MARCH, 1796.]

Treaty with Great Britain.

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laws, and Treaties, shall be the supreme law of Gentlemen say, that Treaties, ipso facto, repeal the land; and gentlemen contend, he remarked, anterior laws clashing with their provisions: they that though the first clause does not make the say, that the Constitution, laws, and Treaties, stand Treaties entered into by the Executive the supreme upon the same footing in the Constitution, being law of the land, yet that this does; but its obvious all declared the supreme law of the land. If and only meaning, when the whole of it is taken Treaties can repeal laws, then laws can repeal the into view, is, that the Constitution, laws, and Constitution, for the second (laws) are to the first Treaties of the United States, are only meant to (Constitution) what the third (Treaties) are to be declared supreme to Constitutions and laws of the second (laws); then, also. by parity of reasonthe individual States. It is admitted, as a sounding, Treaties may repeal the Constitution. If all rule of construction, that to discover the true stand on the same footing, and the precedence is meaning of any instrument, it is fair to have re-according to the point of time, the last law always course to the existing circumstances that produced prevailing, then Treaties may change the fundait. When the Constitution was formed, it was mental principles of our Government; then the under a strong impression of the inconveniences PRESIDENT and Senate, by entering into stipulaexperienced under the Confederation, when great tions with a foreign Government, may give us a obstruction was thrown in the way of the Treaty Monarchy, may convert our PRESIDENT into a power, by the States refusing to carry into execu- King, and our Senate into a nobility; for, say the tion those agreed to by the Constitutional author- gentlemen, Treaties are the law of the land as ity. This was the evil the framers of the Consti- well as the Constitution, and a subsequent law retution had in view when they inserted this clause, peals those which are anterior. But these posiand it has no relation to the powers of the Gene- tions are false in all their parts; a law or a Treaty ral Government, which stand precisely in the same cannot repeal the Constitution, nor can a Treaty situation with or without it. It does not declare repeal a law. If the manner in which the three that Treaties shall abrogate laws, but that the words are placed in the Constitution is to have any States shall not have it in their power to throw force, it would not favor the construction of the impediments in the way of their execution. The gentlemen; they contend for the supremacy of words of the Constitution cannot be understood Treaties. whereas Treaties are last named, and otherwise than that the Constitution, laws, and the true construction from this source would be Treaties, shall exist together; it does not say that the reverse, when there was clashing. He next a Treaty shall repeal a law, or a law repeal a adverted to the lengths to which the mode of inTreaty. Then the Constitution certainly contem- terpretation contended for by the gentlemen would plated that they never should be in opposition, for carry them. It was never intended, he asserted, contradictory and opposing laws cannot exist at by the people, when they instituted this Governthe same time; if they exist at the same time.ment, that the Treaty power should possess this they cannot be in opposition to each other. If it can be supposed that the PRESIDENT and Senate can make a Treaty in opposition to a law of the Legislature, and yet both the Treaty and the law be at the same time the supreme law of the land, an absurdity is supposed. But if it be admitted that the House shall have a participation in the business of Treaties, in cases which involve the Legislative authority, then the words of the Constitution become intelligible, and both Treaties and laws may be at the same time the supreme law of the land.

He further developed this idea. The Constitution says, that the PRESIDENT and Senate shall make Treaties, and that when concluded under the authority of the United States they shall be the supreme law of the land. This is intelligible, if the control of the House be admitted; for then, if the PRESIDENT and Senate make a commercial Treaty, in any part contrary to existing laws, the Congress repeals those laws, and the Treaty then becomes the supreme law, and when it commences its existence there is no opposing law. On this construction all existing laws will be supreme law; on the other, though all are declared supreme, yet all cannot be supreme when there is a clashing. A Treaty made by the PRESIDENT and Senate, as far as it relates to commercial concerns, is not a Treaty made under the authority of the United States until it has obtained the sanction of the Legislature.

omnipotence. It was never intended that the PRESIDENT and Senate should have it in their power to effect a radical change in our Government, and stipulate with a foreign nation for a guarantee of the change. Laws contrary to the Constitution are nugatory, and Treaties contrary to existing laws, the same; because, when in that stage, they are not concluded under the authority of the United States, but are only so (and then there is no longer any clashing) when once they have received the sanction of the Legislature. From the above, he concluded that the PRESIDENT and Senate originate Treaties, and that the Legislature to a certain extent should exercise a check upon this power. And upon these principles the British Treaty is not the supreme law of the land until a decision on it was had in the Legislature.

It might be supposed, Mr. B. observed, that his opinion of the true construction of this part of the Constitution was a solitary one-that it was a chimera of the imagination. Upon inquiry, it would, however, be found that this opinion was advanced at the time the Constitution was under consideration, in the several conventions which ratified it, and by the most distinguished writers of the day. A member from Massachusetts had quoted parts of the proceedings in the State of Virginia in support of his construction of the Constitution. He should not himself have brought forward the authority of that State in favor of a contrary construction, had not that gentleman

[MARCH, 1796.

cited it as authority of great weight. But since mercial Treaty? If it should, the consent of the House he had endeavored to make use of the proceedings of Representatives would be requisite, because of the in that State as an offensive weapon, he would correspondent alterations that must be made in the laws. endeavor to employ them as a defensive weapon. [Here Mr. Corbin illustrated his position, by reading the Whatever aspect the debates of the Convention last clause of the Treaty with France, which gives certhere might bear as partially quoted by the mem-tain commercial privileges to the subjects of France: ber from Massachusetts, he was bold to declare, to give full effect to which, certain correspondent alterthat, on a careful examination, it would be found ations were necessary in the commercial regulations.] that the majority in that body construed the Con- This, continued he, secures Legislative interference." stitution as contended by the friends to the present He mentioned a third authority from the same motion. By reading detached parts a different source: impression might be made; but if the whole of the debates were adverted to, it would be found that the PRESIDENT and Senate were thought to have the same relations to the Treaty-making power as the King of Great Britain has to England. He first quoted the sentiments of a gentleman in that body, to whose abilities the adoption of the Constitution was much attributed :

"The President and Senate have the same power of making Treaties, and when made they are to have the same force and validity. They are to be the supreme law of the land here. This book shows us they are so in England. Have we not seen in America that Treaties were violated, though they are in all countries considered the supreme law of the land? Was it therefore not necessary to declare, in explicit terms, they should be so here? How, then, is this Constitution on a different footing with the Government of Britain? The worthy member says, they can make a Treaty relinquishing our rights and inflicting punishments, because all Treaties are declared paramount to the Constitutions and laws of the States. An attentive consideration of this will show the Committee that they can do no such thing. The provision of the sixth article is, that this Constitution, and laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall

be the supreme law of the land? They can by this make no Treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The Treaties they make must be under the authority of the United States, to be within their province. It is sufficiently secured, because it only declares that, in pursuance of the powers given, they shall be the supreme law of the land, notwithstanding anything in the Constitution or laws of particular States."

He then cited the sentiments of another member, who was also an advocate for the adoption of

the Constitution:

"I think the argument of the gentleman who restrained the supremacy of these to the laws of particular States, and not to Congress, is rational. Here the supremacy of a Treaty is contrasted with the supremacy of the laws of the States. It cannot be otherwise supreme. If it does not supersede their existing laws as far as they contravene its operation, it cannot be of any effect."

tion who insisted, that the Constitution gave the It was at that day the opposers of the ConstituPRESIDENT and Senate the unqualified power of making all Treaties, and they contended that this power would work the overthrow of liberty. If the public sentiment of that day is to be recurred to for an exposition of the Constitution, he wished to know whether the sentiments of the majority or minority were to be recurred to? Unless the gentlemen would prove that the minority gave on that occasion the true exposition of the Constitution, the sense of the majority must be considered as expressing the wishes of the people, under the opinion which caused the ratification of the instrument.

The Committee had been told, however, that the deliberations of the North Carolina Convention bore a different aspect. But here the gentlemen had been equally unfortunate in their quotations, for they had cited the sentiments held out in the Convention that did not ratify the Constitution; that that Convention was dissolved before the Constitution was adopted; that another met, who received and ratified it, and a worthy Representative from North Carolina now in Congress, who was a member of the Convention, has informed, that the construction given to the Treaty body, was the one contended for by the advocates power by the friends of the instrument in that of the present motion. The first Convention who misconstrued the Treaty power broke up without "The honorable gentleman on the other side tells us sanctioning the instrument; but the second, who that this doctrine is not sound, because in England it is construed it differently, and who ratified the Condeclared that the consent of Parliament is not necessa-stitution, must undoubtedly be considered as havry. Had the honorable gentleman used his usual dis- ing really expressed the sentiments of the people. cernment and penetration, he would see the difference between a Commercial Treaty and other Treaties. Aceive the construction now contended for as He was surprised that gentlemen should conCommercial Treaty must be submitted to the considera-novel; that the member from Massachusetts tion of Parliament; because such Treaties will render should, in so earnest a manner, declare, that the it necessary to alter some laws, add new clauses to same, and repeal others. If this be not done, the Treaty doctrine is novel, when, by recurring to the very is void, quo ad hoc. The Mississippi cannot be dis- debates he produced, the construction was unemembered but two ways-by a common Treaty or a quivocally laid down. Commercial Treaty. If the interest of Congress will must entirely have lost sight of the various delead them to yield it by the first, the law of nations bates and writings of the day. He would quote would justify the people of Kentucky to resist, and the a passage from the work of a distinguished writer cession would be nugatory. It cannot, then, be surren- of the day, who was in opposition to the adoption dered by a common Treaty. Can it be done by a Com- of the Constitution, but who, though he made va

To make the assertion he

MARCH, 1796.]

authority of the United States, until they had been submitted to the Legislature.

Gentlemen had asserted, that if the construction of the friends of the resolution prevailed, it would be difficult to regulate our foreign concerns. He could not see the justice of this remark, for the Treaty power had been exercised under these modifications in Great Britain, and it had not been found defective in this particular. Indeed, it is more likely to be expected, that this would not have been brought in as an argument, as the very Treaty now in question will stand in Great Britain precisely on the footing here contended for.

rious objections to the instrument, and appeared solicitous to find fault, yet construed the part of the Constitution now under consideration as the friends to the motion do. He meant the Federal Farmer. The following is the passage he quoted: "On a fair construction of the Constitution, I think the Legislature has a proper control over the President and Senate, in settling Commercial Treaties. By one article, the Legislature shall have power to regulate commerce with foreign nations,' &c., and by another article, the President, with the advice and consent of two-thirds of the Senate, shall have power to make Treaties.' These clauses must be considered together; and we ought never to make one part of the same instrument contradict another, if it can be avoided by He might have recourse to the pamphlet called any reasonable construction. By the first recited The Federalist, as another authority to prove his clause, the Legislature has the power; that is, as I un-construction. He expressed his surprise that the derstand it, the sole power, to regulate commerce with gentleman from Massachusetts should never have foreign nations, or to make all the rules and regula- heard of these opinions and authorities. The detions respecting trade and commerce between our citizens and foreigners. By the second recited clause, the bates of the Pennsylvania Convention, he underPresident and Senate have power generally to make stood, were analogous to those in Virginia. Treaties. There are several kinds of Treaties, as If the PRESIDENT and Senate possess this unTreaties of Commerce, of Peace, of Alliance, &c. I limited Treaty-making power, what security, he think the words, to make Treaties,' may be consistently asked, have we for our rights? He was not reconstrued, and yet so as it shall be left to the Legisla- ferring to the persons now in office, who might ture to confirm Commercial Treaties. They are, in be all virtue; but he was speaking of the consetheir nature and operation, very distinct from Treaties quence of the principle. Though the PRESIof Peace and of Alliance. The latter generally require DENT and Senate of the present day might never secrecy: it is but very seldom they interfere with the make an improper use of power, what might oclaws and internal police of the country. To make cur at a future day should be adverted to, for the them, is properly the exercise of Executive powers; Constitution was not intended for the present day and the Constitution authorizes the President and Sen- only, but for future times. As highly as he valate to make Treaties, and gives the Legislature no ued the PRESIDENT, as much as he felt for the power directly or indirectly respecting these Treaties of great services he had rendered, yet even him he Peace and Alliance. As to Treaties of Commerce, they would not trust with such unbounded power. do not generally require secrecy; they almost always Unlimited power was apt to corrupt the purest involve in them Legislative powers; interfere with the heart, and he wished to do nothing that could cast laws and internal police of the country: and operate a shade over that character which had been the immediately on persons or property, especially in commercial towns: (they have in Great Britain usually admiration of the intelligent world. But liberty been confirmed by Parliament.) They consist of rules he considered as the best gift of Heaven to man, and regulations respecting commerce: and to regulate and he did not wish to hold it by the courtesy of commerce, or to make regulations respecting commerce, any man. the Federal Legislature, by the Constitution, has the power. I do not see that any commercial regulations can be made in Treaties, that will not infringe upon this power in the Legislature. Therefore I infer, that the true construction is, that the President and Senate shall make Treaties: but all Commercial Treaties shall be subject to be confirmed by the Legislature. This construction will render the clauses consistent, and make the powers of the President and Senate, respecting Treaties, much less exceptionable."

He contended that the power of making Treaties and of entering into foreign negotiations, did not imply a power of making them laws of the land; and that, if the Constitution meant to place Constitution, laws, and Treaties on the same footing, and that the PRESIDENT and Senate could repeal laws, and change the Constitution, that instrument was monstrous indeed, and if it had been so understood, could never have received the sanction of the different Conventions. It was ratified under the impression, that the PRESIDENT and Senate had the power of originating Treaties; but that when they involved Legislative considerations, they did not become Treaties under the

The amendments proposed by the Convention of Virginia were cited as proving that Virginia saw the Constitution in the light contended for. If they are attended to, he conceived they could not ascertain the fact. The amendment in question goes to providing, that no Commercial Treaty shall be concluded without the consent of twothirds of the lower House; but surely this does not go to prove that they conceived the House had no voice in those Treaties, directly or indirectly.

If it be admitted that the PRESIDENT and Senate can make Treaties, which ipso facto become laws of the land, without any assent of the House, without their being able even to exercise their discretion in making appropriations, then the House are a mere body for form sake. The advocates of this construction had stated, as an example, the case of the Judges' salary, which the Constitution declares shall neither be increased nor diminished while they remain in office; and they contended, that the House could no more refuse appropriations to carry a Treaty into effect, than to refuse to make provision for the salaries

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one case,

of wealth into the lap of our country, if made with his most favorite nation, and it was attempted to be carried into effect by a violation of the Constitution he would oppose it. Though a departure from the Constitution at one time may bestow some fugitive advantages, yet he was firmly of opinion, that such deviations would go finally to its destruction. If a single departure from the Constitution be once permitted, the Government will subject it to constant violation.

of those Judges. There was, he conceived, a material distinction between the two cases. In the first the House were bound by no Constitutional tie; in the latter, they lay under an express injunction of the Constitution, from which they could not depart without perjury. When there is a Constitutional injunction to appropriate, no discretion is left to the Legislature; but when even a law is to be carried into effect by an appropriation, the House may withhold it, and thus indirectly repeal the law. The Constitution not He did not conceive, that the decision of the only intended to vest in the House this discre- present question went to decide any question with tionary power of repealing a law by refusing ap-respect to the Treaty. Though the present resopropriations; but it was so attached to it, that in it cannot divest itself of it, but is bound to exercise it periodically; such is the case on the subject of military force; and notwithstanding the important light in which the Constitution views this power of appropriation, and the jealousy with which it is guarded; yet some mem-vantageous he should give it his assent; but the bers are hardy enough to insist, that it would be a violation of the Constitution to exercise this discretion. If the House should attempt to exercise this discretion, when they are under a Constitutional injunction to appropriate, they would be departing from the Constitution; but if they use it to effect the repeal of a law, they exercise a right the Constitution has given them, and of which they cannot divest themselves, and a Treaty cannot be looked upon in any other light than a law.

He recapitulated the principal features of the preceding remarks.

lution be adopted, he should still feel himself at liberty to consider freely the merits of the Treaty when that comes before the House; by voting for this resolution he should not consider himself committed. He did not wish to make up his mind on the Treaty hastily; when before the House if adpresent is not a Treaty question, it is only a question involving certain Constitutional powers of the Legislature. He was not prepared to give his sanction to the Treaty; but if, upon full inquiry, he found it for the interest of the country that it should be carried into effect, he certainly would vote for it; but he must confess, that if the papers proposed to be called for were not obtained, it would make upon his mind a disagreeable impression with respect to that instrument.

The Committee rose, reported progress, and obtained leave to sit again.

MARCH 16.-In Committee of the Whole on Mr. LIVINGSTON's resolution:

He then adverted to the charge of treason which had been thrown out against the friends of the Mr. FREEMAN observed, that the resolution beresolution; and remarked, that the Constitution fore the Committee had unexpectedly to him inmay be violated by other departments of Gov-volved in its discussion a question of a serious and ernment as well as the House, and that if this interesting nature. It was not his intention to was treason in one case it must be in the other. consider, at present, the principle advocated by the It was not for the PRESIDENT and Senate that the gentleman from Pennsylvania, that on all TreaConstitution was formed; but for the people to ties embracing Legislative objects, the ultimate preserve their liberties, and that Constitution sanction of that House was necessary to give would be infringed, if an intended check was them effect. Many ingenious arguments had been done away by a forced construction. To give a adduced for and against the principle, and had power, not intended when the Constitution was created such doubts and difficulties in his mind, adopted, to the PRESIDENT and Senate, was as that he could not now solve them to his own satismuch overturning the established order of Gov-faction. He regretted that any zeal had been disernment, as to encroach upon their authority. covered in discussing a delicate Constitutional The aim of every man should be to preserve the question. He did not think much zeal had a tenhappy mean; not to suffer any department to en-dency to discover the truth. Men actuated by it gross more power than it should have; to preserve the symmetry of the fabric and keep the balance; for whichever way it inclined, whether too much towards democracy, or too much towards Executive energy, in either case, the epithets of revolutionary, disorganizing, &c., might be applied.

were generally like bodies which were consumed by their own heat, without imparting much warmth or light to others.

In the course of debate, gentlemen appeared to have shaped the question to the observations they intended to make, instead of adapting their observations to the real state of the question. A genAn insinuation, he remarked, had been brought tleman from Massachusetts had stated the real into view, both uncandid and unkind. It was sug-question to be, whether that House should by congested, that the present motion was brought forward, because the Treaty is made with Great Britain. Why should members impute to others improper motives? The insinuation he considered as unwarrantable and groundless. For his own part, he was free to declare, that if the Treaty was the best that could be made; if it poured a stream

struction and implication invade the powers vested in the other departments of Government. He did not think this a fair view of the question. He considered the real question to be, how far the Treaty-making power could be extended without infringing the specific powers delegated to Con- ' gress. He should follow the example of other gen

MARCH, 1796.]

Treaty with Great Britain.

[H. of R.

The gentleman from Massachusetts had said that he was advocating an unpopular doctrine. Mr. F. did not know why he should think so. The gentleman undoubtedly supposes that he has reasoned justly. If so, why should he conclude that a majority of the people will not reason as correctly as he had, and entertain the same sentiments. Mr. F. believed that a majority of the people generally reasoned justly upon political objects. But in debate he did not like allusions of that kind.

A gentleman from New York had said, that revenue officers might follow the example of that House and say, that their will was necessary, and refuse to execute a law until it had their approba-. tion. But did it follow from the doctrine that the concurrence of the House of Representatives was necessary in passing a law, that the concurrence of revenue officers was also necessary? The same gentleman farther observed, that the people might say their consent was necessary to sanction a law. In the latter case the gentleman stood on better ground. The consent of the people was necessary, and by their Constitution the Legislature are the organ to express the public will. Imperious necessity might induce the people to demand a new organization of the Government, but he presumed the enlightened people of America would never seek an alteration in the form of their Government, in any other than the Constitutional mode, until all hopes of success in that way should fail.

tlemen and take such a view of the subject as ap- into effect. The only discretion in the first instance peared to him sufficient on the present resolution; was not to determine whether he should obey the and the question with him was, whether the law, but to select a proper character; in the second, House when called upon to make Legislative pro- not to determine whether they should decide causes, vision for carrying a Treaty into effect, had a right but the manner in which they should be decided. to discuss the expediency or inexpediency of grant- And if either of the officers abovementioned were ing it. On this question, he contended, the House to refuse to obey the laws, they were impeachable; had as complete and absolute a discretion, as they but that House was amenable to no tribunal on had on other objects of legislation. If the grant-earth for refusing an appropriation whenever they ing an appropriation to carry a Treaty into effect thought proper to do so. would produce greater evils to the community than the withholding it, he certainly should consider the House justifiable in refusing to make the appropriation. Gentlemen have contended that the Representatives were under a moral obligation resulting from a Treaty to carry it into effect: But many circumstances are mentioned by writers on the Laws of Nations, which render Treaties a nullity of themselves; and each individual, when called upon to give or withhold his assent to an appropriation bill for carrying a Treaty into effect, was to examine and judge for himself of the extent of that obligation, and of the propriety of giving or withholding his assent. He must be governed by his own moral sense, and not by that which resides in the breast of another. The argument founded on the moral obligation did not amount to any thing. For in all cases of legislation where the most ample discretion was admitted, if the fitness of a measure could be demonstrated, the House were under a moral obligation to adopt it. It was true, he conceded, that a Treaty with a foreign Power was a serious thing, and ought not, for light causes, to be violated. The nature and obligation of the compact would be taken into view, on the question of the expediency of giving it operation; but gentlemen ought not to confound the freedom of the will, or the right of voting, according to the judgment and discretion of the agent, with the strong motives which may be offered to influence the decision either the one way or the other. To say that a The gentleman from Massachusetts has said, man was under a moral obligation to do a thing that the House had no right to call for the papers without examining the subject, and ascertaining in question, because they were the joint property the moral obligation by his own moral sense, was of Great Britain and the United States. They may absurd. He conceived that even where existing contain secrets which could not be divulged withlaws ascertained the compensation for certain of out a breach of faith. In support of the doctrine, ficers, still circumstances might arise to justify the the gentleman alluded to some principles in PaLegislature in suspending the necessary appropri- ley's Moral Philosophy and Vattel's Law of Naation for the payment. The whole resources of tions. Mr. F. denied the application of the printhe public might be absorbed in time of war in ciple to the case before the Committee. Where providing the means of national defence. It might two nations were in alliance and carrying on joint become indispensably necessary to delay the pay- operations against a common enemy, there might ment of the salaries due even to the PRESIDENT and be secrets which neither party could divulge withJudicial officers, whose compensation by the Con- out a breach of faith. But the United States are stitution is not to be increased or diminished dur- not in alliance with Great Britain. They are coning their continuance in office. But cases of this cerned in no operations against a common enemy. kind stood upon stronger ground than compensa- What secrets could possibly exist between them? tions to other officers, and appropriations for carry-Were the PRESIDENT and Senate the depository ing laws or Treaties into effect; neither did he agree with the gentleman from South Carolina, that the PRESIDENT OF THE UNITED STATES had the same right to refuse to fill an office created by a law or the Judges of the Supreme Court to refuse to decide causes, that the House had to withhold their assent to an appropriation to carry a Treaty 4th CoN.-20

of the secrets of the British Court? He did not conceive that they were upon so intimate a footing. Indeed he should conceive it to be the vilest calumny were any man to suggest that any other connexion subsisted between them than what was publicly known. A Treaty of Amity, Commerce, and Navigation, was a mere bargain; and