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Treaty with Great Britain.

[MARCH, 1796.

States separately when they became independent, tion to that part which says that all Legislative power was afterwards, and in the Old Confederation is vested in the two Houses. vested in Congress, each State having an equal Mr. Spaight [a member of the Convention which vote. It was now, in his opinion, exclusively formed the Constitution) answered, that it was thought vested in the PRESIDENT and Senate, in which better to put that power into the hands of the Senators body the great and small States had the same as Representatives of the States, that thereby the interequality of suffrage. The opinion which he ad-est of every State was equally attended to in the formvanced' was not merely the opinion of Rhode ation of Treaties, but that it was not considered as a Island when the Constitution was adopted. A

Legislative act at all.

Mr. MacLAINE.—That Treaties were the supreme gentleman from Massachusetts had already shown from the debates of the Virginia Convention, that law of the land, in all countries, for the most obvious that Assembly entertained the same opinion. He dividuals, but that Treaties acted upon States ; that, un.

reasons; that laws or Legislative acts operated upon inwas sure the opinion prevailed in the Convention less they were the supreme law of the land, they could of Massachusetts-he bad attended their debates have no validity at all; that the President did not act when this part of the Constitution was the sub- in this case as a legislator, but rather in his Executive ject of discussion. Objections were raised against capacity. it, from the indefiniteness of the power vested in Mr. LEWIS.—He still thought the President was posthe PresiDENT and Senate of making Treaties. sessed of Legislative powers, while he could make No one suggested that the House of Representa- Treaties joined with the Senate. tives had any control over, much less a participa Mr. IREDELL.-When Treaties are made they become tion in, this power. It was urged, from the na- as valid as Legislative acts. I apprehend that every ture of the power, that it ought to be placed act of the Government, Legislative, Executive, or Juwhere it was-in the President and Senate. dicial, if in pursuance of a Constitutional power, is the

The Senate represented the sovereignty of the law of the land. States; besides, from their small numbers, they Mr. Porter. There is a power vested in the Presiwere better adapted to the exercise of this power dent and Senate to make Treaties, which shall be the in respect to secrecy and despatch, necessary in supreme law of the land. Which among us can call negotiations. Objections were raised on the them to account? I always thought there could be no ground of the possible abuses to which the power proper exercise of power without the suffrage of the of making Treaties, unlimited and undefined as people : yet the House of Representatives has no pow. it was, might be carried. No one said the PRE-er to intermeddle with Treaties. The President and SIDENT and Senate did not possess the

seven Senators, as nearly as I can remember, can make

power, nor was it pretended that Congress had any power to Northern States, and equal injury to the Southern

a Treaty, which will be of great advantage to the control it. He then called the attention of the Committee the Southern States; yet, in the preamble of the Con

States. They might give up the rivers and territory of to the debates of the Convention of North Caro- stitution, they say all the people have done it. I should lina. He had been a little surprised to hear a be glad to know what power there is of calling the Premember from that State yesterday say he was a sident and Senate to account? member of the Convention, and that it was un Mr. SPaight answered, that, under the Confederaderstood that Congress could control the Presi- tion, two-thirds of the States might make Treaties. Dent and Senate in making Treaties, so far as re- That, if the Senators from all the States attended when spected commerce; the power of legislating on a Treaty was about to be made, two-thirds of the States commercial regulations being given to Congress. would have a voice in its formation. He added, he What created his surprise was, that he had read would be glad to ask the gentleman what mode there the debates of the first Convention, and found no was of calling the present Congress to account? such sentiment. The gentleman had explained Mr. Porten repeated his objection. He hoped that himself by saying, there was a second Convention gentlemen would not-impose on the House ; that the called in that State, of which he was member, President could make Treaties with two-thirds of the and there the doctrine alluded to had been ad Senate ; that the President, in that case, voted rather vanced. The debates of this Convention Mr. B. in a Legislative than an Executive capacity, which he had not seen. In order to show what were the thought impolitic. opinions which were held in the first mentioned

Mr. Johnston.—In my opinion, if there be any difConvention of North Carolina, he would read ex- ference between the Constitution and the Confederation tracts from the debates of that Assembly, which than the Confederation. We know that two members

with respect to Treaties, the Constitution is more safe would be applicable to the present question, and from each State have a right, by the Confederation, to clearly discover that all agreed that the Treaty-give the vote of that State, and two-thirds of the States making power was exclusively vested in the Pre- have a right also to make Treaties. By this ConstituSIDENT and Senate.

tion two-thirds of the Senators cannot make Treaties Extracts from the Debates referred to by Mr. Bourne. without the concurrence of the President. “ Mr. LEWIS. I have a greater objection on this

Mr. PORTER.—That, as Treaties were the supreme ground than that which has just been mentioned—I law of the land, the House of Representatives ought mean, sir, the Legislative power given to the Presi- to have a vote in making them as well as in passing dent himself. It may be admitted by some, but not

them. by me. He, sir, is to make Treaties which are to be Mr. J. McDowall-Mr. Chairman : Permit me, sir, the supreme law of the land. This is a Legislative to make a few observations, to show how improper it is power given to the President, and implies a contradic- to place so much power in so few men, without any

March, 1796.)
Treaty wilh Great Britain.

[H. of R, responsibility whatever. Let us consider what number the little State of Rhode Island should have the same of them is necessary to transact the most important suffrage with Virginia, or the great Commonwealth of business. Two-thirds of the members present, with Massachusetts, yet the small States would not consent the President, can make a Treaty. Fourteen of them to confederate, without an equal voice in the formation are a quorum, two-thirds of which are ten. These ten may of Treaties. Without the equality, they apprehended make Treaties and alliances. They may involve us in that their interest would be neglected or sacrificed in any difficulties and dispose of us in any manner they negotiations. This difficulty could not be got over. It please. Nay, eight is a majority of a quorum, and can arose from the unalterable nature of things. Every man do every thing but make Treaties. How unsafe are was convinced of the inflexibility of the little States on we when we have no power of bringing those to an ac- this point. It therefore became necessary to give them count! It is absurd to try them before their own body. an absolute equality in making Treaties. Our lives and our property are in the hands of eight or On a due consideration of this clause, it appears that nine men. Will these gentlemen intrust their rights this power could not have been lodged as safely anyin this manner?

where else as where it is. The honorable gentleman Mr. Davie. Mr. Chairman, although Treaties are [Mr. McDowall) has spoken of a consolidation in this mere conventional acts between the contracting parties, Government. That is a very strange inconsistency, yet, by the law of nations they are the supreme law of when he points out, at the same time, the necessity of the land to their respective citizens or subjects. All lodging the power of making Treaties with the. Reprecivilized nations have concurred in considering them as sentatives, where the idea of a Consolidation can alone paramount to an ordinary act oflegislation. This concur- exist, and when he objects to placing it in the Senate, rence is founded on the reciprocal convenience and solid where the Federal principle is completely preserved. advantages arising from it. A due observance of Trea- As the Senate represents the sovereignty of the States, ties makes nations more friendly to each other, and is whatever might affect the States in their political capathe only means of rendering less frequent those mutual city ought to be left to them. This is the certain means hostilities which tend to depopulate and ruin contend- of preventing a Consolidation. How extremely absurd ing nations. It extends and facilitates that commercial is it to call that disposition of power a Consolidation of intercourse which, founded on the universal protection the States which must to all eternity prevent it! I have of private property, has in a measure made the world only to add the principle upon which the General Conone nation.

vention went: That the power of making Treaties could The power of making Treaties has, in all countries nowhere be so safely lodged as in the President and and Governments, been placed in the Executive De Senate; and the extreme jealousy subsisting between partments. This has not only been grounded on the some of the States would not admit of it elsewhere. If necessity and reason arising from that degree of secrecy, his own breast, as a citizen of North Carolina, he will

any man will examine the operation of that jealousy in design, and despatch, which are always necessary, in soon feel the inflexibility that results from it, and pernegotiations between nations, but to prevent their being haps be induced to acknowledge the propriety of this impeded or carried into effect by the violence, animosity, and heat of parties, which too often infect numer

arrangement. ous bodies. Both of these reasons preponderated in the

Mr. McDowall declared, that he was of the same foundation of this part of the system. It is true, sir, that opinion as before, and that he believed the observations the late Treaty between the United States and Great which the gentleman had made on the apparent incon. Britain has not, in some of the States, been held as the sistency of his remarks would have very little weight supreme law of the land. Even in this State, an act of with the Committee; that, giving such extensive powAssembly passed to declare its validity. But no doubt ers to so few men in the Senate was extremely dangerthat Treaty was the supreme law of the land without ous; and that he was not the more reconciled to it from the sanction of the Assembly; because, by the Confed its being brought about by the inflexibility of the small, eration, Congress had power to make Treaties. It was pitiful States to the North. He supposed that eight one of those original rights of sovereignty which were members in the Senate from these States, with the Prevested in them; and it was not the deficiency of Con- sident, might do the most important acts. stitutional authority in Congress to make Treaties that Mr. IREDELL.-If this power be improperly vested, it produced the necessity of a law to declare their validity, is incumbent on gentlemen to tell us in what body it but it was owing to the entire imbecility of the Confed-could be more safely and properly lodged. I believe, eration. On the principle of the propriety of vesting on a serious consideration, it will be found that it was this power in the Executive Department, it would seem necessary, for the reasons mentioned by the gentleman that the whole power of making Treaties ought to be from Halifax, to vest the power in the Senate, or some left to the President, who, being elected by the people other body equally representing the sovereignty of the of the United States at large, will have their general States, and that the power, as given in the Constituinterest at heart. But that jealousy of Executive power, tion, is not likely to be attended with the evils which which has shown itself so strongly in all the American some gentlemen

apprehend. The only real security of Governments, would not admit this improvement. In- liberty in any country is the jealousy and circumspecterest, sir, has a most powerful influence over the human tion of the people themselves. Let them be watchful mind, and is the basis on which all the transactions of over their rulers. Should they find a combination against mankind are built. It was mentioned before, that the their liberties, and all other methods appear to be insufextreme jealousy of the little States, and between the ficient to preserve them, they have (thank God) an ulticommercial States and the non-importing States, pro- mate remedy. That power which created the Governduced the necessity of giving an equality of suffrage to ment can destroy it. Should the Government, on trial, the Senate. The same causes made it indispensable to be found to want amendment, that amendment can be give to the Senators, as Representatives of States, the made in a regular method—in a mode prescribed by the power of making, or rather ratifying, Treaties. Although Constitution itself. Massachusetts, South Carolina, it militates against every idea of just proportion, that New Hampshire, and Virginia, have all proposed amend

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Treaty with Great Britain.

[MARCH, 1796.

ments, but they all concurred in the necessity of an im- the advantage of us in negotiations; and every one must mediate adoption. A Constitutional mode of altering know, according to modern policy, of what moment an the Constitution itself is perhaps what has never been advantage in negotiation is. The honorable member known among mankind before. We have this security, from Anson said, that the accumulation of all the differin addition to the natural watchfulness of the people, ent branches of power in the Senate would be dangerwhich I hope will never be found wanting. The objec- ous. The experience of other countries shows that this tions I have answered deserved all possible attention ; fear is without foundation. What is the Senate of Great and, for my part, I shall always respect that jealousy Britain opposed to the House of Commons, although it which arises from the love of public liberty.

be composed of an hereditary nobility of vast fortunes, Mr. SPENCER.-Mr. Chairman, I think that no årgu- and entirely independent of the people? Their weight ment can be used to show that this power is proper. If is far inferior to that of the Commons. Here is a strong the whole Legislative body--if the House of Represent- instance of the accumulation of powers of the different atives do not interfere in making Treaties, I think they branches of Government without producing any inconought at least to have the sanction of the whole Senate." venience. That Senate, sir, is a separate branch of the Amendment proposed to the Constitution.

Legislature-is the great Constitutional Council of the

Crown—and decides on lives and fortunes in impeach“XXIII. That no Treaties which shall be directly op-ments, besides being the ultimate tribunal for trying posed to the existing laws of the United States, in Con-controversies respecting private rights. Would, it not gress assembled, shall be valid, until such laws shall be appear that all these things should render them more repealed, or made conformable to such Treaty; nor shall formidable than the other House ? Yet the Commons any Treaty be valid which is contradictory to the Con- have generally been able to carry everything before them. stitution of the United States."

The circumstance of their representing the great body Mr. Bourne said, he would not tire the patience of the people alone gives them great weight. This of the Committee by reading any further from the weight has great authority added to it, by their possessdebates relative to that point, but would only turn ing the right (a right given to the people's Representato what was said by a member who now belongs tives in Congress) of exclusively originating money bills. to the Supreme Court of the United States, in an- The authority over money will do everything. A Goswer to a question asked by a member who now vernment cannot be supported without money. Our belongs to the Senate, whether it was not custom- Representatives may at any time compel the Senate to ary, in England, to submit Treaties to the appro- till the measure is consented to. There was a great

agree to a reasonable measure, by withholding supplies bation of Parliament.

debate in the Convention whether the Senate should Extracts referred to.

have an equal power of originating money bills. It was “Mr. BloodWORTH desired to be informed whether strongly, insisted by some that they should; but at length Treaties were not to be submitted to the Parliament, in a majority thought it unadvisable, and the clause was Great Britain, before they were valid.

passed as it now stands." Mr. IRÆDELL.-A gentleman from New Hanover had It appeared clearly, Mr. BOURNE contended, from asked, whether it is not the practice, in Great Britain, the debates he had read, that there was only one to submit Treaties to Parliament, before they are es- opinion in the Convention of North Carolina in teemed valid. The King has the sole authority, by the relation to the Treaty-making power being vested laws of that country, to make Treaties. After Treaties in the President and Senate; and that Treaties are made, they are frequently discussed in the two Houses made by them were the supreme law of the land, of Parliament, where, of late years, the most important subject to no check or control from the House of It is usual to move for an Address of approbation ; and Representatives. If such an idea had been entersuch has been the complaisance of Parliament, for a long tained, would not those who in that Convention time, that this seldom has been withheld. Sometimes were in favor of adopting the Constitution, and they pass an act in conformity to the Treaty made ; but who almost despaire i of its being adopted, have this, I believe, is not for the mere purpose of confirma- said, in reply to those who objected against the tion, but to make alterations in a particular system, investiture of this power in the PRESIDENT and which the change of circumstances requires. The Con- Senate, “ Your rights are safe; the House of stitutional power of making Treaties is vested in the Representatives must ratify commercial Treaties Crown; and the Power with whom a Treaty is made before they can be carried into effect." But this considers it as binding without any act of Parliament, was not said ; on the contrary, it was said, that the unless an alteration by such is provided for in the Treaty power of making Treaties was exclusively vested itself; which, I believe, is sometimes the case. When in the President and Senate; that it was right the Treaty of Peace was made in 1763, it contained and proper it should be so vested; and that the stipulations for the surrender of some islands to the small siates, in the

Convention which formed the French. The islands were given up, I believe, without Constitution, would not agree to give any part of any act of Parliament. The power of making Treaties the Treaty-making power to the House of Repreorder to counteract the dangerous designs of other coun- sentatives. That the nature of the Treaty power tries, and to be able to terminate a war when it is begun showed the propriety of placing it where it was Were it known that our Government was weak, two placed, the numbers of the Senate were small and or more European Powers might combine against us. most fit for this business—more so than a numerWould it not be politic to have some power in this coun- ous body where faction and party might prevail; try to obviate this danger by a Treaty? If this power that the power of making Treaties was vested in was injudiciously limited, the nations where the power the Senate, because it was a branch of the sovewas possessed without restriction would have greatly I reign power. These observations had been made

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March, 1796.]

Treaty with Great Britain.

[H. of R.

in the Convention of North Carolina. Now, he have existed. A gentleman had said that he disasked, if this was the construction of the Consti- approved of the Treaty, insomuch that the Ministution when it was adopted in the several States, ter who negotiated it ought to be sent again as would it not be a trick on the small States now Minister Plenipotentiary to repeal it, if that was to construe it differently, and say that no Treaty the only proper mode to get rid of it. was the law of the land until ratified by the House The same gentleman who said this also said, if of Representatives? He considered that the State he adored any thing in this world it was the voice which he had the honor to represent would be of of the people, and that their voice was against the that opinion. He said it would be a gross vio- | Treaty. Mr. B. said, he respected the voice of lation of the Constitution to maintain that the the people; but where were they to find the voice PRESIDENT and Senate could not make Treaties of the people? That gentleman had referred to without the assent of the House.

the petitions on the table. How many had petiBut he did not consider this principle as in- tioned against the Treaty ? Were there as many volved in the motion before the Committee; it as were necessary to choose one Representative was a question of expediency. The PRESIDENT | in that House? No, not half so many. Was this was asked by it for the instructions to his Minis- then the voice of the people ? Hé thought the ters and all the documents respecting the Treaty, voice of the people was to be collected from the excepting only such as related to any existing ne- diminutive appearance of the petitions themselves. gotiation ; he thought that the alteration of the The inference was strongly in favor of the voice original motion which was made by introducing of the people being with the Treaty, when it was the exception had made it more objectionable; it considered what pains had been taken to gain pewas saying, "send us all the papers respecting this titioners; he thought, also, the voice of the people pegotiation, excepting one particular description was to be collected from the proceedings of the of them, which we think you ought not to send." State Legislatures, in relation to the conduct of Nothing was left to the discretion of the PRESI- the PRESIDENT and Senate in ratifying the Treaty. DENT. Did any gentleman ever before hear of He stated that the several branches of the Legisan Executive being called on for the confidential lature of New Hampshire had been unanimous in instructions which he had given his Minister in their expressions of approbation. In Massachurelation to a foreign negotiation ; for the corres- setts a similar spirit had been shown. The Genepondence between himself and his Minister, and ral Assembly of Rhode Island had been unanifor that which passed between the two Ministers mous and explicit in their approbation of the conrepresenting the negotiating parties? Was it not duct of the PRESIDENT and Senate. The unanimity natural for gentlemen to consider that much con- of Connecticut on this subject was well known. fidential communication takes place on these oc- The addresses at the meeting of the Legislature casions, which ought not to be disclosed but to of New York had breathed a similar spirit; those the immediate parties concerned? The agency of of Pennsylvania, Delaware, and Maryland, also; private individuals might have been used in effect- the latter had been unanimous in their resolutions ing the Treaty, and was it proper that their names of approbation and confidence. He would not should be published ? With the facts he was per- travel any further; some sentiments of a contrary fectly unacquainted. The Committee would readily complexion had been expressed to the South. suppose he knew nothing of the secrets of the ne- The gentlemen had referred to the sensibility gotiation if such there were; but he thought there which had been exhibited in the town-meetings. might be many, and they ought not to be divulged. Mr. B. acknowledged that much dissatisfaction Mr. B. added, that he believed the call for such with the Treaty had been shown in most of the papers to be wholly unprecedented. Just before populous towns; he believed, however, from rethe adoption of the present Government in France, cent appearances, it was much abated. The people a Treaty had been negotiated through the agency had been deceived in their expectations in respect of the Committee of Safety with Spain. It is well to the Treaty by several publications before the known that strong objections were raised in the Treaty arrived, having exaggerated its advanConvention, who then had the power of ratifying tages, and stated that every thing was obtained Treaties, against giving their consent to that; and which had been asked for. Mr. B. said, he should though it was the subject of much debate, the in- not give his ideas of the Treaty at present, they structions and correspondence of the negotiator would be reserved for a more proper time. He were not called for. Suppose the PRESIDENT believed that in obeying the Constitution, they should be disposed to communicate the papers in should obey the voice of the people. If a doubt question, it probably would be under an injunc-existed as to what was the true construction of tion of secrecy. Did the House mean to debate the Constitution, he believed it ought to be conon the Treaty with closed doors? He conceived formed to the opinion which prevailed when the not. But if the papers were not to be disclosed to Constitution was adopted, and he had shown that the public, they would not conduce to allay the the most eminent men had then but one opinion public sensibility in respect to the Treaty, which in relation to it; they all agreed that the power had been assigned as one motive for calling for of making Treaties was vested exclusively in the them, though he did not think it real; for he PRESIDENT and Senate. Mr. B. concluded by obthought the addresses which had been made to the serving, that he had not intended to have carried passions in the debate were calculated to increase his observations to so great a length, but as the instead of allaying any sensibility which may State he represented was particularly interested

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Treaty with Great Britain.

[March, 1796. in the consequences of the principles which had struction was best calculated to preserve the liberbeen advanced, he had been the more lengthy. ties of this country. Indeed he did not consider these principles as ne The Constitution contains two clauses in refercessarily involved in the question now before the ence to the Treaty-making power.' The first deCommittee, but he confided that whatever might clares that the PRESIDENT, with two-thirds of the be the fate of this question, from the knowledge Senate, shall have power to make Treaties. He he had of the members of the Comunittee, that proceeded to inquire whether this clause gives when they should come to decide on the question them the right to make Treaties the supreme law of carrying the Treaty into effect, they would of the land? To determine this it was necessary duly respect the sacred obligations they were un- to examine the import of the word in those counder to support the Constitution.

tries, where the Treaty power had been frequently Mr. BRENT said he should not in the present exercised, and to consult the opinions of the best debate touch on the merits of the Treaty, which civilians. The general power of making Treaties he conceived foreign to this question. On a mo- is under the control of the Constitution. In des. tion to ask for papers with respect to the Treaty, potic countries, where all power, Legislative, Juhe did not conceive with what propriety the fit- uicial, and Executive, is in the hands of one perness of the instrument could be brought into view. son, there the Treaty-making power is without It would be proper, he contended, to have the pa- control, and a Treaty as soon as made becomes, pers proposed to be called for, even if it was con- ipso facto, the supreme law of the land; but in all ceded that the House had no control in matters limited Governments, the Treaty power is subject of Treaty; for if they were bound to carry it into to the limitations in the Constitution. The pracoperation, still the papers would be necessary to a tice of this principle may be found even in the due understanding of the subject. The motion, British Government. There, though the King he argued, stands upon the same ground as the originates Treaties as the PRESIDENT and Senate calls so often made for information to the Heads do here, they do not become the supreme law of of Departments. But even if the papers are not the land, respecting Legislative subjects, until the necessary to give information as to the laws which co-operation of Parliament is obtained. Thus the it is said must be passed, they are necessary on power of making Treaties does not imply the another ground. The Constitution gives the House power of making those Treaties in all cases the a general superintendence over the conduct of supreme law of the land. If the Executive make officers, and the power of impeachment; no mem- a Treaty involving none but Executive powers ber denies this right, and how can they exercise strictly, then it becomes immediately the supreme it understandingly without information? Can the law; but if they contain proyisions, which involve Constitution be supposed to give this right of im- the Legislative authority, the Executive can make peachment, and at the same time deprive the them but conditionally, and they do not become House of the means of information ? This would supreme until the Legislature chose to make them be as absurd as to refer to a blind man to judge so. The British Government furnishes an examof shades and colors. How can the House decide ple where this doctrine has been practiced, and it on the ability or fidelity of the negotiator of the is by a reference to the practice of despotic GoTreaty, unless they have a sight of his instruc-vernments, that the mistaken idea is taken up, tions, and of his correspondence? how can they that all Treaties as soon as made become the sudetermine on the merits or demerits of the nego preme law of the land. The clause in our Contiation ?

stitution, he concluded, does not give authority to The turn which the debate had taken had given the PRESIDENT and Senate to make a supreme law rise, he said, to an important Constitutional ques- of the land. tion; he did not believe its decision of consequence When this clause of the Constitution is comto the decision on the present motion; but as the pared with the other parts of it, it will be found, debate had taken that turn, he should pursue the he said, that the above interpretation is just; for same road in answer to the arguments of gentle- the Treaty-making power is delegated as a general men. He laid this down as a sound inference from power, while to Congress specific powers are the provisions of the Constitution on the subject granted. The rational and admitted rule of conof the Treaty power: that the PRESIDENT and struction in these cases is, that specific power reSenate possess the right of forming Treaties, and strains general powers; and here, then, the geneof carrying on the necessary negotiations with ral Treaty power must be restrained by the speforeign countries; but when these contain stipu-cific powers of Congress. He admitted that the lations bearing a relation to the specific power Executive bad full power, under the general auvested in the Legislature, the House had a right thority vested in them by the Constitution, to to take cognizance of it, and such Treaty could originate Treaties and to carry on negotiations not become the supreme law of the land until with foreign Powers; but that if the provisions of sanctioned by the Legislature. To show the just a Treaty so negotiated clashed with specific powness of this position, he should examine this sub ers granted, the authority exercising those specific ject, he said, in a threefold light. He should ex- powers must give it their sanction before it beamine it by a recurrence to the words of the Con-comes the supreme law of the land. stitution; then to the opinions which prevailed as He next turned to the second clause of the Conto its meaning at the time it was framed and stitution respecting Treaties, which had been noadopted; and, lastly, he should examine what con- ticed in the debate. It says, that the Constitution,

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