MARCH, 1796.] Treaty with Great Britain. see their operation, and to decide on the powers of the House in the exercise of them. [H. OF R. by compact which never could have been done by legislation. Mutual concessions must be made, and the embarrassing restrictions of countervailing laws must be taken away by Treaty. Another case may be put down from a principle in the Constitution of the United States. The Legislative power of this Government declares war against a foreign nation; the war proceeds until every object is accomplished. How is this war to be terminated? It will not do for the Legislature to repeal the law which gave existence The Legislative power in all Governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain English writers have said of the British Go-to the war: such a measure would disarm the vernment, its power is almost omnipotent. Thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of Government, or which occasionally arise from the nature of Government itself, and limit the objects of its operation. It is easy to see, that in the exercise of these Legislative powers it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. Such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments. nation, and leave the frontier unprotected; and if the Treaty power should interfere, and obtain a peace by negotiation, such a measure would be directly opposed to the law which created the war; and if peace was established by Treaty, the law which declared war would thereby be repealed. He asked, again, what is to be done? Is the war to be perpetual? Every gentleman in the Committee would say that the war is not to be perpetual, but that the Treaty power is alone competent to put an end to the war, by negotiation and by Treaty. And yet it is apparent, that in the exercise of this power, a Legislative act is directly repealed. From these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the Treatymaking was paramount to the Legislative power; and that the positive institutions of the Legislature must give place to compact. On this construction a perfect harmony is introduced into the departments of Government. Both the Legislative and the Treaty power are necessary, on many occasions, to accomplish the same objects. The Legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the Treaty power, when that nation is compelled to agree to such reasonable compact, to remove by Treaty those very regulations, and the war itself, on fair and equitable terms. The Treaty-making power operates in a very different manner: its power is limited and confined to the forming of Treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. In the exercise of this power, it will unavoidably happen that the laws of the Legislature are sometimes infracted. The Legislature, for certain causes-perhaps to compel a foreign nation to form a Treaty on terms of reciprocity-may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect: the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. If, in this case, the Treaty power cannot touch the laws of the Legislature, the object which gave rise to those very laws can never be attained; no Treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has And why is not this construction right? What not been attained. Such a construction of the evil or violation of principle is to arise from it? Treaty power would defeat every object for which All laws originate from the people. The laws that power was established; and instead of pos-enacted by the Legislature are nothing more than sessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it. The principle might be elucidated by the following case: Two nations who have no existing Treaties with each other are induced by their respective Legislatures to enact countervailing and retaliating laws, and ultimately to carry these laws. to such an extent as to render all intercourse impracticable: what is to be done? It will not do for either nation to repeal her laws, because neither can begin the measure. The Treaty power can alone interfere, and the two nations must do that A different construction would be productive of endless confusion aud disorder. As these powers operate on the same objects, if the one is not subordinate to the other, they are thrown into the same field, to combat for power; and placed in a state of perpetual war with each other. the expression of their will. And shall not the people have the power to annul, by one. agent, those laws, which they have established by other agents? The hands of the people are not tied ; the same right which gave them the power to make statutes by a Legislature, gives them the power of repealing those statutes by Treaty, whenever they find it useful so to repeal them. These general remarks are not made to prove any particular distribution of the powers of this Government. They are made to evince that, from the nature of things in all Governments, the Treaty power must, on certain subjects, be paramount to the Legislative. It cannot be doubted, but that the people have a right to deposite their power wherever they please; but wherever the power is placed, it must possess all that authority which is necessary to answer the objects for which it exists. The next inquiry will be, where have the people of the United States, by their Constitution, placed these two powers? And where they are placed, there let them remain. [MARCH, 1796. measure was necessary, and that if no power was to be given, because power might be abused, all Government was at an end. In opposition to these opinions, a gentleman from Pennsylvania [Mr. GALLATIN] had said, that a law could not repeal a Treaty, nor a Treaty repeal a law, and had assigned this reason for it: that no law could be repealed, but by consent of the parties to the law. The reason is perfectly just, and applies conclusively to the case of a Treaty. But how does the reason apply to a statute? Is the House of Representatives a party to a statute? He believed not. The laws were the laws of the people, and not the laws of the House of Representatives. And shall not the people who made the laws by one set of agents, repeal them, if they please, by another? But it was said, that there is a power given the Legislature by the Constitution to check the Treaty power; he could not find that check in the Constitution. The power of making Treaties was complete, in the PRESIDENT and Senate; and a Treaty once made, is not only binding on the nation, but becomes a law; and although the Legislature may defeat the execution of a Treaty, as it may every other law, yet it can never release the nation from its obligation. By recurring to the Constitution, this question is easily answered: The first article in the Constitution declares, that the Legislative power therein granted, shall be vested in a Congress. In other parts of the Constitution. the particular objects of the Legislative power are detailed: Congress shall have power to regulate commerce with foreign nations; to lay taxes; to declare war, &c. But it is to be remarked, that this power of regulating commerce, &c., is a Legislative power, and, of course, subject to all those checks and restrictions, which a Legislative power must experience in all Governments, and which arise from the nature of things. The same Constitution declares, in words equally explicit, that the PRESIDENT shall have power, with the consent of the Senate, twothirds agreeing, to make Treaties; and to leave no doubt as to the effect of a Treaty then made, the Constitution likewise declares, that all Treaties, It had been likewise said, that the power of apmade under the authority of the United States, propriating money, given to the Legislature, creshall be the law of the land. He said that this ated a check on the Treaty power, wherever mopart of the subject did not admit of much elucida-ney was wanted to carry a Treaty into effect; he tion; it gave rise to one of those self-evident propositions, which can only be obscured by reasoning. It was sufficient to say, that the people had, by their Constitution, in express words, deposited the Treaty power with the PRESIDENT and Senate, and as the House did not sit to make a Constitution, but to execute one, it was of no consequence whether the deposite was judicious, or otherwise. Viewing the question in these points of light, he could not see any difficulty in their solution. The power of making Treaties has been given to the PRESIDENT and Senate. The Treaty in question has been completed by those constituted authorities; the faith of the nation is pledged. It has become a law, and the House of Representatives have nothing to do with it, but provide for its execution. It had been, however, said, that if this extensive power is given to the PRESIDENT and Senate, they may repeal half of the existing laws. Allowing this to be the case, what follows? This consequence only results, that the people have clothed the PRESIDENT and Senate with a very important power. But this power must be placed somewhere; no Treaty can be made without it; the people have thought proper to place it there, and the House must submit; and it could be no objection to a distribution of necessary powers, that it might be altered. All power might be abused. The PRESIDENT is intrusted with the execution of the laws; he may abuse that power. The Legislature have the power to lay unlimited taxes, and to create unnumbered offices; this power may be abused. The people knew this when they gave the power; but they likewise knew that the could not admit this doctrine. It had been already shown, that the discretion of the Legislature was in certain cases limited in the business of appropriation. The compensation to the PRESIDENT, and the salary to the Judges, had been mentioned; and it could not be said that the Legislature possessed a broad discretion in these cases. The Constitution declares, that these compensations shall be paid; and yet they cannot be paid without Legislative appropriation. It therefore becomes the duty of the Legislature to make the necessary appropriations for those objects; they are bound to do it. The obligation of the Legislature to appropriate money is equally strong in every case, where a debt becomes due, a contract is made, or a law is to be executed; whether that debt, contract, or law, arises from the Constitution itself, the law made in pursuance of it, or Treaties made under its authority. It was the duty of the Legislature to do in all those cases, what the same gentleman from Pennsylvania had said, on a former occasion, on the subject of the Federal City: They must execute the law, or repeal it; for they could not refuse an appropriation, because they may think the law a bad one. The Legislature, with respect to appropriation, might be considered as Treasurers of the United States; they command the Treasury of the Union; no money could issue from its coffers without an appropriation. But this power was not given, to enable the Legislature to defeat the contracts of the people, made by their authorized agents; but to fulfill them. It was true, that they must examine the claim, inquire whether the debt was due, the contract regularly made, or the law re MARCH, 1796.] Treaty with Great Britain. [H. OF R. quired Legislative aid. When these facts were If he had been right in the doctrines he had adascertained, it became their duty and their busi-vanced, that the business of ratifying the Treaty ness, to make the necessary appropriations, provided money could be obtained for the purpose. This was a trust committed to the Legislature by the people; and if they did not execute it, they violated the trust reposed in them. But it had been asserted, that the British House of Commons exercise the right of examining Treaties. But does it follow from thence, that the House of Representatives of the United States have the same power? Has Great Britain a similar Constitution? It was not pretended that she had; her Constitution had been justly said to have been made up of usages. Of course, proving that the British Commons exercise this power, proves nothing more than that such is the custom in that Government. But if the Parliament of Great Britain was to pass a law, vesting this power exclusively in the King and House of Lords, would the Commons then claim the right of ratifying Treaties? But still gentlemen ask, have not the House as much power as the British House of Commons? He would answer this question by saying, that the House had as much, and no more power, than the Constitution had given it. And if gentlemen required a further answer, he would say, that the Legislature of the United States did not possess as extensive power as the Parliament of Britain. That body can change the Constitution, alter the religion of the country, and, in short, its power is really omnipotent; such unbounded powers are not claimed here. But whether the British House of Commons have the power or not, is a question of no consequence; the inquiry was not into the powers of British Parliaments, or Houses of Commons, but into the powers of that House, and those powers were found only in the Constitution. did not belong to the House, and that the Treaty was in fact a law without Legislative sanction, then the resolve on the table was improper and inexpedient, and ought not to pass. Mr. HAVENS observed, that it appeared rather unfortunate, that a great Constitutional question should be discussed on a proposition that expressed no opinion relative to that subject; but as the right of the House to request the PRESIDENT to lay papers before them that related to the subject of the Treaty, had been denied, on the Constitutional ground, it appeared necessary to debate the Constitutional question; which, when stated in as concise terms as possible, and yet so as to express it with clearness and precision, appeared to be this: Is there not such an apparent interference between the Treaty-making power, vested by the Constitution in the PRESIDENT and Senate, and the Legislative power vested in Congress, that it becomes necessary to adopt such a principle of construction as will give both these powers full operation and effect, and that therefore it ought to be concluded, that whenever any Treaty shall contain any stipulation that may be comprehended under the Legislative powers of Congress, it ought not to be considered as the supreme law of the land, until it shall have received the assent of the House of Representatives to carry it into effect? In discussing this question it would be necessary to make some preliminary observations on the nature of power generally, without reference to any particular Constitution, that a better judgment might be formed of the nature and extent of the respective distributions of power contemplated in the Constitution of the United States. Power, as it relates to Government, has been considered to be of three kinds: Legislative, Executive, and Judicial. It would, in the course of this discussion, be admitted, as he presumed, that it would be a good definition of the Legislative power to say, that it was a power to prescribe rules that shall be binding on the community; and that it would likewise be admitted that it was a precise definition of the Executive power to say, that it was confined merely to the execution of the laws; and that the judicial power was nothing more than the power of determining what the law is; but, notwithstanding these respective definitions were sufficient to give a precise idea of the nature of each of these respective species of power, yet it must be acknowledged as an undoubted principle, that they do so shade into each other, In the course of the debate, the gentleman from that it is impossible in many cases to draw any Pennsylvania [Mr. GALLATIN] had compared the line of distinction between them. The Executive opinions of those who opposed the resolution, to will, for instance, in many cases exercise a Legisthe saying of an English Bishop, who had said. lative power in the form of discretion, or in act"that the people had nothing to do with the law, ing in cases where in fact the law is silent; and but to obey it;" and their conduct, to the servile in like manner the judicial is rather in its nature obedience of a Parliament of Paris, under the old Executive, as having united with it a power to order of things. Such remarks deserved no an-execute the laws, and at the same time exercises swer; he only wished to impress the recollection in a great measure Legislative powers under the of them on the minds of gentlemen, that they form of adjudications; but of these three kinds of might remain a perpetual monument of that gen-power, the Legislative must be the most extent tleman's candor. sive and indefinite, for being in its nature supreme The same gentleman from Pennylvania said, that, if the Treaty is a law, it must be carried into effect. He asked, why was not this Treaty a law? It is certainly a Treaty; it had been made; it had been made under the authority of the United States; having been ratified by the PRESIDENT, with the consent of two-thirds of the Senate. What other requisite was wanting to make it a law? The Constitution points out no other: it therefore must be a law, and as a law, must be carried into effect. The gentleman had said, that a law could not repeal a Treaty; and if the House could not repeal it, why discuss it? It would be doing what the people had not employed them to do. H. or R.] Treaty with Great Britain. [MARCH, 1796. it cannot be limited in going into details. But if all Legislative power therein granted shall be the boundaries between these respective powers vested in Congress, which shall consist of a Senare somewhat undefinable, when considered with- ate and House of Representatives; there is no out reference to any particular form of Govern- reason can be assigned why these words, all Lement, they are much more so when viewed as gislative power, in this clause, should not be conthey are intended to be distributed in the several sidered in as unlimited a sense with respect to all forms of Government or Constitutions now exist- the objects of legislation specified in the Constituing in the world. He knew of no Government or tion, as the words to make Treaties, in another Constitution in which those three powers were clause; there must, therefore, be a manifest inperfectly separated, unless it had been effected in consistency between these two powers, according the present Constitution of France, but he doubted to the doctrine of those who contend, that a whether it had been effected there in the sense Treaty ought to be considered as supreme law that he understood it; but if recourse were to be without the assent of the House of Representahad to the Constitutions in the United States, we tives, because it would be the same thing as to should not find one in which these powers were say, that no Legislative power granted by the not in some measure blended among the several Constitution could be exercised without the assent departments of the Government; this was the of the House of Representatives, and yet the PREcase, at least so far as his knowledge on that sub- SIDENT and Senate might exercise whatever Leject extended. He had not seen one in which it gislative power they thought proper, without their appeared to him that this was not the case. They assent, under the form of a Treaty. The univerwere certainly blended in the Constitution of the sal principle of construction, that all parts of any United States: The first article of it determines written law ought to be so construed as to be conwhat branches of the Government shall exercise sistent with itself, so far as the same may be practhe Legislative powers; and the second creates ticable, ought therefore to be applied in this case; the Executive power; but, at the same time, the which can easily be done by supposing that it Chief Executive is vested by the first article with must be a principle necessarily resulting from the a right to examine bills and object to them before two clauses in the Constitution, that whenever they are passed into laws; this power could not any Treaty shall contain any stipulations that be pretended to be Executive in its nature; and may be comprehended under the Legislative by the second article he is vested with the power power granted to Congress, it ought not to be consiof making Treaties, with the consent of two-thirds dered as law until it has received in some form of the Senate; but this does not make this power or other the assent of the House of Representain its nature Executive, because that when we tives. He observed that it had been admitted by take into consideration the nature of this power, those who were opposed to what he conceived to we shall find that it is in fact Legislative; for it be the Constitutional right of the House, that it comes precisely within the definition of Legisla- was necessary that the House should have some tive power, as being a rule or law, binding on two agency in passing an appropriation law to carry or more independent nations by their mutual con- it into effect; this, he conceived, could only be sent; the idea of a contract is no further connected necessary on their ground, because that the Treaty with it than as it is necessary that two or more in- was unprovisional in that respect; if it had condependent nations should ask each other's consent tained a clause stipulating that the necessary apthat this law should be binding on each of them. propriations should be made, it would, according When, therefore, this is said to be a power founded to their principles, have been unnecessary to have on conventions, compacts, or agreements, it does laid it before the House; but at the same time not follow that the power is not in its nature Le- that they admitted this, they insisted that the gislative; such words and phrases as these cannot House had no discretion in the business, but that alter the nature of the power; and when consi- they were bound by the Constitution to carry it dered without reference to any particular Con into effect, because that the Constitution had said, stitution, it must be considered as unlimited in its that Treaties made under the authority of the extent; because any conceivable stipulation, whe- United States, should be the supreme law of the ther of a Legislative, Executive, or Judicial na- land, any thing in the Constitution or laws of any ture, may be comprehended under the form of a State to the contrary notwithstanding; and in Treaty or contract with a foreign nation, and confirmation of their doctrine, they had compared therefore it must follow as a necessary conse-it to a case in which they suppose that the Legisquence evidently deducible from the indefinite extent of this power, that there never can be any precise boundary line marked out between what has been usually called internal and external relations. If the power of making Treaties as vested by the Constitution in the PRESIDENT and Senate, is in any sense limited, it must be by other parts of the Constitution than that in which it is expressly delegated; for it is there expressed without any limitation; and the only question seems to be, by what other parts or clauses is it limited? The first clause in the Constitution declares that lature can, by the Constitution, exercise no discretion in determining whether it will make the appropriations—that is, in the case for the support of Government generally, or of some of its particular branches, as for instance the Judiciary. But he could even suppose a case in which it might be necessary to exercise some discretion about the appropriation of moneys in the strongest case that had been stated; as, for instance, it might be necessary in some time of extraordinary danger or difficulty, to apply the very moneys that would, in an ordinary way, be applied to the support of MARCH, 1796.] Treaty with Great Britain. [H. of R. OF Government, to such a purpose as would prevent tion to precedents in considering the question unthe impending danger; but even admitting that der consideration, because that he laid it down as Congress could exercise no discretion about legis- an incontrovertible maxim, that neither of the lating in many cases that might be pointed out in branches of the Government could, rightfully or the Constitution, it does not follow that they constitutionally, divest itself of any powers by would have no discretionary power about legis- precedent, or by a neglect to exercise those powers lating in this particular case. Congress must be that were granted to it by the Constitution; the supposed generally to have a discretionary power great danger that was generally to be apprehendto determine whether they will continue any ex- ed from precedents was this; that they might isting law in force, and consequently may exercise make the Government different in practice from a discretion in appropriating any moneys, if any what it was in theory or on paper. He observed, should be necessary, to carry it into effect; and, that it was a very remarkable circumstance, that besides, the question would still remain to be de- those who had been stigmatized by gentlemen as termined, whether a Treaty containing Legisla-disorganizers of the Government, or as rebels tive regulations ought not to receive the sanction against the constituted authorities, should be very of the House before it became the supreme law strenuously contending for such a construction of of the land, in the sense in which that expression the Constitution of the United States as would in the Constitution ought to be understood. He render all its parts harmonious, and give them full observed, that gentlemen had not been sufficiently operation and effect; and that those who assumed explicit in determining in what sense Treaties to themselves the peculiar style of being defenders ought to be considered as the supreme law of the of the Constitution, and supporters of the Governland; some appeared to consider Treaty law of ment, should be contending for such a construcso transcendant a nature as almost to form a part tion of the Constitution as must render it inconof the Constitution itself; they appeared, how-sistent, and which must have a tendency to transever, at the same time, to admit, that if a Treaty was contrary to the Constitution, it would, in that respect. be null; they appeared, however, very generally to place it in a grade or sphere a little below the Constitution, but far above any Congressional law, so that no act of Congress could touch or affect it-notwithstanding that the Constitution has declared the Congressional law shall be the supreme law of the land as well as Treaty law. fer the powers of the House of Representatives over into the hands of the PRESIDENT and Senate, by giving them an indefinite right to make laws without the consent of the House, under the form of Treaties. In order to avoid this inconsistency it had been said, that so was the Constitution; the will of the people had been expressed in that way, and that therefore we ought to submit to it; but such an assertion did not remove the difficulty, or clear up the inconsistency on the side of those It appeared of great importance to him in dis- who brought it forward; because it would still recussing the question, to determine whether there main to be determined what the people had said did not necessarily exist in the Government of when they expressed their will in the Constituthe United States, power to break a Treaty as tion, and whether they did not intend that a Treawell as to make it; this was a power necessarily ty containing Legislative regulations should reinherent in all independent Governments, and it ceive the assent of the House of Representatives was frequently necessary to exercise it, because before it was carried into effect. It had been atthat a Treaty being in its nature nothing more tempted to represent these powers as operating cothan a law, mutually binding on two or more in-ordinately; but co-ordinate supreme powers could dependent Sovereignties by their mutual consent, it must follow as a consequence, that whenever either of the parties do not, in the opinion of the other, observe this law, then the parties entertaining this opinion will consider themselves as discharged from the obligation of observing it on their part; and it was frequently the case, that there was no other practicable method of compelling an observance of a Treaty on one part, but by a refusal to observe it on the other. It did not appear to him, that in such a case, there was vested in the PRESIDENT and Senate alone any power to break a Treaty; the Constitution was wholly silent on that point; it must therefore be supposed to be vested in Congress as exercising supreme Legislative power; and, therefore, it must be concluded, that an act of Congress contravening any existing Treaty, would in effect repeal it; and this must be more evident when it is recollected, that acts of Congress are, by the Constitution, declared to be the supreme law of the land as well as Treaties. not operate in any Government so as to be consistent with themselves, and therefore this would not remove the difficulty, or clear up the inconsistency that arose from their construction. It had likewise been said, that we were not necessarily to presume that these powers would be abused; but, in examining the principles of a Constitution we ought not to reason from what will be done in the exercise of power, but from what may be done. It had likewise been asserted that the popular branches of a Government were apt to assume powers; this did not appear to him to be generally the case; if recourse were had to history or to the experience of mankind, it would be found that popular assemblies had been more frequently disposed to render themselves subservient to the views and interests of those who were in power, and who did not form a part of the body, but might notwithstanding have a great influence over them as individuals, than to assume unnecessary powers to themselves. This had been the case for many years in England; the popular branch of the GoMr. H. said, he had not paid very great atten-vernment in that country, had been subservient to |