H. or R.] Treaty with Great Britain. [MARCH, 1796. ask for them in the milk-and-water style pro- Union. But say gentlemen, it is unfair to reason posed. Here the gentleman felt bold. But this has not been the custom. It had been usual, and he hoped always would be, to approach the Chief Magistrate of the Union with proper respect and decorum. To ask for the papers (he added) was unconstitutional, because unnecessary; he might as well have endeavored to convince by saying, article of the Treaty, goods imported to the ter against the use of power by its probable abuses. He thought it advisable to guard against abuses: but has this abuse not already taken place? He thought it had. Not with respect to a port of the consequence of New York; that would have been too palpable; but on the Lakes, by the third ritory in that quarter, in British bottoms, are sub it is so, because it is so. A gentleman from Connecticut [Mr. GRISWOLD] had opposed the pass-jected to no higher duty than goods imported in ing of the resolution in a masterly manner. He had never, at any time, listened to any man in that House with greater pleasure than to him; but, upon re-examining what he heard, he found the merits of the orator lay in the ingenuity, not in the strength of his reasoning. From the papers. Mr. S. said, gentlemen had taken a ground that appeared alarming, viz: That the PRESIDENT and two-thirds of the Senate may, by the aid of a Treaty, do anything, and everything, not morally im impossible, (provided they do not infringe on the Constitution,) and that the immediate Representatives, forming this House, have only to be informed thereof, and to obey. Let us pause for a moment, and ask, Was this possible? Could this be the fair construction of our so much boasted Constitution? If it should be, he would not regret the services rendered his country during the late glorious Revolution, nor the part he had taken to promote the adoption of the Constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do anything that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a Constitutional manner, to obtain amendments to the Constitution, which would prevent the evil in future. But is there occasion for amendments to the Treaty-making power? He thought not. There were checks and balances sufficient in the Constitution to prevent the evils that might arise out of it. He said, he could offer nothing new, but would pursue the train of reasoning begun by a gentleman from Virginia [Mr. MADISON.] In the eighth section of the first article of the Constitution, Congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the United States: Can regulate trade with foreign nations: tion. Congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one State over those of another. But the Treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the States from the uniformity of naturalization: that is, it may relieve goods imported in British bottoms into New York, from the one-tenth extra duty, and let it remain on all the other ports of the American vessels to the Atlantic ports. Here appeared a departure from that uniformity required by the Constitution; here appeared a preference given to the ports of one State over those of another; and yet gentlemen contend, that the House have no right to inquire into the business. Indeed, so delicate was one gentleman [Mr. BUCK] on the subject, that he opposed committing the Algerine Treaty, lest it should establish a claim to investigation! It was true, the trade on the Lakes was small, but it would increase. Thus, although Congress were very wisely restricted, when laying duties, to make them uniform, yet, the PRESIDENT and Senate would be capable, by the assistance of a foreign Power, to destroy that uniformity. Again: he said, the Treaty-making power, as contended for, may prevent the export of rice, tobacco, fish, flour, or any other article, and that House must not interfere, must not inquire. But this would be the abuse of power. True; but it will be found, by the twelfth article, that the Envoy agreed that laws should pass to prevent the export of all West India goods. Nay, even of cotton, one of the objects of our growth. It was true, the Senate did not consent to this: but if they had, and the PRESIDENT had ratified it, that House, it was contended, must have passed the laws. It would have had no option. Again: Mr. S. said, Congress passed a law (in his opinion a wise law) granting a bounty on the fishery, as a nursery for seamen, and another for promoting navigation by restrictions on foreign bottoms. Suppose a power jealous of our rapid increase of navigation, should, by a Treaty, repeal those laws. Would that House have no right to inquire the reasons why? Gentlemen say no: but that the Senate would be too wise to consent to such a Treaty. And yet it will be found, the law giving advantages to American vessels over foreign, and laying an extra duty on tonnage, will be virtually repealed by that part of the Treaty which gives a right to the British to countervail, and preclude the United States from legislating further on that subject. But the Treaty has not touched the fishery bill, if it had, submission ought (it is contended) to have followed from that House. The subject may thus be followed under the Treaty-making power, until every power granted by the people to Congress would be swallowed up, and that House reduced to a registering office. He asked what could stop the Treaty power thus construed; he trusted that House would, and he was happy that the subject was brought forward under the Presidency of the greatest man on earth, because a doctrine established whilst he was at the helm of the nation, would carry so much weight with it, that it would probably never be again disputed. But, said he, are those papers secret? No, they are known to thirty Senators, their Secretary and his clerks, to all the officers of Government, and to those of the members of this House who choose to read them. Then, say gentlemen, where is the necessity for calling for them? He answered, because it was more proper and more respectful to themselves that they might form a document which the members might quote in support of their arguments, when the Treaty came under discussion; otherwise they might be called to order, or their quotation denied. For instance, suppose he should assert that the Envoy had no power to effect a commercial Treaty; that he was to try what terms relative to commerce might be obtained, but positively prohibited from signing anything until it should first be reviewed by the PRESIDENT. Suppose he went further, and should say, that the signature of the Envoy committed this country to a situation so delicate, as in some measure compelled the Senate to consent, and the PRESIDENT to ratify: What would be the consequence? Why, some member might deny it, and the one assertion would stand against the other. A gentleman from Massachusetts [Mr. SEDGWICK] had applied his arguments to three points: 1st. That the doctrine of that House having any check or control over Treaties entered into by the PRESIDENT and Senate, was new, never before heard of, and never mentioned in the different Conventions which adopted the Constitution. 2d. That the Senate was composed of men, the most virtuous and enlightened; men, who had always been forward in the hour of the greatest danger; chosen by the elect of the people; by the Legislatures of the different States; not by an ignorant herd who might be cajoled, flattered, and deceived; not even by the enlightened citizens of America. 3d. That the opposition arose not from the provisions in the Treaty, but because it was made with the British. From the first point he had been completely driven by a gentleman from Virginia [Mr. BRENT] who had proved that the doctrine was not novel, but as old as the Constitution, and generally admitted in the Conventions. On the second point, no person would deny the good qualities of the Senate; but without any disparagement to the Senators from Massachusetts, he should be at no loss to find two gentlemen from the same State of equal abilities and of patriotism as well tried, and he presumed the gentleman would not disagree with him, when he was informed that he would probably fix his eye on him as one. The same gentleman said, Who are we that we should attempt to judge over the heads of those wise men-we, who are collected from the remote corners of the Union? We, said Mr. S., are the immediate delegates of the people, collected from the different districts of the Union, to aid and assist the wise men above [H. or R. stairs in making wholesome laws, and to retain those privileges given to the House by the Constitution, which he trusted they would hand to their successors inviolate. He then took a view of the members who came from the remote parts of the Union, and declared them to be men of sound judgment and real abilities. The third point was a very serious charge indeed, no less than that the opposition which had been made, was not to the instrument, but because it was made with Great Britain; and the gentleman asks, why a similar opposition had never been made to the Treaty with France? Why this language? Can such reflections assist in the discovery of truth? Was the gentleman aware how this might be retorted? Did he reflect that some gentleman of as little temper as himself might have said, that such a Treaty would not have been signed by the Envoy with any other nation, nor consented to by the Senate. Nay, he might, if very irritable, have said, that if it had not been British, it would not have been supported on the floor of that House, and might have quoted in proof the great delicacy of certain gentlemen on the resolution relative to American seamen impressed by the British. But it was with pleasure he had seen, that no reflection, no insinuation, no threats, had been uttered by any gentleman on that side of the question which he had espoused. He hoped that nothing but fair arguments would be adduced. If he should be in the minority, it would be his duty, and he would (as a a Republican ought t to do) acquiesce in whatever might be the determination of the majority. As to the Treaty with France, it was made before the formation of their Constitution, which wisely provided that all engagements, heretofore made, should be binding on the new Government; of course, neither the PRESIDENT and Senate, nor that House, had any power over it. Mr. S. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the Treaty into effect. He held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the House. MARCH 18.-In Committee of the Whole, on Mr. LIVINGSTON'S resolution: Mr. ISAAC SMITH did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who composed the Convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. He believed, if they intended that House should have had an agency in the making of Treaties, they would have said so in express terms. Had they done so? Nothing like it. So far from it, that they had unequivocally appropriated the Treatymaking power to the PRESIDENT and two-thirds of the Senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. But, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. We will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. Here rests the fallacy. The people knew, whether they knew or not, that they chose the PRESIDENT, and they firmly believe, as well they may, that he is their guardian. guardian. Th The people knew, also, that they chose the Senators, and they likewise think they are their guardians. How we, said he, became sole guardians, will require a modesty superior to that of New England to explain. The people have declared that the PRESIDENT and Senate shall make Treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. It appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: sic volo, sic jubeo, stat pro ratione voluntas. If they had under consideration alterations or amendments to the Constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation. A gentleman from Virginia told them that the Government of the United States was a Government of checks, but said, that, in the short time it had existed, they were completely routed. Nevertheless, he mentions several checks that still stand their ground: among, others, biennial elections were a check upon the Executive. According to his calculation, he said, they were a check upon that House, in the ratio of four to two and of six to two, and, therefore, the people trusted them less than any other branch of Government, and he most cordially adopted that gentleman's own words, "if the opinions now contended for prevail, nothing will remain to be done by checks." Construction will answer every purpose. ? Did Several gentlemen had adduced arguments from the Government of Great Britain, and had attempted to assimilate the American Government to it, to give them the greater force. He would examine that matter. Did the people of England choose their King every four years? Was he impeachable No, he can do no wrong. they elect their House of Lords or Senate? No, they are hereditary as well as their President. Must two-thirds of them approve every Treaty before it can become valid? No such thing. How a parallel, then, could be formed out of such diverging lines he left to wiser men; it was greatly beyond his poor abilities, and he was equally incapable of comprehending arguments drawn from so mysterious a source. [MARCH, 1796 in the State he had the honor to represent. The groans of three or four hundred thousand black people held in bondage, he said, afflicted his ears, and made him hesitate, although he wished to believe the encomium he had bestowed. He did not like boasting, it provoked retort, and offence followed. He should not say one word in praise of New Jersey; it did not need it. Mr. LIVINGSTON said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the Committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. He had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and Constitutional questions would probably arise on the discussion of the Treaty. It had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a Constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the Treaty with the Constitution? Mr. L. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the Treaty. The Constitution, he said, gave to the PRESIDENT the power to make Treaties, "by and with the advice and consent of the Senate." Men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the PRESIDENT could make no Treaty unless by the previous advice and consent of the Senate; in other words, that the Senate should advise the making of a Treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. He would give no positive opinion on this subject, but supposed it a point worthy the attention of the House. The construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. Two instances he could recollect; one was in the Treaty of Holston, where Governor Blount was "vested with full powers and specially empowered by and with the advice and consent of the Senate." The other instance was found in the answer of the PRESIDENT to the French Minister, who offered to enter into negotiations for a Treaty of Commerce, which the PRESIDENT declined, by referring him to the meeting of the Senate, which was not then in session. If the PRESIDENT supposed he could not commence a negotiation without the concurrence of the Senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the Treaty in this point had been constitutionally made. But whatever doubts, Mr. L. said, might have A gentleman from Virginia boasted much of the superabundant love of liberty that prevailed | been occasioned by the general expressions with which the motion had been introduced, they must certainly have been removed by the explanation which had been very properly demanded by the member from Connecticut [Mr. TRACY.] He had, on that occasion, declared that the papers were required for géneral information, to be applied as that information might render it proper. 1. To the superintending power which the House had over all the officers of Government; and, 2. To guide their discretion in giving or refusing their sanction to the Treaty in those points where it interferes with the Legislative power. Gentlemen had found it convenient, because some others had disavowed any intention to impeach, to consider the first ground as wholly abandoned: but, in the nature of things, this could not be the case. It was impossible to determine that we would not impeach until the papers were seen. Facts might then appear that would render that an unavoidable measure which was not now contemplated. If, for instance, he said, instead of a Treaty with Great Britain, we were now discussing one formed with the Porte, where it is the custom for Ministers to give and to receive presents; and, on the production of the correspondence, it should appear that our Minister had received a douceur on the signature of the Treaty, he asked whether, in such case, that House would not think themselves obliged to impeach? If they would, he thought the obligation could not be denied, when cases might exist, where, without any previous intention, an impeachment was unavoidable. The integrity of the gentleman who had formed this Treaty was, he said, too well established to lead any one into a supposition that any thing of the kind could have occurred in this instance; but it might in others. The idea of impeachment, therefore, though not at present contemplated, could not be formally abandoned. [H. or R. or nicated. Mr. L. did not, however, think that individual members ought to owe their information to the courtesy of an officer of the Senate, which they had a right officially to receive as a body. It had been stated that he (Mr. L.) having had access to these papers, could not want any information they might contain. He would state the facts relative to that transaction: It was true, he said, that, as Chairman of the committee appointed to inquire into the case of impressed seamen, he had been indulged with a view of the instructions and correspondence; but engrossed by the important object then referred to him, he had paid little no attention to such parts as did not relate to that subject. After an interval of some days, he went with an intention of completing the perusal of them, but was told that he could not see them without leave of the Senate. What I did see, added Mr. L., convinced me of the propriety of the whole being laid before the House. I found, in so much of the instructions as I did read, a positive direction to conclude no Treaty of Commerce unless certain important articles were agreed to which are not found in the instrument before us. Among them, if I recollect right, was a stipulation, that free bottoms should make free goods. He had been informed that these instructions were altered, and a fuller discretion given to the Minister; but this was a point which he thought it essential the House should be informed of. Leaving, however, the ground of superintendence, which would make this inquiry necessary, gentlemen had chosen to put questions at issue on the other point; and he had endeavored to show the impropriety of the demand, by denying any discretionary power in the Legislature, either to judge of the Treaty itself, or decide on the propriety of carrying it into effect. Mr. L. said, he was not unwilling to meet them on this ground, and to consider the decision of this motion as declaratory of the sense of the House on that important question, whether it is Before he considered the second and most im-constitutionally bound to give its sanction to eve ry Treaty that may be formed by the other branches; and to provide all the sums necessary to fulfil every stipulation they may make; for, to this extent, did all their arguments go. Two positions had been assumed, differing not materially in the power ascribed to Treaties, but distinguished chiefly by the mode of applying this power. By some it was contended, that the interference of the Legislature was necessary in some instances, but that the Treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation. portant ground of opposition, Mr. L. said, he would take notice of an objection to the form of the resolution by a gentleman from South Carolina [Mr. HARPER.] It was of a kind which he had not expected from the quarter in which it arose. He had objected to the humble style of request. If we had a right to the papers we should demand them. "I would plant my foot here," says the gentleman, "and require the papers as a right." Mr. L. said, that the resolution was couched in the respectful terms with which that House had always addressed the first Magistrate of the Union; that civility and respect were always due to him; and that he was persuaded the member would see the propriety (on this, as he had on other occasions,) of transferring into public life that urbanity and politeness for which he was so remarkable in his private intercourse. The same gentleman had observed, that there was no reason for requesting the papers, because any member might inspect them in the Clerk's office of the Senate. He could not suppose, if this were the These positions were in fact the same, because, fact, that the publicity of the papers was a good if a Treaty was, at all events, to have effect, it reason to prove that they ought not to be commu-was perfectly immaterial, whether it operated di Others had asserted, that Treaties being the supreme law, might operate directly, without the intervention of any other body. That where existing Legislative acts opposed their execution, the Treaty was paramount, and could repeal them. rectly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the Government; but the first was most degrading to the Legislative dignity. Nor could he discover from what part of the Constitution it was inferred. Wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the PRESIDENT'S compensation, that of the Judges, and many other instances. It is not, then, to be conceived, that so important an obligation as this should have been left to implication. If it had been intended so to annihilate this discretion, the same language would have been used. "Congress shall pass laws to carry every Treaty into effect," but nothing of this kind appears. Again, if it had been intended to make Treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. Why leave a phantom of discretion, an unreal mockery of power, in the hands of the Legislature? In order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. In cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this House, they say, may refuse to carry it into effect. In the first case, where it is impossible to give efficacy to a Treaty, the power of refusing it was surely of little value. And where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. If the subject were less serious, Mr. L. said, one would be tempted to smile at the efforts that are made to reconcile the Constitutional predestination contended for, with the free agency of discretion. It was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. We have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. This was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. This was a worse alternative than that generally called Hobson's choice-that was, "this or nothing;" but here we are told, old, "do this, or be hanged for a traitor." So that hereafter, when any one intended to express an inevitable necessity, he would call it Congressional discretion. If, then, the Treaty does not operate by way of obligation on the Legislative power, let us, said Mr. L., examine, whether, as is contended, "a Treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the Legistive power;" this, he said, was the most important question that had ever been agitated within these walls. It evidently tended to the substitution of a foreign Power, in lieu of the popular branch; it was replete with the most serious evils. He could never suppose so great and pernicious an absurdity was contemplated by the Constitu [MARCH, 1796. tion; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended. The Constitution gave all Legislative power to the Congress of the United States; vested the power of making Treaties in the PRESIDENT and Senate, and declared that the Constitution, the laws made in pursuance thereof, and Treaties made under the authority of the United States, should be the supreme law of the land. He had always considered the order in which this enumeration was made as descriptive of the relative authority of each. 1st. The Constitution, which no other act could operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when they contradicted neither; for, if no weight was given to this argument, Treaties would be superior, both to the Constitution and the laws, as there is no restriction with respect to them as in the case of laws, that they be made pursuant to the Constitution. He did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration to measure the relative effect of the Constitution, laws, and Treaties. If the objects of Legislation and of Treaty compact could be kept distinct, no question would arise, there would be no pretext for interference, but they could not; almost every object of legislation might also become that of compact with a foreign Power. He then read the enumeration of powers vested in Congress, and said, that many of these had al-, ready become the objects of Treaty; many more probably would be; and the whole, directly or indirectly, were liable to be embraced by it. If, then, all, or even any one of these objects may be regulated by the Treaty, without any interference of law, the Constitution, said Mr. L., has contained the evident absurdity of submitting the same object at the same time to the control of two distinct powers. An absurdity that could not be destroyed but by supposing, that it was intended these different powers should operate under this Constitution as they do in that of England; so that every Treaty operating on objects submitted to the Legislative power should receive its sanction before it took effect. This construction would reconcile all the parts of the instrument to each other; whereas, the other would set them at variance, and, by degrees, deprive the House of Representatives of all the share in legislation. This was not reasoning, he said, from an abuse of power. If it was properly vested in the PRESIDENT and Senate, it was not only permitted, but it was their duty to use it, and no one could call the exercise of a Constitutional right an abuse of power. He admitted that, if the text were explicit, reasoning from consequences was a bad mode; but, as that was not pretended in the present case, it would be well to weigh the serious evils that attended the construction gentlemen contended for, and to inquire whether there is more danger in trusting the Representatives of the people with a check on all Treaties relating to those objects which are specially vested in them by the Constitution, than in making those Representatives subservient to the will of |