made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made, to the code of laws, as soon as they were ratified by the PRESIDENT and Senate, and promulged by the PRESIDENT.

[H. of R.

members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not

Mr. S. then drew the attention of the Commit- they should perform that duty. Thus, unless they tee to the various applications to the PRESIDENT their discretion could not be requisite to determine intended to arrest the operations of Government, last Summer,, requesting him to withhold his signature from the Treaty, all of which proceeded whether they should appropriate the moneys neon the idea (and the generally received idea cessary for its support; but out of what fund, and throughout the Union) that the Treaty would be when the moneys shall be paid, and other matters the law of the land, as soon as sanctioned by the of detail. So, when a Treaty was concluded, and PRESIDENT. Was the language, then, that this became a compact binding the nation, the discreHouse might interfere and defeat the Treaty ?tion of the House (unless it was intended to vioNo, the language then was, "We look up to the late our faith) could not determine whether the PRESIDENT alone for preservation from the fatal moneys contracted for should be paid, but the instrument; if he signs it, nothing can save us mode, the fund, and such questions of detail, would from it but war-we are left without resource." alone be considered. The distinction, which was an obvious one, between power and right, had The idea of applying to this House was never not been attended to. The House had certainly dreamt of; it was an after-thought, devised by the the power to do many things which they had not ingenious subtlety of the few, and considered al- the right to do; they had the power to do wrong, most universally as a desperate attempt. In the but they certainly had not the right to do wrong; language of the New York meeting, the proceed- and whether the wrong was committed by acting ings of which were drawn up by men supposed to where they ought not to act, or refusing to act understand the Constitution, the Treaty-making where they ought, was immaterial; both were power is called altogether an Executive power; equally reprehensible. It had been boldly said, they did not then suppose that this House could that there was no case which could possibly come at all interfere. To come still nearer to the pre- before them, where they would not be at liberty to sent period, Mr. S. referred to the late act of Virginia, proposing an alteration to the Constitution answer aye or no: he would produce a case-by on this subject. This amendment was a conclu- the Constitution, on the application of a certain sive proof that the Legislature of that State did number of States, wishing for amendments, Connot conceive that this House possessed any powered discretion, of which so much has been said? gress must call a Convention; where is this boastin relation to Treaties, for it expressly proposes to Could the House, in this case, exercise its discrechange the existing Constitution, by vesting such tion, whether or no a Convention should be called? a power in this House. The fate of that amend- Why not? Because the Constitution says it must ment was demonstration no less conclusive, that call a Convention: and does not the Constitution the public sentiment was opposed to such a change; say, "Treaties made by the PRESIDENT and Senate for in every Legislature in which that amendment are laws, and that laws must be obeyed?" The had been discussed, notwithstanding the prejudices excited against the Treaty, it had been re-in both cases; and as in the first, all this House same injunctions of the Constitution are imposed jected; and the arguments which had appeared could do, would be to regulate the time and place on those occasions, show the ideas of the several of holding the Convention, so, in the latter, their Legislatures to have been, that the PRESIDENT and discretion would be limited to the mode, and fund, Senate now possess exclusively the Treaty power; and other details. The gentleman had mentioned those in favor of the amendment having advo-the article in the Constitution respecting approcated it, on the ground that it was dangerous to leave such power with those two branches alone; and those against it having opposed it on the ground that the power was properly and safely Podged, and that this House was illy qualified to participate in a power of that nature.

priations for military services-they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. When a Military Establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two Mr. S. repeated his former assertion, that there years; no inconveniences, then, could result. But were cases where that House had not the right of there was no such limitation in respect to any withholding appropriations; if they had the power, other branch of expenditure; from custom, approindeed they might stop the proceedings of Govern- priations for the support of Government were anment altogether; and so, individuals had the pow-nual; appropriations even for pensions were annuer of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the Constitution; the

al, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith.

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

without the intervention of the PRESIDENT, and yet, by the Constitution, the Treaty-making power is classed with the Executive powers, and is expressly delegated to the PRESIDENT and Senate. Again, two-thirds of the Senate must sanction a Treaty, but a majority may pass a law; hence, it would follow, that, after it had been necessary that two-thirds should, in the first instance, ratify a Treaty, a majority would be sufficient in the second instance to give validity to the instrument. Further, the PRESIDENT concludes the Treaty, submits it to the Senate, who approves, and then it is laid before the House for information; but, according to the new doctrine, the act giving validity to the Treaty must pursue an inverted course; it must be commenced in the House, go to the Senate, and from thence to the PRESIDENT. By adhering to the Constitutional distinction, all these inconveniences are avoided; the PRESIDENT and Senate made the compact; Congress are to execute it.

Mr. S. said, he would conclude his observations on this important subject, by recalling the recollection of the House to a law, which fully confirmed the doctrine he had contended for.

The gentleman from Virginia had said, that this House might repeal a law by withholding the necessary appropriation. But this was a new doctrine; he had always understood it to be a fundamental principle in legislation, that it requires the same power to repeal a law, as to make one; to say that one branch could, by refusing to act, repeal a law which had received the sanction of the three, was a solecism in Government; as well might it be said, that the refusal of an officer to execute, or of a citizen to obey, a law, would be a repeal of such law. Much had been said of the power of this House, in originating money bills; this House alone, it was true, could, by the Constitution, originate bills for raising revenue, but the Senate could originate bills for appropriating money; the necessary appropriations for carrying the Treaty into effect may originate in the Senate as well as in this House; the Senate may alter or reject any appropriation bill which does not contain such appropriations as they may deem necessary for the public service. From the observations of some gentlemen, it would be supposed that this House had a general censorship over all the other parts of the Government, and an exclusive control over all their proceedings; It must be remembered, that, in March, 1794, a but this control was reciprocal; this House was law passed, laying a general embargo on all vesonly a part of the Legislative power, and possessed sels. After the law had taken effect, and all vesnone of the Executive. In Great Britain, the sels had been detained in pursuance of it, our House of Lords could not alter in the least any Treaty with Sweden was construed by the Execubill, even for appropriating moneys; he could not tive to exempt the vessels of that nation from the see with what view the practice of that country embargo; orders were accordingly issued to the had been resorted to, for there was not the small- Collectors to suffer them to depart; and they did est analogy between the two countries in this re- depart, notwithstanding the act of Congress, which spect. A gentleman had said, that we might re- laid a general embargo, and under which those peal a Treaty by law; but other gentlemen on vessels had been detained. In that case, no law that side of the question had been of a contrary was deemed requisite to repeal the existing act, in opinion; the fact was, that a Treaty could only respect to Swedish ships; the Executive alone be annulled by the consent of the contracting par- construed the Treaty, and finding that, by Treaty, ties, by a breach of faith, or by war. It had been such vessels were not liable to embargo, ordered admitted, that the PRESIDENT was justifiable in their release, although the act of Congress exissuing his proclamation respecting the Treaty, pressly included all foreign vessels; this circumbecause a part of the Treaty was binding; but stance was known at the time to Congress, and what that part was, gentlemen had not been pleased the conduct of the PRESIDENT considered as conto designate; the citizens were, therefore, left to dis-sistent with his duty. He saw no material disobey it at their peril; the PRESIDENT had made no such distinction; he had proclaimed the whole instrument as a binding compact; the public are now, however, told, that a part of it remained to be sanctioned by Congress. This novel doctrine was, that certain parts had no binding force till acts of Congress were passed, giving them efficacy; but even here gentlemen were not agreed among themselves what those parts were. Their idea of making parts of the Treaty over again by act of Congress was a very extraordinary one indeed; it involved a curious inconsistency, he had almost said, an absurdity. By the Constitution the PRESIDENT negotiates a Treaty, and lays it before the Senate, two-thirds of which approve. By the Constitution, a law is made by a majority of both Houses, and the approbation of the PRESIDENT, but two-thirds of both Houses may make a law, without the PRESIDENT. Thus, according to this new doctrine, a law, giving a binding force to a compact with a foreign Power, might be made

tinction between this case and the question now in discussion; here was an act of the Executive, without the intervention of Congress, in relation to a commercial regulation, in which a Treaty was deemed paramount to an existing law; the only difference between the cases was, that the Treaty with Sweden was made under the Old Confederation: but that could not weaken the principle, for it would not be denied, that the present Constitution meant to give the PRESIDENT and Senate at least as much power in relation to Treaties, as had been possessed by Congress under the Old Government.

MARCH 11.-In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. GILES said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

own opinion of the Constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the Constitution to be incidental.

been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the PRESIDENT, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the PRESIDENT conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them The gentleman from South Carolina had referwas desirable. He declared that he felt unfavor-red to the opinions of the Conventions of the ably towards the Treaty from the face of it; and States at the time of adopting the Constitution. that he believed the House had a right, and, if it As to Virginia, the gentleman had stated that that was a right, it must also be their duty to oppose State had considered the checks as provided by its execution by all the Constitutional means in the Constitution as inadequate, and proposed an their power as legislators, if they found it, upon amendment, purporting to require two-thirds of mature deliberation, contrary to the interest of the whole number of Senators, instead of twothe people and the honor of the nation. He was thirds of the number present. This was true, he sensible of the great responsibility which rested believed; but how would it apply in the sense upon the House, and himself as a member of it, the gentleman wished? The objection of that at the present important crisis. Under the weight State was, that the check in the Senate, provided of that responsibility, he felt it necessary to shape in the Treaty-making power, was not sufficient, his conduct under the fullest information that and they proposed a greater from which he could be obtained. But, while he acknowledged would argue that they conceived the Treaty-makthe importance of the final issue of the present ing power to be a subject of extreme delicacy, question, he should not be induced by the weight and that they wished additional checks conseof responsibility to swerve from his opinion; but quently added. How this was to prove that the he wished to form that opinion on the best inform-Convention of Virginia did not construe the preation, and on the most mature consideration. sent clauses of the Constitution under debate as the This was the general motive that weighed on his friends of the present motion did, he was at a loss mind in favor of the proposed call. to determine. The gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. He had merely mentioned the re

The right of the House to the papers called for had not been denied by most of the gentlemen who opposed the present motion. They admit that the proposition, on the face of it, is not un-sult to the House. That gentleman had next constitutional, if the House were about to exercise the powers in a Judicial capacity, to deliberate respecting an impeachment. The powers of the House, he insisted, did not vary with the dif- | ferent shapes they might constitutionally assume, whether they were exercising their functions as a Legislature or in a Judicial capacity. If the right to call for the papers was conceded to the House in one capacity, how could it be denied to them in another ?

The right of the House to consider of the expediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important Constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the Committee.

The question is, whether there be any provisions in the Constitution by which this House can in any case check the Treaty-making power; and, of consequence, whether it can question the merits of Treaties under any circumstances?

Various considerations had been advanced to show that the House cannot question the merits of a Treaty. Some of these considerations had grown out of the subject extrinsically, others from the provisions of the Constitution. Though at first he had intended to have stated simply his

professed to take a view of the opinions of the citizens of the United States antecedent to the present discussion, and posterior to the adoption of the Constitution. He had mentioned one case, viz: the meeting of the people of New York, who assembled to petition the PRESIDENT not to give his sanction to the pending Treaty, and exhorting him to refuse it, as, if it obtained his sanction, it could not be got rid of except by a war. Mr. G. remarked, he did not expect to hear that member quote the proceedings of town-meetings as a rule for the conduct of the House. Such assemblages of the people had often been the theme of merriment, and always objects of contempt with that gentleman, so that he did not conceive how their proceedings could have any weight on the opinions of the members.

Mr. SMITH, of South Carolina, observed, that on the present question he had said nothing against the propriety of town-meetings.

Mr. GILES allowed that on the present occasion the gentleman had not repeated his sentiments respecting those meetings. For his own part, he was always ready to acknowledge that the result of those assemblies of the people, for the expression of their opinions, had a weight on his mind; but he might be permitted to ask that gentleman why, since he placed no faith on that source of information, he brought any thing said at such meetings into the view of the House? If the gentleman admitted the sense of those meetings as the orthodox explanation of the doubtful

parts of the Constitution, and as the expression of the public will, he would not, he hoped, consider it as out of order when any question should arise, to hear the proceedings of those meetings cited as an exposition of the public will.

[MARCH, 1796.

South Carolina.] He had remarked that the House had passed a general resolution directing the Clerk to place in the code of laws of the United States Treaties made under the authority of the United States. Was this, he asked, an expoBut, in the present instance, he conceived the sition of the meaning of the Constitution? He bemember unfortunate in his quotation. The meet-lieved the resolution a very proper one, and would ing wished to persuade the PRESIDENT not to vote now for its adoption if it was yet to be passed. sign, and they used the strongest expressions they It is certainly proper, when a Treaty is concluded could think of to convince him of the improprie- under the authority of the United States, that it ty of putting his hand to the fatal instrument. should be annexed to their code of laws; but this The meeting was not assembled for the purpose could not weigh against the exercise of discretion of expounding the Constitution: they met to give in the House on important Legislative subjects. weight to an application made to the proper au- The practice of the House, with respect to apthority to beg that the Treaty might be crushed propriation laws, in the cases of Indian Treaties, in that state of the business. But, to take the had been mentioned by the member from South gentleman's own rule of construction, it will be Carolina. In the first place, in observing upon found that when their petitions to the PRESI- this, he would remark, that he always conceived DENT were of no effect, they then addressed this there was a distinction between an Indian Treaty House as their dernier resort. If these popular and a Treaty with a foreign nation. The English proceedings were to be considered as an expres- had always made a distinction when we were Cosion of public op nion, he would say that the pe- lonies. The Constitution establishes an express titions on the table of the House were more nu- difference. He should not, however, found his merous than he had ever known them on any objections to the inference of the gentleman upon question whatever. From these petitions it will this, but would examine it unconnected with this be found that the people had recognised the pow-distinction. Provisions had been made by this er of the House to interfere, and begged them not to abandon their rights.

House to carry Indian Treaties into effect; but why? No doubt because the House conceived it wise so to do, not because they had not a right to use their discretion in the business. Suppose, on any of those occasions, a motion had been made to strike out the sum proposed to be appropriated, would it have been said that the motion was out of order? A similar motion was made lately. with respect to the Mint, and it was not considered as out of order. If, on that occasion, it had been the opinion of the House that the Mint was an improper establishment, by refusing the appropriation they could have defeated the law. It was certainly the opinion of the House that they could exercise their discretion in the business, for it was not even hinted that the motion for striking out was out of order.

The next subject the member from South Carolina touched upon was, the late amendments proposed to the Constitution by the State of Virginia. He deduced, from one of these amendments, that the Legislature of that State did not conceive the power of the House to extend to matters of Treaty. This he did not believe a fair deduction. It is not contended that there are words in the Constitution expressly giving this participation in controlling Treaties to the House, it is only contended for as growing out of the specific powers vested in Congress. The object of the State of Virginia was then to exchange a construction that might be disputed for an expression not to be doubted. It was unnecessary for the gentleman from South Carolina to remind the State of Virginia of the fate of their propositions in the Legislatures of the several States. Virginia, he hoped, would pursue uniformly the line of conduct that had marked her political character, under whatever circumstances she might happen to be placed. Her conduct had been uniform from the Declaration of Independence to the present day; uniform and exemplary in their obedi- Suppose I should tell the gentleman, said Mr. ence to the laws, and in their activity against en- G., that I could not now give him an answer, croachments; and, notwithstanding the fate of would it show that the House had not the authorher proposed amendments, he prided himself in ity contended for by the friends of the present morepresenting a State that never offered the slight-tion? Why was the subject mentioned? Not est mark of disrespect to a sister State for differing with her in opinion. If Virginia had been the cause of some indelicacies on the part of other States, she is the innocent cause. They had exercised a Constitutional right which they conceived it their duty to exercise, and they could not be responsible for any indelicacies to which that conduct might have given rise.

The practice of the House had been referred to yesterday by the member last up, [Mr. SMITH, of

On another head the gentleman appeared to plume himself much. He had asked, why, since the PRESIDENT had proclaimed a Treaty as the law of the land, which was not the law of the land, why he was not impeached? This question, the member exultingly remarked, had not been answered, because, he imagined, it could not be answered.

with a view, I believe, to the discovery of the truth. I fear it is calculated to produce an opposite effect-to check investigation. It is too often the case that the names of persons are brought into view, not to promote the development of principles, but as having a tendency to destroy freedom of inquiry. I will go further with the gentleman, and admit for a moment (a position, however, I shall by and by controvert) that the PRESIDENT conceived that he had a right, after

the exchange of ratifications, to promulgate the Treaty as the supreme law of the land; what would this amount to? Why, only that this was his opinion; but is that authority here? In any other case rather than the present, I should be inclined to pay a greater respect to opinions from that source; but now, when the question is about the division of powers between two departments, are we to be told of the opinions of one of those departments, to show that the other has no right to the exercise of power in the case. Such appeals are not calculated to convince, but to alarm.

He acknowledged that the PRESIDENT's Proclamation differed from what he expected it would have been; because the PRESIDENT had expressly said in his Speech, at the opening of the session, that he would lay the subject of the Treaty before the House; and not, he supposed, for their opinions only, but for their agency. He believed, however, the Proclamation was issued in its present form with the best intentions; but the authority for the opinions on which it was founded would not, he said, prevent him from exercising his own. Opinion, said Mr. G., is sometimes repulsive. When it is pressed too closely, resistance and reaction, not favorable to the investigation of truth, are the consequence. The whole argument of the gentleman on this ground, then, proves nothing, and is attended with this ill effect-to check the discovery of truth. But he hoped the House would seek within themselves for opinions, and not travel for them to other departments of the Government. He had said, however, that it was his belief that it was not probable the PRESIDENT viewed the Treaty as the supreme law of the land before it had been submitted for Legislative decision; and this belief was grounded on the intentions which the PRESIDENT expressed in his Speech of laying the subject before the House.

[H. OF R.

limited in its objects, he meant, however, that they had confined it only within the limits of the Constitution; but even admitting it in that extent, is certainly a doctrine sufficiently alarming. When the gentlemen contend for its supremacy, they also admit in this point some qualifications; according to their doctrine, it is not to be supreme over the head of the Constitution, but in every other respect they contend that it shall be unlimited, supreme, undefined. Gentlemen who insist that Treaties are supreme, next to the Constitution, must also grant that there is no necessity for the House to trouble themselves with making laws. It will be remarked, said Mr. G., by examining the history of man, that the people have always been desirous to check the exercise of power in the administrators, and as uniformly have administrators endeavored to evade those checks. The same among us. The American people, sensible of this, when they, after a fortunate struggle for their liberties, were about to exercise their discretion in the establishment of a Constitution that should secure their rights and liberties, formed a Government of checks. The Americans have the reputation of a sagacious people, and have showed their sagacity in framing this Constitution; but even if they had proved themselves more sagacious in devising checks, a correspondent sagacity would still have been found in the Government to evade them. Never, I will venture to say, was there an instance of a more complete rout of so complete a system of checks, within the term of six years, in any Government on earth; and if the doctrine now contended for be agreed to, then I do declare that the triumph of evasion of checks is complete, indeed, and little will be left hereafter to be evaded.

The construction contended for by the friends of the resolution is derived from two sourcesHaving examined the objections to the con- from the Constitution, and the nature of things. struction contended for by the friends of the mo- The Constitution says, the PRESIDENT, with the tion, drawn from collateral sources, he should advice and consent of two-thirds of the Senators turn his attention next, he said, to the intrinsic present, shall make Treaties. Perhaps, if there meaning of the Constitution. He would attempt was no other clause, the Treaty-making power to interpret the Constitution from the words of it. might be considered as unlimited. Another clause It was a misfortune the clauses were not more declares that the Constitution, the laws made unclear and explicit, so far as to force the same der it, and Treaties, shall be the supreme law of meaning upon every mind, however they might the land. Here the gentlemen, when they quote differ in opinion in other respects. However, this clause, stop, as if there were no other words from the imperfection of language, it was no won-in it; and from all this it would appear that the der, he observed, that on an instrument providing for so many different objects, and providing such a variety of checks, various opinions as to construction should arise; but he considered the present clauses of as plain import as any part of the instrument. The construction contended for by the opposers of the motion is, beyond denial, the most dangerous in its effects, and the least probable, as he thought, in its meaning. It is contended by them that the Treaty-making power is undefined in its nature, unlimited as to its objects, and supreme in its operation; that the Treaty-making power embraces all the Legislative powers; operates by controlling all other authorities, and that it is unchecked. When he had asserted this power, as contended by the gentlemen to be un

people had, in fact, delegated an unchecked power. But, if we go on, it will be found that the last-mentioned clause adds that the Judges in the respective States shall cause them to be executed, any thing in the Constitution or laws of the individual States to the contrary notwithstanding. From the jealousy which individual States showed under the Old Confederation for the preservation of their powers, and the inconveniences which were experienced in consequence, it was found necessary, when organizing a new Government, to declare, explicitly, that their Constitutions and laws must yield to the Constitution, laws, and Treaties of the United States, and for this purpose this clause was introduced.

Gentlemen, after granting that the Constitution