Part 291

If, then, there was a perfect analogy between the power vested in the Crown in England, and that delegated to the PRESIDENT and Senate in America, on the subject of Treaties; and if the Parliament, by virtue of its general Legislative authority, was in the practice of giving or withholding its sanction to Treaties concluded by the King, it was but a fair inference to say, that the same discretion existed in Congress.

Some instances of the exercise of this power by Parliament, had been before quoted by others. The inexecution of the Treaty of Utrecht, in consequence of Parliamentary opposition, and the difficulties with which the Commercial Treaty with France was carried through the House of Commons, in 1787, had been already noticed. He would mention two other precedents drawn from the same source equally striking, or perhaps more so, as the course of proceeding there followed was precisely that which was proposed by the resolution in debate. The first was the proceeding on the Barrier Treaty, taken from the 5th vol. Parl. Debates, p. 43, where the House of Commons began, by a resolution to address the Queen, "that all instruction and orders given to the Plenipotentiaries that transacted the Barrier Treaty, and also all Treaties mentioned and referred to in the said Treaty, might be laid before the House, except such Treaties as they already had." We are told in the subsequent page, that on the 13th, that is, only two days after the request, "Mr. Secretary St. John presented to the House, by Her Majesty's command, a copy of the instructions to the Duke of Marlborough and Lord Townsend, about the Barrier Treaty, extracts of letters from Mr. Boyle to Lord Townsend, concerning the said Treaty; also a copy of the Preliminary Articles, signed at the Hague; the titles of which copies and extracts of letters were referred to the Committee of the whole House. After this, it was resolved to present an address to Her Majesty, that the letters written by Lord Townsend to Mr. Boyle, the Secretary of State, dated the 1st and 26th of November, 1709, might be laid before the House, which Mr. Secretary St. John accordingly did on the 14th of February." After having obtained the papers, Mr. L. said, the House of Commons proceeded to the consideration of the Treaty in Committee of the Whole, and voted, 1st. That the Treaty contained articles destructive to the trade and interest of Great Britain. 2d. That the negotiator had acted without authority. 3d. That the advisers and negotiators were enemies to the Queen and Kingdom.

The Treaty being thus obstructed, the States General remonstrated to the Queen on the subject; but, conscious that the Parliament were only exercising a constitutional power, they make no complaints in their memorial of any breach of faith, though the Treaty had been ratified. They enter into the merits of the Treaty, offer to negotiate on the obnoxious articles, and conclude with "entreating the continuance of Her Majesty's friendship."

This instance, then, said Mr. L., is complete to show the propriety of a call for papers by the House of Commons; a ready compliance on the part of the Crown, a deliberation on a ratified Treaty, a rejection of it, and an acquiescence on the part of the foreign nation, without remonstrance.

The other instance was an address in the year 1714, requesting "the Treaties of Peace and Commerce between Her Majesty and the King of Spain, and the instructions given to Her Majesty's Ambassadors thereupon, together with the copies of the King of Spain's ratifications of the said Treaties, and the preliminaries signed by the Lord Lexington and the Marquis of Bedmar, at Madrid, and all other agreements and stipulations which had been made concerning the commerce between Great Britain and Spain. 2dly. An account of what engagements of guaranty Her Majesty had entered into by virtue of any Treaty with any foreign Prince or State, from the year 1710. And 3dly. An account of what instances had been used by Her Majesty for restoring to the Catalans their ancient privileges, and all letters relating thereto. And then it was resolved, to take into further consideration the Message that day sent from the Lords upon Thursday next following."

Objections had been raised to this construction, drawn from three different sources.

1. From the prevalent construction at the time of establishing the constitution.

2. From the practice of the Government since that period.

3. From the present ideas entertained by the people of the United States.

1st. As to the construction generally received when the constitution was adopted, Mr. L. did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument, as the Conventions were; they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. But he did not believe the general construction at that time differed from the one he had adopted. A member from Virginia (Mr. BRENT) had shown, by recurring to the debates in the Convention of that State, and to other contemporaneous productions, that the framers and friends to the constitution construed it in the manner that we do; whilst its enemies endeavored to render it odious and unpopular, by endeavoring to fix on it the contrary construction. And as the friends to the constitution were the most numerous, we ought rather to take the explanation under which a majority accepted the constitution, as the true one, than to look for it in the bugbears by which anti-Federalism endeavored to prevent its adoption.

2d. The second argument that had been used to deprive the Legislature of any right of interference, in cases of this kind, was drawn from the uniform practice of the Government ever since its formation. The gentleman from South Carolina (Mr. SMITH) who made this objection, had cited one instance of this practice in the resolution directing Treaties to be published with the laws, and had adverted to the appropriations for the Indian Treaties, (under the general head of the Military Establishment,) as favoring his principle. As to the resolution, Mr. L. said, there was no doubt that Treaties, when properly sanctioned, ought to be observed, and therefore the resolution was proper, that they ought to be promulgated. On the subject of appropriation, it had been well observed by a gentleman from Virginia (Mr. GILES) that the House exercised as much discretion in granting the supply, by way of addition to the military appropriations, as if it had been given specially for the purposes of the Treaty. But the truth is, said Mr. L., that an accurate examination into the communications of the Executive in analogous cases, and the proceedings of this House, will form a strong, I think an irresistible, argument in favor of the resolution. It would appear, he said, from the view he was about to take, that from the first establishment of the constitution until the negotiation of this Treaty was begun, the Executive had been in habits of free communication with the Legislature as to our external relations; that their authority in questions of commerce, navigation, boundary, and intercourse with the Indian tribes, had been expressly recognized, even when difficulties on these questions were to be adjusted by Treaty.

The first case related to a provision for an Indian Treaty, and was suggested by the PRESIDENT, in a Message of the 7th of August, 1789, in which he says: "If it should be the judgment of Congress that it would be most expedient to terminate all differences in the Southern District, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion." In consequence of this Message, Congress took into consideration the expediency of the measure recommended to them, and passed the act of the 26th of August, in the same year, appropriating twenty thousand dollars for defraying the expense of negotiating and treating with the Indian tribes, and authorizing the appointment of commissioners. The PRESIDENT having appointed commissioners to treat under the direction of the act, gave them instructions, which were communicated to the House, and from which this is an extract: "You will please to observe, that the whole sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Nothing having been effected by the commissioners, the PRESIDENT mentions the subject again in his Address to both Houses, on the 1st of January, 1792. In the month of March, in the same year, the House of Representatives adopted the following resolution, recommended by a select committee: "That provision ought to be made by law for holding a Treaty to establish peace between the United States and the Wabash, Miami, and other nations of Indians, north-west of the river Ohio; also, for regulating trade and intercourse with the Indian tribes, and the mode of extinguishing their claims to lands within the limits of the United States." On the 29th March, following, a bill passed the House of Representatives, the title of which was amended in the Senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution.

Mr. L. said this case was important, as it was the first communication relative to a Treaty made under the constitution. An attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. He would first observe, that the discretion of the House of Representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the Indian tribes; that if one could be done without their concurrence, by Treaty, the other might also; and that, therefore, when the PRESIDENT recognized their right to deliberate in one case, he virtually did it in the other. Let us then attend to the language of the Message, said Mr. L., and we shall find that right of deliberation most expressly referred to. "If it should be the judgment of Congress that it would be most expedient"--what can be more explicit than this language? And again, "I think proper to suggest the consideration of the expediency of instituting a temporary commission." Here the same discretion is not only applied to, but the PRESIDENT, at that time supposing that no implicated power could deprive Congress of the right to regulate trade and intercourse with the Indian tribes, submitted to their consideration the expediency of appointing commissioners. They passed the necessary laws, and he instructed the commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that Congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Why, (if the doctrine is true that we are under an obligation to comply with the terms of every Treaty made by the PRESIDENT and Senate,) why did he say no further sum could constitutionally be expended? If that doctrine were indeed true, his language would have been, Use what money may be necessary, contract for the payment of it in your Treaty, and Congress are constitutionally obliged to carry your stipulations into effect.

The resolution above quoted, Mr. L. said, was important, as it proved that Congress then supposed that they ought not only to provide by law for holding a Treaty with the Indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the United States; but all this, said he, it is now discovered may be done without their aid, by Treaty.

The second instance of the exercise of this dreaded discretion, was in the law of March 3d, 1791, appropriating twenty thousand dollars to enable the PRESIDENT to effect a negotiation of the Treaty with Morocco. This originated in the Senate, and is a decided proof that neither the PRESIDENT nor Senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new Emperor for the payment of the necessary sum, which must have been provided by the House.

In a third case, the PRESIDENT had thought proper to take the sense of that House in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. He adverted to the Message of 30th December, 1790, where the PRESIDENT says: "I lay before you a Report of the Secretary of State, on the subject of the citizens of the United States in captivity at Algiers, that you may provide in their behalf what to you shall seem expedient."

No act having been passed by Congress in consequence of this Message, the PRESIDENT did not conceive himself authorized to bind the United States by Treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent Message and previous appropriation, in the year 1793, when another Message was sent relative to the negotiations with Morocco and Algiers, then pending: "While it is proper (he says) that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their Legislature and Executive, it would still be improper that some part of this communication should be made known." Part of this Message, therefore, was confidentially communicated, which shows, Mr. L. said, on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet; and in consequence of this Message, a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the Algerines. It was ostensibly appropriated to a more general purpose, but the intent was well understood.

The next transaction that he should quote, Mr. L. said, as favorable to his doctrine, was the Message of the PRESIDENT of the 5th December, 1793, and the measure to which it gave rise. The PRESIDENT says: "As the present situation of the several nations of Europe, and especially those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may, indeed, give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondence which has taken place."

This Message, Mr. L. said, accompanied the papers relative to France, to Great Britain, and to Spain; and a question would immediately occur, what were the deliberations to which the PRESIDENT then thought the Legislature alone was competent, and which he therefore thought it his duty to communicate. All our disputes with the nations referred to in the Message, were such as on the new construction of the Treaty power he could have adjusted by compact, without any reference to the House of Representatives; but it is plain, by the express words of the Message, that he did not believe that construction. It was no answer, Mr. L. said, to the argument drawn from this transaction, to say that the PRESIDENT only submitted the question of War or Peace to the Legislature by this Message.

1. Because the Message related to the three principal nations in Europe, and he never could have imagined that Congress would have deliberated on going to war with them all.

2. This was evidently not his intention, because as soon as measures were proposed in that House, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an Envoy, and the commencement of negotiation.

It was clear, then, that the PRESIDENT thought the matters communicated by his Message, which related to commerce and boundary, were constitutionally vested in the discretion of Congress. The idea was corroborated by the words of a Message relative to the negotiation with Spain:

"And, therefore, by and with the advice and consent of the Senate, I appointed Commissioners Plenipotentiary for negotiating and concluding a Treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated."

Why, said Mr. L., communicate the instructions to the Ministers? Because they related to commerce, to navigation, to boundary, on all which subjects the PRESIDENT must have thought the Legislature had a right of decision. He must have thought so at that period; but, unfortunately, all precedent of free communication ended here; Mr. Jay's negotiation began, and a different construction was assumed.

From this view of the acts of Government, Mr. L. said, he trusted that a far different impression would be made, than that the doctrine he contended for was a new one, originating in opposition to the English Treaty, and a desire to disorganize the Government. That, on the contrary, it had been declared by the PRESIDENT, acquiesced in by the Senate, and acted upon by the House of Representatives.

MARCH 21.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. WILLIAMS observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended.

It was contended that in a Republican Government there ought to be no secrets; but he would ask whether it was not specified in the constitution that secrecy should be observed on particular occasions? and, had not his colleague (Mr. LIVINGSTON) quoted the secret Journals of the House? He believed if the constitution of France were examined, it would be found that their system admitted of secrets. He had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. With respect to the present papers, he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that House might have seen them. It was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young Government, they ought to be cautious how they established bad precedents. It was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? Hence this country, when in the greatest danger, may be much injured by improper precedents.