Part 284

MARCH 10.--In Committee of the Whole, on Mr. LIVINGSTON's resolution, Mr. HARTLEY delivered his sentiments as follows:

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

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

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

The gentleman I referred to, from Pennsylvania, argued most strenuously that the laws and customs of Great Britain and the Constitution of the United States were analogous--nay, that the powers were precisely the same.

The gentlemen who hold this doctrine have made researches, and have quoted several authorities; but why have not those ingenious gentlemen discovered a single instance where the British House of Commons have had the instructions given by the Executive to the negotiating Minister laid before them. If there was such a power, no doubt that body would at some period have exercised it; for no men on earth have extended the power of privileges which they had further than the members of the House of Commons of Britain.

As those gentlemen who contend for the likeness--indeed, sameness of the Treaty-making powers of both countries--can show no precedent, it may be fairly contended, that no such right exists as is contemplated by the resolution.

Treaties are made under the Executive in almost all countries, and when the Ministers have gone through their part of the business, the Treaty is commonly laid before the nation. If any national act is further necessary, it would pass in conformity to the principles of good faith; if any thing is necessary (consistent with the constitution) on the part of the House, it will be the discussion of another day.

Mr. GRISWOLD said, that the resolution on the table appeared at first view to be perfectly innocent, and, he might add, of very little importance. It amounted to no more than a request to the PRESIDENT to furnish the House with papers relating to the negotiation with Great Britain, which he might either satisfy or reject. But the discussion which had taken place in the committee, had given the subject a very serious aspect, and involved a question of the first importance; and although some gentlemen had thought that the committee had prematurely involved itself in the examination of the question, he could not see how the discussion could have been avoided. For gentlemen would not say that any resolution--more particularly a resolution calling on the PRESIDENT for documents belonging to the Executive Department--was to pass the House without a conclusive reason, much less without any reason for its passing. On this principle gentlemen had been called on at an early period for the reasons on which they grounded the resolution. They had attempted to assign reasons, but those reasons had been generally abandoned; and it could not at that time be seriously contended that the objects of general information or publicity, which had been first mentioned, could justify the House in calling on the PRESIDENT for papers relating to the British Treaty, or that those papers were necessary to enable the House to judge of the constitutionality of the Treaty. The friends of the resolution, aware of this, had at last come forward and assigned a new and a very important reason. It had been now said, that the House of Representatives have a right to judge over the heads of the PRESIDENT and Senate on the subject of Treaties; that no Treaty can become a law until sanctioned by the House; and, in fine, that the House of Representatives is a constitutional part of the Treaty-making power.

If these facts and the principles which grow out of them are true, he could not say that the resolution was improper; and although he did not know to what part of the Treaty the papers would particularly apply, yet, if the House were to take this extensive view of the Treaty, and ultimately to sanction or reject it, it would seem that the papers relating to the negotiation ought to be laid before them. But if these facts are not true, and the House is not a constitutional part of the Treaty-making power, and the Treaty is already a law without its sanction, then the reason falls to the ground, and the resolution ought to be rejected.

This inquiry into the powers of the House of Representatives must be confined, and the question arising out of it must be decided by a fair construction of the constitution. The powers of each branch of the Government are there limited and defined, and an accurate understanding of that instrument would enable gentlemen to decide the question.

In comparing these questions with the constitution, gentlemen were not, however, to inquire whether that constitution was a good or a bad one; whether too much power had been given to this or to that branch of the Government. The question will only be, what powers has the constitution given, and to what departments have the same been distributed?

To render the subject as clear and distinct as possible, he thought it would not be improper to take an abstract view of those two powers in all governments having foreign relations which are immediately connected with the inquiry, viz: the Legislative and the Treaty-making power. And if gentlemen can clearly fix in their minds the limits of each, they will become better enabled to see their operation, and to decide on the powers of the House in the exercise of them.

The Legislative power in all governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain English writers have said of the British Government, its power is almost omnipotent. Thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of government, or which occasionally arise from the nature of government itself, and limit the objects of its operation.

It is easy to see, that in the exercise of these Legislative powers, it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. Such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments.

The Treaty-making power operates in a very different manner; its power is limited and confined to the forming of Treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. In the exercise of this power, it will unavoidably happen that the laws of the Legislature are sometimes infracted. The Legislature, for certain causes,--perhaps to compel a foreign nation to form a treaty on terms of reciprocity,--may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect; the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. If, in this case, the Treaty power cannot touch the laws of the Legislature, the object which gave rise to those very laws can never be attained; no Treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has not been attained. Such a construction of the Treaty power would defeat every object for which that power was established; and instead of possessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it.

From these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the Treaty-making was paramount to the Legislative power; and that the positive institutions of the Legislature must give place to compact.

On this construction, a perfect harmony is introduced into the departments of Government. Both the Legislative and the Treaty power are necessary, on many occasions, to accomplish the same objects. The Legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the Treaty power, when that nation is compelled to agree to such reasonable compact, to remove by Treaty those very regulations, and the war itself, on fair and equitable terms.

Mr. MADISON said, that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.

The true question, therefore, before the committee, was, not whether the will of the people expressed in the constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the powers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object.

On comparing the several passages in the constitution, which had been already cited to the committee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the PRESIDENT and two-thirds of the Senate; and it is declared in another place, that the constitution and the Laws of the United States, made in pursuance thereof, and Treaties made, or to be made under the authority of the United States, shall be the supreme law of the land. And the judges, in every State, shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State constitutions and laws, and not over the Constitution and Laws of the United States. And it was observable, that the judicial authority, and the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States, or to laws requisite to be passed by the States for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the constitution, that could leave room for different constructions. As the case, however, had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

He stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur:

I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.

II. As concurrent powers relating to the same objects; and operating like the power of Congress, and the power of the State Legislatures, in relation to taxes, on the same articles.

III. As each of them supreme over the other as it may be the last exercised; like the different assemblies of the people, under the Roman Government, in the form of centuries, and in the form of tribes.

IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the committee, as both unlimited in its objects, and completely paramount in its authority.