Part 290

He acknowledged, if the first position could be supported, the right to call for the papers would be conclusive; but, he contended, they could not be wanted on the latter ground.

If the constitution was examined, it would be found the Treaty-making power was given to the PRESIDENT; and no interference, or right given to any other men or body of men but to two-thirds of the Senate, and that by way of consent or advice. Could it be pretended there was a shadow of authority given to the House of Representatives?

In the constitution it is said, "all Legislative powers herein granted shall be vested in a Congress," &c. Would it be pretended, had the constitution gone no further, that the then thirteen independent sovereign States, by that part of it, had parted with the Treaty-making power? No! they reserved a great share of Legislative power to themselves, and delegated it to Congress only in certain cases, best calculated, in their opinions, to advance their own happiness; and unquestionably reserved every right, power, and sovereignty, which they did not expressly give away by the constitution itself. The powers of legislation are the powers of making statutes in all cases respecting men and things within the jurisdiction of the Legislature; but it could by no means in its nature comprehend the Treaty-making power, which is the power of contracting or making bargains in the name of a nation, as a moral person, with another nation or moral person, for their mutual benefit, and to be binding and operative on them, as parties to the contract or bargain. And although this had binding force on the nation, when once formed and completed, yet it was not a Legislative act. But the constitution went further: it had actually designated the PRESIDENT, with the advice of the Senate, to be a Plenipotentiary for the formation of Treaties. Vattel, page 179, speaking of the various customs of nations, in the deposit of this power, says:

"All conductors of States (meaning the Executives) have not the powers, of themselves, of making public Treaties: some are obliged to take the advice of a Senate, or of the Representatives of a nation. In the fundamental laws of each State we must see what is the power of contracting, with validity, in the name of a State."

He supposed, by "fundamental laws," Vattel must mean the constitution of a State; if so, it will not follow that the supreme Legislative or Executive power of a State, as such, have necessarily the power of making Treaties; it might be, and in most countries was, an object of precise delegation, and probably always, or certainly more commonly, given to the Executive. This constitution had precisely given it to the Executive, subjoining the advice and consent of the Senate; and in this particular, and in no other, had the individual sovereignties delegated all their power without limitation. It was necessary and proper this power should be lodged somewhere, and equally necessary it should be entire and unlimited, to meet every exigency that the welfare of the nation might require. It had been said, that general expressions of power would be limited by specific: this was a general truth, but he denied the application which had been attempted. It was said, the Treaty-making power is a general power; the Congress has a specific power to regulate commerce, &c. Of course, the specific power to regulate commerce will check the operation of a Treaty of a commercial nature. He said this part of the subject had been so ably and conclusively managed by a gentleman from New Hampshire, yesterday, (Mr. SMITH,) that he would not exhaust the patience of the committee by going over the same ground. He would however observe, that by the common rule of construction, all the powers given to the PRESIDENT which could, and in their nature would, check or operate on legislation, must be considered as a specific portion of power carved out of the general power given in the former part of the instrument. The general powers of legislation first given to Congress, and in the next place specific powers given to the PRESIDENT, could not fail to lead the mind directly to such a construction. "All Legislative powers, &c., are vested in a Congress," but the PRESIDENT has a qualified and specific check. Power to regulate commerce with foreign nations is vested in Congress, yet the specific power of contracting, bargaining, or making a Treaty, is, so far forth as it may touch Legislative points, a specific check upon it. Yet he acknowledged this was not his chief reliance. The nature of the case was such, that whatever internal regulations, or those relating to external and foreign commercial subjects, which may have become objects of Legislative attention, oppose or come in competition with a contract or bargain about the same things, must give way. It does not exclude legislation from the object of foreign commerce, but establishes certain points within which it shall operate, and which it cannot violate. The thirteen sovereignties possessing all the power, gave to Congress a certain portion of Legislative authority; but they certainly could give to the Executive, or any other body, the power to make Treaties. This he contended they had done, by the words of the constitution, in an unlimited manner.

It had been said, that the constitution was similar to that of Great Britain in the part respecting Treaties. This, he contended, was an incorrect statement: in his opinion they were very different. The constitution of Great Britain was formed almost entirely of usages. It had been, for a great length of time, the usage for the King to lay before Parliament, for their approbation, Treaties--especially those of a commercial nature. If this was a usage, all that could be said of it was, that it was a part of their constitution. He supposed this right had been given by the Crown, at some time, to obtain a grant of money; but he could not recollect that the Parliament, with all their pretensions to a right of rejecting Treaties, had ever exercised it. They generally made a pretext of dislike to a Treaty to change the Administration. This had been often done; it was on the Treaty of Peace of 1783. The Treaty of Utrecht, which was concluded in 1713, had been cited as an instance of rejection by the British Parliament. It was a fact, in that instance, that nothing was rejected but a conditional Treaty. In forming the Treaty, there were many distinct parts: one part of it was a Commercial Treaty between England and France, separately signed and conditional--that is, "within the space of two months after a law shall pass in Great Britain, whereby it shall be sufficiently provided, &c., the general tariff made in France, &c., shall take place there again, &c." The law did not pass in Great Britain, and of course the Commercial Treaty failed. Mr. T. said he had searched all the Treaties made by Great Britain since the Treaty of Munster, which, if his memory was accurate, was concluded in 1648, and could not find an instance of the Parliament's refusing their assent to a Treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their Government. It had been said, Blackstone in his Commentaries had defined the powers of the King of Great Britain to be unlimited in the making of Treaties. He observed, that, let Blackstone or any other Crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to Parliament the consideration of Treaties, and that usage was a part of their constitution; and he rejoiced, that in that particular the constitution of his country was different. Gentlemen had said, Shall this House not have as much power respecting Treaties as the House of Commons in Great Britain? This question was both improper in itself, and calculated to mislead. Were we in convention, and forming a constitution, it might have weight; but in a cool discussion of a constitution already formed and adopted, and the question is, What powers are given? it could not be proper. And it ought to be remembered that Parliament, and not the Commons alone, had this right in Great Britain. In defining the relative powers given by the Constitution, there was danger of the popular branch making encroachments on the other branches, under pretence of favoring the liberties of the people. This pretence, however grateful it might sound in debate, he thought was but a pretence. It was the duty of the House to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. He said, he considered the responsibility which was so very necessary on those in the exercise of the Treaty-making power could not exist if it was extended to the House of Representatives.

He acknowledged if a Treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a Treaty was so terrible in itself, and manifested consequences ruinous to the nation, no argument could be drawn from such a statement to establish general rules. The moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may, but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? But could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? He thought not. He supposed the first extensive and unlimited right of interfering in the making of a Commercial Treaty could alone justify the call, and he believed that ground must be given up. He said his colleagues (Messrs. SMITH and GRISWOLD) had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this House had no will of their own, but must in all cases implicitly obey the PRESIDENT and Senate. The construction he had given to the constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the House was guided in the investigation by the purest motives.

Mr. S. SMITH said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. He would not pursue the sophistry of the gentleman last up (Mr. TRACY) through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that Treaties were the supreme law--a doctrine that was admitted by all, that is, when under the authority of the United States.

He said the resolution requested certain papers to be laid before the House. What had been the custom of the House heretofore? Invariably to ask for all and every paper that might lead to information. He well recollected that, in 1793, a great ferment had arisen in the public mind in consequence of the Proclamation of Neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of Congress a great number of useful papers relative to our situation with respect to foreign nations were submitted, some of them of a most confidential nature, relating to Treaties then depending, particularly that with Spain. The PRESIDENT was not afraid to place his confidence in that House, and he was right; the public mind was restored to quiet, and the people of Kentucky (then restless) were satisfied that the Executive were doing every thing in their power to obtain the free navigation of the Mississippi. The PRESIDENT went further; he sent a special agent to Kentucky to communicate to that Government the line of conduct then pursuing for their welfare. Had the public mind been less disturbed on the late Treaty than in 1793? He thought not; and that every paper which would tend to satisfy that the Treaty was expedient, or to give information on a subject that must be discussed before that House, might with propriety be asked for.

A gentleman from Vermont (Mr. BUCK) repeated by another from South Carolina (Mr. SMITH) said, to vote for this resolution would be treason against the laws and constitution. Why this harsh language? Did it lead to a discovery of truth? Where did these gentlemen find that definition of treason? Not in the constitution, for there it was properly defined.

Mr. S. said, gentlemen had taken a ground that appeared alarming, viz:

That the PRESIDENT and two-thirds of the Senate may, by the aid of a Treaty, do any thing, and every thing, not morally impossible, (provided they do not infringe on the constitution,) and that the immediate Representatives forming this House, have only to be informed thereof, and to obey.

Let us pause for a moment, and ask, Was this possible? Could this be the fair construction of our so much boasted constitution? If it should be, he would not regret the services rendered his country during the late glorious Revolution, nor the part he had taken to promote the adoption of the constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do any thing that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a constitutional manner, to obtain amendments to the constitution, which would prevent the evil in future. But is there occasion for amendments to the Treaty-making power? He thought not. There were checks and balances sufficient in the constitution to prevent the evils that might arise out of it. He said, he could offer nothing new, but would pursue the train of reasoning began by a gentleman from Virginia, (Mr. MADISON.)

In the eighth section of the first article of the constitution, Congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the United States:

Can regulate trade with foreign nations:

Can establish a uniform rule of naturalization.

Congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one State over those of another. But the Treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the States from the uniformity of naturalization; that is, it may relieve goods imported in British bottoms into New York, from the one-tenth extra duty, and let it remain on all the other ports of the Union. But, say gentlemen, it is unfair to reason against the use of power by its probable abuses. He thought it advisable to guard against abuses; but has this abuse not already taken place? He thought it had. Not with respect to a port of the consequence of New York; that would have been too palpable; but on the Lakes, by the third article of the Treaty, goods imported to the territory in that quarter, in British bottoms, are subjected to no higher duty than goods imported in American vessels to the Atlantic ports. Here appeared a departure from that uniformity required by the constitution; here appeared a preference given to the ports of one State over those of another; and yet gentlemen contend, that the House have no right to inquire into the business. Indeed, so delicate was one gentleman (Mr. BUCK) on the subject, that he opposed committing the Algerine Treaty, lest it should establish a claim to investigation! It was true, the trade on the Lakes was small, but it would increase. Thus, although Congress were very wisely restricted, when laying duties, to make them uniform, yet the PRESIDENT and Senate would be capable, by the assistance of a foreign power, to destroy that uniformity.

Mr. S. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the Treaty into effect. He held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good,) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the House.

MARCH 18.--In Committee of the Whole, on Mr. LIVINGSTON's resolution:

Mr. ISAAC SMITH did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who compose the convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. He believed, if they intended that House should have had an agency in the making of Treaties, they would have said so in express terms. Had they done so? Nothing like it. So far from it, that they had unequivocally appropriated the Treaty-making power to the PRESIDENT and two-thirds of the Senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. But, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. We will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. Here rests the fallacy. The people knew, whether they knew or not, that they chose the PRESIDENT, and they firmly believe, as well they may, that he is their guardian. The people knew, also, that they chose the Senators, and they likewise think they are their guardians. How we, said he, became sole guardians, will require a modesty superior to that of New England to explain. The people have declared that the PRESIDENT and Senate shall make Treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. It appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: sic volo, sic jubeo, stat pro ratione voluntas. If they had under consideration alterations or amendments to the constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation.

Mr. LIVINGSTON said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. He had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and constitutional questions would probably arise on the discussion of the Treaty. It had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the Treaty with the constitution? Mr. L. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the Treaty. The constitution, he said, gave to the PRESIDENT the power to make Treaties, "by and with the advice and consent of the Senate." Men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the PRESIDENT could make no Treaty unless by the previous advice and consent of the Senate; in other words, that the Senate should advise the making of a Treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. He would give no positive opinion on this subject, but supposed it a point worthy the attention of the House. The construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. Two instances he could recollect; one was in the Treaty of Holston, where Governor Blount was "vested with full powers and specially empowered by and with the advice and consent of the Senate." The other instance was found in the answer of the PRESIDENT to the French Minister, who offered to enter into negotiations for a Treaty of Commerce, which the PRESIDENT declined, by referring him to the meeting of the Senate, which was not then in session. If the PRESIDENT supposed he could not commence a negotiation without the concurrence of the Senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the Treaty in this point had been constitutionally made.

Two positions had been assumed, differing not materially in the power ascribed to Treaties, but distinguished chiefly by the mode of applying this power.

By some it was contended, that the interference of the Legislature was necessary in some instances, but that the Treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation.

Others had asserted, that Treaties being the supreme law, might operate directly, without the intervention of any other body. That where existing Legislative acts opposed their execution, the Treaty was paramount, and could repeal them.

These positions were in fact the same, because, if a Treaty was, at all events, to have effect, it was perfectly immaterial, whether it operated directly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the Government; but the first was most degrading to the Legislative dignity. Nor could he discover from what part of the constitution it was inferred. Wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the PRESIDENT's compensation, that of the judges, and many other instances. It is not, then, to be conceived, that so important an obligation as this should have been left to implication. If it had been intended so to annihilate this discretion, the same language would have been used, "Congress shall pass laws to carry every Treaty into effect," but nothing of this kind appears. Again, if it had been intended to make Treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. Why leave a phantom of discretion, an unreal mockery of power, in the hands of the Legislature? In order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. In cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this House, they say, may refuse to carry it into effect. In the first case, where it is impossible to give efficacy to a Treaty, the power of refusing it was surely of little value. And where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. If the subject were less serious, Mr. L. said, one would be tempted to smile at the efforts that are made to reconcile the constitutional predestination contended for, with the free agency of discretion. It was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. We have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. This was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. This was a worse alternative than that generally called Hobson's choice--that was, "this or nothing;" but here we are told, "do this, or be hanged for a traitor." So that hereafter, when any one intended to express an inevitable necessity, he would call it Congressional discretion.

If, then, the Treaty does not operate by way of obligation on the Legislative power, let us, said Mr. L., examine, whether, as is contended, "a Treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the Legislative power;" this, he said, was the most important question that had ever been agitated within these walls. It evidently tended to the substitution of a foreign power, in lieu of the popular branch; it was replete with the most serious evils. He could never suppose so great and pernicious an absurdity was contemplated by the constitution; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended.

The constitution gave all Legislative power to the Congress of the United States; vested the power of making Treaties in the PRESIDENT and Senate, and declared that the constitution, the laws made in pursuance thereof, and Treaties made under the authority of the United States, should be the supreme law of the land. He had always considered the order in which this enumeration was made as descriptive of the relative authority of each. 1st. The constitution, which no other act could operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when they contradicted neither; for, if no weight was given to this argument, Treaties would be superior, both to the constitution and the laws, as there is no restriction with respect to them, as in the case of laws, that they be made pursuant to the constitution. He did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration, to measure the relative effect of the constitution, laws, and Treaties. If the objects of Legislation and of Treaty compact could be kept distinct, no question would arise, there would be no pretext for interference; but they could not; almost every object of legislation might also become that of compact with a foreign power.

But it was probable, Mr. L. said, that the Treaty power was intended to be placed in the PRESIDENT and Senate to the same extent only in which it existed in the Executive of Great Britain. The words of our constitution on this point were the same made use of by British writers in defining the corresponding power in their Government, and it seemed evident that some of its features (and this was none of the least prominent) were drawn from that original. He was happy that the parallel was not perfect in other instances. He thought it completely so in this; and that the practice therefore of that Government would, in some measure, lead to the true construction of this. Aware of the weight of precedents drawn from English history, gentlemen endeavored to weaken them by a very ingenious argument: "The British Constitution," say they, "is not written, it is formed of usages; if you prove, therefore, that it is the usage for British Parliaments to sanction Treaties, you prove it to be their constitution, but you do not prove it to be ours." It was true, Mr. L. observed, that the English Constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of Government were generally designated, so that the leading points in their constitution were as well known and defined as they were in that of America. It had been shown by a reference to writers of the best authority, that, by the Constitution of England, the power of making all Treaties was in the King; but as the power of making all laws was in the Parliament, this latter, as the greater power, controlled the former, whenever it affected objects of legislation. Thus, in the Constitution of the United States, he contended, the power of making Treaties, that is, all Treaties, vested in the PRESIDENT and Senate; but, as all Legislative power is vested in Congress, no Treaty operating upon any object of legislation can take effect until it receives the sanction of Congress. The practice, too, was the same. The King asserted his right of making and completing Treaties, by not only concluding, but ratifying them, before they were submitted to Parliament, but he believed no Commercial Treaty was proclaimed as the law of the land before it had received the sanction of Parliament. Indeed, it was impossible, in any country, and under any constitution, where the Legislative and Treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different powers supreme over the same object at the same time. Our ideas had been confounded by referring to the practice of Governments where the two powers were united, and where a ratification gave the consent of both.