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MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

cracy, despotisin, abolish our own Constitution, laws, liberty, and religion.

claration, so far as it comprehended Treaties, only | country, introduce and establish nobility, aristorelated, from the succeeding words in the same article, to the individual States, so as to bind the State Judges; and one of the gentlemen from Virginia had said, there also resulted a problem how the State Legislatures were to be affected, as the Judges only are said therein to be bound by such Treaties. For his part, Mr. G. said, he could not perceive the problematical mystery which seemed so forcibly to have presented itself to the mind of that gentleman; for, even allowing this article only to relate to the individual States, any Constitution or law therein to the contrary, as expressed, and that the Judges should be bound thereby, he said he could not possibly conceive how the State Legislature, by acting, by legislating, one way or the other, could constitutionally affect the operations of a Treaty.

Mr. G. said, this was a frightful picture; and suppose they should thus attempt to abuse their power, or that any other department, or all combined, should thus attempt to abuse their power, where would be the remedy? He should be very sorry, indeed, to be without a remedy. The remedy, the sovereign remedy, for all intolerable abuses of power, rests in the rights of man, and is to be found in this country, every where: but he hoped there would never be occasion to resort to this remedy. The objection certainly was no argument to prove the want of suitable power, for it only went to the abuse of legitimate authority, and was as applicable to all other cases, and to all other departments as to the one at It was impossible, Mr. G. said, for him to admit which it was aimed. The history and practice the idea that Treaties, which had the effect of a of the British Government, of Spain, and other law upon all the individual States, should have at foreign nations, have been resorted to by the genthe same time no such effect upon the United tlemen on this occasion to support a doctrine States. He said, if the absurdity of any thing which appeared to him not only repugnant to our were mathematically capable of demonstration, own Constitution, but never before contemplated this idea was so, as opposed to the truth of a self- by our own Government. Gentlemen had told evident proposition, viz: that a Treaty should af- us of civilians, of jurists, and sages of public law, fect and bind all the parts, and at the same time but for his part he had never, in the small course not affect or bind the whole. He would notice of his reading, except among our own countryanother objection which had been urged as deci- men, seen any one who ever saw or contemsive against admitting Treaties to be laws, or plated the American Constitution, nor did he behaving such effect, the declaration made in the lieve that there was one to be found out of the Constitution notwithstanding. It had been said, whole class, up to Solon, the Grecian sage, who that Treaties could not be considered as laws, if had ever entertained ideas of such sort or plan of they require the aid or acts of the Legislature for Government. As to the doctrine of checks, which their execution. Can this idea be sound? Do had been so much insisted upon by the gentlemen not many laws of our Legislature require the aid in favor of their positions, he said he would make and acts of the Executive for their execution? a few remarks in order to show how, in his Or do the gentlemen suppose it no law, or a very judgment, that doctrine was to be understood and poor one, that cannot execute itself? He thought applied. Checks in Government, limited and such logic could never satisfy the meaning of the constituted as ours is, if misunderstood and misConstitution. The expressions in the Constitu- applied, would produce more injury than, when tion declaring Treaties to be laws, was compre- rightly applied, they could do good. He said, he hended in the same sentence and expressed by the never understood, in regard to Constitutional same words with the Constitution itself and laws checks in Government, that part only of a whole of the United States. As well, then, might it be branch or department could check a whole departsaid that, by the same construction, the Constitu- ment, but always supposed that nothing short of tion and laws of the United States only related to a whole department could check another. The and bound the Judges of the individual States. Legislature could check the Judiciary; so the JuIt had also been said by gentlemen, who seemed diciary might, in some cases, in order to guard the to wish to find some meaning for the words of Constitution, check the Legislature; but no conthe Constitution which would suit their doctrine, stituent part only, or part of the Legislature, could that the words therein mentioned, under the au- do this. It was true that, in a particular departthority of the United States, meant only and ex-ment, consisting of constituent branches, who clusively Congress, comprehending the Legislature only; but this was too palpably absurd to be dwelt upon. The great and alarming objections which seemned constantly to be resorted to, and into which Mr. G. said, all others may be resolved, was not that the PRESIDENT and Senate were not fit to exercise the Treaty power, nor, indeed, that they were not the most fit for that business; but, admitting all this, it had been seriously stated what they might do were they to abuse the power and trust placed in them by the Constitution. They might, it was said, combine with some foreign nation, league themselves against our own 4th CoN.-23

could only act in co-operation, one of these branches might operate as a check to another, as was the case in the Legislature, where the benefit and security from checks had, to our own observation, been conspicuously eminent; but the check here contended for was to arise from one branch of the Legislative department only, and operate against another distinct separate department-the Treaty making department; which was, in his opinion, quite contrary to the principle of this doctrine of checks.

Mr. G. said, he would advert to the objection which had been greatly urged and relied upon

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

of the resolution, he should just make a few remarks more, and then quit the subject. It seemed to him that it had been placed upon a ground by the mover and his friends, so as to involve principles vastly important, but not necessarily connected with it. If the proposition resolving to call for the Cabinet papers had been placed on the ground of expediency and policy, which, in his opinion, was the only ground on which it ought to have been put, there could not have been great difficulty in the judgment of any one in deciding it. He made this remark in hopes that gentlemen who agreed with him in this sentiment would vote upon the motion on its merits, without reference to those Constitutional principles, if they did not suppose them necessarily involved. He could not conceive that it was at all expedient for them to have those Cabinet papers. If they were to be considered upon the ground only of official papers of our own Government, it would be very different in his judgment; but those papers related to the Cabinet concerns and transactions of a foreign nation, whose Cabinet was equally concerned with our own, and, however inclined we might be to expose all our own secret negotiations and Cabinet transactions, he said it could not be proper, contrary to the practice of all other nations, to expose wantonly the Cabinet negotiations and concerns of another nation, which had been confidentially conducted and committed to the custody of our own Cabinet.

against the doctrine he advocated, to wit: the ing or repelling a corrupt, void Treaty, being unwant of right, Constitutional power, and discre- derstood, and entirely different from the princition in this House to withhold appropriations ne- ples contended for on the ground of our sharing cessary for executing the Treaty, or in any man-in making a Treaty, Mr. G. said he hoped there ner to resist and repel this compact. Mr. G. said, would be some reconciliation and less diversity of if it was allowed to be a proper Constitutional opinion on the point discussed. As to the merits Treaty, it having been completed by its ratification and exchange, it was obligatory, in point of moral and political obligation, upon the parties, and only remained to be executed; and, if so, he considered it incumbent on the nation to fulfil it, and consequently the duty of its Representatives to do whatever was proper and necessary for such purpose. They had, in such case, then, no other discretion than as free, moral, intelligent agents, in choosing and doing right or wrong. Every honest contract, made voluntarily, by intelligent agents, created a moral obligation. Every moral obligation ought to be regarded. No one will say the contrary. When we feel this obligation, can we complain of the want of freedom and right to disregard it? Surely not. But, said Mr. G., every engagement or compact may not have this quality, may not create any such obligation to regard it. It may be, in this respect, so destitute of honesty, so replete with corruption and baseness, as to be altogether void. This would depend upon circumstances. These circumstances we may, we ought to look to; and, if we found the Treaty attended with such circumstances, we were bound to resist and repel it. This was a duty incumbent upon us, which could not be dispensed with; but this right, this indisputable right, Mr. G. said, resulted from principles entirely distinct from the principles which had brought on this discussion. They did not result from any Constitutional right or power of making Treaties; they did not proceed from a ground which gentlemen had assumed of our exercising at all the Treaty power, or having a right to affirm or disaffirm such compact as a constituent branch of the Treaty department; but, from principles of self-preservation, of natural right, paramount to all Constitution and law. From confounding principles and things so entirely distinct, Mr. G. said, apparently by some gentlemen, or not leaving them sufficiently distinguished, had, he believed, occasioned great part of that diversity of opinion so visible on this subject. If a Treaty should be replete with all the terrible evils that have been frightfully described to our imagination; or, if it should contain any one of them, or any thing else which we deemed intolerable and corruptly designed for our ruin, we should repel it, at the hazard of war or any thing else; choosing, as upon all other occasions, the least evil of the two. But this right of thus resisting or repelling a void Treaty, will not apply to one which is not void, that is, not destitute of moral obligation-will not apply to a compact that may be merely consider-ject of the Treaty. ed a hard bargain. And here, Mr. G. said, as his colleague had borrowed from the poets, he would, on this point, since it occurred, refer to one poetically describing the character of the good man, saying, "though to his own hurt he swear, still he performs his word." The principles of resist

If any particular purpose rendered them necessary, it ought to be specifically mentioned in the resolution; and, if it was such evidently as required the papers, it would evince the propriety of calling for them, otherwise it would seem not only inexpedient, but impolitic and unjustifiable; and, if they were to be called for on the ground of any co-ordinate right we had to act in making or sanctioning the Treaty, it was, in his judgment, decidedly unconstitutional. From every consideration, therefore, he hoped the resolution would not pass.

He observed, that he had occupied more time of the Committee than he ever expected on this subject; that he had little confidence of having suggested any new light, or pursuaded any one from prior sentiment; but, the most he expected was, so to have communicated himself on the occasion, as that his own honest sentiments should be well understood; sentiments, he said, which would altogether influence his mind against the resolution, and regulate his judgment in considering the sub

Mr. MURRAY felt, in the fatigue of which he himself was sensible from attention to the debate. that whoever should attempt to engage the ear of the Committee would have much to apprehend, unless he could promise some novelty of remark. This, however, he would not promise, but he re

MARCH, 1796.]

Treaty with Great Britain.

[H. of R

that the first foreign Treaty made by the Government should shed this new light upon the minds of gentlemen.

lied upon the sense of duty which animated every member there for a little indulgence, while he attempted to deliver his opinions against the resolution upon the table. It was a question of great magnitude. Its consequences affected not only the Constitution of his country, but were closely interwoven with its character in the eyes of foreign nations. It affected the Constitution by a new construction of its respective powers. It affected the character of the country in the eyes of foreign nations, by an endeavor to give a power to this House to control, to admit, or to reject, those public and hitherto sacred covenants which bind nation to nation in good faith. The importance of a question involving such considerations would be an apology to any member for engaging the Com-troy its validity, though we may break it. If it mittee's attention.

He said, that the important question before the House, independent of the immediate object of the resolution, was, whether the printed paper upon the table, purporting to be a Treaty, was a Treaty or not? If it is a Treaty, it is the supreme law of the land; a public covenant, binding the nations who are parties to it, as fully as if every individual of each nation had personally consented to the ratification of it. If it is not a Treaty in the eye of the Constitution, nothing that we can do will make it so. If it be a Treaty in the eye of the Law of Nations, nothing that we can refuse to do, can des

be a Treaty, nothing that we can do can add to its validity, though it may to its practical operation.

into a right to do so in the face of the highest compact known to independent nations; this our country could never have designated to us under a Constitution breathing good faith, justice, and true freedom.

The resolution proposed by the gentleman from New York, [Mr. LIVINGSTON] was but the intro- The question is not as to the mode of breaking duction to the question. On the first day's debate, Treaties, but of making them; not an estimate of before the subject was committed, he had opposed circumstances that are to free us from all duty this resolution. He had not then certainly reflect- to fulfil an engagement, but whether the moral ed as much upon the doctrine to which it led as and public obligation of Treaties when made is to he had since done; but a few simple truths which bind us; upon the adoption or rejection of a prinhad long rested in his mind, undisturbed by pas-ciple, which, if adopted, is to weaken the bands of sion or by new lights, early showed him the ne- nations by a denial of the Law of Nations in concessity of opposing a measure which was predica-verting the mere power of breaking them asunder, ted on a right of which he had never heard or thought, except since the late discussion of the Treaty, through the newspapers and pamphlets of the day. He insisted that the novelty of the doctrine contended for was of itself sufficient to excite an anxious investigation, considering that we act under a Government and Constitution so extremely definite and precise, both in the quantum and modification of its powers, that any doctrine highly constructive, upon any important part of the Constitution, will forever be a hazardous experiment. He had listened with candid attention to the arguments that had been most ingeniously brought forward to sustain those new doctrines, but still found in the simplicity of those opinions that had kept pace with his acquaintance with the Constitution from its origin, and which had been so congenial with its practice, a basis of conviction which nothing that he had heard had shaken.

The Government of the United States had been in operation more than seven years. Treaties had been formed and acquiesced in. These Treaties had established peace, boundaries, and the rights of persons and of social intercourse; they had been made by the PRESIDENT by and with the advice of the Senate; they had not, that he had heard of, been questioned as supreme laws of the land. This Treaty power is now disputed, on a question which was connected with an event upon which much sensibility had been excited. He did not know how far the minds of gentlemen might not be affected by the merits of the Treaty which had given occasion to the motion; how far the genuine maxims of construction might not have been swallowed up by the sensibility that flowed from a construction of the Treaty power when applied to this particular instance of its exercise. The minds of gentlemen could alone determine that matter, and to them he left it. But it was a little singular,

He would, he said, state some of the opinions that had been the most ably argued in support of the resolution. There were several propositions laid down: It had been said that a Treaty which contained stipulations upon any of the reserved powers granted by the 8th article of the Constitution to Congress, was unconstitutional: Another is, that a Treaty comprehending any of these specified objects as reserved to Congress, as mere Legislative objects, was not the law of the land till consented to by this House; and that no Treaty which required the agency of this House was a law of the land, if this House refused its agency, and that the House has a Constitutional right to refuse it. He said that he would state his own opinions in opposition to those, and then endeavor to show that these were fallacious, and destructive of the ends which the Constitution must be presumed to have contemplated.

From the letter and spirit of the Constitution, made up, as it certainly was, of national and State capacities; from a plain, unlettered, and self-consistent construction, going hand in hand with an undisputed course of practice for seven years, it had always appeared to him that the PRESIDENT, by the advice of two-thirds of the Senate, had power to make Treaties. It was, he would contend, from a plain and unsophisticated construction of the Constitution, that this opinion was drawn. The doctrine now contended for, is to uphold an assumed power that can at best only defeat, but never can be rendered instrumental in giving exercise to the Treaty power.

It totally destroys the Treaty power given by

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the Constitution; but does not enlarge the Legislative power of Congress. It may do harm, but never good; establish it, and the Constitution is a nullity in that grant of power, which is designated to present an efficient organ of sovereignty, through which the foreign relations of the Union are to be preserved for our use, and recognised by others. It violates the Constitution, because it renders one of its most important grants of power void. It violates the Constitution, because it assumes a right of either sharing in the Treaty power, which, whatever may be meant by the terms "make Treaties," is exclusively given to the PRESIDENT and Senate. It violates the Constitution, in the assumption of a capacity in this branch of the Government, to give validity to what it prejudges to be unconstitutional. If the propositions which he had mentioned as maintained by gentlemen, be correct, there either is no Treaty-making power in the Government, or this House, to fulfil and give efficacy, in some way or other, to this power, must be obliged to violate the Constitution; one of the consequences appeared to his mind to be necessary. When he said this construction could do harm, and act by obstruction, but never do good, he would here remark, what he would afterwards a little enlarge on, that there were instances in which the House might rightfully obstruct; but these would be found to be, not where there was a Treaty binding by the Law of Nations, but where fraud or other cause justified and often enjoined upon a nation to obstruct. In those cases he would remark, the right to obstruct, or to refuse to act, resulted either from a Treaty that had ceased to be obligatory, as in case of infraction by the opposite party, or an instrument not at all obligatory, as a fraudulent one.

[MARCH, 1796.

reduced to a simple acceptance of peace, a cessation of arms, without the power of availing themselves of any of the advantages of victory in war, derivable from the reserved objects of Congress, such as the rights of a more enlarged and beneficial commerce; or an acknowledgment by stipulation of the rights of nations, though these would probably, nine times out of ten, form the subject of the war. For if the PRESIDENT and Senate cannot make a Treaty upon these points, and they are among the objects of legislation, they could not enter into a negotiation at all upon them. If they could negotiate upon them, it must be in virtue of their power under the Constitution, and the same expressions that would justify them in negotiating, would warrant them in concluding a negotiation by a ratification of a Treaty upon them; because, under the Constitution, there cannot be found any middle ground upon which the other branch of Government could come into co-operation in the making of a Treaty. Its sole agency is under the cogency of a Constitutional duty, which is to display itself in complying with the contracts of this sort, not in making them.

It is, on all sides, admitted that the Treaty power is competent to make peace. But here, under the doctrine contended for, the fruits of war, in an advantageous peace, are to be rendered doubtful, if not totally lost. The cause of war might be upon some of the reserved powers, as upon a commercial question, or upon an offence against the Law of Nations. The PRESIDENT and Senate could make peace, but could come to no binding stipulation upon the very objects of the war. At most, they could but negotiate upon them, but could not make a Treaty upon them that would be unconstitutional; but could they even negotiate upon them? They could make a Treaty upon them, or they could not negotiate upon them?

If the doctrine contended for, that a Treaty operating upon the reserved powers of Congress, is unconstitutional, be correct, it will be found that the Treaty power of the PRESIDENT and Senate By the Constitution, they are to make Treaties. is reduced to a degree of insignificance below the No where in that explicit and luminous body of dignity of the Constitution, were it, instead of be- our Government is there to be found an expresing what it is, the most exalted monument of sion that gives a right to Congress to negotiate or good faith, justice, and liberty, the most vile and to make Treaties. This power is classed with the inefficient compact that was ever framed-strip Executive power expressly, and must exclude the the Treaty power of a right to negotiate upon Legislature. There cannot be shown in the incommerce, upon contraband as falling under the strument a power in this House to aid or to concommercial view, of free bottoms, as belonging to sent to negotiation; he meant to distinguish clearly commercial affairs, of the rites of hospitality to between a negotiation and a Treaty made; the ships, of offences against the Law of Nations, of one is the agency merely, the last the thing comConsular rights, as affecting a certain degree of pleted in the view and meaning of the Law of Nathe judicial power, of privateers and their conduct, tions. Now, either the PRESIDENT and Senate of the fitting out of armed ships during the neu-may make a Treaty, or they cannot negotiate trality of a foreign power, when the United States upon these reserved points, because if it be admitare at war, and upon what can the Treaty power ted that these points would be essential in such a operate? These reserved powers, in fact, occupy situation of our affairs, and that this House could almost every object that it would be Constitu- not either negotiate or make a Treaty upon them, tional for the PRESIDENT to treat upon; they em- either the Treaty power under the Constitution brace the whole of the commercial regulations must be adequate to the making of a Treaty upon with foreign Powers; they reserve all the right them, or no Treaty could be made. The Constiof defining and of punishing offences against the tution could never intend to preclude Treaties Law of Nations. Could it be ascertained that the upon commercial subjects; it has shown that it PRESIDENT and Senate were not at liberty to en-protected those already made, and our own practer into the boundary of these objects of legisla- tice has proved, that they are superior to our own tion, the whole of their Treaty power would be laws. Besides, had the Constitution devolved the

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national capacity upon the General Government, by excluding from States a right to enter into Treaties or negotiations with foreign Powers, the right to make Treaties would, of necessity, be in the General Government, this collective capacity of a nation must always reside somewhere; it must exist, because every nation is a moral person standing in certain well-defined relations to other nations. There must exist somewhere a power, an organ to preserve these relations, to fulfil the duties, and discharge the obligations which flow from the Law of Nations. Can it be conceived, that the Constitution designed to destroy, or to render impotent, the organ by which the national character was to be presented to the nations of the world, or can a construction that nullifies the clear and forcible expressions of the instrument be a sound one? The Constitution not only recognises this collective and essential capacity of the American nation, but organizes it for action in a way that scarcely admits of even ingenious misconstructions; it has placed it in the Executive, who, by and with the advice of twothirds of the Senate, can make Treaties.

[H. OF R.

tlemen that the Treaty containing stipulations upon them must be contrary to the Constitution, and erected upon powers usurped from this body; because, by the eighth section of the Constitution, the Congress have power, among other objects, purely of a domestic nature, the following, which relate to the present question: To lay imposts, to regulate commerce, to constitute tribunals inferior in their jurisdiction, to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations-which, Mr. M. said, he would repeat, and to punish offences against the Law of Nations; because it must open to any man capable of pursuing a regular track of reflection a variety of points in contact with the remarks which he had lately presented to the Committee. These powers, he remarked, were relative to two classes of objects and persons. The first class comprehended all persons and things within the jurisdiction and dominion of the nation. The other, such as were out of the dominion but within the jurisdiction of the nation. They likewise presented to view things which were incomplete in their nature, unless considered as connected with foreign relations; of the first class were imposts, commerce with foreign nations, inferior tribunals of justice, offences against the Law of Nations committed in the United States; of the second class were offences committed against the Law of Nations by American citizens on the high seas, or out of the limits of the United States; piracies committed by our citizens. Upon all these points it was certain that Congress could legislate. It might pass laws relative to the imposts which foreigners are to pay upon goods which they may bring into the United States; but Congress could not produce reciprocity under a stipulation pledging the faith of a foreign nation that the citizens of the United States should not pay more than the subjects of that nation paid in our ports. Congress might pass a law giving a French Consular Chancery a limited jurisdiction, but never by its agency could secure to the seamen of America a similar protection in France. It might define and punish offences against the Law of Nations, piracies, contraband trade, the outfitting of armed ships during Can the nation avail itself under the rigor of a neutrality. It might, by a generous legislation, this construction which is imposed upon the Con- extend the blessings of a more refined age to stitution, so as to render the Legislative power a foreigners, by withholding the operation of its means of obtaining the full exercise of the re-impost and tonnage laws where storms or distress served objects considered in their relation to foreign nations? Or does it, if it cannot accomplish these great ends by Legislative means, intend to abandon them when they present objects of advantage, or disengage itself from the duties that arise under that class of them which relate to the Law of Nations?

If, as has been contended, a Treaty touching the reserved powers, as they have been assumed to be, be unconstitutional, it must be shown either that the nation can avail itself of the Legislative power in carrying into effect its national relations, its wants, its rights, and a redress of its wrongs, in those reserved objects and rights, or that the nation relinquishes them, as they afford the means of intercourse, or the medium of redress; or, that the Treaty power, agreeably to the second proposition contended for by gentlemen, was to be considered as the mere instrument of negotiation, but not of a capacity to bind the nation upon these points. This must be made out by the gentlemen, or they must yield to our construction. The second proposition which was held up to view to be exposed for its extreme fallacy, is, that a Treaty comprehending the objects within the pale of the reserved powers, was not the law of the land, agreeably to the terms of the Constitution, unless consented to or sanctioned by this House. This proposition shall be examined after a remark upon what precedes it.

The last is impossible to be the case, as it would be impossible to accomplish the end were it intended. The first is impracticable either in point of fact, or under the Constitution, as a doctrine that can for one moment be maintained.

These reserved powers, so perpetually recurred to, constitute the basis upon which the question asked must be considered. It is contended by gen

drove unfortunate foreigners into our ports; it might restrain the privateers of the United States; it might declare that when the United States are at war, neutral bottoms shall afford a sanctuary from rapine to the goods of an enemy; it might declare the debt of an enemy should not be confiscated during a war. All this Congress could doubtless do, and would have honor in the doing, but this accumulation of kindness would not secure to the citizens or to the nation a reciprocity of good upon all these points. It might permit a free trade to all nations, but it could not secure that right which is an imperfect right to our enterprise by converting it through the medium of a compact into a perfect one. Thus, he observed

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