H. OF R.] Treaty with Great Britain. [MARCH, 1796. tion to that part which says that all Legislative power is vested in the two Houses. ation of Treaties, but that it was not considered as a Legislative act at all. Mr. MACLAINE.-That Treaties were the supreme law of the land, in all countries, for the most obvious reasons; that laws or Legislative acts operated upon individuals, but that Treaties acted upon States; that, unless they were the supreme law of the land, they could have no validity at all; that the President did not act in this case as a legislator, but rather in his Executive capacity. States separately when they became independent, was afterwards, and in the Old Confederation. 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 Island when the Constitution was adopted. A gentleman from Massachusetts had already shown from the debates of the Virginia Convention, that that Assembly entertained the same opinion. He was sure the opinion prevailed in the Convention of Massachusetts-he had attended their debates when this part of the Constitution was the subject of discussion. Objections were raised against it, from the indefiniteness of the power vested in the PRESIDENT and Senate of making Treaties. No one suggested that the House of Representatives had any control over, much less a participation in, this power. It was urged, from the nature of the power, that it ought to be placed where it was-in the PRESIDENT and Senate. The Senate represented the sovereignty of the States; besides, from their small numbers, they were better adapted to the exercise of this power in respect to secrecy and despatch, necessary in negotiations. Objections were raised on the ground of the possible abuses to which the power of making Treaties, unlimited and undefined as it was, might be carried. No one said the PRESIDENT and Senate did not possess the power, nor was it pretended that Congress had any power to control it. Mr. LEWIS.-He still thought the President was possessed of Legislative powers, while he could make Treaties joined with the Senate. Mr. IREDELL.-When Treaties are made they become as valid as Legislative acts. I apprehend that every act of the Government, Legislative, Executive, or Judicial, if in pursuance of a Constitutional power, is the law of the land. Mr. PORTER.-There is a power vested in the President and Senate to make Treaties, which shall be the supreme law of the land. Which among us can call them to account? I always thought there could be no proper exercise of power without the suffrage of the people: yet the House of Representatives has no power to intermeddle with Treaties. The President and seven Senators, as nearly as I can remember, can make Northern States, and equal injury to the Southern a Treaty, which will be of great advantage to the the Southern States; yet, in the preamble of the ConStates. They might give up the rivers and territory of stitution, they say all the people have done it. I should be glad to know what power there is of calling the President and Senate to account? Mr. SPAIGHT answered, that, under the Confederation, two-thirds of the States might make Treaties. That, if the Senators from all the States attended when a Treaty was about to be made, two-thirds of the States would have a voice in its formation. He added, he would be glad to ask the gentleman what mode there was of calling the present Congress to account? He then called the attention of the Committee to the debates of the Convention of North Carolina. He had been a little surprised to hear a member from that State yesterday say he was a member of the Convention, and that it was understood that Congress could control the PRESIDENT and Senate in making Treaties, so far as respected commerce; the power of legislating on commercial regulations being given to Congress. What created his surprise was, that he had read the debates of the first Convention, and found no such sentiment. The gentleman had explained himself by saying, there was a second Convention called in that State, of which he was member, and there the doctrine alluded to had been advanced. The debates of this Convention Mr. B. had not seen. In order to show what were the opinions which were held in the first mentioned Convention of North Carolina, he would read extracts from the debates of that Assembly, which 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 than the Confederation. We know that two members 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 SIDENT and Senate. Extracts from the Debates referred to by Mr. BoURNE. "Mr. LEWIS.-I have a greater objection on this ground than that which has just been mentioned-I mean, sir, the Legislative power given to the President himself. It may be admitted by some, but not by me. He, sir, is to make Treaties which are to be the supreme law of the land. This is a Legislative power given to the President, and implies a contradic Mr. PORTER repeated his objection. He hoped that gentlemen would not impose on the House; that the President could make Treaties with two-thirds of the Senate; that the President, in that case, voted rather in a Legislative than an Executive capacity, which he thought impolitic. Mr. JOHNSTON. In my opinion, if there be any dif ference between the Constitution and the Confederation have a right also to make Treaties. By this Constitu tion two-thirds of the Senators cannot make Treaties without the concurrence of the President. Mr. PORTER. That, as Treaties were the supreme law of the land, the House of Representatives ought to have a vote in making them as well as in passing them. Mr. J. McDowALL.-Mr. Chairman: Permit me, sir, to make a few observations, to show how improper it is to place so much power in so few men, without any responsibility whatever. Let us consider what number in this manner? Mr. DAVIE. Mr. Chairman, although Treaties are mere conventional acts between the contracting parties, yet, by the law of nations they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. This concurrence is founded on the reciprocal convenience and solid advantages arising from it. A due observance of Treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities which tend to depopulate and ruin contending nations. It extends and facilitates that commercial intercourse which, founded on the universal protection of private property, has in a measure made the world one nation. [H. OF R, the little State of Rhode Island should have the same suffrage with Virginia, or the great Commonwealth of Massachusetts, yet the small States would not consent to confederate, without an equal voice in the formation of Treaties. Without the equality, they apprehended that their interest would be neglected or sacrificed in negotiations. This difficulty could not be got over. It arose from the unalterable nature of things. Every man was convinced of the inflexibility of the little States on this point. It therefore became necessary to give them an absolute equality in making Treaties. arrangement. If On a due consideration of this clause, it appears that this power could not have been lodged as safely anywhere else as where it is. The honorable gentleman [Mr. McDowALL] has spoken of a consolidation in this Government. That is a very strange inconsistency, when he points out. at the same time, the necessity of lodging the power of making Treaties with the Representatives, where the idea of a Consolidation can alone exist, and when he objects to placing it in the Senate, where the Federal principle is completely preserved. As the Senate represents the sovereignty of the States, whatever might affect the States in their political capacity ought to be left to them. This is the certain means of preventing a Consolidation. How extremely absurd is it to call that disposition of power a Consolidation of the States which must to all eternity prevent it! I have only to add the principle upon which the General Convention went: That the power of making Treaties could nowhere be so safely lodged as in the President and The power of making Treaties has, in all countries Senate; and the extreme jealousy subsisting between and Governments, been placed in the Executive Desome of the States would not admit of it elsewhere. partments. This has not only been grounded on the 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 impeded or carried into effect by the violence, animo-haps be induced to acknowledge the propriety of this sity, and heat of parties, which too often infect numerous bodies. Both of these reasons preponderated in the foundation of this part of the system. It is true, sir, that the late Treaty between the United States and Great Britain has not, in some of the States, been held as the supreme law of the land. Even in this State, an act of Assembly passed to declare its validity. But no doubt that Treaty was the supreme law of the land without the sanction of the Assembly; because, by the Confederation, Congress had power to make Treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of Constitutional authority in Congress to make Treaties that produced the necessity of a law to declare their validity, but it was owing to the entire imbecility of the Confederation. On the principle of the propriety of vesting this power in the Executive Department, it would seem that the whole power of making Treaties ought to be left to the President, who, being elected by the people of the United States at large, will have their general interest at heart. But that jealousy of Executive power, which has shown itself so strongly in all the American Governments, would not admit this improvement. Interest, sir, has a most powerful influence over the human mind, and is the basis on which all the transactions of mankind are built. It was mentioned before, that the extreme jealousy of the little States, and between the commercial States and the non-importing States, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the Senators, as Representatives of States, the power of making, or rather ratifying, Treaties. Although it militates against every idea of just proportion, that Mr. McDowALL declared, that he was of the same opinion as before, and that he believed the observations which the gentleman had made on the apparent inconsistency of his remarks would have very little weight with the Committee; that, giving such extensive powers to so few men in the Senate was extremely dangerous; and that he was not the more reconciled to it from its being brought about by the inflexibility of the small, pitiful States to the North. He supposed that eight members in the Senate from these States, with the President, might do the most important acts. Mr. IREDELL. If this power be improperly vested, it is incumbent on gentlemen to tell us in what body it could be more safely and properly lodged. I believe, on a serious consideration, it will be found that it was necessary, for the reasons mentioned by the gentleman from Halifax, to vest the power in the Senate, or some other body equally representing the sovereignty of the States, and that the power, as given in the Constitution, is not likely to be attended with the evils which some gentlemen apprehend. The only real security of liberty in any country is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers. Should they find a combination against their liberties, and all other methods appear to be insufficient to preserve them, they have (thank God) an ultimate remedy. That power which created the Government can destroy it. Should the Government, on trial, be found to want amendment, that amendment can be made in a regular method-in a mode prescribed by the Massachusetts, South Carolina, Constitution itself. New Hampshire, and Virginia, have all proposed amend ments, but they all concurred in the necessity of an immediate adoption. A Constitutional mode of altering the Constitution itself is perhaps what has never been known among mankind before. We have this security, in addition to the natural watchfulness of the people, which I hope will never be found wanting. The objections I have answered deserved all possible attention; and, for my part, I shall always respect that jealousy which arises from the love of public liberty. Mr. SPENCER.—Mr. Chairman, I think that no argument can be used to show that this power is proper. If the whole Legislative body-if the House of Representatives-do not interfere in making Treaties, I think they ought at least to have the sanction of the whole Senate." | [MARCH, 1796. the advantage of us in negotiations; and every one must know, according to modern policy, of what moment an advantage in negotiation is. The honorable member from Anson said, that the accumulation of all the different branches of power in the Senate would be dangerous. The experience of other countries shows that this fear is without foundation. What is the Senate of Great Britain opposed to the House of Commons, although it be composed of an hereditary nobility of vast fortunes, and entirely independent of the people? Their weight is far inferior to that of the Commons. Here is a strong instance of the accumulation of powers of the different branches of Government without producing any inconvenience. That Senate, sir, is a separate branch of the Legislature is the great Constitutional Council of the Crown-and decides on lives and fortunes in impeachments, besides being the ultimate tribunal for trying controversies respecting private rights. Would, it not appear that all these things should render them more formidable than the other House? Yet the Commons have generally been able to carry everything before them. 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 possess debates relative to that point, but would only turning the right (a right given to the people's Representato what was said by a member who now belongs to the Supreme Court of the United States, in answer to a question asked by a member who now belongs to the Senate, whether it was not customary, in England, to submit Treaties to the appro Amendment proposed to the Constitution. "XXIII. That no Treaties which shall be directly opposed to the existing laws of the United States, in Congress assembled, shall be valid, until such laws shall be repealed, or made conformable to such Treaty; nor shall any Treaty be valid which is contradictory to the Constitution of the United States." bation of Parliament. Extracts referred to. "Mr. BLOODWORTH desired to be informed whether Treaties were not to be submitted to the Parliament, in Great Britain, before they were valid. Mr. IREDELL. A gentleman from New Hanover had asked, whether it is not the practice, in Great Britain, to submit Treaties to Parliament, before they are esteemed valid. The King has the sole authority, by the laws of that country, to make Treaties. After Treaties are made, they are frequently discussed in the two Houses of Parliament, where, of late years, the most important measures of Government have been narrowly examined. It is usual to move for an Address of approbation; and such has been the complaisance of Parliament, for a long time, that this seldom has been withheld. Sometimes tives in Congress) of exclusively originating money bills. The authority over money will do everything. A Government cannot be supported without money. Our Representatives may at any time compel the Senate to till the measure is consented to. There was a great agree to a reasonable measure, by withholding supplies debate in the Convention whether the Senate should have an equal power of originating money bills. It was strongly insisted by some that they should; but at length a majority thought it unadvisable, and the clause was passed as it now stands." It appeared clearly, Mr. BOURNE contended, from the debates he had read, that there was only one opinion in the Convention of North Carolina in relation to the Treaty-making power being vested in the PRESIDENT and Senate; and that Treaties made by them were the supreme law of the land, subject to no check or control from the House of Representatives. If such an idea had been entertained, would not those who in that Convention were in favor of adopting the Constitution, and who almost despaire i of its being adopted, have said, in reply to those who objected against the investiture of this power in the PRESIDENT and Senate, "Your rights are safe; the House of Representatives must ratify commercial Treaties before they can be carried into effect." But this was not said; on the contrary, it was said, that the power of making Treaties was exclusively vested in the PRESIDENT and Senate; that it was right and proper it should be so vested; and that the small States, in the Convention which formed the Constitution, would not agree to give any part of the Treaty-making power to the House of Repre they pass an act in conformity to the Treaty made; but this, I believe, is not for the mere purpose of confirmation, but to make alterations in a particular system, which the change of circumstances requires. The Constitutional power of making Treaties is vested in the Crown; and the Power with whom a Treaty is made considers it as binding without any act of Parliament, unless an alteration by such is provided for in the Treaty itself, which, I believe, is sometimes the case. When the Treaty of Peace was made in 1763, it contained stipulations for the surrender of some islands to the French. The islands were given up, I believe, without any act of Parliament. The power of making Treaties is very important, and must be vested somewhere, in order 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. placed, the numbers of the Senate were small and showed the propriety of placing it where it was Were it known that our Government was weak, two or more European Powers might combine against us. Would it not be politic to have some power in this country to obviate this danger by a Treaty? If this power was injudiciously limited, the nations where the power was possessed without restriction would have greatly most fit for this business-more so than a numerous body where faction and party might prevail; that the power of making Treaties was vested in the Senate, because it was a branch of the sovereign power. These observations had been made in the Convention of North Carolina. Now, he asked, if this was the construction of the Constitution when it was adopted in the several States, would it not be a trick on the small States now to construe it differently, and say that no Treaty was the law of the land until ratified by the House of Representatives? He considered that the State which he had the honor to represent would be of that opinion. He said it would be a gross violation of the Constitution to maintain that the PRESIDENT and Senate could not make Treaties without the assent of the House. But he did not consider this principle as involved in the motion before the Committee; it was a question of expediency. The PRESIDENT was asked by it for the instructions to his Ministers and all the documents respecting the Treaty, excepting only such as related to any existing negotiation; he thought that the alteration of the original motion which was made by introducing the exception had made it more objectionable; it was saying, "send us all the papers respecting this negotiation, excepting one particular description of them, which we think you ought not to send." Nothing was left to the discretion of the PRESIDENT. Did any gentleman ever before hear of an Executive being called on for the confidential instructions which he had given his Minister in relation to a foreign negotiation; for the correspondence between himself and his Minister, and for that which passed between the two Ministers representing the negotiating parties? Was it not natural for gentlemen to consider that much confidential communication takes place on these occasions, which ought not to be disclosed but to the immediate parties concerned? The agency of private individuals might have been used in effecting the Treaty, and was it proper that their names should be published? With the facts he was perfectly unacquainted. The Committee would readily suppose he knew nothing of the secrets of the negotiation if such there were; but he thought there might be many, and they ought not to be divulged. Mr. B. added, that he believed the call for such papers to be wholly unprecedented. Just before the adoption of the present Government in France, a Treaty had been negotiated through the agency of the Committee of Safety with Spain. It is well known that strong objections were raised in the Convention, who then had the power of ratifying Treaties, against giving their consent to that; and though it was the subject of much debate, the instructions and correspondence of the negotiator were not called for. Suppose the PRESIDENT should be disposed to communicate the papers in question, it probably would be under an injunction of secrecy. Did the House mean to debate on the Treaty with closed doors? He conceived not. But if the papers were not to be disclosed to the public, they would not conduce to allay the public sensibility in respect to the Treaty, which had been assigned as one motive for calling for them, though he did not think it real; for he thought the addresses which had been made to the passions in the debate were calculated to increase instead of allaying any sensibility which may [H. OF R. have existed. A gentleman had said that he disapproved of the Treaty, insomuch that the Minister who negotiated it ought to be sent again as Minister Plenipotentiary to repeal it, if that was the only proper mode to get rid of it. The same gentleman who said this also said, if he adored any thing in this world it was the voice of the people, and that their voice was against the Treaty. Mr. B. said, he respected the voice of the people; but where were they to find the voice of the people? That gentleman had referred to the petitions on the table. How many had petitioned against the Treaty? Were there as many as were necessary to choose one Representative in that House? No, not half so many. Was this then the voice of the people? He thought the voice of the people was to be collected from the diminutive appearance of the petitions themselves. The inference was strongly in favor of the voice of the people being with the Treaty, when it was considered what pains had been taken to gain petitioners; he thought, also, the voice of the people was to be collected from the proceedings of the State Legislatures, in relation to the conduct of the PRESIDENT and Senate in ratifying the Treaty. He stated that the several branches of the Legislature of New Hampshire had been unanimous in their expressions of approbation. In Massachusetts a similar spirit had been shown. The General Assembly of Rhode Island had been unanimous and explicit in their approbation of the conduct of the PRESIDENT and Senate. The unanimity of Connecticut on this subject was well known. The addresses at the meeting of the Legislature of New York had breathed a similar spirit; those of Pennsylvania, Delaware, and Maryland, also; the latter had been unanimous in their resolutions of approbation and confidence. He would not travel any further; some sentiments of a contrary complexion had been expressed to the South. The gentlemen had referred to the sensibility which had been exhibited in the town-meetings. Mr. B. acknowledged that much dissatisfaction with the Treaty had been shown in most of the populous towns; he believed, however, from recent appearances, it was much abated. The people had been deceived in their expectations in respect to the Treaty by several publications before the Treaty arrived, having exaggerated its advantages, and stated that every thing was obtained which had been asked for. Mr. B. said, he should not give his ideas of the Treaty at present, they would be reserved for a more proper time. He believed that in obeying the Constitution, they should obey the voice of the people. If a doubt existed as to what was the true construction of the Constitution, he believed it ought to be conformed to the opinion which prevailed when the Constitution was adopted, and he had shown that the most eminent men had then but one opinion in relation to it; they all agreed that the power of making Treaties was vested exclusively in the PRESIDENT and Senate. Mr. B. concluded by observing, that he had not intended to have carried his observations to so great a length, but as the State he represented was particularly interested in the consequences of the principles which had been advanced, he had been the more lengthy. Indeed he did not consider these principles as necessarily involved in the question now before the Committee, but he confided that whatever might be the fate of this question, from the knowledge he had of the members of the Committee, that when they should come to decide on the question of carrying the Treaty into effect, they would duly respect the sacred obligations they were under to support the Constitution. Mr. BRENT said he should not in the present debate touch on the merits of the Treaty, which he conceived foreign to this question. On a motion to ask for papers with respect to the Treaty, he did not conceive with what propriety the fitness of the instrument could be brought into view. It would be proper, he contended, to have the papers proposed to be called for, even if it was conceded that the House had no control in matters of Treaty; for if they were bound to carry it into operation, still the papers would be necessary to a due understanding of the subject. The motion, he argued, stands upon the same ground as the calls so often made for information to the Heads of Departments. But even if the papers are not necessary to give information as to the laws which it is said must be passed, they are necessary on another ground. The Constitution gives the House a general superintendence over the conduct of officers, and the power of impeachment; no member denies this right, and how can they exercise it understandingly without information? Can the Constitution be supposed to give this right of impeachment, and at the same time deprive the House of the means of information? This would be as absurd as to refer to a blind man to judge of shades and colors. How can the House decide on the ability or fidelity of the negotiator of the Treaty, unless they have a sight of his instructions, and of his correspondence? how can they determine on the merits or demerits of the nego tiation ? [MARCH, 1796. struction was best calculated to preserve the liberties of this country. The Constitution contains two clauses in reference to the Treaty-making power. The first declares that the PRESIDENT, with two-thirds of the Senate, shall have power to make Treaties. He proceeded to inquire whether this clause gives them the right to make Treaties the supreme law of the land? To determine this it was necessary to examine the import of the word in those countries, where the Treaty power had been frequently exercised, and to consult the opinions of the best civilians. The general power of making Treaties is under the control of the Constitution. In despotic countries, where all power, Legislative, Judicial, and Executive, is in the hands of one person, there the Treaty-making power is without control, and a Treaty as soon as made becomes, ipso facto, the supreme law of the land; but in all limited Governments, the Treaty power is subject to the limitations in the Constitution. The practice of this principle may be found even in the British Government. There, though the King originates Treaties as the PRESIDENT and Senate do here, they do not become the supreme law of the land, respecting Legislative subjects, until the co-operation of Parliament is obtained. Thus the power of making Treaties does not imply the power of making those Treaties in all cases the supreme law of the land. If the Executive make a Treaty involving none but Executive powers strictly, then it becomes immediately the supreme law; but if they contain provisions, which involve the Legislative authority, the Executive can make them but conditionally, and they do not become supreme until the Legislature chose to make them so. The British Government furnishes an example where this doctrine has been practiced, and it is by a reference to the practice of despotic Governments, that the mistaken idea is taken up, that all Treaties as soon as made become the supreme law of the land. The clause in our Constitution, he concluded, does not give authority to the PRESIDENT and Senate to make a supreme law of the land. The turn which the debate had taken had given rise, he said, to an important Constitutional question; 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 had 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 to its meaning at the time it was framed and adopted; and, lastly, he should examine what con He next turned to the second clause of the Constitution respecting Treaties, which had been noticed in the debate. It says, that the Constitution, |