Treaty with Great Britain.

This power, he held, unlimited by the Constitu- If intolerable burdens were wantonly imposed; tion, and he held, too, that in its nature, to the if necessary to defeat the oppression, opposition extent he had mentioned, it was illimitable. Did and insurrection would not only be authorized, a serious difference exist with a foreign nation, in but become a duty. And if any man could hondetermining on the nature and extent of the stip-estly lay his hand on his heart, and in sincerity ulations which might be necessary to adjust it, declare, that a compliance with any existing the cause of injury, national rights and honor, the Treaty was worth more than our Government, evils of war, and all circumstances of relation be- our Constitution, our Union, and the liberty protween the two countries, must be taken into ac- tected by them; to that man he was ready to decount. In forming alliances, the threatened pres- clare, that opposition had become a duty. But, in sure, your own and your enemy's relative strength, every instance of opposition, whether in defeat of the objects of acquisition or defence, must be a Legislative act, or of a Treaty, the right of reconsidered. And, in adjusting an equitable inter- sistance resulted not from the Constitution itself, course for commercial purposes, a thousand cir- for it had declared no such right; no Constitucumstances present themselves for nice calcula- tion could declare it. It existed in original printions. A thousand circumstances of foreign rela- ciples, and never could be exercised but by retions would occur in the history of every country, sorting to them. under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils.

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

It was not, in his opinion, proper, when investi-out America. Mr. S. could not but observe that gating the Constitutional question of the extent it was perfectly unaccountable to his mind, that of a particular power, and in what hands it was that gentleman had yet to form an opinion to deposited, to divert the attention to a possible whom was delegated that power, the nature, exabuse of that power. Should it become a ques- tent, and effects of which he had so strongly and tion whether Congress was by the Constitution perspicuously detailed. The capacity of that genauthorized to raise armies, and the extent to tleman's mind, long exercised on political subwhich the power might be exercised, it would be jects; his known caution and prudence, would unfair and improper to divert the attention from authorize a request that he or his friends would the inquiry of what was the truth, to the abuses explain how it was possible, if such as he states which might result from the exercise of the should have been the intention of those who frampower. To state that if such power existed, every ed the Constitution, that the true meaning should citizen might, by the wanton abuse of it, be de- not have been expressed in the instrument? That graded from his rank, and subjected to the despo- when the gentleman went from the Assembly tism of military discipline: To show that armies which framed the Constitution, immediately afmight be employed as the instruments of destroy- terwards, to one of those which ratified it, he ing liberty: To picture your country as strewed should have admitted an opposite construction? with human carcases, and stained with human As Mr. S. would undertake, by and by, to prove blood by their means. What would this be but that, in the Convention of Virginia, he did admit to substitute prejudices instead of arguments? the very construction for which we now contended. Still, however, it would remain true, that there He would take the liberty further to inquire, how should be some means of calling forth the whole it happened, that, if such was really the intenforce of the community for its security and de- tion of the instrument, that such was the meanfence. It would still remain true, that the powering of the people, no man had heard of it until the of Congress to raise armies was only limited by its discretion, under the direction of wisdom and patriotism. The same observations, changing their relations, might with equal justness be applied to the Treaty-making power. To be, and to continue a nation, required, on these subjects, unlimited confidence in the delegation of the necessary powers. The people had granted them, and provided against their abuse such guards as their wisdom dictated.

discovery was produced by the British Treaty ? Strange national intention, unknown for years to every individual!

As the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the Government, he would take the liberty to state, what had been ably explained by other gentlemen, that the power of making Treaties was wholly different from that of making ordinary laws; originating from different motives; proThe gentleman from Virginia [Mr. MADISON] ducing different effects, and operating to a differhad stated five different constructions which posent extent. In all those particulars, the difference sibly might be given to the Constitution on this had been perfectly understood. For instance, the subject. Three of which, and for none of them ordinary legal protection of property, and the punto Mr. S.'s knowledge had any man ever contend-ishment of its violation, could never be extended ed, the gentleman had proved to be unfounded. The fourth, that which he had given to the Constitution, if admitted, and it should be abused, might produce mischievous effects. Was not this true of all the great and essential powers of Government? If the controlling influence of this House was added, would the power be less? And if, under these circumstances, abused, would the injury be more tolerable? In short, was not this a kind of argument infinitely more tending to the production of prejudice, than to the discovery of truth?

The gentleman has really given no decisive opinion what was the true construction. He had, however, seemed to incline to a belief that to the stipulations of a Treaty relative to any subject committed to the control of the Legislature, to give them validity, Legislative co-operation was necessary. Of consequence, if this was withheld, the operation of the Treaty would be defeated. That it was at the will, and within the discretion, of the Legislature, to withhold such co-operation, and of course the House might control and defeat the solemn engagements of the PRESIDENT and Senate.

The gentleman who had suggested this opinion was well known to the Committee, and through

beyond your own jurisdiction; but, by Treaty, the same protection could be extended within the jurisdiction of a foreign Government. You could not legislate an adjustment of disputes, nor a peace with another country; but, by Treaty, both might be effected. Your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. By Treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties.

It had been said that Treaties could not operate on those subjects which were consigned to Legislative control. If this be true, said he, how impotent in this respect is the power of the Government! What, then, permit me to inquire, can the power of treating effect? I will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the Legislative power of declaring war, laying taxes, or raising armies, or all of them. No Treaty of Peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no Treaty of Commerce can be made.

Was it not strange, that, to this late hour, it should have been delayed, and that now, all at

once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? That, although a power was granted to the PRESIDENT and Senate to form Treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? Or was it true, that this power was competent to treat with every Government on earth but that of Great Britain? Might he not be permitted further to inquire, if this Treaty had been formed with any other Power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality?

[H. or R.

not be true; for it was no less than a direct contradiction in terms, to say, that there was no power in the nation which could delay, resist, or annul the contracts of the King, and at the same time to say, there was a power in the nation, the Parliament, which could delay, resist, and annul those contracts. Both the assertions could not be true. He was willing, however, to allow that the Treaties which the gentleman had mentioned, were not the supreme laws of that country, until approved by the Legislature. He had already said, that different countries had provided different guards against the abuse of this power. But why attempt to divert our attention from a conWe had, he said, entered into Treaties of Com-struction of our own Constitution, to the vague, merce with many nations; we had formed an al- uncertain customs and practices of other counliance, and entered into a guarantee with France; tries? Why compare the PRESIDENT and Senate we had given Consular power, including judicial to the King of Great Britain? In what was there authority to the citizens of that country, within a resemblance? In nothing. Why, then, perplex our own jurisdiction; we had defined piracies, the subject by the introduction of irrelative matand provided for their punishment; we had re- ter? Was there perceived an interest in a divermoved the disabilities of alienage; we had grant- sion from the only legitimate source of informaed subsidies, and ceded territory. All this, and tion, the declared will of the people? If we found much more, we had done, while the powers of the not there the power we claimed, we could exerGovernment remained unquestioned, and none cise it only by usurpation. even thought that they required Legislative cooperation. Treaties, such as those, could, without opposition, and by unanimous consent, be ratified, and considered by force of such ratification, as supreme laws; but similar stipulations with Great Britain were clearly perceived to be unconstitutional, and PRESIDENT, Envoy, and Senate, were denounced for their respective agency, as infractors of the Constitution.

The objection, which he had just answered, had been brought forward by a gentleman from Pennsylvania, [Mr. GALLATIN,] with another nearly allied to it, if not resting on precisely the same foundation; that whatever stipulation in a Treaty required Legislative provision, or repealed a law, did not become a supreme law until it had received Legislative sanction. There was no limitation expressed in the Constitution on which to found either of those objections. If we claimed the power which the objections imported, the claim must rest on construction and implication alone. Indeed, the whole reasoning of all the gentlemen seemed to him to be capable of being expressed in a few words: The PRESIDENT and Senate, in the sole and uncontrolled exercise of the Treaty-making power, may sacrifice the most important interests of the people. The House of Representatives is more worthy the public confidence; and, therefore, by our influence, we will prevent the abuse of power.

The gentleman, to prove his position, stated, that the power of treating in Great Britain and the United States is precisely the same. He then read a passage from Judge Blackstone, "that the sovereign power of treating with foreign nations was vested in the person of the King, and that any contract he engaged in, no power in the Kingdom could delay, resist, or annul." At the same time, he said, that certain Treaties, such as those of subsidy and commerce, were not binding until ratified by Parliament. Now, both these could 4th CoN.-18

Why did not gentleman extend their reasoning further? Where, in point of principle, was the difference between restraining and controlling the Legislative power? The injury may be as great in the one instance as in the other; nor is there any more foundation for denying to the PRESIDENT and Senate the power in the one case than in the other, from any words or expressions in the Constitution.

If the gentlemen are right in their construction, if this was the understanding of the people at the time they deliberated on and ratified the Constitution, the power of the PRESIDENT and Senate of making Treaties, which then created the most serious deliberation and alarming apprehensions, was the most innocent thing in nature. It could bind the essential interests of the nation in nothing. Could any man really believe that the agitation which a discussion of this subject occasioned, more, perhaps, than any other in the Constitution, could have for its object only the power of the PRESIDENT and Senate, in which two-thirds of the latter must concur, to digest schemes of Treaties to be laid before the Legislature for its approbation?

The gentleman from New York [Mr. HAVENS] and the gentleman from Virginia [Mr. GILES] had asserted the power of the Legislature to repeal Treaties; whenever the wisdom of Congress should concur in opinion with those gentlemen, we should then cease to contend respecting the construction of the Constitution on this subject. For whenever our nation should, in defiance of every principle of morality and common honesty, by its practice, establish its right to prostrate national honor, by sporting with the public faith, no nation would submit to be contaminated by a connexion with one which avowed the right of violating its faith by the infraction of solemn Treaties.

On all subjects of this sort, the real inquiry was

1

H. OF R.]

Treaty with Great Britain.

and ought to be, what was the intention of the parties to this instrument? Hence a brief view of some interesting occurrences, which took place at the adoption of the Government, would not be impertinent, but might be useful.

[MARCH, 1796.

adopted; and if we perceived a correspondence of construction between those who formed and those who received and approved, we might then surely derive all reasonable satisfaction that we had discovered the truth. Here he believed that it might be asserted, without any danger of contradiction, that in the State Conventions it was, on one hand, affirmed that the PRESIDENT and Senate would, by the Constitution, have power to form Treaties on any subject in which the United States and a foreign nation had a common interest; and that Treaties so formed, without any other aid or circumstance whatever, would thereby become the supreme law of the land; and that the exercise of this power was not so guarded as to render it safe to the public interests. On the other hand, it was admitted that such was the extent of the power, and it was attempted, at least, to be proved that it was so guarded that danger could not reasonably be apprehended from its exercise. It would be too tedious, and well might be thought unnecessary, to consult all the materials which might be within our reach on this subject; but he dared to appeal to the recollection of every gentleman who was in a situation to know the facts, for the correctness of the statement which he had made; and he would read some few extracts from the debates of the Convention of Virginia, which would probably be, on this occasion, for many reasons, admitted as the best authority; and particularly, because the subject there was examined by eminent talents, and by minute and

A cotemporaneous exposition of any instrument, and especially by those who were agents in its fabrication, had been allowed, and was, in fact, among the best guides to finding its true meaning. Gentlemen who had been members of the Convention, and unfriendly to the Constitution, with an intention of preventing its adoption, had stated to their constituents that the power of making Treaties, as confided to the PRESIDENT and Senate, was as extensive as was now contended for. Their intention could have been no other than to alarm the people with the dangerous extent, and what would be the pernicious exercise of this power. If this charge was unjust and groundless, what would have been the conduct of the friends of that instrument? They would have proved the charge to have been malicious and ill-founded. They would have shown that the Constitution was not liable to such an objection; that it could bear no such construction. They would, in the language of novel discovery, have said, that every subject of legislation was an exception from the power of making Treaties; and thus they would have proved to the world, that the sages of our country had devised and offered to their enlightened countrymen a scheme of Government, destitute, by an express delegation, of the essential attribute of adjusting differences with other na-scrupulous investigation. tions, and of agreeing with them on the terms of amicable intercourse. But they did no such thing; they admitted the power, proved the necessity of it, and contended that it would be safe in practice. Let me here, said he, appeal to any unprejudiced man, if he can possibly believe that the enemies "That he thought this a most dangerous clause. By of the Constitution could have made the charge the Confederation, nine States were necessary to concur against it, and that its friends would have admit-in a Treaty: this secured justice and moderation. His ted the truth of it, on the hypothesis that it was principal fear, however, was not that five, but seven unfounded and false? They certainly knew what States, a bare majority, would make Treaties to bind they had so recently intended, and having opposite the Union." objects in view, which excited their strongest wishes, it was impossible they should agree in imposing on the people a false and unwarrantable construction. So far he had extended his reflections as resulting from the conduct of those who formed the Constitution; a conduct from which, he flattered himself, there flowed demonstration Mr. S. said, that if it was true, as now contendthat the power of making Treaties was as exten-check on the principles which had been mentioned, ed for, that this House was intended to have a sive as was that which was now contended for. This being the concurrence of men who could and which, he had already shown, would extend not have united to deceive, with regard to which to some of the stipulations of every Treaty which it was impossible they should be mistaken, formed could be formed, it was utterly impossible it should a guide for our opinion, which could not mislead, which no degree of stupidity could mistake, nor the most ingenious sophistry successfully misrepresent.

So much he had thought proper to say, as respected the construction given to this part of the instrument by those who formed, who could not mistake, and who were under no temptation to misrepresent it. It might be necessary, in the next place, to inquire under what opinions it was

Mr. SEDGWICK read the following passages from the third volume of the "Debates and Proceedings of the Convention of Virginia." From the speech of Mr. George Mason, who was as well a member of the Federal Convention, as of that of Virginia :

He then read the reply of Mr. George Nicholas to Mr. Mason:

local views, being elected by no particular State, but the "That the approbation of the President, who had no people at large, was an additional security.”

not have been mentioned and relied on.

From a speech of Mr. MADISON he read: "That he thought it astonishing that gentlemen should think that a Treaty could be got with surprise, or that foreign nations should be solicitous to get a Treaty ratified by the Senators of a few States; that should the President summon only a few States, he would, for so atrocious a thing, be impeached.”

From the speech of another member, Mr. Henry:

MARCH, 1796.]

Treaty with Great Britain.

[H. OF R.

"That if two-thirds of a quorum would be empow- the empire. The Senate alone ought not to have this ered to make a Treaty, they might relinquish and alien- | power. ate territorial rights, and our most valuable commercial advantages. In short, should anything be left it would be because the President and Senators were pleased to admit it."

[How, Mr. S. asked, could this be true, if the doctrine now laid down, in support of this motion, was well founded?]

"The power of making Treaties, ill guarded as it is, extended further than it did in any country in the world. Treaties were to have more force here than in any part of Christendom."

From Mr. MADISON's speech he read:

"Are not Treaties the law of the land in England? I will refer you to a book which is in every man's hand, 'Blackstone's Commentaries;' it will inform you, that Treaties made by the King are to be the supreme law of the land; if they are to have any efficacy they must be the law of the land. They are so in every country." From Governor Randolph :

“ It is said, there is no limitation of Treaties. I defy

From the speech of Mr. Corbin, who was in favor of the Constitution:

"If there be any sound part in the Constitution it is this clause. The Representatives are excluded from interposing in making Treaties, because large popular assemblies are very improper to transact such business, from the impossibility of their acting with sufficient secrecy, despatch, and decision, which can only be found in small bodies; and because such numerous bodies are always subject to faction and party animosities. That it would be dangerous to give this power to the President alone, as the concession of such a power to one individual is repugnant to Republican principles. It is therefore given to the President and Senate (who represent the States in their individual capacities) conjointly. In this it differs from every Government we know. It steers with admirable dexterity between the two extremes, neither leaving it to the Executive, as in most other Governments, nor to the Legislative, which would too much retard such negotiations."

That another member of the Convention, (Mr.

the wisdom of that gentleman to show how they ought Henry,) after contending that the Constitution

to be limited."

From Mr. George Nicholas:

"Have we not seen, in America, how Treaties are violated, though they are in all countries considered as the supreme law of the land?"

That Mr. Mason, speaking of this power, had

said:

ought to be amended, so as to guard against the abuse of the Treaty-making power, by requiring the consent of the House, concluded his observations by saying:

"That when their consent is necessary, there will be a certainty of attending to the public interests."

That the debate on this interesting subject was, in that Convention, concluded by a gentleman of this House, [Mr. MADISON,] not by insisting on that security, which gentlemen had now discovered the Constitution provided against the abuse of this power. He had stated:

"That the power was precisely in the new Constitution as it was in the Confederation."

"It is true it is one of the greatest acts of sovereignty, and therefore ought to be most strongly guarded. The cession of such power, without such checks and guards, cannot be justified; yet I acknowledge such a power must rest somewhere: It is so in all Governments. If, in the course of an unsuccessful war, we should be compelled to give up part of our territories or undergo subjugation, if the General Government could not make a He had stated the checks which the ConstituTreaty to give up such a part, for the preservation of tion had in fact provided, but it had not then the residue, the Government itself, and consequently the rights of the people must fall. Such a power must, there-occurred to him that the consent of this House fore, rest somewhere. For my own part, I never heard was among them. it denied that such a power must be vested in the Government. Our complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system."

[Strange, Mr. S. said, that this gentleman did not discover, or was not told, that Treaties before they should become laws, must receive Legislative sanction.]

He also read the amendment which the Convention of Virginia proposed to the Constitution:

"That no commercial Treaty shall be ratified without the concurrence of two-thirds of the whole number of the Senate; and no Treaty ceding, controlling, restraining, or suspending the territorial rights or claims of the United States or any of them, or their or any of their

rights or claims to fishing in the American seas, or navigating the American rivers, shall be made but in cases of the most urgent necessity; nor shall any such Treaty be ratified, without the concurrence of three-fourths of the whole number of the members of both Houses respectively."

"There are other things which the King [meaning the King of Great Britain] cannot do, which may be done by the President and Senate in this case. Could the King, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary, indefeasible title ? Will any gentleman say that they [the President and Senate] may not make a Treaty, whereby the subjects of France, England, and other Powers, may buy what lands they please in this country?" "The President and Senate can make any Treaty whatsoever. We wish not to refuse, but to guard this power, as it is done in England." "We wish an explicit declaration in that paper, that the power which can make other Treaties, cannot, without the consent of the na- He had stated, that the real inquiry was, what tional Parliament, the national Legislature, dismember | opinion was entertained on this subject by those

Mr. SEDGWICK said, that it was manifest, beyond all doubt, from that amendment, that the Convention of that State supposed, that the Constitution as it then stood unamended, delegated to the PRESIDENT and Senate, and to the exclusion of the House, the whole power of making and ratifying Treaties, with all its consequences and effects.