MARCH, 1796.]

Treaty with Great Britain.

the land, then there was no discretionary power in the House, except on the question of its constitutionality.

[H. OF R.

strumental agency? He was not satisfied whether it was expedient at this time to go into a consideration of this very important question. If gentlemen were not disposed to press it, he would attempt to throw the resolution into such form as not to bear even the appearance of encroaching on the Constitutional rights of the Executive. The resolution, in the form in which it was first presented, was liable to objection; the mover had removed that objection in great measure, by adding an exception to the papers requested. He wished to submit, whether the resolution would not be further improved by introducing the following words in lieu of the amendment proposed by the member from New York: "Except so much of said papers as, in his judgment, it may not be consistent with the interest of the United States, at this time, to disclose." He moved these words as an amendment, after striking out those brought forward by the gentleman from New York.

Mr. GALLATIN said, he should not now enter into the merits of the question, but merely state that certain powers are delegated by the Constitution to Congress. They possess the authority of regulating trade. The Treaty-making power delegated to the Executive may be considered as clashing with that. The question may arise, whether a Treaty made by the PRESIDENT and Senate, containing regulations touching objects delegated to Congress, can be considered binding, without Congress passing laws to carry it into effect. A difference of opinion may exist as to the proper construction of the several articles of the Constitution, so as to reconcile those apparently contradictory provisions. But all those questions would occur in future discussions. What is now wanted is information on the subject, to elucidate the different views which may be taken of the Treaty. It must do good to obtain it, and could do no harm Mr. CRABB, though against the measure, exto ask for it. If it would be improper to commu-pressed his intention of ameliorating the resolunicate any part of the information on the subject, tion as much as possible: he should therefore the PRESIDENT will say so. He had hoped, he vote for the amendment. said, that the resolution would have passed without objection. He concluded by observing, that the House were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. At present, he did not contemplate the exercise of that right.

Mr. SEDGWICK conceived the business assumed a new aspect. The subject was important; he wished to deliberate on it attentively, and hoped time would be given him to make up his mind. He moved to adjourn, and the House did adjourn.

MARCH 8.-The House took up Mr. LIVINGSTON's resolution; the amendment proposed yesterday by Mr. MADISON being immediately before the Committee.

A question was immediately taken upon that amendment, and lost-37 to 47.

The original resolution then came into consideration.

Mr. GILBERT was opposed to the resolution. He had heard no satisfactory reason given why the information should be asked for. He considered it as an attempt to encroach on the powers of the Executive Department. He insisted on Mr. SMITH (of South Carolina) said, that he the necessity of secrecy as long as there are des- had listened attentively to the reasons advanced potic Governments to be negotiated with. If the in favor of this resolution, and that he had heard PRESIDENT was to refuse the information, in nothing to convince him of its propriety. The which he conceived he would be justified, it PRESIDENT and Senate have, by the Constitution, might create discontents and heart-burnings. He the power of making Treaties, and the House was against the resolution as unconstitutional, unprecedented, inexpedient, improper, and dangerous to the peace and prosperity of the Govern

ment.

have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do everything in their Mr. MADISON admitted that every proposition, power to carry them into full execution. He rehowever distantly related to a question on the cognised but one exception to this rule, and that Treaty drew from the importance of that subject was, when the instrument was clearly unconsticonsiderable importance to itself. In a discussion tutional In this case, he remarked, it had not of this subject, he felt strongly the obligation of been said that the Treaty was unconstitutional. proceeding with the utmost respect to the deco- When the resolution was first brought forward, rum and dignity of the House, with a proper it had indeed been observed, that the discussion delicacy to the other departments of Govern- might involve certain Constitutional points, and ment, and, at the same time, with fidelity and therefore, the papers called for by the resolution responsibility, for our constituents. The propo-were necessary: but it was obvious, the question sition now before the House, he conceived, might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the Constitution, so as to take to the Executive all deliberative will, and leave the House only an executive and ministerial in

of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption,. could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to.

A member from New York had said, the information called for was wanted, as it might ap

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

A member from Virginia had said, that the information called for by the resolution might allay the ferment in the public mind, that it might form an apology for the Treaty. If the PRESIDENT, he replied, had thought so, he would have been glad to have laid it before the House; but he believed, he thought it did not need an apology, and that when tested with proper information by due consideration, that it required none.

When compared with the Constitution, and with other instruments of the same nature; when recourse was had to the books calculated to throw light upon it, it would be found that it required no justification from the correspondence and instructions.

ply to all the possible views of the Treaty ques-ined its_constitutionality on the face of it only. tion; that he could not declare the particular If the PRESIDENT and Senate have alone the point now, but that when the papers were before Legislative power with respect to a Treaty, the the House, they would then be enabled to judge. House had no right to inquire into the subject of He differed in opinion from that member; when negotiation that led to it. The House are surely the House were about to call for papers, he con- not to enter into the merits of the proceeding, and ceived they should state for what purpose they determine whether the instrument should be newanted them; whether they wished to examine gotiated over again. This was not a right given the question of constitutionality, or whether they by the Constitution, and if attempted to be exerintended an impeachment. In the latter case, a cised, it could be done only by arrogating it. By member from Pennsylvania, in favor of the reso- the Constitution the powers of Government are lution, had conceded, that the resolution should distributed; to Congress the Legislative power is be expressly predicated on a declaration of the given, the Executive to the PRESIDENT, and under intention. All the gentlemen who had expressed the head of the Executive, the power of making their sentiments on the subject had renounced treaties is comprised; but they must be, for greater the ground of impeachment; the question of con- security, approved by two-thirds of the Senate. stitutionality was renounced, and the papers are All Treaties are the supreme law of the land, and finally to be called for in order to give general the House cannot meddle with the Treaty-making information. The member from New York power, without being guilty of usurpation. wished for information as to the whole transaction to be before the House, that they might be enabled to judge of the propriety of carrying the Treaty into effect. This ground, he conceived not tenable under the Constitution; the House were bound to carry it into effect, unless unconstitutional. They have no right to investigate the merits of the Treaty; it is the law of the land, and they are bound to carry it into effect, unless they intended to resist the constitute authorities. A member from Massachusetts had, yesterday, intimated that it was possible a knowledge of these papers might allay the sensibility which had been evinced on the subject of the Treaty. For his own part, he would not pretend to say what effect it might produce; but this argument He was surprised that gentlemen who displayed was a severe reflection on the proceedings of the such zeal for the Constitution should support a various associations, who had given their opinions proposition, the tendency of which went indirectof the Treaty, without thinking a sight of these ly to break down the Constitutional limits bepapers necessary: it was also a censure on those tween the Executive and Legislative DepartLegislative bodies who had formed their opinions ments. The Constitution had assigned to the of it, without this necessary light. They thought Executive the business of negotiation with forthemselves able to form an opinion of the instru- eign Powers; this House can claim no right by ment without the aid of these papers. If the pub- the Constitution to interfere in such negotiations; lic meetings which denounced the Treaty had every movement of the kind must be considered thought them necessary to forming their opinion, as an attempt to usurp powers not delegated, and they would have suspended it till these papers will be resisted by the Executive; for a concescame to light. The gentleman from Massachu- sion would be a surrender of the powers specially setts, had also said, that the papers might devel- delegated to him, and a violation of his trust. ope circumstances which would show the impro- The proposition calls upon the PRESIDENT to lay priety of carrying the instrument into effect. He, before the House the instructions given to Mr. for his part, knew of no such circumstances; if Jay, and the correspondence between him and there were any, they must go to the characters Lord Grenville; and for what purpose? Is this of the persons concerned in the transaction; and House to negotiate the Treaty over again? Has if the gentleman knew of any such, it was his the Constitution made this House a diplomatic duty to state them as a ground of impeachment; body, invested with the powers of negotiation? but from all quarters the intention of impeach- Is not this House excluded? for, if the maxim ment was disavowed. If the gentleman meant that "the expression of one is the exclusion of merely to allude to the circumstances which had another," applies to this case, the assignment of been necessarily incidental to the negotiation, the Treaty-making power to the PRESIDENT and they were not, in his opinion, the proper subjects Senate, is a manifest exclusion of this House. for the consideration of the House. With as This call then on the PRESIDENT is an attempt to much propriety might the PRESIDENT, when obtain indirectly what the Constitution has exabout to execute a law, wish to examine the pressly assigned to others. Are these papers neJournals of the House, the instructions to com-cessary to enable us to judge whether the Treaty mittees, to determine whether it was improper or is Constitutional or not? If the Treaty be unconThe PRESIDENT, in executing a law, exam- stitutional, it must sufficiently appear so on the

not.

face of it; if the articles of the instrument be Constitutional, can the preparatory steps make them not so? Gentlemen complain of want of information. Admitting their complaint to be well founded, let them resort to the proper sources of information. What are those sources? If information be wanted to enable them to judge of the constitutionality of the instrument, let them take the Constitution in one hand and the Treaty in the other, compare them, and then decide; if from such comparison, they find no grounds for declaring the Treaty unconstitutional, their decision must be in favor of its constitutionality. Mr. S. referred to the proceedings of the Supreme Court in the case lately argued of the carriage tax and just decided; how did the Court proceed? Did they call for the Journals of the two Houses, or the report of the Committee of Ways and Means, in which the law originated, or the debates of the House on passing the law? What impression would such call have made on the public mind? Would it have enhanced in the public opinion either the dignity or wisdom of that tribunal? They took the Constitution in their hand, and tested the act by that standard, and by that alone has their decision been governed.

[H. of R.

gotiating. Our Constitution has, therefore, wisely assigned this duty to the Executive. The precedent attempted to be established is, then, a dangerous one; for it not only tends to alter the nature of the Government, but to endanger the interests of the country. This is the first instance of the kind since the establishment of the Constitution. The Executive has, indeed, of his own accord, communicated to us such papers relative to negotiations, as appeared to him proper to lay before us, and as might show the public he was pursuing the requisite steps for obtaining redress. But there is not one solitary instance on the Journals, of a movement on our side, to obtain such papers, where he has not deemed it proper, on his part, to transmit them. In this case, the PRESIDENT has communicated the Treaty, without any papers accompanying it. This is an evidence of his sentiments. Had he thought it his duty to have communicated the instructions and correspondence, he would unquestionably have done it. It has been said that he would refuse a compliance with such call, if he thought it improper; but this was no reason for making a wanton call; his having withheld these papers is an evidence that he thought it it improper to send them; if, after this, they are requested, and he sends them, Is the object in calling for this information to it will be an avowal, on his part, that he commitdiscover whether the negotiator has conformed ted an error in not sending them at first, or that to his instructions? If so Mr. S. was at a loss they have been extorted from him. This call is to discern how that would affect the question. then calculated to place him in a painful dilemSuch a circumstance might be important as it re- ma; he must either resist the application of this lated to the PRESIDENT, and might prevent his lay- House, or surrender essential Executive rights. ing a Treaty, not conformable to his instructions, Is it expedient, is it generous or candid, to place before the Senate; but, being ratified by the PRE- him in this situation, without a more urgent neSIDENT and Senate, all was done which the Con- cessity than has been stated? Mr. S. deprecated stitution required. The Constitution does not re- that clashing of authorities, which he was conquire the intervention of a negotiator; it only re- vinced this call would produce. This House, said quires the advice and consent of two-thirds of the he, is the representative of the people, for LegislaSenate, and the sanction of the PRESIDENT; the tive purposes; but the PRESIDENT is likewise their PRESIDENT is not bound to employ an agent, he representative, for Executive purposes. It was may in person conclude the Treaty with the fo- not necessary, on this occasion, to pre-judge the reign Minister or he may employ the Secretary extent of the right of interference, in a case of of State; the instructions are private directions impeachment of the PRESIDENT by the House; from him to his agent; and whether those in- because that case is, at this time, avowed to be structions be pursued, or departed from, is a ques-out of the question. On any other ground, this tion only between the PRESIDENT and his agent. House, in its Legislative capacity, ought to be exBy adopting the Treaty, he sanctions the conduct tremely cautious of encroaching on the rights of his agent; by laying it before the Senate, he which the PRESIDENT has derived from the peomanifests his approbation of a departure from his ple, as their representative, and which he exerinstructions, if any such there were; which, how-cises for their benefit. In the business of Treaties, ever, in the present case, is not admitted. To re- the Constitution has provided no other check than turn to the case already referred to, of the car- the requisite concurrence of the Senate, and the riage tax; would it be a material ingredient in the right of impeachment by this House; unless, inquiry respecting the constitutionality of that tax, therefore, this call is predícated on an intention to whether or not, the Committee of Ways and impeach, and so stated and understood, it is an Means had conformed to the instructions of the encroachment on the Executive, and will be atHouse, in recommending such a tax? Undoubt-tended with serious consequences. edly not; the ultimate act, as passed by the different branches, would alone be looked into.

Mr. S. next adverted to the consequences of such a measure. Diplomatic transactions are in all countries of a secret nature; in the progress of negotiation, many things are necessarily suggested, the publication of which may involve serious inconvenience and disadvantage to the parties ne

A gentleman from Virginia had said that, when the papers are laid before the House, they would see upon what principle the Treaty had been made. He answered, that the PRESIDENT and Senate had a right to make Treaties; that they were the law of the land; that, in the present case, the British Treaty had been proclaimed as such. If it was not the law of the land, an im

peachment should be brought forward against the PRESIDENT for declaring it so. But there was no motion for impeachment. If it is the law of the land, what could the House do to prevent its being in force? why call for papers to see whether it was properly made? Can the House set it aside? They may resist it, and so may individuals resist the law, at the risk of consequences. The House have taken an oath to maintain the Constitution, and carry the laws into effect. It was a doctrine he had heard before now, on the floor of the House, and a sound one, that a law must be repealed or obeyed: if it is not repealed, it must be obeyed, or the Government dissolved. Can the House repeal the Treaty? No; then they must obey it.

[MARCH, 1796.

Mr. S. said, he believed he had examined all the reasons assigned for calling for this information. He thought, before the House made such calls, it should have good grounds for them, especially, when the PRESIDENT had shown his opinion by not sending the papers with the Treaty. Mr. S. took a brief review of his arguments, paid a compliment to the member from Vermont, on account of his speech of yesterday, and concluded by saying, that that House had no more right to send to the PRESIDENT for the papers in question, than the printer of a newspaper had; he might communicate them to either voluntarily, but neither had a right to demand them. He apologized for having trespassed so long on the time of the House, and expressed his hope that the resolution would not pass.

After Mr. S. had sat down, it was moved by Mr. GILES, to take the resolution up in Committee of the Whole for the purpose of more ample discussion.

This motion was agreed to; sixty-one members rising in the affirmative.

The House immediately resolved itself into a Committee of the Whole, on the resolution.

The gentleman from Georgia had reprobated all secrets in Republican Governments, though he admitted there might evils arise by divulging papers whilst a negotiation was yet pending. With respect to secrets, Mr. S. thought them unavoidable in all Governments; it was a standing rule in that House, when confidential communications were made from the PRESIDENT, to clear the galleries, and even to exclude some of the officers of the House. He referred to the practice of the Mr. NICHOLAS remarked, that the member from Old Congress on the subject of secrecy; and al- Connecticut, first up, when inquiring for the realuded to the case of a member who had been cen- son of a call for papers, had suggested two. The sured for divulging secret correspondence. It had one, relating to the merits of the instrument; the been said by the member from Georgia, also, that other, an inquiry into the conduct of officers conthe Treaty carried no explanation with it, and if cerned. On the latter ground, gentlemen conceded the House acted upon it, they must take it up un- that the House had a right to require the papers, explained. He thought nothing more was neces- and yet seemed willing to adhere to that, on which sary than to see that it was a law. What ex- they conceive a call could not be, with propriety, planation did that gentleman want? What neces-grounded, as the one that influenced the conduct sity for information with respect to the negotiation? It was a matter with which they had no concern. It belonged to another authority. That gentleman had also said, that he did not suppose the request would be painful to the PRESIDENT, but that it would give him pleasure. Was not the PRESIDENT himself the best judge of this? He had not given the papers to the House, and on former occasions, wher he wished papers to be made known, he had done so.

of the friends to the resolution. All gentlemen admitted, that the House had the superintendence over the officers of Government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention. How, he asked, could this intention be properly made up, without a previous sight of those very papers; would the House risk their own credit in the business, without seeing clearly the ground they went upon, by having before them the information now called for? The right, he contended, of superintendence over the officers of Government, gave a right to demand a sight of those papers, that should throw light upon their conduct.

A member from Pennsylvania had said, why refer the Treaty to a Committee of the Whole, if they did not mean to do something with it? It was sent there, Mr. S. observed, in order to make the proper appropriations for carrying it into effect. Now, this reference was made the ground of calling for the papers; and when the papers He took a view of the prominent features of the are produced, he supposed they would say, why arguments of the members up before him. It had have these papers, except we go into an examina- been said that, if the power of the PRESIDENT and tion of the merits of the Treaty? It was also Senate, as to Treaties, was complete, then the said by the same gentleman, that these papers House had no right to claim a participation; this would enable them to understand the articles of could not be denied; but the question was, whethe Treaty. He believed they were to under-ther the Executive had that right, unqualifiedly, stand the Treaty from the face of it, as judges expound the law, by examining the law itself. That gentleman further observed, that, as the Treaty contained commercial regulations, the information asked for, would enable them to decide with respect to legislating on the subject; but, said Mr. S., the Constitution will decide that better than instructions or correspondence.

in all cases. In the present case, he contended, the House had a voice. To elucidate: Suppose that, in the Constitution of the United States, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the House have a control over the money matters stipulated in a Treaty; would not this constitute a qualification of the powers of the

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

PRESIDENT and Senate with respect to Treaties? stitution. This will show what was expected of The Constitution, on this head, he contended, this House in appropriating money; that they though less explicit than his supposed case would should judge of the usefulness of the expenditure. make it, was not the less positive, if tested by all In the case of the Army, the Constitution does the fair rules of construction; and if compared not say that we may disband an Army by withwith the practice of the Government, from which holding money; but for the purpose of investing we had borrowed, with many other matters, this us with the same power, only requires that the part of our Constitution. In England, the coun-appropriation should recur every two years; taking try alluded to, their House of Parliament had ex-it for granted, that in this as well as in every other ercised a control over the moneyed articles of Legislative act, we will duly weigh every conseTreaties; and he contended, the House of Representatives had an equal authority here, as chief Having thus explained from the Constitution guardians of the purse-strings. It was unnecessa- itself the true meaning of this power of approry, at this time, he said, to touch on the other priation, he proceeded to elucidate it by a referparts of the Treaty which clashed with the Con-ence to the practice of the Government. He found stitutional powers of the House.

The member had said that the Treaty being concluded, and being a law, the House were, as subject to the law, obliged to pass the necessary provisions to carry it into effect. He did not suppose for his own part, he said, that he was sent here to pay implicit obedience to any department of Government, and receive a decision on what was to come before the House at their hands; but to use his discretion to the best of his knowledge and abilities.

He again adverted to the power of control that the House of Commons have over Treaties; and contended, that that provision of the British Constitution had been accurately copied in our own with this deviation only, that the Senate have the power of making amendments to money bills here, which the House of Lords there have not. He could show from the best authority, the acknowledgment of the British Crown officers themselves, that the Parliament has a right to discuss and decide on Treaties which involved moneyed stipulations.

The same power, he argued, resided in the House here; for shall it be said, that we have borrowed only the form from Great Britain, and not touched the substance? Shall it be said, that the House have a discretion as to appropriations, and yet they must make them as directed by a Treaty? If the House have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. But, with the power of appropriating money, the House have certainly the right to judge of the propriety of the appropriation. The Constitution explains itself fully on this head. He instanced the specific power in the Constitution, with respect to appropriations for the Army, to explain from that instrument its meaning in other parts.

The Constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the House may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. The power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the Con

quence.

an instance in the permanent appropriations made for the payment of the Public Debt. If the House in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? The permanency of the provision took its rise from the idea, that the House possessed a discretionary power as to appropriations. Thus, he had shown, that the practice of the Government, the provisions of the Constitution, and the example of the British, from whom we had exactly copied the control over money transactions, all proved a discretion in the House as to appropriations. This must be considered as a sufficient answer to the gentleman from South Carolina, when he said, that the PRESIDENT and Senate possessed the Treaty-making power; for they possessed it with qualifications, in matters of money; and unless the House chose to grant that money, it was so far no Treaty.

The member from South Carolina said, that the idea of impeachment was renounced. He was mistaken; no member in the House could now with propriety declare that when the papers are produced there may not be found ground for impeachment.

Another ground stated as a motive with the friends of the resolution for the call for papers, was to throw light in a discussion of the merits of the Treaty. The right of the House to view the instrument in this light was contested, and doubts had been raised; but if the House had a discretion as to appropriations, must they not take a view of the merits of the Treaty? But even if these doubts were not removed, even if the House had not a right, or did not want the papers to discuss the merits of the Treaty, still another motive existed acknowledged sufficient, which would cover the requisition, viz: the power of impeachment. It was said, that the precise use these papers are meant to be put to, should be stated; he repeated that they must be seen before it could be known what proceeding might be most properly grounded on them. It was said, that the PRESIDENT may refuse the papers asked for if he thinks proper, and that if he has a right to refuse, the House cannot have the right to ask. The House ask for particular papers, assert their right to them, under a broad qualifying reservation, dictated by their own discretion, which prevents any embarrassment arising in pending negotiations from it.