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H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

Treaty into effect, or refusing it their sanction. To guide them in an enlightened determination as to that point, the papers are necessary; they would certainly throw light upon the subject, and enable the House to determine whether the Treaty was such as that it ought to be carried into effect. This had been called a delicate question. He did not view it in that light. The House had a right to call for the information: if the PRESIDENT had any reasons of State that would make the information improper, he would say so.

supposition. It was well understood, he remark-vested with a discretionary power of carrying the ed, that the Treaty had excited great sensibility; the people had formed various opinions on the subject; he conceived it, therefore, a subject of great delicacy and magnitude, and was of opinion, that members should explain fully their meanings and intentions with respect to it at an early stage of the business, to prevent any bitterness from taking place in the course of the investigation, and to preserve the harmony and dignity of the House. He asked the motives that influenced the friends of the resolution, because, if the constitutionality of the instrument was to be questioned, and the papers were called for on that ground, he thought it a bad one. This question, he conceived, should be decided by comparing the instrument with the Constitution, and that a reference to any thing else in deciding the question could not be proper.

If the papers are called for to ground an impeachment against any officer, he wished the intention declared; he wished to know whether the negotiator was to be impeached, or the PRESIDENT, who had certainly had a principal agency in the business. He wished to be possessed of the reasons which urged the motion, that he might be enabled to determine on its propriety. This was a delicate subject he said: the calling for papers appeared to bear evidence of some retrospective intention; he desired to be apprised what that was. He conceded the right of the House to pass the resolution, but they could not do it without good cause. He did not accuse the gentleman who made the motion, of making it without good cause, but was anxious to know what he would do with them. Was it intended to ascertain, he asked, whether a better Treaty might be made? He concluded by observing, that the question was of consequence, and by reminding the House, that they acted for a great people, and for posterity.

Mr. LIVINGSTON said, he had no wish to conceal his intentions. The motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. The gentleman from Connecticut wished to know why he had brought this resolution before the House? He did it for the sake of information. That gentleman wished to know to what point this information was to apply? Possibly to all the points he had enumerated. It was impossible, however, to say to which or how many of these points without a recurrence to those very papers. He could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. It was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. The House were, on every occasion, the guardians of their country's rights. They are, by the Constitution, the accusing organ of the officers employed. The information called for they ought to possess, as it would tend to elucidate the conduct of the officers. His principal reason, however, for proposing the measure, was a firm conviction that the House were

Mr. W. LYMAN observed, that the mode of argument adopted by the gentleman of Connecticut, of inquiring into motives which influenced others, might easily be retorted. The gentleman might now be called upon to state his motives, with the objections, if he had any, to the resolution. The gentleman had done neither: he had not offered even one objection why the resolution ought not to pass. If no objections could be offered, Mr. L. said it was conclusive proof in its favor, and that those were weighty considerations why it should pass. However, he said, he was very willing to mention some which had occurred to his mind. It was a matter of great notoriety that the Treaty referred to in the resolution had excited very strong emotions of sensibility, and that the public mind had been greatly agitated; that petitions had been presented, from all parts of the Union, praying for the interposition of the House upon that subject. Perhaps if the information contained in the papers called for, was made public, the anxiety which had manifested itself would be allayed. Possibly they might throw such light as to produce a very great degree of unanimity relative to that instrument. Such circumstances might possibly be disclosed as to reconcile those now opposed to it, and who might otherwise remain irreconcilable. If the resolution tended only to this object, it was effecting a valuable purpose; but there was, he said, another consideration of vast importance, which was, whether the Treaty had not encroached upon the Legislative powers of the Constitution. As to that point, he would admit the papers could not be expected to give much light. But if the House should conceive their Constitutional powers extended to a consideration of the subject, undoubtedly they ought to be in possession of the papers in question, and all the information relative thereto. Unless some very formidable objections should be brought forward against the resolution, which, hitherto, Mr. L. said, had not been suggested to him, he should vote for it, and hoped that the House would be of the same opinion; for he contemplated that it would be productive of great utility, and, as yet, foresaw not the smallest disadvantage that could in any way accrue.

Mr. GILES acknowledged that it was a subject that had excited much sensibility, and for this very reason conceived it claimed every light that could be thrown upon it. He believed that that sensibility would be increased if information was denied, and, possibly allayed if obtained. If the resolution passed, the grounds of the proceeding

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would then become known; and, if they were such as comported with the interests of the United States, the dislike to the Treaty might subside. On this ground he should give the resolution his vote, unless weighter objections than those already adduced could be brought forward. If the Treaty is to be judged of by adverting to the instrument alone, there was great cause for dislike. If it is possible to throw light on it, that shall be its apology, why refuse the information? He did not wish to pass judgment on it without knowing the circumstances under which it was made. Impeachment had been mentioned: such an event was not a necessary consequence of the inquiry, though a possible one. He did not contemplate it as the probable issue, but the information might tend, perhaps, to reconcile those now averse to the instrument. On this ground he hoped gentlemen would not object to the information being called for. A member conceived the friends of the resolution ought to declare what they intended to do in the business. He believed this would be a candid course of procedure. For his own part, if he was to make up his judgment definitively upon the face of the instrument alone, he was prepared to give his opinion; but he wished further information, which he hoped would not be refused by negativing the present resolution. He observed, that with him information was the object of the call, and a sense of responsibility the inducement.

[H. of R.

two branches upon a given subject, and yet a power is elsewhere lodged to annul the acts which proceed from those powers. He considered the resolution as unconstitutional, as it is predicated upon the right of this branch to intermeddle with the proceedings of the other branches on this point, not alleged to be unconstitutional.

If there is to be investigation on the Treaty, the inquiry must stand upon the allegation that the Treaty is contrary to the Constitution; and then, if that could be proved, it would not be the law of the land. Of the inexpediency of the resolution he was well convinced, as it affected the secrets which ought to be kept from foreign Powers. It might lead to a disclosure, to foreign nations, through this House, of certain points in our foreign relations, and in the estimate of our own domestic interests, that might do us mischief. There might be, in negotiations, transactions, which, to expose, would be a violation of good faith. He did not imagine that there were such in the negotiation of this Treaty, but the right is claimed thus over all similar cases.

Mr. M. was proceeding in some remarks respecting the powers of the Senate, when the SPEAKER interrupted him, and reminded Mr. M. that no observations respecting the independent rights of the Senate could be in order.

be the least reluctance on the part of the Executive to deliver them on account of any such apprehensions of his; but I am opposed to the resolution in point of principle, because I conceive those papers can be of no use to us, unless to gratify feelings of resentment or a vain curiosity. As I would never sacrifice principle to these motives, and thereby fix a precedent pernicious in its consequences, I hope for the indulgence of the House while I offer my sentiments upon the subject.

In order to determine the propriety of the present measure, I think it necessary to take into view the present existing state of the Treaty, and to consider what binding force, if any, it now has; what benefits can be derived from those papers to effect an alteration, and what powers we possess to call for them.

Mr. Buck said: I am opposed to the resolution now under consideration, not from an apprehension that the papers referred to will not bear the Mr. MURRAY said, that he was against the reso-public scrutiny, or from a belief that there would lution for two reasons, which then struck his mind forcibly: The first was the want of a declared object within the acknowledged cognizance of the House; the other was because he believed it was designed as the ground-work of a very dangerous doctrine, that the House had a right to adjudge, to adopt, or to reject treaties generally. Had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the Treaty, the subject would be presented under an aspect very different from that which it has assumed. He considered a Treaty, constitutionally made, to be the supreme law of the land. The Treaty in view has been negotiated and ratified, he thought, agreeably to the Constitution. It has been issued, by the PRESIDENT'S proclamation, as an act obligatory upon the United States. If the House mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the Constitution to give it every opposition. If the PRESIDENT, by the Constitution, has the power, with the consent of two-thirds of the Senate, to ratify a Treaty, the House has no right to investigate the merits of the Treaty, unless they have the right to reject it. Treaties are the supreme laws of the land. Powers are delegated to these two branches of the Government distinct from those lodged in this House. As long as they exercise these pow. ers agreeably to the Constitution, their acts can. not be controlled by this House; for it would a solecism to say that full powers are given

The Treaty is negotiated, assented to by the Senate, ratified by the PRESIDENT, the ratifications exchanged. It is now promulgated, communicated to us, and the PRESIDENT has made solemn proclamation, enjoining it upon all persons bearing office, civil or military, within the United States, and all other citizens or inhabitants thereof, to execute and observe the same. Was this the proclamation of GEORGE WASHINGTON, considered as a man, detached from the powers vested in him by the people, it would excite ridicule. Was it the proclamation of a King or Despot, who arrogated to himself the right of dictating laws to men without their consent, it would excite contempt; and if it is in fact the proclamation of the PRESIDENT OF THE UNIT

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ED STATES, who, under color of his office, has as sumed powers not delegated to him, it must excite indignation. But, if it be neither of these, but is, indeed, the voice of United America, sounding through the PRESIDENT, as the only organ of the nation in this particular case, this gives it a different stamp, and in this sense, to me the sound is as heavy as thunder, majestic as Heaven, and the height of treason to disobey it.

But suffer me to solicit the attention of this House while I premise a few things, before I immediately apply my observations to the point in question. For what did America contend; for what did she endure the toils of war, and sacrifice thousands of her citizens; for what did many members within these walls endure the same fatigues of war, stem the rage of battle, and shed their own precious blood? I believe every mind will accord with me when I say, that it was to cast off the oppressive power of a nation which, being detached from us, usurped and arrogated to herself the right of dictating to us laws, contrary to our will, while we had no voice in passing those laws through the medium of our Representatives; and to gain to ourselves the important right of self-government. Our success was equal to the magnitude of the object; we gained the glorious prize; liberty and peace succeeded war; the ferocious and turbulent passions were lulled to rest; and, in 1787, free and united America, undisturbed by factions within, unawed by foes without, was seen exercising her cool, dispassionate reason, that divine gift of God to man, in concerting and framing a system to perpetuate to herself and posterity the glorious prize she had won, the invaluable blessing of self-government, founded on the dispassionate will of the great body of the sovereign people. Three great objects met her attention; first, rules to check the licentious wickedness of individuals, and mark out their separate rights; second, intermediate Judges to apply those rules; and, thirdly, negotiations, compacts, and Treaties, with foreign nations. It being impossible for the great body of the people to collect individually to perform those necessary functions, they frame a Constitution in which they express their will in respect to each; they constitute the Legislative. Executive, and Judiciary departments; mark out and assign to each their separate and distinct powers, and place them as the three great organs through which the future will of the people is to be known in respect to those great functions. The Constitution is then, emphatically, the expression of the will of the great body of the sovereign people, and while Government moves on conformably to it, we may with the utmost propriety say, that the laws dictated by the will of the people reign, and not men or kings, and this is in the strictest sense of the word self-government, so far as it can apply to a nation; but if we depart from this basis, then may it be said that men reign, and not the laws; the will of the people is then abandoned, and the glorious rights for which we have contended, sacrificed and lost. Let us then take the Constitution as our only guide, and see with what authority this Treaty has been made.

[MARCH, 1796.

In the first section of the second article of the Constitution, it is declared, that the Executive power shall be vested in a PRESIDENT OF THE UNITED STATES of America. In another clause of the same section it is declared, that before he enters upon the execution of his office he shall take an oath, that he will faithfully execute the office of PRESIDENT OF THE UNITED STATES, and will, to the best of his ability, preserve, protect, and defend the Constitution of the United States; and in the second section of the same article it is declared, that he shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur, and that he shall nominate, and, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers, and Consuls; and in the sixth article it is declared, that all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. By these passages I conceive that the will of the sovereign people is clearly expressed; that the PRESIDENT and Senate should stand as their Representatives, fully authorized by them to make Treaties, and are vested with every necessary, requisite power for that purpose; that they are placed as the organ of the nation, through whom the will of the people is to be known in relation to all those compacts, and it is equally clear, that if they have kept within the bounds prescribed by the Constitution, the Treaty now in question has become a supreme law of the land, and that agreeably to the express and dispassionate will of the great body of the sovereign people.

I will admit, that if the PRESIDENT has assumed powers not delegated to him by the people in making and proclaiming this Treaty, it is void in itself; but of what use can those papers be to us in determining that question? Are we to explain the Treaty by private and confidential papers, or by any thing extraneous to the instrument itself? I conclude not. The instrument is then before us; let us compare it with the Constitution, and see if there is one article, sentence, word, or syllable in the Treaty, which clashes with, or is contradictory to, the Constitution. This is an inquiry I will pledge myself not to oppose; but for this, these papers can be of no use.

But if we are to take upon ourselves the right of judging whether it was expedient to make the Treaty or not; whether it is as good a one as might have been obtained or not; and if we are to assume the power of judging upon the merits as well as the constitutionality of it, then those papers may be necessary, and if we possess the power of thus judging, then we equally possess the right to call for those papers. But from whence do we derive this right and power? Have the people, when coolly deliberating upon and forming the Constitution, which is the expression of their dispassionate will, in that Constitution given us this right? No, not a syllable in the Constitution that even intimates the idea. Do we possess the right merely because we are the Representatives of the people? No, that cannot be ̧

MARCH, 1796.J

Treaty with Great Britain.

[H. OF R.

sequences to which the principle involved in this resolution would lead.

for we are their Representatives only for particular purposes, and the Constitution has prescribed to us our bounds, and assigned to us the limits of But suffer me to reverse the tables, and consider our powers as well as to the Executive. Are we this subject in another point of light. Let us supto derive this right from popular opposition to the pose every word in the Constitution which now Treaty, and from thence say, that it is the will of applies to the PRESIDENT making Treaties applied the nation that we should exercise this right of to us, and that all the powers which now apply to inquiry? Is then popular clamor, which originates us, as a Legislature, applied to the PRESIDENT. in discontent, is fostered in violence and passion, This, I think, is a fair way of examining the suband stimulated by the intrigues of interested and ject; for when, in imagination only, we consider ambitious individuals, to be taken as the dispas- ourselves as clothed with those powers, it cannot sionate will of the nation? If so, how are we to be supposed we shall instantly attach to the idea designate and mark out the numbers of the dis- those prejudices which, after a long exercise of contented? Are we to learn it from inflamma- those powers, we might possess. Then, considertory newspaper publications, teeming with invec- ing ourselves as having those Constitutional powtives against Government and its measures, and ers, let us suppose that we had made and ratified not carrying even the appearance of reason with the present Treaty, and made the same Proclamathem? These can furnish no data by which to tion the PRESIDENT has done, and which had been determine whether it is one-tenth or even one-signed by the Speaker of this House; and had called thousandth part of the nation that are dissatisfied. on the PRESIDENT to pass the necessary laws to Are we to learn it from the petitions now before fulfil the stipulations, and then suppose he had us? If so, the petitioners do not constitute one- done as we are now about to do-called on us for thousandth part of the nation; and I presume, as the instructions we gave our agent, and the corthose petitions have all one stamp, the petitioners respondence held while the Treaty was negotiatare all in unison of sentiment; if so, I have a spe- ing. Let every member now present reflect and cimen of their ideas: the resolution of Benning- determine for himself what our feelings would ton County Convention, transmitted to me, goes then be upon the subject. Would not our keen no farther than to request the Representatives of sensibility be as much raised as when our virtue that State to use their best endeavors to bring on was assailed by the contaminating breath of Rana discussion of the constitutionality of the Treaty; dall? Should not we consider it as an insult to it does not even suggest the idea that we have or the majesty of the people, which so conspicuously should exercise the power to call for those papers, shone through us as their Representatives? Should or judge upon the expediency or merits of the not we then say he was assuming powers not deleTreaty. Shall we then assume the power, and gated to him; that he was invading the prerogago even beyond the wishes of the discontented? tives of the people vested in us, and rifling the deIf so, where shall we stop? If we, by an assump- posites of their national correspondences? Should tion of power, may invade the prerogatives of the not not we embrace every idea which I have sugpeople, vested in the PRESIDENT, as their repre- gested upon this subject as now applying to the sentative in making Treaties, and may rifle the PRESIDENT? Would it not be said, he was aiming sacred deposite of their confidential correspond- to engross all the powers of Government, and to ence with foreign nations, and judge upon the set himself up as a despot? Would not his insomerits of a Treaty, then may we reverse the judg-lence, resound from every side of these walls, be ment of the PRESIDENT and Senate, and annul the Treaty. Who is, then, to make the next? Is it supposable that the PRESIDENT will again attempt it, when the principle is fixed, that he and the Senate are not the ultimate judges of its merits? No; to me this is absurd. We must, then, take the whole business to ourselves, and become the negotiators as well as the ratifiers of a Treaty; and if we may do this, upon the same principle, whenever there shall be a popular clamor raised against the persons appointed to the Judiciary department, we may interpose, call on the PRESIDENT for the reasons of his making the appointment, declare it injudicious, withhold appropriations for the salaries, and engross all the Judiciary powers to ourselves. Upon the same principle we may ultimately determine upon our own adjournments, declare our sittings perpetual, constitute ourselves the judges and executioners of the law, and become the accusers, judges, and executioners of our fellow citizens. This would be forming an aristocracy with a witness; and where, then, would be the boasted rights of America, for which she fought and bled? These are the con

bandied about from one end of the Continent to the other, and wafted even into distant climes? Nay, should we not go further, and say, that as the Constitution had vested in us the power to make Treaties, it had also necessarily given us the sole right of judging, not only of the merits, but also of the constitutionality of them? Should we not say, the people, by giving us the power, had thereby decided the point, and determined us as being the best and ultimate judges; and that it was not for the PRESIDENT to impeach our judgment, nor implicate us as having violated the oath we had taken? By what rule of reason do we now calculate, then, to suppose the PRESIDENT does not possess the same feelings, and embrace the same ideas, as now apply to him, standing as the representative of the people in making Treaties? And how can we suppose it would not be a violation of the Constitution, and an assumption of power in us, to adopt this measure? Is it not clear, that if the will of the people is not expressed in the Constitution, nor the will of the nation in the opposition to the Treaty, that we should exercise this power; that our exercising it would be a depart

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H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

those reasons had weight, and reconciled his constituents to the measure.

He again dwelt on the importance of accompanying the law with the motives of it. Upon this principle the House publish their Journals, and he had always found publicity produced a good effect. He should vote for the resolution, unless more valid objections to it than those hitherto brought forward against it could be adduced.

ure from the will of the people, and that our Go-enced his vote on any particular question, he found vernment would then no longer rest on that basis? And would it not then be equally clear, that we had abandoned the inestimable rights for which we had contended? This would be to overturn our Constitution, and demonstrate to the world that a free people were not capable of self-government, and hold out but poor encouragement to those nations now struggling for freedom. In this point of view, I consider the question all-important; on this step, and the present crisis, depend the great and important question whether we are to enjoy the reign of laws dictated by the dispassionate will of the people, or whether men must content themselves to be subject to the reign of popular frenzy, anarchy, and confusion, on the one hand, or the insolent reign of despotism on the other.

As I consider the passing of this resolution a direct step towards the abolition of those sacred rights for which we have fought and bled, should I give my consent to it, the blood which I have shed, and my own mutilated frame, would reproach me.

Mr. BALDWIN thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. The PRESIDENT has sent the House the Treaty; petitions have come forward on the subject; the House must act in the business. It is yet unaccompanied with any documents to throw light upon it. No person concerned in the negotiation has a seat on the floor of the House; so that no oral information can be expected. Implicit faith was not to be reposed, he imagined, in public officers. It would be unfair to take up the subject naked and unexplained.

He believed the resolution far from looking like hostility towards the Executive-was a measure which the Executive must wish for, as it affords him an opportunity of submitting to the House his grounds of proceeding in the business, which he could not do without it, except by rendering himself liable to the charge of officiousness. As to the objection that these papers were secrets of the Executive Department, he thought it more plausible than solid. The Executive might communicate them confidentially to the House, as was often done, or might keep back such as there was any temporary impropriety in communicating, on account of other transactions now depending. He thought the importance of having many Governmental secrets was diminishing. The doctrine of publicity, he said, had been daily gaining ground in public transactions in general, and he confessed his opinions had every day more and more a greater tendency that way. The passion for mystery was exploded, and what experience he had had in public matters confirmed him in the opinion that the greater the publicity of measures the greater the success. He had seen the doors of the House frequently shut, and had rarely known any good to arise from it. In a free Government, he wished the arguments for and against measures to be known to the people: this would reconcile them to those founded on sound reason and policy. This he had ever found the case in the part of the country he represented. Whenever he had had an opportunity of stating the reasons that had influ

Mr. GALLATIN said, no member had a higher opinion than himself of the talents and patriotism of the member from Vermont, but he could not help expressing his astonishment at what had dropped from that gentleman. From what he had said, no one could have imagined that the motion before the House was merely a call for papers, but would have supposed that it was in contemplation to disorganize the Government, and to erect the House into a National Convention. It was too much to be feared that on a discussion of the Treaty the alarm would be sounded. We are scarcely on the threshold, and the cry of confusion and anarchy is already raised. He little expected to hear this in a debate on the present motion, which did not necessarily involve a Constitutional question. If he thought it did, he would have advised the mover to withdraw it, as he wished every Constitutional question to be discussed in a direct

way.

What, he asked, is the state of the present question? The PRESIDENT tells the House that he has made a Treaty, and lays it before them: it is referred to a Committee of the Whole on the state of the Union for some purpose. What shape the discussion may take in that Committee cannot now be decided; but whether, when we take up the question of the Treaty, it be agreed that we have an agency and a discretion in carrying it into effect, or whether it be intended only to express our opinion, by means of a declaratory resolution, of that instrument, the information called for will be useful, by showing the reasons which induced the adoption of the Treaty. It had been allowed that the Treaty had excited much discontent, but it was supposed that the PRESIDENT and the Senate were the best judges, because they possessed the best information: to render this information public, must then answer a valuable purpose. The exception annexed to the resolution rendered it, in his mind, totally unexceptionable. The motion does not lay claim to the secrets of the Executive, but only asks. If the PRESIDENT thinks proper not to give the information, he will tell the House so; then a question may arise whether they shall get at those secrets whether he will or no: but that is not the question now.

In another view information would be of use: it would enable the House to form a just opinion of the meaning of any doubtful article of the Treaty. A member had expressed the opinion that the House had no discretionary power relative to the Treaty. This was taking for granted what remained to be proved; this would be a point to be discussed.

Mr. MURRAY explained, that what he asserted was, that if the Treaty was the supreme law of

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