is supreme when in opposition to Treaties, contend that Treaties are supreme over laws. They also admit that this is not warranted by the Constitution, but they contend that it is so from the nature of things. From the nature of things, he said, he should infer the reverse, though he disagreed in this from the gentleman from Pennsylvania, [Mr. GALLATIN.] He contended that the Constitution and the acts of the Legislature annul Treaties, and that Treaties do not annul laws. This he should infer from the nature of Treaties and the nature of laws. Gentlemen said that Treaties could not be repealed, because they were made by two contracting parties. This sounds very well, but was ever such a thing heard of as a Convention to repeal a Treaty? If this had never been done by Convention, it is at least presumable that the omission to have done so heretofore renders this theory doubtful. The truth is, that the right of annulling Treaties is essential to national sovereignty ; and nations have at all times taken their own measures respecting Treaties, under the common responsibility for the breach; but if such is the practice, as is contended for, it would be advisable in the present case. Perhaps, said Mr. G., if his gracious Majesty is once more saluted with an expression of our reliance on his magnanimity, and well known justice, &c., he may relieve us from the burden. If the epithets are reverberated on him, they might rid us of that dilemma, which they had such an agency in producing.

Mr. G. contended, that this mode of repealing Treaties by Conventions was merely theory, and that no instance of the exercise of such a power could be met with in the history of nations, neither is the doctrine consonant to reason. The reason why a law should repeal a Treaty, is because the law is an expression of the will of the nation, through their Constitutional organ. He did not mean to say, that a Treaty is not binding as long as it is a law: But, if it is admitted that the House, in concurrence with the other branches, have the power of declaring war, then he would not say, that the Legislature were to repeal Treaties article by article, but certainly they may annul them. He would go farther, and suppose, by the instrument submitted to the House, an equalization of duties on foreign and domestic bottoms be provided for, to the injury of our carrying trade; suppose a law should then pass annulling the Treaty; gentlemen say this would lead to war; perhaps it might have the effect, but that is not now the question; the question of right is now in debate; suppose a law should pass repealing, by the concurrence of the proper authorities, the particular article, the existence of which he had supposed, the Treaty would be rendered pro tanto void. Suppose, he said, in the case of the present Treaty, that the Parliament of Great Britain refuse to carry it into complete effect, were we to enforce on Great Britain a compliance of its stipulations? Great Britain had at all events the right so to act, taking the consequences of her conduct upon herself. But gentlemen contend that a Treaty is irrepealable; and because a foreign Power is a party

[MARCH, 1796.

in the contract, not because it is the interest of the United States that it should be so.

Mr. G. then contended that, in proportion as an authority is undefined, in that proportion every check should be exercised. It is the height of folly to contend that the American people ever intended to give any authority an unlimited operation. If the Constitution be examined, it will be found grounded on a jealousy against all rulers; this is evident from the face of the instru ment.

In the first place, it contains limitations to the aggregate powers of the Government. In the next place, it provides checks for the powers given up. These checks are at least of three kinds; the first is, that of a distribution of different species of authorities into distinct hands, as in the case of the Legislative, Executive, and Judiciary; secondly, it requires a concurrence of different branches of the Government for the exercise of the same species of authority, as in the case of all Legislative subjects, the concurrence of the Senate and this House, to which is subjoined the qualified veto of the PRESIDENT; the third species consists of prohibitions upon the whole of the departments in the exercise of particular authorities intrusted to them, as in the case of a prohibition of an appropriation for the support of an Army for more than two years; the prohibition respecting exports under the power to regulate commerce, &c. So jealous has the Constitution been with respect to armies, that it also requires biennial elections for the purpose of enabling every new House to prevent the execution of a law for raising an Army by withholding the appropriations for its support. Whilst the Constitution was formed under this spirit of jealousy, it would have been wonderful that that power which is described to be unlimited in its objects, undefined in its nature, and paramount in its operation, should have been left unchecked; it would have been an evidence of the most egregious folly. The American people were incapable of it; accordingly, checks are found in the Constitution, if it be fairly interpreted; and it is not very material whether these checks are in express words, or whether they result virtually from the distribution of the several powers. It is sufficient that they are efficacious.

The checks on the Treaty-making power he considered as divisible into two classes; the first, consists in the necessary concurrence of the House to give efficacy to Treaties; which concurrent power they derive from the enumeration of the Legislative powers of the House. Where the Treaty-making power is exercised, it must be under the reservation, that its provisions, so far as they interfere with the specified powers delegated to Congress, must be so far submitted to the discretion of that department of the Government. The PRESIDENT and Senate, by the Constitution, have the power of making Treaties, Congress the power of regulating commerce, raising armies, &c.; and these, he contended, must form so many exceptions to the general power. Gentlemen had said that the Constitution was the exposition of the will of the people, and, as such, that they would

obey its injunctions. There could be no difference of opinion on this ground; for his own part, he confessed, if he adored anything on earth, it is that will. But the question is, what is that will, as expressed in the Constitution? That instrument, to his mind, explained this question very clearly. It enumerates certain powers which it declares specifically vested in Congress; and where is the danger to be apprehended from the doctrine laid down by the friends of the resolution? the contrary construction must produce the most pernicious consequences; agreeably to that, there would remain no check over the most unlimited power in the Government. The gentlemen contend, that the House must remain silent spectators in the business of a Treaty, and that they have no right to the exercise of an opinion in the matter; they must then abandon their Constitutional right of legislation; they must abandon the Constitution and cling to Treaties as supreme.

The other check over the Treaty-making power, he noticed, was the power of making appropriations, the exercise of which is specifically vested in Congress. He begged leave to call the particular attention of the Committee to this part of the subject. The Constitution says, that no money shall be drawn from the Treasury, but in consequence of appropriations made by law. This is no doubt intended as a check in addition to those possessed by the House. It is meant to enable the House, without the concurrence of the other branches, to check, by refusing money, any mischief in the operations carrying on in any department of the Government. But what is a law? It is a rule prescribed by competent authority. The word law in the clause of the Constitution he had last noticed, was not meant in reference to the Treaty-making power; but in reference to Congress. A law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. Legislation implies deliberation. If a law is the expression of the will, must not an appropriation law be equally so? But gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. They had mentioned a part of the Constitution which provides that the salaries of the Judicial department shall be fixed; and asked, whether the House should conceive itself at liberty to use a discretion in appropriations for that department? Before he could consider this case and that before the House, now parallel, he must beg gentlemen would point out any part of the Constitution that declared the House should not exercise their discretion when called upon to make appropriations to carry into effect a Treaty. He could find nowhere, that, in this case, the right of opinion of the House is constrained.

A member from South Carolina had given to discretion a negative meaning; and chose to conceive that the discretion contended for by the friends of the motion, was a discretion of whim and caprice; this was not the case. He had then attempted to combat the doctrine of discretion by a trite remark, indeed, that it never could be right

[H. of R.

to do wrong. He would answer him in a manner as trite, and say, that it never could be wrong to do right. But this proved nothing; still it is necessary to inquire and judge what was right and what wrong, and to do this, discretion must be exercised. So, in the present case, if it is right to carry the Treaty into effect, it would be wrong not to do it; and so, if it would be wrong to sanction it, it could not be right to agree to it. But this is to be determined by the exercise of a sound discretion. He owned he felt attached to the old-fashioned discretion, which consists in the faculty of choosing or refusing; he could not admit of the docile complying discretion, that gentleman contends for; he would call it a predestinated discretion. The effect of this new-fangled discretion would be, not to vote according to the conviction of one's own mind, but by that of another. A clause of the Constitution had been cited to support the definition of discretion advanced by the gentleman; that part which directs that Congress shall call a convention when a certain number of States require it. This surely could not apply to the doctrine advanced; there was, in that case, no room for the exercise of discretion; discretion is out of the question, and there is a positive obligation, under the binding force of an oath, to do a thing when required in a certain manner; in this matter, Congress are only to execute the injunction of the Constitution. Gentlemen had attempted to set up a new doctrine as to the operation of the moral sense; their moral sense was to be exercised by the PRESIDENT and Senate, and they were willing to abide by its operation in the breasts of those branches of the Government. He had always understood, for his own part, that an agent who had the right to be directed by his moral sense, must be a free agent.

There could be, he contended, no Legislative act without deliberation; the opinions which were to guide their decisions must be matured by deliberation; they were not to decide upon predestinated impressions; but their conduct must rest on the operations of their own minds.

A gentleman from Connecticut had discarded all pretence to the exercise of discretion; he might have an opinion as a citizen, but would not have one on the present question as a legislator. This was a nice distinction, indeed; he could not, for his own part, abstract in this way the citizen from the legislator. He declared, he would not form an opinion; Mr. G. conceived it the duty of a legislator to exercise an opinion, and not shut his eyes against conviction, and not to receive them from extrinsic quarters. When the Constitution says, the Legislature shall enact laws, it implies that they must be the fruits of deliberation, and not in the nature of an Executive act.

The uniform practice of the British Government had been cited to have been, in the case of Treaties, the same as that contended for by the friends of the present motion. The greatest security for the liberties of the people established in that Government, depends on the control which their Parliament has over the purse-strings. In England, this power rests merely on custom; here, the

House are expressly intrusted with it; what is custom in England, is reduced to writing in our Constitution. Then, if this power is in England a ground for Parliament to judge of Treaties, it is a fair inference that it ought to be exercised here. The practice of the British Government, he observed, had often been quoted here, in support of doctrines very different from those in aid of which it is now cited; it has been deemed orthodox when it favored Executive prerogative. He confessed, he never did expect that, as early as 1796, a reference would be made to practices, under the British Government, in support of the rights of the popular branch of our Government. It was painful to be obliged to have resort to that Government on such an occasion; but the authority of that Government should not be rejected for once, because its practice could be quoted in favor of the popular branch. The ground of the practice in England, and of the right claimed here, rests upon the sound maxim, that all public money is from the pockets of the people, and that it should be expended by none but their Representatives. No maxim had been more instrumental than this, in preserving the remnants of British freedom; and thus early is the House called upon to abandon it here.

[MARCH, 1796.

a check upon the Legislative power, for the negotiation necessarily foreclosed any further Legislative proceedings. It did more than this; the Executive legislated against legislation, and overruled them on the subject in contest. He should not advert at this time, he said, to the collateral circumstances which attended this business, nor go further in detail; he wished only to remark generally on the dangerous operation of the doctrines contended for. Now, it is said, the House have nothing to do but to obey, to appropriate the necessary money, leaving all deliberation aside.

Three years ago there was a further difference of opinion between the branches of Government on another interesting question. One branch was disposed to have an increase of the Military Establishment; a proposition to this effect was brought into the House, and negatived. The Senate, notwithstanding, successively sent down two or three bills for an increase of the Military Establishment-they were as repeatedly negatived by the House. Here different views existed, but the doctrine of checks was liberally exercised, and he thought to a good purpose.

Treaties are contended to be paramount to the laws; the PRESIDENT and Senate make these Treaties, and when made and proclaimed as the supreme law, there is a predestinated necessity in the House to make the requisite provisions for carrying them into effect. The danger of this doctrine, he said, could not be better exemplified, than by a reference to the circumstances that attended the late Treaty in its progress. Three years ago, a difference took place between the different branches of Government, as to the policy that should obtain in reference to the conduct of one foreign nation. The House were unwilling to trust solely to the magnanimity of the King, and wished to make some exertions themselves for self-protection. With this view several measures were proposed, viz: commercial restrictions, non-importation, embargo, sequestration, or rather arrestation upon the ground of the status quo. One of the measures passed the House by a respectable majority, but was rejected in the Senate by the casting vote of the VICE PRESIDENT. The PRESIDENT appointed an Envoy Extraordinary, who entered into certain stipulations, which, being sanctioned by two-thirds of the Senate, it is now contended, are to operate to the destruction of the powers specifically vested in the House.

If the above was a true statement, he said, and he did not see in what particular it could be contradicted, then the Executive had been exerted as

exercise the unlimited Treaty-making power contended for, what security have we that he may not go further when the negotiations are renewed with Great Britain, agreeably to the stipulations of the present Treaty? What security have we that he will not agree with Great Britain, that if she will keep up an Army of ten thousand men in Canada, he will do the same here? How could such a stipulation be got over by the House, when they are told that in matters of Treaty they must not pretend to exercise their will, but must obey? How will this doctrine operate upon the power of appropriation? A Military Establishment may be instituted for twenty years, and as their moral sense is to prevent their withholding appropriations, they can have no power over its existence.

Gentlemen should pause, he said, and consider what would be the situation of the United States, under this doctrine, before they give it their sanction. What he had mentioned as a possible result of it, he observed, would bear more evidence of probability if the doctrine was established. Establish the doctrine, said Mr. G., and under its influence he thought there was a greater probability, at this day, of a stipulation for such an armament, than there was on the day the late Envoy was appointed, that such a Treaty as the present would have been the result of the negotiation. He took a retrospect of the circumstances attendant on that negotiation. When the Envoy was named, what were the expectations? Not that he was going to throw himself upon the magnanimity of the Monarch; but that he would