Part 283

When the motion was first proposed, he thought it innocent at least, and was in doubt whether it might not be proper, because he was in doubt how far these papers might be necessary for enabling the House to exercise that discretion on the subject of Treaties, which he admitted it to possess; but on a more accurate and extensive view of the subject, and after carefully attending to the discussion which had already taken place, he was thoroughly persuaded that these papers were no way necessary, and, that being unnecessary, to call for them was an improper and unconstitutional interference with the Executive department. Could it be made to appear that these papers are necessary for directing or informing the House on any of those Legislative questions respecting the Treaty which came within its powers, he should propose to change the milk-and-water style of the present resolution. The House, in that case, would have a right to the papers; and he had no idea of requesting as a favor what should be demanded as a right. He would demand them, and insist on the demand. But, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the House, to call for them would be an unconstitutional intermeddling with the proper business of the Executive.

It had been said, that this motion was of little consequence; that it was only a request which might be refused, and that the privileges of that House were narrow indeed, if it could not request information from the Executive department. But it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. Legislative bodies often make the most formidable expressions of their will in the shape of requests. It would be further observed, that an honorable member from Pennsylvania, (Mr. GALLATIN,) after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. After this avowal of the system, after this notice that the present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold?

Mr. GALLATIN conceived that, whether the House had a discretionary power with respect to Treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. Under the first view of the subject, if the House has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. This latter view of the subject, even, must introduce a discussion of the Treaty, to know whether any law ought to be repealed, or to see what laws ought to be passed. If any article in the instrument should be found of doubtful import, the House would most naturally search for an explanation, in the documents which related to the steps which led to the Treaty. If one article of the Treaty only be doubtful, the House would not know how to legislate without the doubt being removed, and its explanation could certainly be found nowhere with so much propriety as in the correspondence between the negotiating parties.

Gentlemen had gone into an examination of an important constitutional question upon this motion. He hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground, he had no objection to follow them in it, and to rest the decision of the constitutional powers of Congress on the fate of the present question. He would, therefore, state his opinion, that the House had a right to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the Treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the Treaty itself, and therefore had a right to ask for every information which could assist them in deciding that question.

One argument repeatedly used by every gentleman opposed to the present motion was, "That the Treaty was unconstitutional or not; if not, the House had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." He wished gentlemen had defined what they understood by a constitutional Treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional treaty. He would say what he conceived constituted the unconstitutionality of a treaty. A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to the Legislative department, such a Treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the Legislature have a right to demand the documents relative to the negotiation of the Treaty, because that Treaty operates on objects specially delegated to the Legislature. He turned to the constitution. It says that the PRESIDENT shall have the power to make Treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what Treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the constitution, where it is said that the constitution, and the laws made in pursuance thereof, and all Treaties, are the supreme law of the land; and thence, they insist that Treaties made by the PRESIDENT and Senate are the supreme law of the land, and that the power of making Treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the constitution.

The power of making Treaties is contended to be undefined, then it might extend to all subjects which may properly become the subjects of national compacts. But, he contended, if any other specific powers were given to a different branch of the Government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. If still it is insisted that Treaties are the supreme law of the land, the constitution and laws are also; and it may be asked, which shall have the preference? Shall a Treaty repeal a law or a law a Treaty? Neither can a law repeal a Treaty, because a Treaty is made with the concurrence of another party--a foreign nation--that has no participation in framing the law: nor can a Treaty made by the PRESIDENT and Senate repeal a law, for the same reason, because the House of Representatives have a participation in making the law. It is a sound maxim in Government, that it requires the same 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.

To what, he asked, would a contrary doctrine lead? If the power of making Treaties is to reside in the PRESIDENT and Senate unlimitedly: in other words, if, in the exercise of this power, the PRESIDENT and Senate are to be restrained by no other branch of the Government, the PRESIDENT and Senate may absorb all Legislative power--the Executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the Treaty-making power is unlimited and undefined, it may extend to every object of 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.

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 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 Commerce, 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.

"ART. IX. That within the space of two months after a law shall be made in Great Britain, whereby it shall be sufficiently provided that not more customs or duties be paid for goods and merchandise brought from 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 to the tenor of the tariff above mentioned.

"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 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 closely attached to the ministry, the bill for agreeing to the purport of the said two articles was rejected by a majority of nine voices, after the most eminent merchants had been heard at the bar of that House, to the great joy of the whole trading part of the nation, and of all other impartial people."

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 Treaty fell to the ground, and was not revived for a period of near eighty years, and all notwithstanding the plenitude of the Treaty-making power, said by the best English authority, Blackstone, to be vested in the King; which was, however, he repeated, necessarily checked by the special powers vested in Parliament; for none but they could grant money, or repeal the laws clashing with the provisions of Treaties.

He cited another instance of the exercise of this controlling 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 Majesty 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, 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.

It remains to be examined, said Mr. G., whether we are to be in a worse situation than Great Britain; whether the House of Representatives of the United States, the substantial and immediate Representatives of the American people, shall be ranked below the British House of Commons; whether the Legislative power shall be swallowed up by the Treaty-making authority, as contended for here, though never claimed even in Great Britain?

In Great Britain, he remarked, the Treaty-making power is as undefined as in America. The constitution here, declares that the PRESIDENT and Senate shall make Treaties; there, custom says as loudly, that the King shall make them. In Great Britain, however, the power is limited, by immemorial custom, by the exercise of the Legislative authority by a branch distinct from the regal; in the same manner is it limited here, not however merely by custom and tradition, but by the words of the constitution, which gives specifically the Legislative power to Congress; and he hoped this authority would be exercised by the House with as much spirit and independence as any where.

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 whole power should be concentred 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 affect, if reconcilable to the interests of the United States.