MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

insist on the demand. But, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the House, to call for them would be an unconstitutional intermeddling with the proper business of the Executive.

of the business as it appeared to him. The dis- points, which it appeared to him unnecessary to cretion of that House was limited by the Consti- decide. He did not conceive that the powers of tution, by Treaties, and ultimately by the law of the House respecting Treaties were necessary right and of justice, and when he had said this, he to be considered; the question appeared capable thought he had completely defined it; for although of a satisfactory decision on different grounds. the House had a discretionary power, yet that by When the motion was first proposed, he thought no means implied that they could exercise such it innocent at least, and was in doubt whether it discretion on subjects placed by the Constitution might not be proper, because he was in doubt how in other hands. He considered Treaties, as they far these papers might be necessary for enabling respected that House, the same in point of princi- the House to exercise that discretion on the subple as laws were respecting Judges of a Court. If ject of Treaties, which he admitted it to possess ; it should be asked whether a Judge had not a per- but on a more accurate and extensive view of the fect discretion on all the judgments he rendered, subject, and after carefully attending to the disno man would hesitate to say he had, and yet no cussion which had already taken place, he was man in his senses would say that because he had thoroughly persuaded that these papers were no such discretion he must therefore have a right to way necessary, and, that being unnecessary, to call judge whether a law was a good one or not. But for them was an improper and unconstitutional having no hand in making the law, he is bound to interference with the Executive department. consider it a good one, being made by the proper Could it be made to appear that these papers are Constitutional department of Government for necessary for directing or informing the House on that purpose. He said the House in all their ap- any of those Legislative questions respecting the propriations ought to exercise a sound discretion Treaty which came within its powers, he should in as ample a manner as any gentleman pleased, propose to change the milk and-water style of the provided they did not leap the bounds of the Con- present resolution. The House, in that case, stitution, and undertake to judge on subjects would have a right to the papers; and he had no which they had no right to judge upon by the idea of requesting as a favor what should be deConstitution. He said, he considered the PRESI-manded as a right. He would demand them, and DENT and Senate as agents for the people of the United States in forming contracts for them with foreign nations; and when contracts were thus formed, they were binding on the nation who were to be considered as the principal. That the Legislature were to be considered as another set of agents bound to carry the contract so made into This, it would be remembered, was no new doceffect; and when they found a contract already trine to him. It would be remembered, that, in formed by the people in a manner pointed out by the last session, very soon after he took a seat in them in their Constitution, shall the Legislature that House, he had opposed a motion, the object be quibbling and cavilling about carrying it into of which was to request the Executive not to sufeffect? Shall they be calling for papers, and ques- fer a Treaty with the Indians to be held for a partioning whether the people have made a good bar- ticular purpose, and had opposed it, because mak gain or a bad one, when the people have not seen ing Treaties being the proper business of the Exfit to intrust the subject to their discretion? Such ecutive department, for that House to interfere a piece of conduct, he conceived, would be usurp-on the subject, to request the Executive to treat ing powers which they did not possess, and highly disgraceful to the nation. Lest he should tire the patience of the Committee too much, he would proceed no farther, except just to remark, that it had been said, the PRESIDENT might be pleased with an opportunity to send the papers. But could It had been said, that this motion was of little not the PRESIDENT have sent them if he had wish- consequence; that it was only a request which ed, without the interposition of the House? If the might be refused, and that the privileges of that call was made, the PRESIDENT must either send House were narrow indeed, if it could not request them or refuse, and to do either would be embar-information from the Executive department. But rassing to him. It would be placing him in a situation which it was to be hoped the Executive would not be placed in ; for if he sent them it was explicitly saying, he had been negligent of his duty in not communicating them before; if he refused, it was setting up department against department, a situation of all others to be regretted. He hoped the resolution would not pass.

Mr. HARPER said, that it had not been his intention to trouble the Committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on 4th CoN.-16

or not to treat, was an interference with his duties, unwarranted by the Constitution, and tending to embarrass his operations, and lessen his responsibility. On the same ground he should oppose the present resolution.

it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. Legislative bodies often make the most formidable expressions of their will in the shape of requests. It would be further observed, that an honorable member from Pennsylvania, [Mr. GALLATIN] after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. After this avowal of the system, after this notice that the

express

[MARCH, 1796.

he had at length become completely convinced that nothing was more important, nothing more desirable, than publicity in all our public transactions. Mr. H. thought it much to be regretted that the honorable member from Georgia had not arrived at this state of complete conviction pre

present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold? Much astonishment, he said, had been ed by an honorable member from Virginia, [Mr.viously to the last motion in that House for clearGILES] that the amendment proposed the day be- ing the galleries. He would then, no doubt, have fore yesterday, had not been agreed to. His as-opposed the motion. He would have argued with tonishment would have been lessened had that his usual ingenuity on the advantages of publihonorable member adverted to what fell from city, and would probably have succeeded in conanother honorable member from Virginia, [Mr. vincing the House that its galleries ought always NICHOLAS] Who yesterday supported this motion to be kept open, that none of its proceedings with great ability and eloquence. He had avowed, ought to be hidden from the public eye. But still and the avowal did honor to his candor and spirit, it would have remained for him to prove, that that the amendment in question did not alter the because we chose to adopt publicity in our proprinciple of the resolution. For that reason, he ceedings, we have a right to direct the Executive declared, he had voted for the amendment, be- on the subject, and require him to publish his cause the resolution, under any possible modifica- proceedings also. Information about the Execution, would carry with it the same meaning. I am tive proceedings would no doubt be agreeable to also of this opinion, said Mr. H., and for that rea- his authority, and not from the House. To the the people, from whom the PRESIDENT derives son I voted against the amendment; I voted against it, because I thought the principle of the resolu- people he is accountable; and if he should think tion wrong, and that after the amendment the fit to withhold from them information, by receivprinciple still remained. My high respect for the ing which they would be gratified, he was the mover of the amendment, my confidence in his proper judge of the propriety of doing so, and candor, forbid me to doubt that the amendment must answer for his conduct. The House had no was intended to produce the effect pointed out by right to direct him. If the House had such a right him, to take away from the resolution all those over the Executive, he being also a representaproperties which he regarded as objectionable. tive of the people, equally bound to consult their But he will pardon me for saying, that the reso-interests, their rights, and their wishes, must have lution, as amended, appeared to me a masked bat- the same right over the House, and might in his tery, a sap instead of a storm, an ambuscade in-turn direct them how far they ought to make stead of an open attack, a pill. whose gilding rentheir proceedings public for general information. ders it fairer to the eye, and more pleasant to the A motion had for some time been laid on the taste, but leaves all its poison lurking within. table, by an honorable member from Virginia, With this view of the subject, and because he tending to exclude printers from the House. liked those measures best which were the least There could be no doubt about the power of disguised, which carry their tendency most plainly adopting such a measure, though its expediency on the face of them, Mr. H. had voted against the would probably have been found liable to very amendment, that those who disliked the principle and that the PRESIDENT had sent a Message instrong objections. Suppose it had been adopted, of the resolution might meet it in all its strength, forming the House, that publicity in the proceedWhen this motion for calling on the PRESI-ings of Government was a very desirable and neDENT for the instructions and papers relative to cesary thing, that he wished to know the grounds the British Treaty was first brought forward, an and reasons of measures that might be adopted, honorable member from Connecticut [Mr. TRACY] and that the resolution ought to be rescinded. had risen in his place, and with great propriety How would such a Message be received? Yet it requested the mover and supporters of the resolu- would be perfectly justifiable on all the reasons of tion to state the precise use intended to be made general publicity which had been urged in favor of these papers. Did they comply with this re- of the present resolution. If the House had a quest? No, they could not. Mr. H's. reliance on right to direct the Executive on this subject, it their candor forbid him to suppose that they could, must, by the same principles, have a right also to but would not. The fact was, that they did not; direct the Senate. The deliberations which led to and he therefore supposed that it was not in their the ratification of a Treaty in the Senate are as power. They had talked much of the necessity important to be publicly known, as the negotiaof understanding fully the course of the negotiation which led to its being signed by the Minister. tion; of the benefits of information on all Legislative subjects; of the propriety of publicity in all the acts of Government.

A gentleman from Georgia [Mr. BALDWIN had observed, that publicity was always desirable in Governmental proceedings; more especially in the proceedings of Republican Governments. He had informed the House, that his mind had for a long time inclined more and more to this opinion, and

We ought, therefore, if we act consistently, to request the Senate to let their gallery remain open for general information, while they discuss Executive subjects. The Senate must have the same right to make this request of the House. Suppose the Senate should send us a resolution, requesting us not to shut our gallaries, or not to exclude printers from the Hall? How would it be received? Certainly with great indignation;

and yet on the principles contended for, it would be perfectly right.

[H. of R.

enabling the House to exercise such discretion as it possesses on the subject? He believed, that These being the objections to the principle of taking this discretion in the utmost latitude that calling for papers for general information, Mr. had been contended for, the papers were not neH. presumed, that it was not on this ground these cessary for its full exercise. What was the dispapers were to be requested, but for some precise cretion contended for? It was threefold. 1. To specific purpose, to enable the House to exercise judge about the constitutionality of the Treaty; some Legislative function. What were these 2. To discuss the meaning of doubtful passages; functions? First-To institute an inquiry into and, 3. To consider of the propriety of making the conduct of those who had been concerned in appropriations, or passing laws for carrying it making the Treaty. Second-To take up the into effect. As to its constitutionality, it must be Treaty itself, and judge how far, and in what decided by the instrument itself; it must be com manner, it should be carried into effect. These pared with the Constitution, and judged by the were the only possible functions which the House result. If Constitutional, on the face of it, none could exercise on the subject of a Treaty; and of the previous negotiations by which it was brought they were functions entirely distinct. It had been about, none of the instructions under which it was rightly observed by a gentleman from Pennsyl- framed, couid make it otherwise. So, on the other vania [Mr. GALLATIN] that if an inquiry into the hand, if unconstitutional in itself, the defect canconduct of those who made the Treaty were the not be cured by the instructions or previous corobject, it ought to have been stated in the pream- respondence. So, as to doubtful passages, it was ble of the resolution. But this is so far from be- a constant and invariable maxim that every deed, ing done, that its advocates declare the PRESIDENT every law, every written instrument of any sort, to be far removed above suspicion, and intimate was to be judged of and explained by itself, and no intention of calling any other person to ac- not by recurrence to other matter. This was the count. But it was asked, how could members universal practice of the Courts of Law, who, when know what use would be made of evidence till it called on to expound an act of the Legislature, was produced? He asked, in his turn, whether never resorted to the debates which preceded itthis evidence had been kept secret? Far other-to the opinions of members about its significationwise. The mover of this resolution, as Chairman of the Committee on American Seamen, together with the whole committee, had been allowed access to these papers, and had inspected them. The same privilege, he doubted not, would be given to any member of that House who would request it. As the papers, then, had been It had been remarked, by the honorable memseen, as their contents were known, gentlemen ber from Pennsylvania, that, in the dispute between might state the precise use intended to be made our Government and Britain about the meaning of them, and ought to do so. Should a motion be of the sixth article of the Treaty of Peace, the made for the production of these papers, for the correspondence, and even the journals of the nepurpose of instituting an inquiry into the conduct gotiators, had been recurred to. This was highly of the negotiator, or any of those concerned in proper, Mr. H. said, when the parties themselves making the Treaty, he would second and support to a contract enter into a discussion about its meanthe motion. If this object was intended, it might ing, because they may explain it as they can muand ought to be stated, and till that was done, the trally agree. But the Treaty presented itself to motion ought not to be agreed to on that ground. that House as a law, and it must of course be It had been alleged that publicity in this busi-expounded according to the rule for expounding ness was avoided that the light was shunned. Far otherwise. He wished the papers in question were laid on the table; it would be gratifying to him, and he believed much to the credit of all concerned; but he could not consent to call for them, because that implied a right to possess them, which he could never admit.

The second use, he observed, that might be made of these papers, was to give the House information on some of those Legislative questions which it might be called to decide respecting the Treaty. Much difference of opinion had arisen about the Legislative powers and discretion of the House on the subject of Treaties. Some gentlemen extended this discretion very far; others confined it within very narrow limits. This question had been very ally discussed; but if it had not, he should not now enter into it, because he thought it unnecessary to the present decision. The question was, Are these papers necessary for

but inspected the act itself, and decided by its own evidence. Should this rule be departed from, the basis of law and of right would be removed; all the advantages of written records would be lost, and we should wander into the wide fields of uncertainty and opinion.

laws. Besides, one party to a contract had no power to alter it, and consequently must take it up and act upon it, not as it might have been intended to be, but as it is on the face of it. Two Ministers, moreover, engaged in a diplomatic contest, like lawyers defending a cause, would resort to every topic by which they hoped to strengthen their argument; but the House acted judicially, and, instead of following them in these excursions, must confine its view to the instrument itself, and explain its provisions by its strict letter. If they departed from the instrument itself, they might go not only into correspondences, but into the deliberations of the Senate, and the consultations of the PRESIDENT; nor would there be any further limit by which they could be stopped.

As to appropriations, Mr. H. had no doubt that the House might withhold them in the same manner that they might withhold appropriations for any other law, or that the PRESIDENT might refuse

to appoint officers under a law which he should deem totally subversive of the public good. Every branch of the Government, in extreme cases, has a right to oppose itself to the other branches, and arrest the progress of destructive measures. The Judicial power might make a stand, and refuse to execute a law. This discretion, he trusted, would never be used. It must, indeed, be a desperate case which would justify its use. This discretion of the House to refuse appropriations being admitted, how were the papers in question necessary to its exercise? A Treaty is made, and we are called upon to carry it into effect. What, then, is the question which this discretion enables us to ask? Not whether the Treaty be good or bad; not whether it was proper to make a Treaty at all, or whether a better one might have been made: all these considerations belong to the Treatymaking power, which is vested in the PRESIDENT and Senate. But the question was, whether the Treaty be so bad that the public welfare requires it to be broken; whether it is a less evil to abandon our national faith-to destroy the respectability of our Government in the eyes of foreign nations-to hazard disunion and contest between the different departments of the Government-or to execute the Treaty as it stands. This was the question, and the only one; and how were these papers necessary in deciding this question? If the Treaty were so bad that it ought to be broken, that would sufficiently appear on the face of it. Its provisions would speak for themselves, and nothing in the correspondence or instructions could be necessary to show their deformity. They might show that the Treaty was unskilfully negotiated; that it was unwisely agreed to; that better terms might then, or might now, be obtained-but all this, if fully established, would not authorize us to break it: otherwise it would follow, that either party to a contract might violate it whenever he should happen to think it disadvantageous.

[MARCH, 1796.

tion, he would once more repeat, must be decided by the provisions themselves as they appear on the face of the instrument. The papers could be in no wise necessary to the decision. To call for them, implied a right to rejudge the wisdom, the exp diency of the Treaty, after those points had been decided by the proper authorities—a right destructive of the principles of the Constitution. The harmony of the Government, he said, depended on keeping the business of each department separate from the other. If one branch encroached on the rest, destruction to the whole must be the consequence. The Constitution had defined the powers, had limited the sphere, of each department. The Constitution is the will of the people, in whom the sovereign power resides, and we are bound to obey it. We are as much bound to preserve it from our own encroachments as from those of the other branches. It was his love of the Constitution, his love of the people, his respect for their rights, and his belief in their sovereignty, which induced him to propose this motion. If the Constitution was infringed, whether by the House or the other departments, the rights, the sovereignty of the people were equally trampled on, and it would be no consolation to them that it was done by one hundred and five men, rather than by thirty, or rather than by one.

Mr. GALLATIN conceived that, whether the House had a discretionary power with respect to Treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. Under the first view of the subject, if the House has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. This latter view of the subject, even, must introduce a discussion of the Mr. HARPER illustrated his position by the fol- Treaty, to know whether any law ought to be relowing simile: If a man attempt my life, I have a pealed, or to see what laws ought to be passed. If right to kill him for my own preservation. I could any article in the instrument should be found of not inquire whether he were a good or a bad man; doubtful import, the House would most naturally whether his disposition towards me was hostile or search for an explanation, in the documents which friendly; but solely whether self-preservation re-related to the steps which led to the Treaty. If quired his death. If my life were not in imme-one article of the Treaty only be doubtful, the diate danger from his attempts, however criminal House would not know how to legislate without his intentions or his conduct might have been, it the doubt being removed, and its explanation could would be murder to kill him. certainly be found no where with so much propriThe House, he said, passed an annual appropri-ety as in the correspondence between the negotiation for the Military Establishment. Could they ating parties. He incidentally answered a referrefuse this appropriation merely because they dis-ence made in a former part of the debate, to someliked the establishment, and wished it to be re-thing that had dropped from him on the Federal duced? Surely no one would say so. But if City Loan Bill. He on that occasion insisted that they should be convinced that the Military Estab- the law for the permanent establishment of the lishment was about to become highly mischievous Seat of Government should not be looked on as a and dangerous, they could destroy it by withhold- bargain; that whatever might have been the views ing the appropriation. This would be an extreme of the members who framed it, that could not decase. And in like manner an appropriation for rogate from the nature of the law; and because carrying a Treaty into effect might in extreme the law was no bargain he was of the opinion he cases be refused. The question in all such cases then expressed; whereas a Treaty is a bargain. would be, which is the greatest evil, to break the But even, he insisted, if the House was not to leTreaty, at the risk of public faith, of national gislate upon the Treaty, they still have a right to honor, or to carry it into effect? And this ques-express an opinion on any important subject, and

this they could not do understandingly without information, and in this case without an examination of the instructions and correspondence that led to the Treaty, and of the other documents that related to the subject.

Gentlemen had gone into an examination of an important Constitutional question upon this motion. He hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground he had no objection to follow them in it, and to rest the decision of the Constitutional powers of Congress on the fate of the present question. He would, therefore, state his opinion, that the House had a right to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the Treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the Treaty itself, and therefore had a right to ask for e very information which could assist them in deciding that question.

[H. OF R.

opinion, and contended that it was limited by other parts of the Constitution.

That general power of making Treaties, undefined as it is by the clause which grants it, may either be expressly limited by some other positive clauses of the Constitution, or it may be checked by some powers vested in other branches of the Government, which, although not diminishing, may control the Treaty-making power. Mr. G. was of opinion that both positions would be supported by the Constitution; that the specific Legislative powers delegated to Congress were limitations of the undefined power of making Treaties vested in the PRESIDENT and Senate, and that the general power of granting money, also vested in Congress, would at all events be used, if necessary, as a check upon, and as controling the exercise of the powers claimed by the PRESIDENT and Senate.

The Treaty-making power is limited by the Constitution, when in the first section it is said that all Legislative power is granted to Congress. To construe the Constitution consistently, we must attend to all the sections of it. If it is attempted to be construed by referring to particular portions, and not attending to the whole, absurdities must arise. So in the present case, by the mode of construction advanced by the gentlemen opposed to the motion. By one section it is declared that a Treaty is the supreme law of the land, that it operates as a law; yet it is to be made by the PRESIDENT and Senate only. Here will be an apparent contradiction; for the Constitution declares that the Legislative power shall be vested in the three branches. By this construction there would appear to be two distinct Legislatures. How shall this apparent contradiction be reconciled? Some gentlemen, to solve the difficulty, had declared the Treaty-making power to be an Executive power; but a power of making laws cannot be termed Executive without involving an absurdity; the power of making Treaties, although called an Executive power, is transformed into a Legislative one by those gentlemen.

One argument repeatedly used by every gentleman opposed to the present motion was, That the Treaty was unconstitutional or not; if not the House had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." He wished gentlemen had defined what they understood by a Constitutional Treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional Treaty. He would say what he conceived constituted the unconstitutionality of a Treaty. A Treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a Treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to The power of making Treaties is contended to the Legislative department, such a Treaty, though be undefined, then it might extend to all subjects not unconstitutional, does not become the law of which may properly become the subjects of nathe land until it has obtained the sanction of that tional compacts. But, he contended, if any other branch. In this case, and to this end, the Legis-specific powers were given to a different branch lature have a right to demand the documents relative to the negotiation of the Treaty, because that Treaty operates on objects specially delegated to the Legislature. He turned to the Constitution. It says, that the PRESIDENT shall have the power to make Treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what Treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the Constitution, where it is said that the Constitution, and the laws made in pursuance thereof, and all Treaties, are the supreme law of the land; and thence, they insist that Treaties made by the PRESIDENT and Senate are the supreme law of the land, and that the power of making Treaties is undefined and unlimited. He proceeded to controvert this

of the Government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. If still it is insisted that Treaties are the supreme law of the land, the Constitution and laws are also; and, it may be asked, which shall have the preference? Shall a Treaty repeal a law or a law a Treaty ? Neither can a law repeal a Treaty, because a Treaty is made with the concurrence of another party-a foreign nation—that has no participation in framing the law; nor can a Treaty made by the PRESIDENT and Senate repeal a law, for the same reason, because the House of Representatives have a participation in making the law. It is a sound maxim in Government, that it requires the same