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Treaty with Great Britain.

effecting a Treaty of Peace, that power was properly vested in him, guarded by two-thirds of the Senate. But a Treaty of Commerce presupposes an existing peace, and in those Treaties secrecy is not essential; but a competent knowledge of the produce of the respective States in all their remote situations was necessary; which would be best obtained by an association of the three branches of Government.

This is a Treaty of Commerce, and therefore has involved Legislative objects. It consequently requires Legislative sanction; a contrary construction would be a violation of the Constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people.

I confess, on viewing the exception and force of the argument, that I had some doubt, that when the Government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for.

[MARCH, 1796.

Another gentleman from South Carolina [Mr. HARPER] said, when this motion was first made, he thought it immaterial, but now he thinks it a violation of the rights of the Executive. How gentlemen can so suddenly change their opinions from one extreme to the other, I am at a loss to conceive. I, generally, have discovered that in all common occurrences, things present themselves (as to substance) right in the first instance; there may be some change with respect to form. Nor can I conceive any other cause than a recollection of the necessity of guards to prerogative. I yet think it a modest and reasonable request, and in that point of view, I trust, will the PRESIDENT consider it. He will recollect that we are the Representatives of the people, and that we cannot discharge our duty by knowing that this Treaty did happen, but by being acquainted with the causes that produced it, whether by accident, design, or necessity. If by accident, we are not bound; if by design, and the motives corrupt, it is a nullity fraud contaminates a private contract, according to Vattel; if by necessity, and that can be known, it will be a sufficient apology, and we will submit to it. Under these considerations, with those that have been offered, I am conclusively in favor of the resolution.

A view of mutual interest excites individuals and nations to form intercourse and commercial contracts. So long as the end corresponds with the design, the firm should exist and no longer; when either or both are dissatisfied, reason would dictate a dissolution. Nor can this with indi- Mr. BRADBURY observed, that the most plausividuals or nations be a just cause of quarrel or ble reason that he had heard in support of the war, but often the best way to preserve peace. resolution under the consideration of the CommitIt is not enough for me to know that this Treaty tee, resulted from a principle advanced by a memdid happen, but I wish to know the causes that ber from Pennsylvania, who spoke upon the subproduced it, which will best be known by advert-ject last week. The principle was this; that ing to the papers contemplated in the resolution. A gentleman from Veront, [Mr. Buck] in the commencement of this debate, has said that the Treaty was now the law of the land, after having been concurred in by two-thirds of the Senate, and ratified by the PRESIDENT. It was subverting the first principles of our Government, and to oppose was rebellion; and more particularly as it was officially laid on the table and promulgated by the PRESIDENT'S Proclamation. To use his language, it struck like thunder-appeared like the majesty of Heaven.

I would beg leave to observe to that gentleman, that as to the majesty of Heaven, I lack a simile, not being acquainted with the gods. But with respect to thunder, I have some knowledge of its operation; when it strikes a sensible object it destroys sensibility. If it has had that effect upon that gentleman, unless he has recovered, he is yet unfit for a legislator. I would only further observe, that if the Treaty was not the law of the land, the Proclamation did not make it so. I should not have observed on the gentleman from Vermont, but for the eulogium given by the gentleman from South Carolina, [Mr. W. SMITH,] who had said, that his speech was of such dignity that an attempt to repeat it would lessen the original.

where any articles of a Treaty were repugnant to prior existing acts of Congress, those acts must first be repealed by Congress before such Treaty can become the law of the land; and it was said some of the articles of the British Treaty were of this nature. He would not stay to examine the truth of the fact, for admitting it to be true, he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. If their concurrence was necessary to give existence or legality to the Treaty, he saw not why they ought not to be favored with the papers as well as the Senate. But he asserted, and would endeavor to prove, that the Treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of Congress is, or can be, necessary to make it so; and, therefore, that House could have no need of the papers, nor any right to call for them on that ground.

That the Treaty had already become the law of the land, and that no Legislative act of Congress was necessary to make it so, he argued wholly from the Constitution itself, by which alone the question must at last be determined.

That instrument expressly declares, that all Treaties made under the authority of the United I have been told it has been a custom in this States shall be the supreme law of the land. He House, when persons have conspicuously dis-laid no stress upon the word supreme, admitting charged their duty to give them the thanks of the House, I wish to indicate to the gentleman, that he was unauthorized to communicate mine."

for argument sake, that the supremacy ascribed to the Constitution and laws, and Treaties made under it, meant a supremacy over the Consti

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tution and laws of individual States:* All he asked to be granted him, and which he thought could not be denied, was that a Treaty made under the authority of the United States was the law of the land. If so, then all that needed to be proved was, that a Treaty made by the PRESIDENT, with the advice and consent of two-thirds of the Senate, was a Treaty made under the authority of the United States. And to prove that, he needed only to mention another clause in the Constitution, which expressly declares that the PRESIDENT, with such advice and consent, shall have power to make Treaties.

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nant to it: here the maxim of law strictly applies, leges posteriores priores contrarius abrogant. If it did not, it could not be the law of the land; for, if former acts repugnant to it were still in force, they must still necessarily be superior to it, and prevent its operation, and a law that cannot operate is no law.

It was acknowledged by the same gentleman, that an act of Congress could not repeal a Treaty, because it was a contract made with another party. Nor, said that gentleman, can a Treaty repeal a law, because Congress made it, and their consent is necessary to repeal what they have made. But he denied the consequence. It does not follow that an act of Congress is necessary to repeal a law, because they made it. The Constitution may, without absurdity, authorize another distinct power to repeal an act of Congress; and it is still a question of fact whether they had or not. He contended that they had in the case of a Treaty.

If then the United States, by their Constitution, have authorized the PRESIDENT, with such advice and consent, to make a Treaty, and if he, with such advice and consent, has in fact made one with Great Britain, then that Treaty is made under the authority of the United States, and if so, then it is the law of the land. This reasoning appeared to him to be plain and conclusive. The consequence could not be denied or evaded. If so, the principle asserted by the gentleman from Pennsylvania must fall to the ground. The Constitution neither expresses nor countenances such a principle. If it had intended that a Legislative act in such case should be necessary to complete the contract, it would have expressed that intention by an express proviso; for it is a case that must often happen in making of Treaties, and which must have been contemplated when the Constitution was made. Instead of which the Constitution declares, that Treaties, all Treaties without exception or limitation, made under the authority of the United States, (and he had proved that Treaty to be so made,) shall be the law of the land; but this principle teaches and asserts, that they shall not be the law of the land, although so made, until sanctioned by an act of the Legislature. It was not possible to reconcile the doctrine with the Constitution; they were contradictory in fact as well as in terms. He added, that if a Treaty was the law of the land, it must necessarily, upon its becoming so, repeal and annul all previous acts and laws repug-peal all acts of Congress, by making an insignifi

Though this be admitted here, for argument sake, yet it is easy to show, that the declaration in the Constitution, "This Constitu tion and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be

To prove his proposition, that gentleman had observed, "That in the first section of the Constitution all Legislative power therein mentioned was given to Congress; yet in the last section but one the Constitution says, Treaties shall be the supreme law of the land, though made by the PRESIDENT and Senate. A Legislative power is thus given them, after all Legislative power was vested in Congress, as if there were two Legislative powers. How were these powers to be reconciled?" He answered, the latter particular power was an exception to the former general power. If a Treaty is a law, then the making it is a Legislative act, by what power soever made, call it Executive, or what you please. If a general unlimited power of legislation be given to Congress, and afterwards a particular power to legislate in a particular case, is given to the PRESIDENT, it must operate as an exception to the general power; this will reconcile the two pow

ers.

But it is said, if this be the case, then the Executive may grasp all Legislative power, and re

cant Indian tribe a party to a Treaty. He answered, that the Supreme Executive must be very weak, as well as wicked, to make use of an Indian Treaty as an instrument to repeal all acts of Congress. What consideration could be held supremacy of the Constitution, and the laws made under it, while forth by an insignificant Indian tribe as an equivin force, and of all Treaties made or to be made under the authori-alent for so great a sacrifice. The fraud must apty of the United States, as well over the general Federal Government, as over the Constitution and laws of the individual States. The meaning is, that they shall all be supreme, not only over the

made under the authority of the United States, shall be the su preme law of the land," is to be considered as a declaration of the

General Government, of which there could be no room to doubt, though not expressed, but also over the Constitution and laws of every State in the Union, of which there might have been some pretence to doubt, had it not been expressed."

†The words, "made under the authority of the United States," were evidently chosen instead of the words "made by the Presi dent, with the advice and consent of the Senate," because they were to refer to Treaties then already made, as well as to such as

pear on the face of the Treaty, and would defeat his intentions. This Treaty-making power given to the Supreme Executive by the Constitution, was, he acknowledged, a very large and important power; but no argument could be drawn against its existence from the possibility of its being abused. It was fully considered when the Constitution was made, that the Treaty power was a great and important power, and the giving it to the Supreme Executive, without defining or that they were used to express or imply the idea that a Treaty limiting it, was one great objection to the Conclashing in any of its provisions with the express powers of Constitution. But it was then justly observed, and gress, would not, until it should so far have obtained the sanction of Congress, be a Treaty made under the authority of the United more especially in the debates of the Virginia States. Convention, that it was a power that could not

should be thereafter made, the former not having been made by the President, but by Congress, but both might truly be said to be made under the authority of the United States.

There is no color for the assertion made by Mr. Gallatin,

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well be placed in Congress, nor anywhere else, so well as in the Supreme Executive; and that, in its nature, it could not be limited, except perhaps that it ought not to extend to the dismemberment of the Empire. This last sentiment is ascribed to a learned and respectable character, who was now a member of that House; but, in the present debate that gentleman had declared, that he now hesitated not to say, that they ought not to admit the Treaty-making power to be unlimited. How this could be reconciled with his former sentiment, if it were rightly ascribed to him, he was unable to say. He presumed the gentleman had altered his opinion.

[MARCH, 1796.

fore. was gained from the King by the Commons, was considered as so much gained by the people from an adverse power.

If the PRESIDENT were an hereditary monarch, deriving his power from his predecessors by descent, a power originally founded in conquest, Congress would do well to get as much of it out of his hands as they could. It would here be, as it was there, a struggle between prerogative and privilege, it would be the people against the King. But as this was not the case, and as Congress never had in fact assumed and exercised the power of confirming by an act of theirs, Treaties made by the PRESIDENT, this argument from analogy wholly failed.

Suppose the Parliament of Great Britain should pass a law expressly delegating the Treaty-making power to the King, with the advice and consent of two-thirds of his Privy Council, and should declare in the act, that a Treaty made under such authority should be the supreme law of the land. They claim a right to make such a law, for Judge Blackstone affirms, that the denial of a power in every Government, even to alter every part of its Constitution, is the height of political absurdity; and in England, he expressly ascribes this power to Parliament.

The fatal consequences which might flow from the abuse of this power, have been painted by the same gentleman in strong colors; but those consequences were considered as possible when the Constitution was formed; notwithstanding which, it was judged necessary to lodge this power in the Supreme Executive, without attempting to limit it as to its object. And it cannot be limited by anything but the Constitution; no laws inconsistent with that can be passed, either by the Treaty or Legislative power. And the only other checks he could find on this power of the Supreme Executive in the Constitution, were the requiring the advice and consent of two-thirds of the Senate; What would be the effect of such an act of Parand impeachments against both, for abuse of pow-liament? Would not a Treaty made under it be er, vested in that House.

He nowhere read in the Constitution that any act of Congress, in any possible case, was necessary to make a Treaty, so as that without it such Treaty could not be the law of the land. He nowhere read that prior acts of Congress repugnant to a Treaty must first be repealed before a Treaty could be a law.

But, says the gentleman from Pennsylvania, the same Treaty power is given to the King by the Constitution and laws of England, that is given to the PRESIDENT by our Constitution, and yet the Parliament have the power there which he contends for in favor of Congress here; that is, they must repeal prior laws repugnant to a new Treaty, before it can be the law of the land; and why is not an act of Congress, it is asked, necessary for the same purpose. in a similar case here? He would answer, because our Constitution is different from the British in this respect: it declares that a Treaty made under the authority of the United States, (and he had shown that a Treaty made by the PRESIDENT, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. There was no such declaration in the Constitution and laws of England.

There was no arguing from the power of Parliament to the power of Congress. The Parliament must have controlled this Treaty power of the King, and stripped him of his prerogative, by use and custom. There had been in England a constant struggle between power and privilege; the prerogatives of the King were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, there

clearly the law of England? and would not all acts of Parliament, prior and repugnant to it, be repealed by it? He was clearly of opinion they would; and this clause, he said, was inserted in the American Constitution, probably to guard against that very construction which is now endeavored to be put upon the Treaty power; on purpose to cut off all pretence of a power in Congress to control a Treaty, by refusing to repeal any prior laws that might stand in the way of it.

But, said the same gentleman, shall a British House of Commons have this right of controlling the Treaty-making power, and shall it be denied to the Representatives of a free people? He answered, the PRESIDENT and Senate of the United States were as much the Representatives of a free people as that House was; they were as truly, though not so immediately, chosen by the people as they were. The people distributed their powers as they pleased. The PRESIDENT, said he, represents the people as their executive agent, and is possessed of all executive power, and the power of making Treaties. The true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the Constitution to another representative authority of the same free people? They certainly ought not. If they should attempt it, it would be opposing one authority of the people to another. It would be dividing a free people against itself. But he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the Treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they

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could have no need of the papers to assist them in making it a law. It had also been laid by the King before his Parliament, and he supposed the necessary appropriations had been made to carry it into effect. He did not know that any other Parliamentary provision was necessary.

But it may be said, that it is fit and proper that they should call for the papers mentioned in the resolution, even if the Treaty were law, because appropriations by act of Congress would be necessary to carry it into effect, and they ought to have the papers to judge whether it be fit for them to make those appropriations.

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to the interests and rights of the people, as to justify that House in refusing to lend their aid towards carrying it into effect, so pernicious as to justify the Legislature in declaring by law that they would not fulfil nor be bound by it. If any future PRESIDENT and Senate should become so corrupt and wicked, as to form an alliance by Treaty with a foreign nation at war, and contract to become a party to such war, and to furnish such nation with a large body of troops, to be transported across the Atlantic, a case that had been put, he should think that such a Treaty, made against the general sense of the people, and manifestly against the public interest, would be an abuse of power, and one of those extraordinary cases that might justify the Legislature in refusing to carry it into effect. But cases of this kind are not to be supposed, and cannot be easily de

cases.

He answered, whether that be fit or not, in his opinion, must depend wholly upon the Treaty or law itself, and upon nothing out of it. It was like all other laws requiring appropriations, in making which they must be governed by a sound and legal discretion, and that discretion must be go-fined; nor is there any necessity of attempting verned by the instrument itself. to ascertain the extent or limits of the discretionEven if a question should arise and be properary power of the House with respect to such for the discussion of that House, on the constitutionality of the Treaty, yet that question must be decided by the Treaty itself, and by nothing else; and there could be no need of any papers for that purpose. If general information were the object. to allay the public sensibility, he should think the better way would be to request the PRESIDENT to publish the papers in all the newspapers through-traordinary case, indeed, that could justify a vioout the United States. But he believed he must be considered as the best judge in that matter. He would only add, that the correspondence between their Envoy and the British Minister was, in its nature, secret and confidential. It was communicated to the Senate because they were a part of the Treaty-making power, which the House was not; but even to them it was communicated in confidence. A request to the PRESIDENT, said he, to communicate these papers, amounts to a requirement; but there can be no right to require where there is no obligation to obey.

The request may place the PRESIDENT in a disagreeable situation. He is undoubtedly disposed to gratify the House in every request as far as his duty will permit; but where there is so much doubt, respecting his duty in this case, he hoped they would never reduce him to the disagreeable alternative, either by the violation of what he might esteem his duty, to gratify the House, or, by observing it, to give offence.

It was sufficient to observe, in general, that as, by Treaty, the honor and public faith of a nation were pledged and at stake, and that, as its character and reputation depended so much upon good faith, and the due observance of public engagements with other Powers, it must be a very exlation of such an engagement. Such a case, he trusted, was not the present. But he would not then trouble the Committee with any further observations on that point, because he did not conceive that it had any necessary relation to the resolution before the Committee.

He confessed he was very sorry this resolution had not been either postponed or withdrawn. It had carried them into a wide field of controversy, and led into a premature and lengthy discussion of important questions, upon an important subject, which would not be decided by the discussion, but still lie open to debate, which ever way the question upon the resolution might be decided. He hoped, however, some light would be thrown upon the main subject by the present debate, and if so, their time and labor would not be entirely lost.

Mr. RUTHERFORD.-I beg leave to make a few observations, and I briefly declare that I am neither in the temper of picking or breaking locks, nor of blind or passive obedience. The majesty of this great people justly entitles them to all possible The great and only question after all, he con- publicity; more they do not desire, nor do their ceived, would be upon the nature and extent of Representatives expect or desire more. Theretheir discretion in making the appropriation ne- fore, it is with much concern I discover good pacessary to carry the Treaty into effect. They triots alarmed, and deceiving themselves into must, upon a view of the Treaty, determine whe- sophistries, by considering this great subject as ther they will make such appropriation or not; finally decided upon, and completely finished, and, in determining that question, they must, as while they entertain fears for the Federal comhe had before observed, exercise sound, legal dis- pact; fears, though unfounded, that originate in cretion. If it be a law of the land, as he had en- a very laudable sentiment. But where is the man, deavored to prove it was, they should exercise the possessing moderate abilities and a love for his same discretion as they do in passing all other ap-country, that will not readily allow the Union (as propriation laws.

He was ready, for his own part, to admit that a Treaty, though made according to all the forms of the Constitution, might be so bad, so pernicious 4th CoN.-19

the jolly sailors term it) to be the sheet-anchor of these States; and that the great family cannot divide and yet stand? a circumstance, indeed, which would be pleasing to such as view us with

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malignant eyes. What is intended by the resolution before you? Mere information respecting the important business of the Treaty in question, and expressed in terms so replete with due respect to that generous patriot-submitting all to his caution, his great prudence, and good sense-that I trust, when gentlemen recur to their own minds, every doubt will vanish. I am well aware of the warm patriotism of gentlemen, and it would therefore be indelicate to warn them religiously against everything that may be construed as a spirit of party. No violence or indelicacy is meant, in the least, against the PRESIDENT or the Senate. All consider the PRESIDENT with lively, grateful, and generous sensibility. No change in the Federal compact is here intended, till the sovereign people shall deem it necessary deliberately and constitutionally so to do; and, therefore, arguments on that head are fallacious, to say the least. The Treaty, when it becomes the subject of debate, is to be considered with great moderation, on Constitutional ground, and under the auspices of justice and right reason. The matter is, nevertheless, serious, weighty, and very important; involving no less than the sovereign rights of a virtuous, great, and rising people, who, under Divine favor, have triumphed for their fair and generous patriot partners, their tender children, and all posterity. None, I trust, will contend, before the people and all the observing world, that this branch of the great National Council have not complete control over the commerce, naturalization, &c., of the United States. Much stress has been laid on the patriotism of the PRESIDENT, which makes it necessary for me to reply, lest I am taken for one uninformed. I have had the honor of the PRESIDENT's acquaintance well nigh, or quite, forty-four years, and he has supported every character with merit, dignity, and unwearied attention. I have acted with him on trying occasions, sometimes equal, oftentimes in a subordinate sphere; and though senior in point of years, yet I uniformly looked up to him as a parent, my head, and my guide; yet I am independent of the PRESIDENTan unchangeable friendship only excepted. My principles I shall avow without fear or shame, and I am conscious they are not unpleasing to that honest man, who will, I am well assured, come forward with his wonted purity, (though his task has been very arduous,) and will do what is prudent, right, and necessary, and no more. Why did this our common parent, the dignified servant of the people, submit his Treaty to these his fellow-servants? Surely, to obtain their aid in this great national concern. He is not governed by light rules of action. Why then hesitate or tremble? Are we not the legitimate Representatives of a magnanimous people, who desire nothing but equal justice, and therefore really have nothing to dread in contending with becoming firmness in support of their just rights? I did not intend to touch the merits of the Treaty, nor shall I now enlarge, though a case presents itself to my mind, which seems to me to be in point. We will suppose that the immortal FRANKLIN, and other patriots, had been managed out of the American

[MARCH, 1796.

independence in the Treaty of 1783, after torrents of heroic blood had been spilled on the cold earth, so much treasure lavished, and a horrid war, with all its concomitants, had existed eight years. Had such been the case, would not the same brave people, though small in number, sore and wearied, have rushed again to arms with one voice? An answer is unnecessary. One word more, which is submitted to candor: Is not equality and mutual benefits the great basis of justice? Was this Treaty obtained on this equal ground? This also requires no reply. Then, why should the American people, who wish not to interfere with European politics, further than prudence and the warmest calls of gratitude dictate, prostrate themselves to obtain a losing commerce? And shall they dread being dragooned into this losing trade? No, never, I hope and trust. This same commerce is a pretty thing to a few individuals, indeed it is mirth and gladness to such, while it is a slow though certain political death to the common interest. Though I highly regard that people, I would not have the American people imploring, as a boon, to be the painful, adventurous collectors for that people; and after obtaining treasure from other nations, cast it into their coffers, and at the feet of their merchants. Surely the Government of that country are too wise, magnanimous, and just, to attempt forcing this losing commerce. I shall not dwell on the futility of such a project, and only observe, that it would divert the present current of commerce, and of course it would never fall again into the same channel; especially as the people of these States neither wish nor desire anything repugnant to reason, justice, and good neighborhood. Have the terms of the Treaty of 1783 been observed with good faith? I shall not reply. The field is wide, much might be said; and when the Treaty is the subject, I shall be more full, if opportunity presents.

The Committee rose, and had leave to sit again. MARCH 15.-In Committee of the Whole on Mr. LIVINGSTON's resolution.

Mr. PAGE spoke as follows: I confess, sir, that I had wished that this House, instead of asking the PRESIDENT for information respecting the negotiation and ratification of the Treaty, at this late day of its session, had given him, as soon as possible after its meeting, fully their opinions, and that of their constituents, respecting the Treaty itself. But, as time has been afforded for deliberation, and the House has waited most patiently and respectfully till the PRESIDENT could "place the subject before them," according to his promise in his Address to Congress, I think they have shown a spirit of moderation which deserves credit. The friends of the Treaty cannot complain that it has been hastily and rudely attacked, and should not object to the request which is proposed to be made to the PRESIDENT, to furnish a statement of facts which, from what has been said elsewhere, may be supposed sufficient to silence the most clamorous opposers of the Treaty. I have been astonished, therefore, to find that several members have most strenuously opposed the application to the PRESIDENT, as an insult to him; as useless and

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