March, 1796.]

Treaty with Great Britain.

[H. OF R.

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. 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 ihe 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 Šenate 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 omnipotence. It was never intended that the can be supposed that the President and Senate President and Senate should have it in their can make a Treaty in opposition to a law of the power to effect a radical change in our GovernLegislature, and yet both the Treaty and the law ment, and stipulate with a foreign nation for a be at the same time the supreme law of the land, guarantee of the change. Laws contrary to the an absurdity is supposed. But if it be admitted Constitution are nugatory, and Treaties contrary that the House shall have a participation in the to existing laws, the same; because, when in that business of Treaties, in cases which involve the stage, they are not concluded under the authority Legislative authority, then the words of the Con- of the United States, but are only so (and then stitution become intelligible, and both Treaties there is no longer any clashing) when once they and laws may be at the same time the supreme have received the sanction of the Legislature. law of the land.

From the above, he concluded that the PRESIDENT He further developed this idea. The Constitu- and Senate originate Treaties, and that the Legistion says, that the PRESIDENT and Senate shall lature to a ceriain extent should exercise a check make Treaties, and that when concluded under upon this power. And upon these principles the the authority of the United States they shall be British Treaty is not the supreme law of the land the supreme law of the land. This is intelligible, until a decision on it was had in the Legislature. if the control of the House be admitted; for then, It might be supposed, Mr. B. observed that his if the President and Senate make a commercial opinion of the true construction of this part of the Treaty, in any part contrary to existing laws, the Constitution was a solitary one-that it was a Congress repeals those laws, and the Treaty then chimera of the imagination. Upon inquiry, it becomes the supreme law, and when it commences would, however, be found that this opinion was its existence there is no opposing law. On this advanced at the time the Constitution was under construction all existing laws will be supreme consideration, in the several conventions which law; on the other, though all are declared su- ratified it, and by the most distinguished writers preme, yet all

cannot be supreme when there is a of the day. A member from Massachusetts had clashing. A Treaty made by the President and quoted parts of the proceedings in the State of Senate, as far as it relates to commercial concerns, Virginia in support of his construction of the Conis not a Treaty made under the authority of the stitution. He should not himself have brought United States until it has obtained the sanction of forward the authority of that State in favor of a the Legislature.

contrary construction, had not that gentleman

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H. op R.]
Treaty with Great Britain.

[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 alter that, 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 “I think the argument of the gentleman who rethe debates were adverted to, it would be found strained the supremacy of these to the laws of particuthat the President and Senate were thought to lar States, and not to Congress, is rational. Here the have the same relations to the Treaty-making supremacy of a Treaty is contrasted with the suprepower as the King of Great Britain has to Eng- macy of the laws of the States. It cannot be otherland. He first quoted the sentiments of a gentleman wise supreme. If it does not supersede their existing in that body, to whose abilities the adoption of the laws as far as they contravene its operation, it cannot Constitution was much attributed :

be of any effect.” “ The President and Senate have the same power of

It was at that day the opposers of the Constitumaking Treaties, and when made they are to have the tion who insisted, that the Constitution gave the same force and validity. They are to be the supreme

President and Senate the unqualified power of law of the land here. This book shows us they are so in making all Treaties, and they contended that this England. Have we not seen in America that Treaties power would work the overthrow of liberty. If were violated, though they are in all countries considered the public sentiment of that day is to be recurred the supreme law of the land? Was it therefore not neces-to for an exposition of the Constitution, he wished sary to declare, in explicit terms, they should be so here? to know whether the sentiments of the majority How, then, is this Constitution on a different footing or minority were to be recurred to? Unless the with the Government of Britain ? The worthy member gentlemen would prove that the minority gave on says, they can make a Treaty relinquishing our rights that occasion the true exposition of the Constituand inflicting punishments, because all Treaties are de- tion, the sense of the majority must be considered clared paramount to the Constitutions and laws of the as expressing the wishes of the people, under the States. An attentive consideration of this will show opinion which caused the ratification of the inthe Committee that they can do no such thing. The strument. provision of the sixth article is, that this Constitution, and laws of the United States which shall be made in the deliberations of the North Carolina Conven

The Committee had been told, however, that pursuance thereof, and all Treaties made, or which shall tion bore a different aspect. But here the gentlebe made, under the authority of the United States, shall men had been equally unfortunate in their quotabe the supreme law of the land? They can by this make no Treaty which shall be repugnant to the spirit tions, for they had cited the sentiments held out of the Constitution, or inconsistent with the delegated in the Convention that did not ratify the Constipowers. The Treaties they make must be under the tution; that that Convention was dissolved before authority of the United States, to be within their pro- the Constitution was adopted; that another met, vince. It is sufficiently secured, because it only declares who received and ratified it, and a worthy Reprethat, in pursuance of the powers given, they shall be the sentative from North Carolina now in Congress, supreme law of the land, notwithstanding anything in who was a member of the Convention, has inthe Constitution or laws of particular States."

formed, that the construction given to the Treaty He then cited the sentiments of another mem-power by the friends of the instrument in that ber, who was also an advocate for the adoption of body, was the one contended for by the advocates the Constitution:

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 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. To make the assertion he 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

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rious objections to the instrument, and appeared authority of the United States, until they had solicitous to find fault, yet construed the part of been submitted to the Legislature. the Constitution now under consideration as the Gentlemen had asserted, that if the construction friends to the motion do. He meant the Federal of the friends of the resolution prevailed, it would Farmer. The following is the passage he quoted : be difficult to regulate our foreign concerns. He

«On a fair construction of the Constitution, I think could not see the justice of this remark, for the the Legislature has a proper control over the President Treaty power had been exercised under these and Senate, in settling Commercial Treaties. By one modifications in Great Britain, and it had not article, the Legislature shall have power to regulate been found defective in this particular. Indeed, commerce with foreign nations,' &c., and by another it is more likely to be expected, that this would article, the President, with the advice and consent of not have been brought in as an argument, as the two-thirds of the Senate, shall have power to make very Treaty now in question will stand in Great Treaties. These clauses must be considered together; Britain precisely on the footing here contended and we ought never to make one part of the same in- for. strument 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 anot

The Federalist, as another authority to prove his clause, ths 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 ren

reaties of great services he had rendered, yet even him he Peace and Alliance. As to Treaties of Commerce, they

ommerce, they would not trust with such unbounded power.

could do not generally require secrecy; they almost always Unlim

ys 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 immediately on persons or property, especially in com

a shade over that character which had been the mercial 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 ! The amendments proposed by the Convention power. I do not see that any commercial regulations of Virginia were cited as proving that Virginia can be made in Treaties, that will not infringe upon saw the Constitution in the light contended for. this power in the Legislature. Therefore I infer, that If they are attended to, he conceived they could the true construction is, that the President and Senate not ascertain the fact. The amendment in quesshall make Treaties : but all Commercial Treaties shall tion goes to providing, that no Commercial Treaty be subject to be confirmed by the Legislature. This shall be concluded without the consent of twoconstruction will render the clauses consistent, and thirds of the lower House; but surely this does make the powers of the President and Senate, respect- not go to prove that they conceived the House ing Treaties, much less exceptionable."

had no voice in those Treaties, directly or indiHe contended that the power of making Trea- rectly. ties and of entering into foreign negotiations, did If it be admitted that the PRESIDENT and Sennot imply a power of making them laws of the ate can make Treaties, which ipso facto become land; and that, if the Constitution meant to laws of the land, without any assent of the House, place Constitution, laws, and Treaties on the same without their being able even to exercise their footing, and that the PRESIDENT and Senate could discretion in making appropriations, then the repeal laws, and change the Constitution, that in House are a mere body for form sake. The advostrument was monstrous indeed, and if it had cates of this construction had stated, as an exambeen so understood, could never have received ple, the case of the Judges' salary, which the the sanction of the different Conventions. It was Constitution declares shall neither be increased ratified under the impression, that the PRESIDENT nor diminished while they remain in office; and and Senate had the power of originating Treaties; they contended, that the House could no more rebut that when they involved Legislative consid- fuse appropriations to carry a Treaty into effect, erations, they did not become Treaties under the than to refuse to make provision for the salaries

H. OF R.]

Treaty with Great Britain.

[MARCH, 1796.

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of those Judges. There was, he conceived, a of wealth into the lap of our country, if made with
material distinction between the two cases. In his most favorite nation, and it was attempted to
the first the House were bound by no Constitu- be carried in to effect by a violation of the Consti-
tional tie; in the latter, they lay under an express tution he would oppose it. Though a departure
injunction of the Constitution, from which they from the Constitution at one time may bestow
could not depart without perjury. When there some fugitive advantages, yet he was firmly of
is a Constitutional injunction to appropriate, no opinion, that such deviations would go finally to
discretion is left to the Legislature; but when its destruction. If a single departure from the
even a law is to be carried into effect by an ap- Constitution be once permitted, the Government
propriation, the House may withhold it, and thus will subject it to constant violation.
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 reso-
propriations; but it was so attached to it, that in lution be adopted, he should still feel himself at
one case, it cannot divest itself of it, but is bound liberty to consider freely the merits of the Treaty
to exercise it periodically; such is the case on the when that comes before the House; by voting for
subject of military force; and notwithstanding this resolution he should not consider himself com-
the important light in which the Constitution mitted. He did not wish to make up his mind on
views this power of appropriation, and the jeal- the Treaty hastily; when before the House if ad-
ousy 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 present is not a Treaty question, it is only a ques-
a violation of the Constitution to exercise this tion involving certain Constitutional powers of
discretion. If the House should attempt to exer- the Legislature. He was not prepared to give his
cise this discretion, when they are under a Con- sanction to the Treaty; but if, upon full inquiry,
stitutional injunction to appropriate, they would he found it for the interest of the country that it
be departing from the Constitution, but if they should be carried into effect, he certainly would
use it to effect the repeal of a law, they exercise vote for it; but he must confess, that if the papers
a right the Constitution has given them, and of proposed to be called for were not obtained, it
which they cannot divest themselves, and a Treaty would make upon his mind a disagreeable impres-
cannot be looked upon in any other light than a sion with respect to that instrument.

The Committee rose, reported progress, and ob-
He recapitulated the principal features of the tained leave to sit again.
preceding remarks.

March 16.-10 Committee of the Whole on He then adverted to the charge of treason which Mr. Livingston's resolution : 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 pre- were generally like bodies which were consumed serve the symmetry of the fabric and keep the by their own heat, without imparting much balance; for whichever way it inclined, whether warmth or light to others. too much towards democracy, or too much to In the course of debate, gentlemen appeared to wards Executive energy, in either case, the epi- have shaped the question to the observations they thets of revolutionary, disorganizing, &c., might intended to make, instead of adapting their obserbe applied.

vations 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 for-struction and implication invade the powers vestward, because the Treaty is made with Great Bri- ed in the other departments of Government. He tain. Why should members impute to others im- did not think this a fair view of the question. He proper motives? The insinuation he considered considered the real question to be, how far the as unwarrantable and groundless. For his own Treaty-making power could be extended without part, he was free to declare that if the Treaty was infringing the specific powers delegated to Conthe best that could be made; if it poured a stream gress. He should follow the example of other gen

March, 1796.]

Treaty with Great Britain.

[H. of R.

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 propercharacter; 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 gentleman from Massachusetts had said the withholding it, he certainly should consider that he was advocating an unpopular doctrine. the House justifiable in refusing to make the ap- Mr. F. did not know why he should think so. The propriation. Gentlemen have contended that the gentleman undoubtedly supposes that he has reaRepresentatives were under a moral obligation soned justly. If so, why should he conclude that resulting from a Treaty to carry it into effect: a majority of the people will not reason as correctBut many circumstances are mentioned by writers ly as he had, and entertain the same sentiments. on the Laws of Nations, which render Treaties a Mr. F. believed that a majority of the people gennullity of themselves; and each individual, when erally reasoned justly upon political objects. But called upon to give or withhold his assent to an in debate he did not like allusions of that kind. appropriation bill for carrying a Treaty into effect, A gentleman from New York had said, that was to examine and judge for himself of the ex- revenue officers might follow the example of that tent of that obligation, and of the propriety of House and say, that their will was necessary, and giving or withholding his assent. He must be refuse to execute a law until it had their approba.. governed by his own moral sense, and not by that tion. But did it follow from the doctrine that the which resides in the breast of another. The argu-concurrence of the House of Representatives was ment founded on the moral obligation did not necessary in passing a law, that the concurrence amount to any thing. For in all cases of legisla- of revenue officers was also necessary ? The tion where the most ample discretion was admit- same gentleman farther observed, that the people ted, if the fitness of a measure could be demon- might say their consent was necessary to sanction strated, the House were under a moral obligation a law. In the latter case the gentleman stood on to adopt it. It was true, he conceded, that a Trea- better ground. The consent of the people was nety with a foreign Power was a serious thing, and cessary, and by their Constitution the Legislature ought not. for light causes, to be violated. The are the organ to express the public will. Imperinature and obligation of the compact would be ous necessity might induce the people to demand taken into view, on the question of the expedien- a new organization of the Government, but he precy of giving it operation ; but gentlemen ought sumed the enlightened people of America would not to confound the freedom of the will, or the never seek an alteration in the form of their Goright of voting, according to the judgment and dis-vernment, in any other than the Constitutional cretion of the agent, with the strong motives mode, until all hopes of success in that way should which may be offered to influence the decision fail. 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 sepse, 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 PRESİDENT and Senate the depository ing laws or Treaties into effect; neither did he of the secrets of the British Court? He did not agree with the gentleman from South Carolina, that conceive that they were upon so intimate a footthe PRESIDENT OF THE UNITED STATES had the ing. Indeed he should conceive it to be the vilest same right to refuse to fill an office created by a calumny were any man to suggest that any other law or the Judges of the Supreme Court to refuse connexion subsisted between them than what to decide causes, that the House had to withhold was publicly known. A Treaty of Amity, Comtheir assent to an appropriation to carry a Treaty merce, and Navigation, was a mere bargain; and

4th Con.- 20

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