who ratified the Constitution. If that opinion could be discovered, with honest minds it must be conclusive on the present debate. He had shown what opinion was entertained by Virginia; what power she meant to delegate, and to whom. That this opinion remained from that time until she proposed her late amendments, unaltered, appeared from the amendments themselves. That State then, and her Representatives here, who had expressed themselves, differed in opinion. He did not mention Virginia with intention of producing any unpleasant sensation. He was willing to allow that she was great, wise, intelligent, enlightened, and, if gentlemen pleased, moral. Her opinion derived additional authority from her respectability. It was not Virginia alone, but he was persuaded every other State had given precisely the same construction. That the Treaty-making power, with all its effects and consequences, was solely and exclusively in the PRESIDENT and Senate. And he would dare to challenge gentlemen to produce a solitary instance of its being adopted under any other idea. Indeed the agitation which was at that time produced, would of all things be the most ridiculous, if any of the other constructions were true. If the power was checked as was now contended, it was impossible danger should be apprehended from its exercise; it could indeed do neither good nor evil. [MARCH, 1796. PRESIDENT and Senate under the Constitution_to form "Treaties." The Legislative powers of the nation, then residing with the several States, were as obstructive to the operation of Treaties (and extended to all the objects which the National and State Legislatures now comprehend) as the Congressional Legislative can now be. Yet under the Confederation Treaties of Alliance, of Peace, of Commerce, were made; nor until the present moment has their obligations been denied, though they contained stipulations, perhaps, on all the subjects to which the treating power could extend. No Legislative provision had been thought necessary to give them validity; and he dared appeal to every member of the Committee, that every enlightened citizen had admitted their binding obligation as supreme laws. That the Treaty of Peace in particular, which controlled the most important rights of sovereignty, arrested the hand of justice in inflicting punishment for the highest crime which a citizen could commit, treason, and stayed proceedings in cases of confiscation, for forfeitures which had been incurred, had always received this construction. He would add, that it was well understood to be the opinion of that tribunal which the Constitution had authorized to pronounce the law, the Supreme Court, that the Treaty from its own powers, repealed all antecedent laws which stood in the way of its execution. To proceed further on: Since the adoption of the Constitution, the powers now denied, had been constantly exercised with all the consequences and effects now contended for, and, until the present moment, unquestioned. Peace had been concluded, subsidies granted, payment of money stipu Here then, he said, we had the evidence of those who framed, and of those who received and approved the Constitution. There was another source of inquiry, which would confirm, if it wanted confirmation. that construction for which he had contended. It was the construction which had been practically given by those who had adminis-lated, territorial rights discussed and decided on. tered our Government, from the commencement of our foreign relations, to the present session; a construction which had been assumed, admitted, or acquiesced in, by our National and State Governments, and by every individual citizen, until they received new light, by our having accommodated our causes of contention with Great Britain, and escaped the evils with which we had been threatened from that source. The association which preceded any express contract between the States, was supposed to imply an authority to form national compacts, imposing national obligations, and pledging the public faith. Hence our Treaty with France, which preceded two years our national association, the Confederation, had been supposed binding on us, and not only obliging us to the faithful performance of our express engagements, but as drawing after it undefined, unlimited, and perpetual obligations of gratitude. This seemed, so far as respected defined obligations, to be a rational deduction, from what is an inseparable attendant on national associations, and without which a nation would be destitute of one of the best means of securing its happiness, and even existence. To pursue, he said, the history of our country on this subject, in the order of time, it would not be pretended that, under the Confederation, the powers of Congress to form "Treaties and Alliances" were more extensive than those of the Treaties for those purposes had been ratified, not by venal and corrupt majorities, but by virtuous unanimity. Hence, from the moment we had become a nation, under every form of our implied or expressed association, the powers now denied had been exercised, not only without question, but with unqualified approbation. There was one more point of light in which this subject ought to be viewed. In the year 1789, it was proposed to discriminate in the imposition of our duties, between the nations with whom we had, and those with whom we had not, Treaties of Cominerce. The author of this proposition renewed the same in the year 1794. This was virtually acknowledging the validity of the Treaties which did exist and inviting those nations who had not already, to form Commercial Treaties. Something more than this was done by the motions which some gentlemen of the minority of the Senate are said to have made when this very Treaty was in discussion. Their motions recommended an accommodation by Treaty of all subsisting differences between the two countries. It could not escape remark that these several propositions and motions were supported, by all that description of persons who now opposed the Treaty. It would not then be deemed impertinent to inquire, it was worthy attention, what was imported and admitted by this conduct and those proposi MARCH, 1796.J Treaty with Great Britain. [H. of R. tions? They undoubtedly implied a concession | conduct instead of supporting would tend to subthat the subsisting Treaties were of validity; why vert, and would, if persisted in, annihilate the else should they be considered as a meritorious Constitution. This was undoubtedly one of the cause of favorable discrimination? They implied, most important of the public contracts; but the too, that there existed in this country a power to truth was, in fact, that we were bound to perform treat on commercial relations, and to adjust sub-all the public engagements. The truth was that sisting differences. our national association was a compact of virtue. To support the Constitution it was necessary to preserve public faith. To promote the public happiness it was essential to hold sacred, and to perform, the public engagements. In this were included all engagements, whether expressed in the form of Constitution, of laws, or of Treaties; in any way, indeed, in which the people had agreed that their will and their duties might be expressed. Mr. S. concluded by observing, that he had intended to have presented the subject in several other important aspects, but he had already trespassed on the patience of the Committee. He would, as the time of adjournment was passed, suspend for the present any further observations; and he hoped that all the grounds which he had left unoccupied would be taken by other gentlemen, so as to supersede the necessity of troubling the Committee with any further observations on this subject. If without Legislative aid (and they had received none) those Treaties would authorize the Legislature to derange the commercial pursuits of the nation, and enter into Legislative hostility with that nation with which we had the most extensive relations, it must be from the competency of the Treaty-making power on the principles on which we contended. Strange again, he would say, it must appear that the true construction of the Constitution, on this very important subject, should have escaped the penetration and sagacity of the author of those propositions, during the time of forming and ratifying the instrument, and his whole active public life, from those periods until that of the publication of the British Treaty. MARCH 14.-In Committee of the Whole on Mr. LIVINGSTON's resolution: If, then, it was true, as he had endeavored to prove, that by the power given by the Constitution to the PRESIDENT and Senate to make Treaties, they had an authority to the extent he had supposed with all its consequences and effects; if Treaties so formed did in fact become supreme law, then being compacts they bound the public Mr. SAMUEL LYMAN said he rose only to make faith and could not be violated without national a few observations. He was against the resoludisgrace and personal dishonor. They might re- tion now on the table, as involving a doctrine, in quire Legislative provision to carry them into ef- his opinion, not only inconsistent with the princifect; but this neither implied nor authorized the ples of the Constitution, but also inconsistent with exercise of discretion, as to refusal. The Consti- the laws of nations. In debating the merits of this tution he had had frequent occasions of saying resolution, an exceedingly important abstract Conprescribed a Government of departments. Each stitutional question had arisen, viz: How far that was intended to be furnished with the means of self- House had a right to exercise their Legislative preservation and defence. For this purpose it was discretion and judgment relative to carrying a declared, that the PRESIDENT should receive a Treaty into effect. In order to answer this quescompensation to be ascertained by law. Laws tion, he would raise two premises. And, first, by were to be made by the Legislature, of which this the Constitution, the Legislative powers of that House was one branch. To support the Constitu- House, in co-operation with the other branches of tion each department must be enabled to perform the Legislature, extend to all objects within the the functions assigned to it. To enable the Exe-reach of their sovereignty, excepting the reservacutive to do its duties, the compensation must be provided. It was then necessary to the support of the Constitution, that the compensation should be made. We have sworn to support the Constitution. The people by their Constitution had solemnly engaged that whoever was the PRESIDENT should receive a compensation. We had been deputed to discharge the duties and engagements which our constituents had assumed. Under these circumstances no man of common honesty could declare that we were at liberty to refuse all provision. tions to the distinct sovereignties of the several States which compose the Union; but beyond those boundaries their powers could not extend. Secondly, there is, by the Constitution, attached to the Legislature a subordinate kind of power, of a limited and ministerial, or Executive nature. At present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: 1st, for calling a Convention under certain circumstances to amend the Constitution; and, 2dly, for carrying into effect Treaties which are constitutionally The gentleman from Virginia [Mr. MADISON] made; for these two purposes, the people, who are had attempted to make a distinction between the the source of power, had stripped that House of duties we had imposed on us by the Constitution all Legislative authority, and made them only the and such as were enjoined by law. He could per- executors of their will; therefore, upon these ceive no foundation for any such distinction. Af-premises he answered, if a Treaty was unconstiter the salary of the PRESIDENT was ascertained tutional, they had an undoubted right to exercise by law, it could not be paid without an appropria-a Legislative discretion and judgment relative to tion; would any one say he was at liberty to with- carrying it into operation, for they were sent there hold it? No man, he presumed, would wish to risk as the guardians of the rights of their fellow-citihis reputation by such an assertion. For suchens, and, for that purpose, are sworn to support H. OF. R.] Treaty with Great Britain. [MARCH, 1796. thorities, for every sentiment of their nature enforced conviction, and, of consequence, is clothed with all the solemnity of moral obligation. This principle of the law of nature is no less than the law of self-preservation, as relative to themselves, their nation, and all other nations; for, what would be the consequence if the reverse of this doctrine was established as the Law of Nations? The consequence would be pernicious and destructive among the nations; it would be the source of jealousies, of Carthagenian faith, of war and bloodshed. the Constitution; but if the Treaty was Constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that House is bound to obey it, and to carry it into complete execution; for, by the Constitution, the power of making Treaties is vested solely and exclusively in the Executive department. In the former case, they have a right to exercise a deliberative or Legislative power, but not in the latter case; they could there only exercise a ministerial or Executive power. So that herein, said He had not the least doubt of the constitutionhe, lies the true distinction, and it arises from the ality of a Treaty, when the stipulations in it were nature and principles of the Constitution. Gen- of such a nature as not to respect objects of legistlemen would do well to recollect Miller and De-lation, but only objects which lay beyond the lolme upon the British Constitution, when they form a comparison of their Constitution with the Constitution of England, and to advert to one important circumstance, which is the source of a considerable dissimilarity, especially as to the power of making Treaties: The Constitution of this country is written, and the powers of the several departments of Government are clearly and accurately defined; but the Constitution of England is made up of customs and precedents, the influence of which has been alternately augmenting or decreasing from time immemorial, owing to a perpetual conflict between the Sovereign and the House of Commons, the Government being in its origin an absolute monarchy, and founded upon conquest; but the spirit of that great nation, by Mr. L. said he was sensible he had been deliverthe subtlety and adroitness of their House of Com-ing an unpopular doctrine, but that he was deeply mons, who have been watchful of favorable junc-impressed with its truth, its reality, and its importtures, has, as it were, surreptitiously deprived their ance; and that the obligations of an oath had preSovereign of many of his royal prerogatives. This vented his silence on the occasion. check upon his Treaty-making power was, among others, an important achievement. bounds of their sovereignty; for beyond those limits their laws could not extend as rules to regulate the conduct of subjects of foreign Powers; and although some stipulations in a Treaty may respect objects which were within the reach of their sovereignty, yet it may be in such manner as to be strictly Constitutional; for such stipulations may be not only pertinent, but absolutely necessary in forming the Treaty. This conclusion, he thought, was the natural and necessary result of a fair and liberal construction of the principles of the Constitution, and especially of that paragraph which vests the power of making Treaties in the Supreme Executive, with the advice of the Senate. Mr. BALDWIN said he had before expressed his opinion, in general terms, in favor of this question. In this country they had only a right to exer- It must have been observed that he had been for cise a deliberative or Legislative power relative several days noting the debates, and preparing to to Treaties which are unconstitutional; but they take part in them. He had intended to have incould only exercise a ministerial or Executive troduced the debate on Friday morning last, but power relative to Treaties which are Constitu- a singular incident prevented him, which he felt tional; and in forming an opinion relative to the it to be his duty to take this earliest opportunity constitutionality or unconstitutionality of a Trea- to state to the House. Mr. B. then said: About ty, all they want were the Treaty and the Con- five minutes before I expected to rise on the quesstitution, and then, by comparing the two instru- tion, I was called out of the House by a person ments tegether, and upon that comparison alone, then unknown to me, who said his name was FREform their judgment. From these premises it LINGHUYSEN, and whom I found to be a Senator conclusively follows, that, as they have no occa- of the United States. After a number of intersion, so they have no right, to call upon the Su- views, he observed, with great expressions of pain preme Executive for the papers in question. This and regret, that he was at last obliged to the undoctrine, he thought, necessarily resulted not only welcome office of delivering me that letter, which from the principles of their Constitution, but also I opened and found to be a challenge directed to from an important principle of the Law of Na- me from JAMES GUNN, who is also a Senator of tions. For all nations between whom there are the United States. The pretext for this transacexisting Treaties have a kind of property lodged tion was, to extort from me some private letters in the secret cabinet of each other, and no nation which I had received early in the session from a can, consistently with good faith, publish to the number of my constituents, expressing their wish world the secret negotiations which led to form- that I would endeavor to prevent any thing being ing either of those Treaties. To prove this prin- done in Congress to validate the Mississippi Yazoo ciple, a recurrence may be had to Paley's Phi- Land Speculation before the meeting of the State losophy and Vattel's Law of Nations. This prin- Legislature. There was no complaint of any perciple of the Law of Nations is predicated upon an sonal indecorum or disrespect at all; whether they important principle of the law of nature. Here, were actuated in their conduct solely by interest then, is no necessity of recurring to written au-lin Yazoo speculations, I will not pretend to judge. The revival of a transaction of so old a date at that particular moment, was to me surprising. Not knowing their degree of relation to this question between the two Houses, and not knowing the cast of character but of one of them, I am left only to conjecture. It was so peculiarly timed, and the professed object also of so peculiar a nature, to interrupt the channels of confidence for free communication between me and my constituents, that I have thought it my duty not to let the treatment of it depend on my own individual discretion. I consider it as in the discretion of the House. Mr. B. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of Friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of Friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended. Mr. B. then began his remarks on the question, and observed that, from the course which the business had taken, the subject seemed to be one thing and the discussion another. He begged leave first to consider the question, partly with a view to rescue some remarks which he had made when the question first presented itself. from a singular envelope which one or two members have thought proper to attempt to throw about them. He did not then say that it was advisable to request these papers of the PRESIDENT, for the sake of publishing them; that published they ought to be; that there were no secrets in Government now-a-days; and that the doctrine of mysteries was exploded. [H. of R old mysterious doctrines of Governmental secrecy was not necessary; that, in place of it, it seemed now to be believed that it was desirable, as far as possible, to have Governmental regulations accompanied with light and information, and as full an exhibition of the reasons on which they are founded as the nature of them will permit. He had almost brought his own mind to believe that there was but one limitation to the extent of this principle, and that was, that, while measures were in the transaction, and in an unfinished state, it might, at many times, be improper to disclose them. Proofs could not be wanting that these impressions had such weight on the mind of the PRESIDENT that he persuaded himself there was no danger of their making an unfavorable impression on his sentiments, qualified as the motion had been by the last amendment. It was said, the PRESI DENT would have published these papers unasked, if there had not been an impropriety in it. There might be a diplomatic impropriety in disclosing the particulars of a negotiation unless some kind of occasion led to it-like an individual too freely disclosing private letters; but when it was known that there was occasion, it is a perfect justification. A gentleman from South Carolina [Mr. SMITH] had undertaken to controvert these assertions. His proofs are too remarkable not to be noticed: his first was, that the old Congress had animadverted on the conduct of a member from Rhode Island, for improperly communicating some matters which had been intrusted to his confidence; the second was, that they now had a rule for clearing their galleries. Let that gentleman look at the secret Journal of the old Congress, and see how it continually diminished till it was become almost nothing; let him look over the United States, and see how many public bodies which used to deliberate in secret have now their doors open; let him look over the communications, of mere Exe The mistake, if it was merely a mistake, must have arisen from not attending to his first obser-cutive business, from the PRESIDENT OF THE UNIvation, which was nearly as follows: that they were obliged, at any rate, to go into the subject; the House had ordered the Committee of the Whole to proceed to consider the Treaty, and the petitions from their fellow-citizens complaining of different parts of it; the committee must be formed, the subject taken up, propositions upon it must be received, and some result concluded on. The only question, then, was, whether to take up the subject unexplained as it was, merely from the instrument and petitions, or to request any information that might be thought useful to the discussion, and not improper to be communicated, which might guard them from error, and lead them to a proper result. To this it was objected, that these papers were secrets of the Executive department, &c. In this connexion it was he made the observation alluded to; that he hoped, on reflection, that objection would not appear to have so much weight; that, since they had been a free people, the different Governments in this country, and the different departments of Government, appeared to be under an increasing conviction (which, he thought, had been much strengthened by experience) that a rigid adherence to the TED STATES, for these two or three years past; let him read the rule of their own House, as it now stands, on the subject of clearing the gallery, and see how much it is narrowed from the rule which was in force for the first two or three years-and then let him declare whether there is not some foundation for the assertions which he had attempted to combat. He hoped he should be excused for having detained the Committee by some repetition of what he had before said-it was the strict debate of the question, and had been held up undefended in two unfavorable attitudes. He could not patiently see observations that appeared to him so important, so well grounded, and so strictly applicable to the question in debate, hunted from the House, because the attention of gentlemen, who at other times would not have suffered it in silence, had been absorbed by a still more important direction which the discussion had taken. should conclude this part of his observations, which he considered as properly the debate of the question, by an expression of his wish that gentlemen would reflect in what light they exhibited themselves, and what must be the tendency of their opinions, if they avowed themselves the adversa He ries of his observations, as he had now explained them. He had hoped, when he first made the observations, they had not been useless; they still had great weight on his own mind--he believed they had on the minds of some other members. Mr. B. then proceeded to consider the question in the form in which it is presented by the discussion. He was sensible of the disadvantage any person must labor under, and particularly himself, in attempting to speak upon it, after it had been so long and so very ably discussed. It would be impossible for any person to propose to himself a strict and regular plan of viewing the subject without going over a great deal of the ground that had been before taken by other gentlemen. This, in the present stage of the business, would be so tedious-and any attempt to improve upon their statements would be to him so hopeless-that he should decline the task, with barely making the observation as an apology for a less formal, though he hoped not useless, submission of some thoughts which had occurred to him on the subject. [MARCH, 1796. possibly exist any such case, in which it might He said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. It was certainly important to agree exactly on that point. The least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. One gentleman had stated that the question was, whether this House should feel itself at liberty to judge over the heads of PRESIDENT and Senate on the subject of Treaties without restraint: his reasoning seemed to be built on that proposition. How much they intended to incorporate with Another gentleman had said that the question was, this power of Treaty-making, under cover of conwhether the power of making Treaties was given tract with foreign nations, he had not heard any by the Constitution to the PRESIDENT and two-one attempt to explain; it seemed designed to thirds of the Senate, or to the PRESIDENT and both branches of the Legislature. He might mention several others, but he called the attention of the House to the fact, to settle the point, that they might at least agree what they were talking about. The question, said he, on the table is, to request of the PRESIDENT papers respecting the Treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. He begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the Constitution that there was nothing for that House to deliberate upon on the occasion, but only punctually to provide the funds to carry the Treaty into effect. If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making in which it might ever be proper for that House to deliberate-as, for instance, offensive Treaties which might bring the country into a war--subsidies and support of foreign armies-introduction of an established religion from a foreign country, or any other of those acts which are by the Constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might stand distinguished as an indefinite, uncontrolled branch of the Government, the extent of whose powers was to be known only by its own acts. Its definition was to be, that it was indefinite-like what is said of some branches of the powers of Parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. However this might be found, respecting a foreign Constitution, it is making a monster of our own. There was not another part or lineament in it which appeared to be in the same mould or proportion. He then proceeded to observe, that though upon these principles a definition of this power was not to be asked or expected, yet without doubt it might be permitted to contemplate it in its display. From the late exhibition which had been made of it in the instrument which had been laid before the House, it appeared to assume the right of repealing laws. He supposed it not to be denied, that in not less than four instances it had repealed laws of the United States. He had not heard any reason assigned why it might not have been extended to the whole book, and repealed all the laws passed |