ties, would be counteracted by an insertion into the list of contraband of war, in a treaty with England or France, any one of those commodities. The treaty would look one way, the law another. And various modes might readily be suggested in which congress might so legislate as to lay the foundation of repugnancy between its laws and the treaties of the president and senate with reference to contraband.—I deceive myself greatly if a subject can be named upon which a like repugnancy might not occur. But even if it should be practicable to surnish, after laborious enquiry and meditation, a meager and scanty inventory of some half dozen topics to which domestic legislation cannot be made to extend, will it be pretended that such was the insignificant and narrow domain designed by the constitution for the treaty-making power! It would appear that there is with some gentlemen a willingness to distinguish between the legislative power expressly granted to congress and that which is merely implicit, and to admit that a treaty may control the results of the latter. I reply to those gentlemen that one legislative power is exactly equivalent to another, and that, moreover, the whole legislative power of congress may justly be said to be expressly granted by the constitution, although the constitution does not enumerate every variety of its exercise, or indicate all the ramifications into which it may diverge to suit the exigencies of the times. I reply, besides, that even with the qualification of this vague distinction, whatever may be its value or effect, the principle of the bill leaves no adequate sphere for the treaty-making power. I reply finally, that the acknowledged opera

tion of a treaty of peace in repealing laws of singular strength and unbending character, enacted in virtue of powers communicated in terminis to congress, gives the distinction to the winds. And now that I have again adverted to the example of a treaty of peace, let me call upon you to reflect on the answer which that example affords to all the warnings we have received in this debate against the mighty danger of entrusting to the only department of the government, which the constitution supposes can make a treaty, the incidental prerogative of a repealing legislation. It is inconsistent, we are desired to believe, with the genius of the constitution, and must be fatal to all that is dear to freemen, that an executive magistrate and a senate, who are not immediately elected by the people, should possess this authority. We hear from one quarter that if it be so the public liberty is already in the grave, and from another that the public interest and honour are upon the verge of it. But do you not perceive that this picture of calamity and shame is the mere figment of excited fancy, disavowed by the constitution as hysterical and erro

neous in the case of a treaty of

peace? Do you not see that if there be any thing in this high coloured peril, it is a treaty of peace that must realize it? Can we in this view compare with the power to make such a treaty that of making a treaty of commerce? Are we unable to conjecture, while we are thus brooding over anticipated evils which can never happen, that the lofty character of our country (which is but another name for strength and power) may be made to droop by a mere treaty of peace; that the national pride may be humbled; the just hopes of the people blasted; their courage tamed and broken; their prosperity struck to the heart; their foreign rivals encouraged into arrogance and tutored into encroachment by a mere treaty of peace? I confidently trust that, as this never has been so, it never will be so; but surely it is just as possible as that a treaty of commerce should ever be made to shackle the freedom of this nation, or check its march to the greatness and glory that await it. I know not, indeed, how it can seriously be thought that our liberties are in hazard from the small witchery of a treaty of commerce, and yet in none from the potent enehantments by which a treaty of peace may strive to enthral them. I am at a loss to conceive by what form of words, by what hitherto unheard of stipulations, a commer‘cial treaty is to barter away the freedom of united America, or of any the smallest portion of it. I cannot figure to myself the possibility that such a project can ever find its way into the head or heart of any man or set of men whom this nation may select as the depositories of its power; but I am quite sure that an attempt to excite such a project in a commercial treaty, or in any other treaty or in any other mode, could work no other effect than the destruction of those who should venture to be parties to it, no matter whether a president, senate, or a whole congress. Many extreme cases have been put for illustration in this debate; and this is one of them; and I take the occasion which it offers to mention, that to argue from extreme cases is seldom logical; and, upon a question of interpretation, never. We can only bring back the

means of delusion, if we wanderinto the regions of fiction and explore the wilds of bare possibility in search of rules for real life and actual ordinary cases. By arguing from the possible abuse of power against the use or existence of it, you may and must come to the conclusion, that there ought not to be, and is not, any government in this country or in the world. Disorganization and anarchy are the sole consequences that can be deduced from such reasoning. Who is it that may not abuse the power that has been confided to him? May not we, as well as the other branches of the government? And if we may, does not the argument from extreme cases prove that we ought to have no power, and that we have no power? And does it not, therefore, after having served for an instant the purposes of this bill, turn short upon and condemn its whole theory, which attributes to us, not merely the power which is our own, but inordinate power, to be gained only by wresting it from others? Our constitutional and moral security against the abuses of the power of the executive government have already been explained. I will only add that a great and manifest abuse of the delegated authority to make treaties would create no obligation any where. If ever it should occur, as I confidently believe it never will, the evil must find its corrective in the wisdom and firmness, not of this body only, but of the whole body of the people co-operating with it. It is after all in the people, upon whose Atlantean shoulders our whole republican system reposes, that you must expect that recuperative power, that redeeming and regenerating spirit, by which the constitution is

to be purified and redintegrated when extravagant abuse has cankered it. In addition to an example of the treaty of peace which I have just been considering, let me put another, of which none of us can question the reality. The president may exercise the power of pardoning, save only in the case of impeachments. The power of pardoning is not communicated by words more precise or comprehensive than the power to make treaties. But to what does it amount? Is not every pardon firo hac vice a repeal of the penal law against which it gives protection? Does it not ride over the law,

resist its command, and extinguish

its effect? Does it not even control the combined force of judicature and legislation? Yet, have we ever heard that your legislative rights were an exception out of the prerogative of mercy? Who has ever pretended that this faculty cannot, if regularly exerted, wrestle with

the strongest of your statutes? I. may be told, that the pardoning power necessarily imports a control over the penal code, if it be exercised in the form of a pardon

I answer, the power to make treaties equally imports a power to put out of the way such parts of the civil code as interfere with its operation, if that power be exerted in the form of a treaty. There is no difference in their essence. You legislate in both cases subject to the power. And this instance furnishes another answer, as I have already intimated, to the predictions of abuse with which, on this occasion, it has been endeavoured to appal us. The pardoning power is in the president alone. He is not even checked by the necessity of senatorial concurrence. He may by his single fiat extract the sting

Vol. I.

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from your proudest enactments— and save from their vengeance a convicted offender.

Sir, you have my general notions upon the bill before you. They have no claim to novelty. I imbibed them from some of the heroes and sages who survived the storm of that contest to which America was summoned in her cradle. I imbibed them from the father of his country. My understanding approved them, with the full concurrence of my heart, when I was much younger than I am now; and I feel no disposition to discard them now that age and feebleness are about to overtake me. I could say more—much more —upon this high question; but I want health and strength. It is perhaps fortunate for the house that I do; as it prevents me from fatiguing them as much as I am fatigued myself.

Sheech of Mr. CLAy, on the Direct Taar. Mr. Clay (speaker) said, the course had been pursued, ever since he had had the honour of a seat on this floor, to select some subject during the early part of the session, on which, by a general understanding, gentlemen were allowed to indulge themselves in remarks on the existing state of public affairs. The practice was a very good one, he said, and there could be no occasion more proper than that of a proposition to lay a direct tax. Those who have for fifteen years past administered the affairs of this government, have conducted this nation to an honorable point of elevation, at which they may justly pause, challenge a retro*; and invite attention to the 2 o

bright field of prosperity which lies before us. The great objects of the committee of finance, in the report under consideration, are, in the first place, to provide for the payment of the public debts, and in the second, to provide for the support of the government, and the payment of such expenses as should be authorised by congress. The greater part of the debt, Mr. C. admitted, had grown out of the late war; yet a considerable portion of it consisted of that contracted in the former war for independence, and a portion of it perhaps of that which arose out of the wars with Tripoli and Algiers. Gentlemen had on this occasion, therefore, fairly a right to examine into the course of administration heretofore, to demonstate the impolicy of those wars, and the unjudiciousness of the public expenditures generally. In the cursory view which he should take of this subject, he must be allowed to say, he should pay no particular attention to what had passed before in debate. An honorable colleague (Mr. Hardin) who spoke the other day, like another gentleman who preceded him in debate, had taken occasion to refer to his (Mr. C.’s) late absence from this country on public business; but, Mr. C. said, he trusted, among the fruits of that absence were a greater respect for the institutions which distinguish this happy country, a greater confidence in them, and an increased disposition to cling to them. Yes, sir, said Mr. C., I was in the neighborhood of the battle of Waterloo, and some lessons I did derive from it: but they were lessons which satisfied me that national independence was only to be maintained by national resistance against soreign encroachments; by cherish

ing the interests of the people, and giving to the whole physical power of the country an interest in the preservation of the nation. I have been taught that lesson; that we should never lose sight of the possibility, that a combination of despots, of men unfriendly to liberty, propagating what in their opinion constitutes the principle of legitimacy, might reach our happy land, and subject us to that tyranny and degradation which seems to be one of their objects in another country. The result of my reflections is, the determination to aid with my vote in providing my country with all the means to protect its liberties, and guard them even from serious menace. Motives of delicacy, which the committee would be able to understand and appreciate, prevented him from noticing some of his colleague's (Mr. Hardin's) remarks; but he would take the occasion to give him one admonition, that when he next favoured the house with an exhibition of his talent for wit—with a display of those elegant implements, for his possession of which, the gentleman from Virginia had so handsomely complimented him, that he would recollect that it is bought, and not borrowed wit, which the adage recommends as best. With regard to the late war with Great Britain, history, in deciding upon the justice and policy of that war, will determine the question according to the state of things which existed when that war was declared. I gave a vote for the declaration of war, said Mr. C.—I exerted all the little influence and talents I could command to make the war. The war was made; it is terminated; and I declare with perfect sincerity, if it had been permitted me to lift the veil of fu

turity, and to have foreseen the precise series of events which has occurred, my vote would have been unchanged. The policy of the war, as it regarded our state of preparation, must be determined with reference to the state of things at the time that war was declared. Mr. C. said, he need not take up the time of the house in demonstrating that we had cause sufficient for war. We had been insulted and outraged, and spoliated upon by almost all Europe, by Great Britain, by France, Spain, Denmark, Naples, and to cap the climax, by the little contemptible power of Algiers. We had submitted too long and too much. We had become the scorn of foreign powers, and the contempt of our own citizens. The question of the policy of declaring war at the particular time when it was commenced, is best determined, Mr. C. remarked, by applying to the enemy himself; and what said hel that of all the circumstances attending its declaration, none was so aggravating, as that we should have selected the moment which of all others was most inconvenient to him; when he was struggling for selfexistence in a last effort against the gigantic power of France. The question of the state of preparation for war at any time is a relative question—relative to our own means, the condition of the other power, and the state of the world at the time of declaring it. We could not expect, for instance, that a war against Algiers would require the same means or extent of preparation as a war against Great Britain; and, if it was to be waged against one of the primary powers of Europe, at peace with all the rest of the world, and therefore all her force at command, it could not be commenced with so little preparation as if her whole

force were employed in another quarter. It is not necessary again to repel, said Mr. C. the stale, ri

diculous, false story of French influence, originating in Great Britain, and echoed here. I now contend, as I have always done, that we had a right to take advantage of the condition of the world at the time war was declared. If Great Britain were engaged in war, we had a right to act on the knowledge of the fact, that her means of annoyance, as to us, were diminished; and we had a right to obtain all the collateral aid we could from the operations of other powers against her, without entering into those connections which are forbidden by the genius of our government. But, Mr. C. said, it was rather like disturbing the ashes of the dead now to discuss the questions of the justice or expediency of the war. They were questions long since settled, and on which the public opinion was decisively made up in favour of the administration. He proceeded to examine the conditions of the peace and the fruits of the war; questions of more recent date, and more immediately applicable to the present discussion. The terms of the peace, Mr. C. said, must be determined by the same rule that was applicable to the declaration of war—that rule which was furnished by the state of the world at the time the peace was made; and, even if it were true that all the sanguine expectations which might have been formed at the time of the declaration of war were not realised by the terms of the subsequent peace, it did not follow that the war was improperly declared, or the peace dishonorable, unless the condition of the parties in relation to other powers remained substantially the

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