Part 282

The motion of Mr. LIVINGSTON was then taken up.

Mr. TRACY requested gentlemen in favor of the resolution to give their reasons why the application for papers was to be made.

Mr. LIVINGSTON said, he had no wish to conceal his intentions. The motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. The gentleman from Connecticut wished to know why he had brought this resolution before the House? He did it for the sake of information. That gentleman wished to know to what point this information was to apply? Possibly to all the points he had enumerated. It was impossible, however, to say to which or how many of these points without a recurrence to those very papers. He could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. It was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. The House were, on every occasion, the guardians of their country's rights. They are, by the constitution, the accusing organ of the officers employed. The information called for they ought to possess, as it would tend to elucidate the conduct of the officers. His principal reason, however, for proposing the measure, was a firm conviction that the House were vested with a discretionary power of carrying the Treaty into effect, or refusing it their sanction.

Mr. MURRAY said, that he was against the resolution for two reasons, which then struck his mind forcibly. The first was the want of a declared object within the acknowledged cognizance of the House; the other was because he believed it was designed as the groundwork of a very dangerous doctrine, that the House had a right to adjudge, to adopt, or to reject Treaties generally. Had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the Treaty, the subject would be presented under an aspect very different from that which it has assumed. He considered a Treaty, constitutionally made, to be the supreme law of the land. The Treaty in view has been negotiated and ratified, he thought, agreeably to the constitution. It has been issued, by the PRESIDENT's proclamation, as an act obligatory upon the United States. If the House mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the constitution to give it every opposition.

Mr. BALDWIN thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. The PRESIDENT has sent the House the Treaty; petitions have come forward on the subject; the House must act in the business. It is yet unaccompanied with any documents to throw light upon it. No person concerned in the negotiation has a seat on the floor of the House; so that no oral information can be expected. Implicit faith was not to be reposed, he imagined, in public officers. It would be unfair to take up the subject naked and unexplained.

Mr. GALLATIN said, he should not now enter into the merits of the question, but merely state that pertain powers are delegated by the constitution to Congress. They possess the authority of regulating trade. The Treaty-making power delegated to the Executive may be considered as clashing with that. The question may arise, whether a Treaty made by the PRESIDENT and Senate, containing regulations touching objects delegated to Congress, can be considered binding, without Congress passing laws to carry it into effect. A difference of opinion may exist as to the proper construction of the several articles of the constitution, so as to reconcile those apparently contradictory provisions. But all those questions would occur in future discussions. What is now wanted is information on the subject, to elucidate the different views which may be taken of the Treaty. It must do good to obtain it, and could do no harm to ask for it. If it would be improper to communicate any part of the information on the subject, the PRESIDENT will say so. He had hoped, he said, that the resolution would have passed without objection. He concluded by observing, that the House were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. At present, he did not contemplate the exercise of that right.

Mr. MADISON admitted that every proposition, however distantly related to a question on the Treaty, drew from the importance of that subject considerable importance to itself. In a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to the decorum and dignity of the House, with a proper delicacy to the other departments of Government, and, at the same time, with fidelity and responsibility for our constituents. The proposition now before the House, he conceived, might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the constitution, so as to take to the Executive all deliberative will, and leave the House only an Executive and ministerial instrumental agency?

Mr. SMITH (of South Carolina) said, that he had listened attentively to the reasons advanced in favor of this resolution, and that he had heard nothing to convince him of its propriety. The PRESIDENT and Senate have, by the constitution, the power of making Treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do every thing in their power to carry them into full execution. He recognized but one exception to this rule, and that was, when the instrument was clearly unconstitutional. In this case, he remarked, it had not been said that the Treaty was unconstitutional. When the resolution was first brought forward, it had indeed been observed, that the discussion might involve certain constitutional points, and, therefore, the papers called for by the resolution were necessary; but it was obvious, the question of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption, could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to.

He was surprised that gentlemen who displayed such zeal for the constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the Executive and Legislative Departments. The constitution had assigned to the Executive the business of negotiation with foreign powers; this House can claim no right by the constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the Executive; for a concession would be a surrender of the powers specially delegated to him, and a violation of his trust. The proposition calls upon the PRESIDENT to lay before the House the instructions given to Mr. Jay, and the correspondence between him and Lord Grenville; and for what purpose? Is this House to negotiate the Treaty over again? Has the constitution made this House a diplomatic body, invested with the powers of negotiation? Is not this House excluded? for, if the maxim that "the expression of one is the exclusion of another," applies to this case, the assignment of the Treaty-making power to the PRESIDENT and Senate, is a manifest exclusion of this House. This call, then, on the PRESIDENT, is an attempt to obtain indirectly what the constitution has expressly assigned to others.

After Mr. S. had sat down, it was moved by Mr. GILES, to take the resolution up in Committee of the Whole for the purpose of more ample discussion.

This motion was agreed to; sixty-one members rising in the affirmative.

The House immediately resolved itself into a Committee of the Whole, on the resolution.

Mr. NICHOLAS remarked, that the member from Connecticut, first up, when inquiring for the reason of a call for papers, had suggested two. The one, relating to the merits of the instrument; the other, an inquiry into the conduct of officers concerned. On the latter ground, gentlemen conceded that the House had a right to require the papers, and yet seemed willing to adhere to that, on which they conceived a call could not be, with propriety, grounded, as the one that influenced the conduct of the friends to the resolution. All gentlemen admitted, that the House had the superintendence over the officers of Government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention.

He took a view of the prominent features of the arguments of the members up before him. It had been said that, if the power of the PRESIDENT and Senate, as to Treaties, was complete, then the House had no right to claim a participation; this could not be denied; but the question was, whether the Executive had that right unqualifiedly, in all cases. In the present case, he contended, the House had a voice. To elucidate: Suppose that, in the constitution of the United States, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the House have a control over the money matters stipulated in a Treaty; would not this constitute a qualification of the powers of the PRESIDENT and Senate with respect to Treaties? The constitution, on this head, he contended, though less explicit than his supposed case would make it, was not the less positive, if tested by all the fair rules of construction; and if compared with the practice of the government from which we had borrowed, with many other matters, this part of our constitution. In England, the country alluded to, their House of Parliament had exercised a control over the moneyed articles of Treaties; and he contended, the House of Representatives had an equal authority here, as chief guardians of the purse-strings. It was unnecessary, at this time, he said, to touch on the other parts of the Treaty which clashed with the constitutional powers of the House.

He again adverted to the power of control that the House of Commons have over Treaties; and contended, that that provision of the British constitution had been accurately copied in our own with this deviation only, that the Senate have the power of making amendments to money bills here, which the House of Lords there have not. He could show, from the best authority, the acknowledgment of the British Crown officers themselves, that the Parliament has a right to discuss and decide on Treaties which involved moneyed stipulations.

The same power, he argued, resided in the House here; for shall it be said, that we have borrowed only the form from Great Britain, and not touched the substance? Shall it be said, that the House have a discretion as to appropriations, and yet they must make them as directed by a Treaty? If the House have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. But, with the power of appropriating money, the House have certainly the right to judge of the propriety of the appropriation. The constitution explains itself fully on this head. He instanced the specific power in the constitution, with respect to appropriations for the army, to explain from that instrument its meaning in other parts.

The constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the House may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. The power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the constitution. This will show what was expected of this House in appropriating money; that they should judge of the usefulness of the expenditure. In the case of the army, the constitution does not say that we may disband an army by withholding money; but for the purpose of investing us with the same power, only requires that the appropriation should recur every two years; taking it for granted, that in this as well as in every other Legislative act, we will duly weigh every consequence.

Having thus explained from the constitution itself the true meaning of this power of appropriation, he proceeded to elucidate it by a reference to the practice of the Government. He found an instance in the permanent appropriations made for the payment of the public debt. If the House in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? The permanency of the provision took its rise from the idea, that the House possessed a discretionary power as to appropriations. Thus, he had shown that the practice of the Government, the provisions of the constitution, and the example of the British, from whom we had exactly copied the control over money transactions, all proved a discretion in the House as to appropriations. This must be considered as a sufficient answer to the gentleman from South Carolina, when he said, that the PRESIDENT and Senate possessed the Treaty-making power; for they possessed it with qualification, in matters of money; and unless the House chose to grant that money, it was so far no Treaty.

It was said, that if the Treaty was not the law of the land, the PRESIDENT should be impeached for declaring it as such. Parts of the Treaty the PRESIDENT and Senate had, no doubt, a right to make without any control of the House--those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under the qualifications provided by the constitution. It was said, that no instance of such a call as that now contemplated could be produced. No; nor of such a Treaty, he answered.

Mr. SWANWICK expressed his sense of the importance of the subject before the House, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. He had not conceived, however, that the decision of the present question involved the sense of the House as to the merits of the Treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the Treaty had been censured by assemblages of people with precipitancy, and without proper information. They did this on the best information that could by them be obtained. But if the House should go into a Committee of the Whole, to take into consideration the Treaty, without obtaining all the information in their power, they would be justly to blame.

He adverted to the constitution; according to that instrument, the Legislative power is completely vested in Congress. By the 8th section of the 1st article, not only a certain specification of powers are granted to Congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. If, then, Congress have the power to pass laws to carry into execution all powers vested by the constitution in the Government of the United States, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive Legislative control? Is the Treaty-making power not a power vested by the constitution in the Government of the United States, or in a department or officer thereof? If it is, is the conclusion not obvious, that Congress have power to pass laws for carrying these powers into effect? But in the power to pass laws, discretion is necessarily implied; of course, this House must judge when it is to act; whether it will, or will not, carry into effect the object in question. It is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given.

The member from South Carolina construed this part of the constitution in a different way, and insisted that, as the PRESIDENT and Senate had the power of making Treaties, the House were divested of the right of exercising their judgment upon the subject. If this doctrine prevails, to what a situation would the Representatives of a free people be reduced? The constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the House to raise money? Suppose that authority were in this way to grant millions upon millions, must the House, at all events, be compelled to provide for their payment? In this case the House become mere automatons, mere mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves.

Great stress is laid upon the constitution declaring Treaties laws of the land. This article has often been quoted partially, but not at large. It is in these words: "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "And the Judges in every State shall be bound thereby, any thing in the constitution or laws of any State, to the contrary notwithstanding." Hence, it is obvious that the supremacy of the law is over the constitution and laws of the separate States, which was necessary to prevent these interfering with those. But it does not affect the powers of this House, as a component part of the General Legislature, and authority of the United States. It is also worth while to notice the gradation in the article.

First. This constitution.

Secondly. The laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches.

Thirdly. Treaties. How absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the Government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors.

The gentleman from Vermont said, yesterday, that if the PRESIDENT and Senate were to make a Treaty, and that House were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain Government. Mr. S. observed, that that gentleman would probably be surprised, when he was told, that the British House of Commons possesses the same power which he reprobates in the Legislative Assembly of the United States. This, Mr. S. proved, by reading the King's Speech to both Houses of Parliament, in which he informs them of this Treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. What, judge of the propriety of passing laws to carry into effect a Treaty ratified! And shall it be said, exclaimed he, that the Representative Assembly of the United States does not possess a privilege enjoyed by an English House of Commons! He hoped not.

Mr. HARPER said, that it had not been his intention to trouble the committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on points, which it appeared to him unnecessary to decide. He did not conceive that the powers of the House respecting Treaties were necessary to be considered; the question appeared capable of a satisfactory decision on different grounds.