H. OF. R.] Treaty with Great Britain. [MARCH, 1796 the qualifications provided by the Constitution. It was said, that no instance of such a call as that now contemplated could be produced. No; nor of such a Treaty, he answered. It had been said that the PRESIDENT would have sent the papers if it had been proper they should be communicated. In one point of view the PRESIDENT must have supposed they could not have been wanted. Acting from pure intentions it He concluded by a short recapitulation. could not occur to him, that the conduct of the Mr. HEATH spoke as follows: I always feel a negotiators of the Treaty deserved a criminal in- peculiar diffidence whenever I deliver my sentivestigation. In the other view it was no arguments on any important occasion in this House, ment, for the House should not deviate from the road of their duty, by the belief, opinion, or conception, of any man. It was said, that by supposing papers necessary to elucidate the subject of the Treaty, it was virtually accusing those who had passed their judgment on that instrument with hastiness. If the House, who can claim a right to a sight of the papers, should decide without them, they, with justice, might be reflected on for precipitation; but the people could only act on the information given them, and on the general impressions the instrument made. Besides, their judgment on it was not final, it was not to annul, it was only an expression of their sentiments; a Treaty also may be so bad, as to impress a strong belief, that no circumstances leading to it can exist to prove it tolerable. The PRESIDENT's power over the laws had been mentioned by the member from South Carolina, as analogous to that which the House had a right to exercise on the present occasion. But that gentleman had insisted, that he had only their constitutionality to consult. Mr. N. differed in opinion; he conceived his right extended to the examination of their policy in all its relations, before he gave them his sanction. He may hitherto from his confidence in the Houses, never have questioned the policy of their laws, but his not having used the power did not deprive him of exercising it in future. It had been said that the Minister who negotiated a Treaty was a private agent of the Executive, and not answerable to the House. This was a strange doctrine indeed: Surely a Minister is a Constitutional officer, and as such impeachable. It has been said, that even if a Minister had deviated from his instructions, if his principal approved and sanctioned the deviation, the agent was no longer responsible. The doctrine he considered as very dangerous. A Minister might violate his instructions in a point not justified by existing circumstances; the change produced by the negotiation might justify the principal in accepting the Treaty; but though the latter might be justifiable, the first could not. The conduct of the agent might improperly bring the principal, without good cause, into such a dilemma as to oblige him in a manner to accept the Treaty he had made; but its ratification could not be a cloak to the conduct of the Minister. It was said, that if the Treaty was not the law of the land, the PRESIDENT should be impeached for declaring it as such. Parts of the Treaty the PRESIDENT and Senate had, no doubt, a right to make without any control of the House-those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under for fear they may not be sufficiently matured by deliberation. But it appears to me the resolution under consideration, is essentially important for two considerations: first, that the request or call for those papers contained in the resolution, is a Constitutional right of this House to exercise now, and at all times, founded upon a principle of publicity essentially necessary in this, our Republic, which has never been opposed, that I have either heard or read of, since the first organization or operation of this Government; and, secondly, because, at this particular conjuncture of our affairs, more especially since the Treaty lately negotiated with Great Britain has created so much uneasiness and solicitude in the public mind, we therefore ought to pursue every method in our power to allay their sensibility. It is more than probable, when those papers are exhibited to public view, it may have so agreeable an effect as to reconcile fully the feelings of the people to the propriety of the negotiation as well as the instrument itself. I am sorry, Mr. SPEAKER, while we are only on the threshold of the Treaty, in point of discussion, that some gentlemen (alluding to one or more of their colleagues) should express so much prejudice against the Treaty itself, before a full and mature investigation of the subject. Mr. H. called the attention of the House to the PRESIDENT'S Speech at the opening of the session. The PRESIDENT, he observed, in that Speech, on the subject of the British Treaty, says, that when the resolution of the King of Great Britain should be known, he would lay the subject before Congress. When he spoke of the Indian, he only intimates that he will lay the articles of the Treaty before them. He deduced from this striking difference in the language of the PRESIDENT, when speaking of the different Treaties, this conclusion, that the PRESIDENT wished, himself, to lay the whole business before them for the satisfaction of the House, and of the people, which could not be done without a surrender of those papers of correspondences and documents had and used in the late negotiation. Mr. H. cited the article of the Constitution, showing all money-bills and appropriations to belong to this House; and that the money of the people should not be voted out of their pockets without giving them the utmost satisfaction, for passing the laws to this effect. So that, upon the whole, I have no doubt in my mind of the right, policy, and propriety, of this House in calling for the papers; and therefore, I trust, the resolution will obtain. Mr. SWANWICK expressed his sense of the importance of the subject before the House, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. He did not conceive, how ever, that the decision of the present question involved the sense of the House as to the merits of the Treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the Treaty had been censured by assemblages of people with precipitancy, and without proper information. They did this on the best information that could by them be obtained. But if the House should go into a Committee of the Whole, to take into consideration the Treaty, without obtaining all the information in their power, they would be justly to blame. In the course of the debate, it was generally urged against calling for the information, that the House had nothing to do with the subject; that the Treaty being the law of the land, the House had nothing to do but to acquiesce. Even if that were the case, he saw no impropriety in calling for the information, which the PRESIDENT could withhold if not proper to be given. The House were daily in the habit of calling for information in this way. On the subject of the Naval Equipment the other day, information was called for. The present is an important subject, involving all the great commercial interests of the country, grants of money, regulations concerning our Territory. If information is called for on matters of lesser moment, should it be denied on objects of the utmost importance? Some gentlemen had contended that Treaties were laws, with which the House had nothing to do. He believed, that all the members of the House felt an equal zeal for the public welfare, and to act under the Constitution, according to its true import; but it was unfortunate, that a Constitution, however carefully framed, would contain parts liable to different constructions; even the Bible was not free from this: different deductions were made from the same texts by different theologists. He adverted to the Constitution; according to that instrument, the Legislative power is completely vested in Congress. By the 8th section of the 1st article, not only a certain specification of powers are granted to Congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. If, then, Congress have the power to pass laws to carry into execution all powers vested by the Constitution in the Government of the United States, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive Legislative control? Is the Treaty-making power not a power vested by the Constitution in the Government of the United States, or in a department or officer thereof? If it is, is the conclusion not obvious, that Congress have power to pass laws for carrying these powers into effect? But in the power to pass laws, discretion is necessarily implied; of course, this House must judge when it is to act; [H. or R. whether it will, or will not, carry into effect the object in question. It is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given. The member from South Carolina construed this part of the Constitution in a different way, and insisted that, as the PRESIDENT and Senate had the power of making Treaties, the House were divested of the right of exercising their judgment upon the subject. If this doctrine prevails, to what a situation would the Representatives of a free people be reduced? The Constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the House to raise money? Suppose that authority were in this way to grant millions upon millions, must the House, at all events, be compelled to provide for their payment? In this case the House become mere automatons, mere Mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves. Great stress is laid upon the Constitution declaring Treaties laws of the land. This article has often been quoted partially, but not at large. It is in these words: "This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "And the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State, to the contrary notwithstanding." Hence, it is obvious, that the supremacy of the law is over the Constitution and laws of the separate States, which was necessary to prevent these interfering with those. But it does not affect the powers of this House, as a component part of the General Legislature, and authority of the United States. It is also worth while to notice the gradation in the article. First. This Constitution. Secondly. The laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches. Thirdly. Treaties. How absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the Government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors. The gentleman from Vermont said, yesterday, that if the PRESIDENT and Senate were to make a Treaty, and that House were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain Government. Mr. S. observed, that that gentleman would probably be surprised, when he was told, that the British House of Commons possesses the same power which he reprobates in the Legislative Assembly of the United States. This, Mr. S. proved, by reading the King's speech to both Houses of Parliament, in which he informs them of this Treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. What, judge of the propriety of passing laws to carry into effect a Treaty ratified! And shall it be said, exclaimed he, that the Representative Assembly of the United States does not possess a privilege enjoyed by an English House of Commons! He hoped not. As this power of deliberation, with respect to appropriations, might be considered a new doctrine, Mr. S. proposed to read two extracts from a work, entitled "The Federalist," from pages 101 and 103. Mr. WILLIAMS objected to the extracts being read, but the House overruled the objection. The extracts are these: "A branch of knowledge which belongs to the ac quirements of a Federal Representative, and which Here the doctrine of Legislative sanction and co-operation is plainly admitted. "It is agreed on all hands, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.”—Page 101. If neither of the powers ought to possess, directly or indirectly, an overruling influence over the others, whence is the power to be deduced of the PRESIDENT and Senate, by Treaty, to make laws possessing this very overruling influence over this House ? [MARCH, 1796. ought we to be the first to find this fault with ourselves? Are the other branches unable to defend themselves, that we must suggest this to them? All this is truly surprising. But, said he, is there no danger from encroachments in other quarters? When gentlemen talk of that House being bound to make appropriations without inquiry, it was time for them, at least, to beware of encroachments. What the House now wanted was information; they wanted to know for what purpose they were about to grant money, before they granted. He trusted that House would always be cautious how they parted with the money of the public. In no instance, he said, had they been charged with being too scrupulous in that respect. One gentleman from Vermont called upon the House to beware of encroachments, lest they overturned their Republican Government; he said we were now to show how far we possessed the power of self-government; why, what other Government would the gentleman have? Are the Alas! all Governments have been tried, and have thrones of despots more secure than Republics? succeeded each other; but still the imperfection of man himself must be shared by his Government, be it what it may. But was not this Government, he said, as likely to be administered wisely, as any other existing Government? There may, and will be, differences of opinion on this and almost every other subject; but he trusted there was sufficient information and uprightness of heart in the country, to prevent any danger to their Go vernment. before the House, to be freely and fully discussed; MARCH 9.-In Committee of the Whole, on Mr. LIVINGSTON's resolution, Mr. MUHLENBERG in the Chair Mr. N. SMITH said, he agreed with gentlemen who asserted that there was no Constitutional question included in the resolution on the table. He believed it perfectly accorded with the Constitution to ask the PRESIDENT for papers, when they could be of any use to them, and that the PRESIDENT had the same privilege to ask for information from the House. Indeed, he believed, whenever any one of the departments of Government wanted information from any other department, to enable them to perform their ConstituIn the course of this debate, Mr. S. remarked, tional functions, it was highly proper to call for it. he had heard some observations which he was But he did not believe they ought to pass the resosorry to hear, and which he thought irrelevant. lution, unless some specific object was pointed out, It was said that encroachments on the Constitu- to which the papers could be applied, and for tion were more likely to be made by that House, which they might be of use to them. That they than by any other branch of the Government. could do no harm, in his opinion, was a very poor Whence, said he, arises this charge? How long reason for the interposition of the House. He since this House hath become such a bug-bear-wished never to pass a resolution on idle and such a scare-crow? What motives, can it be supposed, this House possesses, thus to encroach; of all the branches of the Government, the most transient and short-lived, elected but for two years, then returning to the mass of citizens, what interest have they in encroachments? Besides, ridiculous grounds, but because it was founded in solid reason and propriety. Such reasons, in his opinion, had not been offered in favor of calling for the papers. When he admitted, that in calling for papers, distinctly considered, there was no unconstitutionality, he did not mean to be understood MARCH, 1796.] Treaty with Great Britain. [H. OF R. from the face of the law itself, is saying that it amounts to nothing at all. to say that there was not a Constitutional question involved in the discussion. He thought there was one, of the highest magnitude; no less than whe- It has been said, that these papers are wanted ther the House of Representatives have a right to for the purpose of impeaching the negotiator, or judge over the heads of the PRESIDENT and Se- PRESIDENT OF THE UNITED STATES. This, the nate on the subject of Treaties. But this was not gentleman from Pennsylvania had acknowledged a necessary consequence of the resolution, and if could not be considered as an object of the call, gentlemen would show any other sufficient cause unless it had been mentioned in the resolution itfor calling for the papers, he would agree it ought self. He was quite willing, however, that any to pass; and although he could see no other suffi- gentleman who wished for an impeachment cient cause for passing the resolution, yet if gen- should vote for the resolution. He believed the tlemen would declare, they did not want them to number would be very small. But he hoped judge of the Treaty, they would at least save him gentlemen would not pretend they wanted them the trouble of opposing it. But while the advo- for an impeachment, when in fact they had no cates of the resolution assign it as a reason for the such idea. He hoped they would not make that ́ call, that we want them to enable us to make up the ground of their vote, when in fact they wanted our minds on the merits of the Treaty, can they them for a different purpose. He extremely reblame gentlemen for attempting to prove that the gretted, that the friends to the resolution had not House of Representatives have no right to judge pointed out the specific object to which they meant on a Treaty? The advocates of the resolution to apply the information, when it was obtained. had, since the introduction of it, several times Had this been done in the resolution, it would changed their grounds; assigning, at different have prevented much confusion and embarrasstimes, very different reasons in favor of calling for ment. He believed, however, that the great obthe papers in question. What were their reasons ject was to obtain the information, for the purpose for thus changing and shifting was to him a mat- of enabling the House to judge on the merits of ter of no consequence, since all the reasons which the Treaty. He should, therefore, take the liberty had been offered in its favor, were, in his opinion, to answer gentlemen on that ground. It has been capable of conclusive answers. He should en- said, the PRESIDENT and Senate have not the deavor, he said, in answering what had fallen from power to make commercial Treaties. If this is different members in favor of the measure, not to the case the Treaty is absolutely void. Then travel over the ground which had been taken by why want papers? Whether the PRESIDENT and gentlemen who had gone before him, on the same Senate have the power to make commercial Treaside of the question. It had been said, that in- ties or not, it must be extremely clear, by recurring formation would tend to allay the sensibility of to the Constitution, that the House of Representthe public mind, and that nothing was more de-atives have no right to make Treaties of any kind. sirable than publicity in all Governmental pro- But it is said the Treaty contains commercial receedings. But, he presumed, it would be admitted gulations, and therefore is subject of their inquiry. that there was a great difference in that respect He said they had a right to legislate with respect between the business of an Executive and the to commerce, but not to make Treaties on that Legislative. He believed it must also be admit- head. If they had, he asked, from whence do they ted, that each department of Government ought derive the power? Let the Constitution be searchto be the sole judge when to make any part of its ed from beginning to end, and not a syllable will proceedings public. Besides, if the object is to be found which bears an appearance of design to publish them, in that case there ought to be an give the House of Representatives a participation act passed regularly, directing them to be pub- in the power of forming contracts with foreign lished. What, said he, is the language of this nations. Besides, if they had a right to judge of resolution? If it went to the PRESIDENT, Would it, they ought to have had a hand in making it. he not suppose the papers asked for were wanted It has been said, that in England the House of to assist the House in legislation? He would Commons claim a right to judge of the merits of never conjecture they were wanted to be publish- Treaties, and withhold their aid whenever they ed, and it would be wrong to publish them. It think proper; this is not peculiar to the House of was said, by a gentleman from Pennsylvania, that Commons, it is in Parliament at large. But why the papers were wanted to explain doubtful parts introduce this by way of precedent to guide us in of the Treaty. He had wondered the gentleman construing our own Constitution? They have no could say this, when on a former occasion, on dis- such written Constitution as we have; their Concussing the subject of the Federal City, the same stitution is entirely made up of usages and laws. gentleman had declared, that a law must be con- Whenever you prove, therefore, that they have an strued from the face of it, and that nothing extra-usage like the one that is mentioned, of judging neous to it could be admitted. The sentiments of the gentleman, delivered on that occasion, exactly accorded with his. Indeed, he said, it would be absurd to oblige people to obey an instrument according to the face of it, and yet suffer that instrument to be essentially altered and changed from extraneous circumstances; and to say it is not to be obeyed, according to the manifest construction on Treaties, you have then proved that such is their Constitution, and if our Constitution expressed in terins what theirs expresses by their usages, there could be no doubt but that the House should have the right. In construing a written Constitution, to introduce the practice in a country who have no written Constitution, can have no effect but to mislead. If gentlemen could show us a written H. OF R.] Treaty with Great Britain. [MARCH, 1796. Constitution in England wherein the Treaty- the Legislature he had no opinion; he would form making power is exclusively vested in the King, none; because the Constitution, which his conwith the advice of the House of Lords, and under stituents had given him as a guide to his conduct such Constitution the House of Commons claim- had given him no right to form an opinion on ing a right to interfere in the subject, their prece- the merits of a Treaty. It was obvious, therefore, dent would then apply; unless, indeed, it were too the papers could be of no service to him. But, absurd to be considered as a precedent. He said say, gentlemen, are we to sit down here and vote the two Governments were perfectly dissimilar; for a law which we believe a bad one? And one why, then, introduce the practice of that Govern- gentleman had inquired what he should inform ment as a guide for this? He was well suited his constituents, when they made inquiries of him with the Constitution of America, and wished not on the subject? He would answer both the into assimilate it to any foreign Constitution, and quiries: He thought the gentleman might justly he hoped it would not be warped and twisted to inform his constituents, that they, by their Conbecome like them. Were they about to form a │stitution, had given the PRESIDENT, with the adConstitution, it might be desirable to take what- vice of the Senate, the power of making Treaties; ever was found good in any other; but when the and, having had no hand in making it, he was enConstitution was already formed and marked out titled to no share of credit or blame on account of by direct boundaries, in a manner too plain to be its merits. As to the former inquiry, he would mistaken, could it be of any use to inquire what first see how far the gentleman's doctrine would was the Constitution of other countries? He said lead them, and would then give his own ideas on the Convention who formed our Constitution had the subject. The principle, if pursued, would avoided that part of the British Constitution, as carry its advocates too far; for, on the same prinabsurd. In England, the King has the sole power ciples, they had a right to judge whether a PREof making Treaties; but, after the Treaty is made, SIDENT was a proper person to fill that office, every Parliament claim a right, in certain cases,to judge time the question arose whether they should apof their merits. In this country, the Convention, propriate for his salary. Again, suppose the House in framing their Constitution, had seen fit to add were about to appropriate for the salary of a Judge, the Senate to the PRESIDENT, in the business of it might with equal propriety be asked, are we making Treaties; and, still further to guard the mat-to pass a law which we believe a bad one?-and ter, required that two-thirds of the Senate should thence inquire into the merits of the Judge, and concur; and then, as if to completely shut the door see whether the PRESIDENT and Senate had apagainst all further investigation of their merits, or pointed a proper person or not. But pursue this any cavilling on the subject, declared that a Trea- doctrine and it will be found to affect some of the ty thus made should become the law of the land. dearest rights of the people themselves; for supThe Convention must be supposed to be tho- pose the House should conclude the electors had roughly acquainted with the usages in England at elected a very improper person as a Representathe time of framing our Constitution, and appear tive; on inquiry, into the merits of the member, to have studiously avoided that part of their Con- they might, on finding this in their opinion to be stitution. He said the time this usage found its the fact, withhold an appropriation for his salary. way into the English Government could not be But the true answer, he conceived, to all these important, nor could the cause of it; this much, cases was, that these were subjects on which the however, appeared very clear, that Parliament Constitution had given them no right to judge; had no limits to their power; they could even they were, therefore, to consider all as well done, change the Constitution of the Kingdom; a power being done by the proper persons for the purpose. which no man will pretend is in the Legislature The PRESIDENT, the Judge, and the Member, so of this country. But it is said. Congress have far as it respects us, in our appropriations, are to power to make the necessary appropriations or be considered as the most proper persons, however withhold them, and that for the purpose of guiding our private sentiments may be. Just so respecttheir discretion in this business, they must have a ing a Treaty: the Constitution has made it the right to judge of the Treaty. The whole fallacy duty of the PRESIDENT and Senate to make Treaof this argument, he said, consisted in supposing ties, in as full a manner as it has to appoint Judges, they had a right to judge of the merits of a and we are equally bound to consider all as well Treaty. Let gentlemen look at the Constitution, done, and have no more right to judge of its merthey will find no such power given; and if that its, than in that case to form an opinion of the instrument does not give it, how do we come by merits of a Judge. the power? The Constitution, he said, had as- He observed, that as to the question, whether signed the business of making Treaties to the they had a right to withhold appropriations to carPRESIDENT, with the advice of the Senate; when-ry into effect a law of the Legislature, he wished ever, therefore, a Treaty came incidentally before them, they were bound to consider it as well done, having been done by a department constitutionally authorized for the purpose. As a citizen, he had an opinion on the Treaty; and, in determining whether the PRESIDENT and Senate had deserved well of their country, he was ready on all occasions to call it into exercise; but as a member of at that time not to controvert, as that would place him on ground much weaker than the true ground of discussion. But, he asked, is a Treaty a law, simply considered, and have the Legislature a right to repeal it, as they may their own laws ? No; it is a contract, binding them to a foreign nation, and when once it is formed they have no longer any power over it. He would state the true ground |