Part 285

V. The Congressional power may be viewed as co-operative with the Treaty power, on the Legislative subjects submitted to Congress by the constitution, in the manner explained by the member from Pennsylvania (Mr. GALLATIN) and exemplified in the British Government.

The objection to the first construction is, that it would narrow too much the Treaty power, to exclude from Treaties altogether the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations.

The objection to the second is, that a concurrent exercise of the Treaty and Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power and the power of Congress. A Treaty of Commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.

To the third, the objection was equally fatal. That it involved the absurdity of an imperium in imperio, of two powers, both of them supreme, yet each of them liable to be superseded by the other. There was, indeed, an instance of this kind found in the government of ancient Rome, where the two authorities of the comitia curiata, or meetings by centuries, and the comitia tributa, or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other. For, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country.

The fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the constitution.

In order to smooth the way for this doctrine, it had been said that the power to make Treaties was laid down in the most indefinite terms; and that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have; for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must, in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A Legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration.

It must be objected to this construction, therefore, that it extends the power of the PRESIDENT and Senate too far, and cramps the powers of Congress too much.

He did not admit that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in governments which bore most analogy to our own. In absolute governments, where the whole power of the nation is usurped by the governments, and all the departments of power are united in the same person, the Treaty power has no bounds; because the power of the sovereign to execute it has none. In limited governments, the case is different; the Treaty power, if undefined, is not understood to be unlimited. In Great Britain, it is positively restrained on the subjects of money and dismembering the empire. Nor could the Executive there, if his recollection was right, make an alien a subject by means of a Treaty.

But the question immediately under consideration, and which the context and spirit of the constitution must decide, turned on the extent of the Treaty power in relation to the objects; specifically and expressly submitted to the Legislative power of Congress.

It was an important, and appeared to him to be a decisive, view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and to appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the PRESIDENT and Senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the constitution, and must share the same fate. A member from Connecticut (Mr. GRISWOLD) had admitted that the power of war was exclusively vested in Congress; but he had not attempted, nor did it seem possible, to draw any line between that and the other enumerated powers. If any line could be drawn, it ought to be presented to the committee; and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the PRESIDENT and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. They might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be carried to Europe, Asia, or Africa; they might even attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety or other common objects. Under this aspect the Treaty power would be tremendous indeed.

The force of this reasoning is not obviated by saying, that the PRESIDENT and Senate would only pledge the public faith, and that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be, as is alleged, a constitutional one; if Congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? Under a constitutional obligation with such sanctions to it, Congress, in case the PRESIDENT and Senate should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact, it had been said that they must obey the injunctions of a Treaty, as implicitly as a subordinate officer in the Executive line was bound to obey the Chief Magistrate, or as the Judges are bound to decide according to the laws.

As a further objection to the doctrine contended for, he called the attention of the committee to another very serious consequence from it. The specific powers, as vested in Congress by the constitution, are qualified by sundry exceptions, deemed of great importance to the safe exercise of them. These restrictions are contained in section 9 of the constitution, and in the articles of amendment which have been added to it. Thus, the "migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress." He referred to several of the other restrictive paragraphs which followed, particularly the 5th, which says, that no tax shall be laid on exports, no preference given to ports of one State over those of another, &c. It was Congress, also, he observed, which was to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, &c. Now, if the Legislative powers, specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers could be no limitation or check to the Treaty power.

Returning to the powers particularly lodged in Congress, he took notice of those relating to war, and money, or the sword and the purse, as requiring a few additional observations, in order to show that the Treaty power could not be paramount over them.

It was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether, and how far, it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged and exercised as a branch of the general authority, essential to the public safety. The only question, therefore, that could arise, was whether the power should be lodged in this or that department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive department; with a view, no doubt, to guard it against the abuses which might be apprehended, from placing the power of declaring war in those hands which would conduct it when declared; and which, therefore, in the ordinary course of things, would be most tempted to go into war. But, according to the doctrine now maintained, the United States, by means of an alliance with a foreign power, might be driven into a state of war by the PRESIDENT and Senate, contrary both to a sense of the Legislature, and to the letter and spirit of the constitution.

On the subject, also, of appropriating money, particularly to a military establishment, the provision of the constitution demanded the most severe attention. To prevent the continuance of a military force for a longer term than might be indispensable, it is expressly declared, that no appropriation for the support of armies shall be made for more than two years. So that, at the end of every two years, the question, whether a military force ought to be continued or not, must be open for consideration; and can be decided in the negative, by either the House of Representatives or the Senate's refusing to concur in the requisite appropriations. This is a most important check and security against the danger of standing armies, and against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as, at the end of every two years a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Representatives have no right to deliberate on appropriations pledged by the PRESIDENT and Senate, and cannot refuse them, without a breach of the constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated, at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if, at the end of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, and two appropriations for two years each, the second of which, the two Houses would be constitutionally obliged to make.

It had been said that, in all cases, a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the constitution.

The constitution of the United States is a constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.

He came next to the fifth construction, which left with the PRESIDENT and Senate the power of making Treaties, but required at the same time the Legislative sanction and co-operation, in those cases where the constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason: it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and nowhere expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.

Mr. W. SMITH (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, (Mr. MADISON,) but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the PRESIDENT and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British constitution; but had concluded his remarks on that argument with allowing, that, after all, our own constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the PRESIDENT and Senate by the constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the constitution. By referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth. He would then confidently appeal to the opinions of those who, when the constitution was promulgated, were alarmed at the Treaty power, because it was by the constitution vested in the PRESIDENT and Senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the Government. The discussions which took place at the time of its adoption by the Convention of the several States, proved, beyond a doubt, that the full extent of the power was then well understood, and thought, by those who approved of the constitution, to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might ensue from the unlimited nature of the Treaty power were well considered before the constitution was adopted, and Virginia required no further check than the one above recited. All, therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators.

Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the committee at this time with reading them. He would only recall the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania (Mr. GALLATIN) must well remember, (having been one of the meeting,) where, after stating objections to the extensive powers delegated by the constitution, the following amendment was proposed, as necessary to limit and restrain the powers: "Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the constitution the check which is now discovered by this ex post facto construction.

Having stated the general opinion of the public, as manifested by the friends as well as the enemies of the constitution, Mr. S. said he would proceed to show that the practice of Congress had, from the commencement of its existence, been conformable to that opinion. Several treaties had been concluded with Indian tribes under the present constitution. These Treaties embraced all the points which were now made a subject of contest--settlement of boundaries, grants of money, &c.; when ratified by the PRESIDENT and Senate, they had been proclaimed by the Executive as the law of the land; they had not even been communicated to the House; but the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian Department. It was not pretended that the constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations.

That this House considered a Treaty, when ratified by the PRESIDENT and Senate, as the law of the land, was further evident from a resolve of the House, of the 4th of June, 1790, in these words;

"Resolved, That all Treaties made, or which shall be made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made to the code of laws, as soon as they were ratified by the PRESIDENT and Senate, and promulged by the PRESIDENT.

Mr. S. repeated his former assertion, that there were cases where that House had not the right of withholding appropriations; if they had the power, indeed, they might stop the proceedings of Government altogether; and so, individuals had the power of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the constitution; the members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not they should perform that duty. Thus, unless they intended to arrest the operations of Government, their discretion could not be requisite to determine whether they should appropriate the moneys necessary for its support; but out of what fund, and when the moneys shall be paid, and other matters of detail. So, when a Treaty was concluded, and became a compact binding the nation, the discretion of the House (unless it was intended to violate our faith) could not determine whether the moneys contracted for should be paid, but the mode, the fund, and such questions of detail, would alone be considered. The distinction, which was an obvious one, between power and right, had not been attended to. The House had certainly the power to do many things which they had not the right to do; they had the power to do wrong, but they certainly had not the right to do wrong; and whether the wrong was committed by acting where they ought not to act, or refusing to act where they ought, was immaterial; both were equally reprehensible. It had been boldly said, that there was no case which could possibly come before them, where they would not be at liberty to answer aye or no: he would produce a case--by the constitution, on the application of a certain number of States, wishing for amendments, Congress must call a Convention; where is this boasted discretion, of which so much has been said? Could the House, in this case, exercise its discretion, whether or no a Convention should be called? Why not? Because the constitution says it must call a Convention: and does not the constitution say, "Treaties made by the PRESIDENT and Senate are laws, and that laws must be obeyed?" The same injunctions of the constitution are imposed in both cases; and as in the first, all this House could do, would be to regulate the time and place of holding the Convention; so, in the latter, their discretion would be limited to the mode, and fund, and other details. The gentleman had mentioned the article in the constitution respecting appropriations for military services--they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. When a Military Establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two years; no inconvenience, then, could result. But there was no such limitation in respect to any other branch of expenditure; from custom, appropriations for the support of Government were annual; appropriations even for pensions were annual, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith.

MARCH 11.--In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. GILES said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the PRESIDENT, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the PRESIDENT conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable.

The right of the House to consider of the expediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the committee.