H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

ers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object.

On comparing the several passages in the ConCommittee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the PRESIDENT and two-thirds of the Senate; and it is declared in another place, that the Constitution and the Laws of the United States, made in pursuance thereof, and Treaties made, or to be made under the authority of the United States, shall be the supreme law of the land. And the Judges, in every State, shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.

the views of the Administration, and this was the principal cause of all the miseries that the nation now endured. It had not been the case in the Government of the United States, since it had been established; it rather appeared from the laws of Congress, that they had been at all times suf-stitution, which had been already cited to the ficiently disposed to place large and indefinite powers in the hands of the Administration under the form of discretion. He said, that this was no new question; it had been agitated when the Constitution of the United States was under consideration; it was then said, that the power of making Treaties vested in the PRESIDENT and Senate, would be inconsistent with the Legislative powers of Congress, unless the House of Representatives were to give their assent to Treaties as well as to other laws, before they were carried into effect; but the people had rather chosen to adopt the Constitution, and to trust to time and experience to procure amendments, than to reject it on account of this or other objections; but he did not recollect that he had ever heard the difficulty cleared up in any other manner than by supposing, that the House of Representatives ought, in some mode or other, to give their assent to Treaties, as well as to other laws. He concluded with observing, tha: he thought he had clearly shown that, on one ground, there would be an inconsistency between the Legislative power vested in Congress, and the power of making Treaties vested in the PRESIDENT and Senate; and that, on the other ground, they would be perfectly reconcilable, and all parts of the Constitution would have full operation and effect; and he therefore thought it was his duty to adopt this principle of construction; he therefore supposed there could be no good objection to the proposition under the consideration of the House, on the ground of the Constitutional right of the House to determine whether they would, or would not, carry a Treaty into effect.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State Constitutions and laws, and not over the Constitution and Laws of the United States. And it was observable, that the judicial authority, and the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States. or to laws requisite to be passed by the States for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the Constitution, that could leave room Mr. MADISON said, that the direct proposition for different constructions. As the case, however, before the House, had been so absorbed by the in- had happened, all that could be done was to excidental question which had grown out of it, con-amine the different constructions with accuracy cerning the Constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.

On some points, there could be no difference of opinion; and these need not, consequently, any discussion. All are agreed that the sovereignty resides in the people. That the Constitution, as the expression of their will, is the guide and the rule to the Government; that the distribution of the powers made by the Constitution ought to be sacredly observed by the respective departments. That the House of Representatives ought to be equally careful to avoid encroachments on the authority given to the other departments, and to guard their own authority against encroachments from the other departments. These principles are as evident as they are vital and essential to our political system.

and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

He stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur:

I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.

II. As concurrent powers relating to the same objects; and operating like the power of Congress, and the power of the State Legislatures, in relation to taxes, on the same articles.

III. As each of them supreme over the other, as it may be the last exercised; like the different assemblies of the people, under the Roman GoThe true question, therefore, before the Com-vernment, in the form of centuries, and in the form mittee, was, not whether the will of the peo- of tribes. ple expressed in the Constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the pow

IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the Committee, as both

unlimited in its objects, and completely paramount in its authority.

V. The Congressional power may be viewed as co-operative with the Treaty power, on the Legislative subjects submitted to Congress by the Constitution, in the manner explained by the member from Pennsylvania [Mr. GALLATIN] and exemplified in the British Government.

The objection to the first construction is, that it would narrow too much the Treaty power, to exclude from Treaties altogether the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations.

The objection to the second is, that a concurrent exercise of the Treaty and Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the Constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power and the power of Congress. A Treaty of Commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.

To the third, the objection was equally fatal. That it involved the absurdity of an imperium in imperio, of two powers, both of them supreme, yet each of them liable to be superseded by the other. There was, indeed, an instance of this kind found in the Government of ancient Rome, where the two authorities of the comitia curiata, or meetings by centuries, and the comitia tributa, or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other. For, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country.

[H. OF R.

may be, must, in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A Legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration.

It must be objected to this construction, therefore, that it extends the power of the PRESIDENT and Senate too far, and cramps the powers of Congress too much."

He did not admit that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in Governments which bore most analogy to our own. In absolute Governments, where the whole power of the nation is usurped by the Government, and all the departments of power are united in the same person, the Treaty power has no bounds; because the power of the sovereign to execute it has none. In limited Governments, the case is different; the Treaty power, if undefined, is not understood to be unlimited. In Great Britain, it is positively restrained on the subjects of money and dismembering the empire. Nor could the Executive there, if his recollection was right, make an alien a subject by means of a Treaty.

But the question immediately under consideration, and which the context and spirit of the Constitution must decide, turned on the extent of the Treaty power in relation to the objects specifically and expressly submitted to the Legislative power of Congress.

It was an important, and appeared to him to be a decisive, view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the PRESIDENT and Senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution, and must share the same fate. A member from Connecticut [Mr. GRISWOLD] had admitted that the power of In order to smooth the way for this doctrine, it war was exclusively vested in Congress; but he had been said, that the power to make Treaties had not attempted, nor did it seem possible, to was laid down in the most indefinite terms; and draw any line between that and the other enumethat the power to make laws, was no limitation rated powers. If any line could be drawn, it ought to it, because the two powers were essentially dif- to be presented to the Committee; and he should, ferent in their nature. If there was ingenuity in for one, be ready to give it the most impartial this distinction, it was all the merit it could have; consideration. He had not, however, any expectfor it must be obvious that it could neither be re-ation that such an attempt could succeed; and, duced to practice, nor be reconciled to principles. therefore, should submit to the serious consideraTreaties and laws, whatever the nature of them tion of the Committee, that, although the Consti4th CoN.-17

The fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the Constitution.

H. or R.]

Treaty with Great Britain.

[MARCH, 1796.

tution had carefully and jealously lodged the power of war, of armies, of the purse, &c., in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the PRESIDENT and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. They might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be car-rity, essential to the public safety. The only ried to Europe, Asia, or Africa; they might even attempt to keep up a Standing Army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety, or other common objects. Under this aspect, the Treaty power would be tremendous indeed.

It was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether, and how far, it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged and exercised as a branch of the general authoquestion, therefore, that could arise, was whether the power should be lodged in this or that department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive department; with a view, no doubt, to guard it against the abuses, which might The force of this reasoning is not obviated by be apprehended, from placing the power of declarsaying, that the PRESIDENT and Senate would ing war in those hands which would conduct it only pledge the public faith, and that the agency when declared; and which, therefore, in the orof Congress would be necessary to carry it into dinary course of things, would be most tempted operation. For, what difference does this make, to go into war. But, according to the doctrine if the obligation imposed be, as is alleged, a Con- now maintained, the United States, by means of stitutional one; if Congress have no will but to an alliance with a foreign Power, might be driven obey, and if to disobey be treason and rebellion into a state of war by the PRESIDENT and Senate, against the constituted authorities? Under a Con- contrary both to a sense of the Legislature, and stitutional obligation with such sanctions to it, to the letter and spirit of the Constitution. Congress, in case the PRESIDENT and Senate On the subject, also, of appropriating money, should enter into an alliance for war, would be particularly to a military establishment, the pronothing more than the mere heralds for proclaim- vision of the Constitution demanded the most seing it. In fact, it had been said, that they must vere attention. To prevent the continuance of a obey the injunctions of a Treaty, as implicitly as military force for a longer term than might be ina subordinate officer, in the Executive line, was dispensable, it is expressly declared, that no approbound to obey the Chief Magistrate; or as the priation for the support of armies shall be made for Judges are bound to decide according to the laws. more than two years. So that, at the end of every As a further objection to the doctrine contended two years, the question, whether a military force for, he called the attention of the Committee to ought to be continued or not, must be open for another very serious consequence from it. The consideration; and can be decided in the negaspecific powers, as vested in Congress by the Con- tive, by either the House of Representatives or stitution, are qualified by sundry exceptions, the Senate's refusing to concur in the requisite deemed of great importance to the safe exercise appropriations. This is a most important check of them. These restrictions are contained in sec-and security against the danger of standing artion 9 of the Constitution, and in the articles of mies, and against the prosecution of a war beyond amendment which have been added to it. Thus, its rational objects; and the efficacy of the pre"the migration or importation of such persons as caution is the greater, as, at the end of every two any of the States shall think proper to admit, years a re-election of the House of Representashall not be prohibited by Congress." He refer- tives gives the people an opportunity of judging on red to several of the other restrictive paragraphs the occasion for themselves. But if, as is conwhich followed, particularly the 5th, which says, tended, the House of Representatives have no that no tax shall be laid on exports, no preference right to deliberate on appropriations pledged by given to ports of one State over those of another, the PRESIDENT and Senate, and cannot refuse &c. It was Congress, also, he observed, which them, without a breach of the Constitution and was to make no law respecting an establishment of their oaths, the case is precisely the same, and of Religion, or prohibiting the free exercise there- the same effects would follow, as if the appropriaof, or abridging the freedom of speech, or of the tion were not limited to two years, but made for press; or of the right of the people peaceably to the whole period contemplated, at once. Where assemble, &c. Now, if the Legislative powers, would be the check of a biennial appropriation for specifically vested in Congress, are to be no limit- a military establishment raised for four years, if, ation or check to the Treaty power, it was evi- at the end of two years, the appropriation was to dent that the exceptions to those powers, could be continued by a Constitutional necessity for two be no limitation or check to the Treaty power. years more? It is evident that no real difference Returning to the powers particularly lodged in can exist between an appropriation for four years Congress, he took notice of those relating to war, at once, and two appropriations for two years and money, or the sword and the purse, as requir- each, the second of which, the two Houses would ing a few additional observations, in order to be constitutionally obliged to make. show that the Treaty power could not be paramount over them.

It had been said that, in all cases, a law must either be repealed, or its execution provided for.

Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the Constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the Constitution.

The Constitution of the United States is a Constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.

[H. OF R.

mount to all other acts of Government, because all power resided in the people; and the PRESIDENT and Senate, in making a Treaty, being the Constitutional organs of the people for that purpose, a Treaty, when made, was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the PRESIDENT and Senate can be in making Treaties; and laws, when made, are as much the acts of the people, as any acts whatever can be.

It had been objected, that the Treaty power would be in fact frustrated, if Treaties were to depend, in any degree, on the Legislature. He thought there was no such danger. The several powers vested in the several departments, form but one Government; and the will of the nation may be expressed through one Government, operating under certain checks on the subject of Treaties, as well as under other checks on other subjects. The objection would have weight, if the voluntary co-operation of the different States was to be obtained.

Another objection was, that no Treaty could be made at all, if the agency of Congress were to concur; because Congress could not treat, and their agency would not be of a Treaty nature. He would not stop to inquire how far a loan of money from a foreign Government, under a law of Congress, was or was not of the nature of a public contract or Treaty. It was more proper to observe, that the practice in Great Britain was an evidence that a Legislative agency did not vitiate a Treaty. Nay, if the objection were solid, it was evident that the Treaty lately entered into with that nation, could never be binding on this; because it had been laid before the Parliament for its Legislative agency, as necessary to effectuate the Treaty: and if that agency was to vitiate and destroy the nature of the Treaty on that side, the obligation, on the principle of all contracts, would be dissolved on both sides.

He came next to the fifth construction, which left with the PRESIDENT and Senate the power of making Treaties, but required at the same time the Legislative sanction and co operation, in those cases where the Constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this as had been done, a particular distrust of the He did not see the utility in this case of urging, House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is House of Representatives. He thought the PRESimplied in legislation. If it must carry all Trea-IDENT and Senate would be as likely to make a ties into effect, it would no longer exercise a Le- bad Treaty, as this branch of the Government gislative power; it would be the mere instru- would be to throw obstructions in the way of a ment of the will of another department, and good one, after it was made. would have no will of its own. Where the Con- No construction might be perfectly free from stitution contains a specific and peremptory in- difficulties; that which he had espoused was subjunction on Congress to do a particular act, Con-ject to the least, as it gave signification to every gress must, of course, do the act, because the Con- part of the Constitution; was most consistent stitution, which is paramount over all the depart- with its general spirit, and was most likely, in ments, has expressly taken away the Legislative practice, to promote the great object of it, the discretion of Congress. The case is essentially public good. The construction which made the different where the act of one department of Treaty power in a manner omnipotent, he thought Government interferes with a power expressly utterly inadmissible in a Constitution marked vested in another, and no where expressly taken throughout with limitations and checks. away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.

It was said, yesterday, that a Treaty was para

He should not enter any further into the subject. It had been brought before the House rather earlier than he had expected, or than was perhaps necessary; and his observations, therefore, might not have been as full, or as well digested, as they ought to have been. Such as they were, he sub

mitted them to the candid attention of the Committee.

[MARCH, 1796.

therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators.

Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the Committee at this time with reading them. He would only recal the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania [Mr. GALLATIN] must well remember (having been one of the meeting) where, after stating objections to the extensive powers delegated by the Constitution, the following amendment was proposed, as necessary to limit and restrain the powers: Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the Constitution the check which is now discovered by this ex post facto construction.

Mr. W. SMITH (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, [Mr. MADISON.] but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the Committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the PRESIDENT and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British Constitution; but had concluded his remarks on that argument with allowing, that, after all, our own Constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the PRESIDENT and Senate by the Constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the Constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the Constitution. By referring to the contemporaneous expositions of Having stated the general opinion of the pubthat instrument, when the subject was viewed lic, as manifested by the friends as well as the only in relation to the abstract power, and not to enemies of the Constitution, Mr. S. said he would a particular Treaty, we should come at the truth. proceed to show that the practice of Congress He would then confidently appeal to the opinions had, from the commencement of its existence, of those who, when the Constitution was promul- been conformable to that opinion. Several Treagated, were alarmed at the Treaty power, because ties had been concluded with Indian tribes under it was by the Constitution vested in the PRESI- the present Constitution. These Treaties emDENT and Senate, and to its advocates, who vindi- braced all the points which were now made a cated it by proving that the power was safely de- subject of contest-settlement of boundaries, posited with these branches of the Government. grants of money, &c.; when ratified by the PRESThe discussions which took place at the time of IDENT and Senate, they had been proclaimed by its adoption by the Convention of the several the Executive as the law of the land; they had States, proved, beyond a doubt, that the full ex-not even been communicated to the House; but tent of the power was then well understood, and thought by those who approved of the Constitution to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the Constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might en- That this House considered a Treaty, when ratisue from the unlimited nature of the Treaty fied by the PRESIDENT and Senate, as the law of power were well considered before the Constitu- the land, was further evident from a resolve of the tion was adopted, and Virginia required no fur-House, of the 4th of June, 1790, in these words: ther check than the one above recited. All.

the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian department. It was not pretended that the Constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the Constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations.

"

Resolved, That all Treaties made, or which shall be