a Reverend Bishop in England lately, who contended, that the people had nothing to do with the laws but obey them. The gentlemen here, however, carry the doctrine still farther; for they insist, that even the Representatives of the People have not a right to consult their discretion when about exercising powers positively delegated to them by the Constitution.

The Committee rose, and obtained leave to sit

again.

The House then adjourned.

He maintained, that the Treaty with Great Britain, or any other in similar circumstances, was not, until the necessary appropriations were made, and until the existing laws that stood in its way were repealed, and the requisite laws enacted, the supreme law of the land. Existing laws declare, that goods shall not be imported by land into the United States, except in certain districts; the third article of the Treaty allows a general importation; the laws declare that foreign vessels He hoped this dangerous doctrine would retrading with us shall pay an additional ten perceive a death-blow, and that the Committee would cent. upon the duties paid by our own vessels, adopt the resolution. the same article again interferes here; in other particulars, also, but these are sufficient to illus- | trate. Now, if the doctrine of gentlemen be sanctioned, and the House have no discretion left to MARCH 10.-In Committee of the Whole, on use on the Treaty, but are bound thereby, specific Mr. LIVINGSTON's resolution, Mr. HARTLEY deliand explicit clauses in the Constitution notwith-vered his sentiments as follows: standing, the power of granting money becomes nugatory, and a Treaty, made by the EXECUTIVE, may repeal a law. If a Treaty can repeal a law, then the act of the PRESIDENT and Senate can repeal the act of the three branches; and although all Legislative powers be vested in Congress by the Constitution, yet Congress are controled by two of its branches; those clauses of the Constitution vesting the Legislative powers in Congress are annihilated, and the PRESIDENT and Senate, by substituting a foreign nation for the House of Representatives, assume, in fact, an unlimited Legislative power; since, under color of making Treaties, they may repeal laws, and may enact laws.

If this doctrine is sanctioned, if it is allowed, that Treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution declare, that they give up all control, all right to the exercise of discretion, it is tantamount to saying, that they abandon their share in legislation, and that they consent the

As I was not present when this subject was first introduced, it cannot be expected that I should take any great share in the debate; but some observations I have heard, chiefly from the gentleman last up yesterday from Pennsylvania, have induced me to show a few grounds for my vote.

That gentleman has strongly combined this resolution with the Treaty, and wishes that every one who holds that there should be a co-operation of this House respecting that instrument, should vote for the resolution. I think differently.

The gentlemen who contend for the mighty power of the Executive and Senate, as well as those who argue for the great authority of this House, perhaps are on extremes; but the Treaty ought not now to be so largely under consideration. I am willing, if it is thought proper, to take it up at an early day, and, after a full hearing, will vote as I hold right.

The gentleman I referred to, from Pennsylvania, argued most strenuously that the laws and customs of Great Britain and the Constitution of

As those gentlemen who contend for the likeness—indeed, sameness of the Treaty-making pow-first mentioned, could justify the House in calling