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[MARCH, 1796. the negotiators would represent the situation of port the Constitution, but from a more generous their respective countries in the most favorable principle, because he was attached to it. He could point of view. Would Mr. Grenville betray the not give an impressive effect to his observations, secrets of his Government? Would he represent by appealing to the blood which he had shed, or it to be exhausted with public debt, and crumbling to a frame mutilated in acquiring the independto pieces, or exhibit its situation in the most splen- ence of his country ; but if occasion required, he did colors ? On the other hand would Mr. Jay was willing to mutilate the one, and to shed the communicate any thing to the British Minister other in its defence; but the man who means in çespecting the situation of this country, which these times honestly to discharge bis duty, must it would be improper to be laid before the House prepare for a severe destiny; to have his reputaof Representatives? Surely not.
tion assailed by unfounded calumnies; to be A gentleman from New York made some fur- branded with epithets which he does not deserve; ther observations which he should notice. He said to have sentiments ascribed to him which he never common sense revolted at the construction put felt; to be charged with base, dark, malignant deupon the Constitution, which he said had been signs against the Government, which the human well understood from the school-boy to the Sena- heart is hardly capable of conceiving. tor. Mr. F. did not know how well the gentleman With respect to the resolution before the House, understood it, but for his own part he had his when it was first laid on the table he viewed it doubts. The Judges of the Supreme Court and with regret; but as the discussion had involved a other gentlemen of abilities had held different different question, if the amendmert, formerly opinions on several parts of the Constitution. Was moved by a gentleman from Virginia,'should be it wonderful then that members in that House renewed and obtain, he should vote for the resoshould entertain different sentiments with respect to
lution. the extent of the Treaty-making power? The same
Gentlemen asked what benefit would result gentleman said it was no matter whether the Trea- from adopting the resolution ? In the first place, ty was good or bad ; it was all stuff. That many it would be conciliatory. Many members wished people were determined not to like it, before it was to see the papers, and he was willing they should promulgated. Mr. F. observed, that he should be be gratified. In the second, they might explain extremely unhappy that the people should suppose any doubtful parts of the Treaty If the present that their Representatives assembled to support a resolution was considered by him an encroachside, not to investigate truth; that they voted one ment upon the Executive, he certainly should be way or the other, just as party spirit or prejudice against it. On what principle was it that the led them. Though he believed that gentleman Representatives were placed at such an immense had made up his mind on the subject, his mind, distance from the Executive, that they could not and he believed the minds of many others, were approach him with decency and respect to ask open to receive such impressions as the arguments for information on a subject before them? which might yet be adduced ought to produce. It had been observed that the papers might be
The same gentleman had said that some per- seen in the office of the Secretary of the Senate. sons were opposed to the Treaty, because it com- Why, then, should those members who wished to pelled them to pay their debts. Every one one
see them be compelled to go into the office of the knew that the remark was pointed to a par- Secretary of the Senate, and depend upon the ticular State. But he would ask what clause in courtesy of the Clerk for information which might the Treaty placed an individual debtor of the as well be obtained in a more direct channel? United States in a worse situation, as to the pay- Was it improper to have that information before ment of his debts, than he was before?. He the House, which might be obtained in a more incould discover none. He could not, he said, place direct manner ? his eye upon a single member in that House, and
The negotiator has publicly quoted a part of say, that he believed he wished to subvert the the correspondence, and, perhaps, if the whole Government, or to destroy the peace and happi- could be seen by the House, they would be conness of the United States. The same member vinced of the general friendly disposition of Great had said, that the gentleman from Virginia ought Britain towards this country: to be bold, and that he might expect to be called
Mr. F. did not conceive himself committed, as jacobin, revolutionist, disorganizer, &c., as re- he claimed the right of changing his opinions as movers of ancient landmarks were always ill- often as good reasons therefor presented themspoken of. Mr. F. held it to be criminal, not only selves to his mind. to remove ancient landmarks, but to suffer them [The observations made by Mr. FINDLEY were not to moulder away through inattention. The pre- distinctly heard on account of a high wind. He has, sent question was not intended to remove land- therefore, to prevent being misstated, favored us with marks, but to ascertain and establish them; not to the following extract of such of his notes as he spoke invade the powers of any department of the Go from. The incidental replies which fell from him in vernment, but to ascertain the true boundaries, answer to observations made in the course of the deand the appropriate powers of each. The gentle-bate, and the desultory enlargements which he went man had said he should vote in the negative, be into in speaking from the principles he had digested cause he had sworn to support the Constitution. previous to his taking the floor, are not included in the Mr. F. said, that he should contend for the right of following sketch.] the House, not only because he had sworn to sup-| Mr. Findley.-It seems to be agreed by both
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Treaty with Great Britain.
parties, that the express words of the Constitution The Executive cannot assume or exercise any will not support either position without a liberty | power expressly vested in the Legislature. If the of construction. The difference of opinion is now Executive may, by an extension of the Treatyconfined to what construction is most agreeable making power, regulate commerce, make laws to to the general principles of the Constitution. raise and appropriate money, &c., or, which is the
That the construction which gives the fullest same thing, command laws to be made for carryscope to all the powers vested in the different de- ing Treaties, which interfere with the Legislapartments of the Government, and which, by tive powers, into effect; or if, as is contended, the combining their operation, is the best calculated Legislature has no moral power of discretion, no for the preservation of the Government itself, power to refuse to make laws to carry Treaties offers fairest to be the true one, cannot reasonably into effect, or even to form an opinion on the be doubted.
goodness or badness of Treaties, when they relate The Legislative powers, to regulate commerce to powers explicitly intrusted to its deliberawith foreign nations, to levy taxes, appropriate tion:-on the same principle all Legislative dismoney, &c., are specifically vested in Congress, cretion may be exercised by the Treaty-making and as deposited in the Legislature, are secured power without regard to the Constitutional guards by numerous negative checks, declaring what provided to prevent the abuses of those powers. things Congress shall not do, and guards regulat- For there is no Legislative power vested in Coning the manner in which it shall exercise its pow-gress but what may be either directly or indirectly ers on the proper subjects.
exercised by the Treaty-making power. The Treaty-making power is not vested in If the Treaty-making power is admitted to the Congress; the negotiating part of making Trea-extent pleaded for, and the specific powers vested ties is partly of an Executive nature, and can be in Congress are admitted in the extent in which most conveniently exercised by that department, they are unequivocally expressed, we are reduced and is, therefore, vested in the PRESIDENT and to a dilemma, and the Constitution is necessarily Senate. The PresidENT shall have power to admitted to have instituted two interfering Lemake Treaties, two-thirds of the Senate agreeing gislative authorities, acting in direct competition therewith.
with each other on the same subjects, and both Even the power of negotiating, which includes making supreme laws of the land; which though the timing of Treaties, the appointment of En- they may be nominally distinct, have the same voys, and instructing them, and approving of effect on the citizens, with this difference only, that Treaties, so far as to present them for ratification, we may be relieved from the oppression of laws are powers of great importance, and may put the by a repeal of them, but cannot be relieved from Government in such circumstances as to render the hardships resulting from a Treaty, without it expedient to ratify a Treaty, which, if it had the consent of another nation. not been agreed to by the negotiating agents, it! In advocating the resolution before the Comwould have rejected-are powers of great import- mittee, we admit a reasonable latitude to both the ance of themselves; but it is acknowledged that Legislative and Treaty-making powers. Where more than this is vested by the Constitution in the the Treaty-making power extends itself to exTreaty-making powers.
press Legislative objects, and where Legislative The power of making Treaties is admitted to aid is absolutely necessary to carry the Treaty be so extensive as to embrace all subjects arising into effect, we contend that the Legislature, in under the Law of Nations, for securing amity and making such laws, exercise that moral power that friendship betwixt nations, and for the mutual is necessary for legislating in all other cases, and protection of the citizens in their correspondence are not reduced to the situation of an executive with each other. Authority for this purpose is officer, or mere treasurers of the United States. not vested in Congress among the enumerated In this case, we say, that the powers are not inpowers, but expressly given to the PRESIDENT and tended to make war with each other; that the deSenate; therefore, Treaties, to this extent, ratified partments ought to concur in the exercise of them. under their authority, are the laws of the land, This method preserves the exercise of both powaccording to the Constitution.
ers in their proper places; the other destroys the The powers specifically vested in Congress are Legislative authority which is, by the Constituso explicitly checked and guarded, as to form an tion, the most explicitly vested, and precisely unequivocal limitation to the Treaty-making guarded. power, when it extends to powers specifically | The 18th Legislative power vested in Congress, vested in the Legislature, consisting of the Se- which has been generally called the sweeping nate and House of Representatives, with the ap- clause, has been often objected to as, in a great probation of the PRESIDENT.
measure, defeating the checks on the specified The Legislature cannot transfer its essential powers vested in Congress, and as endangering powers, nor evade them; the exercise of its pri- the powers reserved to the States, and enabling vileges it may dispense with, but if it may dis-Congress to enact laws of a questionable nature. pense with or transfer any one Legislative power. To these purposes it might have been improperly it may, on the same principle, dispense with or applied. transfer every power with which it is vested, and As a shield, however, against Executive enfor the exercise of which the Legislature only are croachments, it has always been acknowledged as responsible.
| proper and necessary. It not only vests Con
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Treaty with Great Britain.
gress with authority to carry the foregoing se- the ratifying Convention of Pennsylvania has been venteen powers into effect, but all other powers adduced to prove, that this was not believed to be vested in any department or officer of the Go- the meaning of the Constitution at that time. vernment. The PRESIDENT and Senate, in the Only the arguments in favor of the Constituexercise of the Treaty-making power, are a de- tion made in that body were preserved; but, being partment of the Government, and, as such, sub- a member of it, and in the minority, I have a jected to the Legislative power of Congress, of good recollection of the sentiments expressed which they are a part.
in it. This clause would go far to prove the right of The advocates of the Constitution, one of whom Congress to exercise a formal negative over Trea- was a celebrated politician, and had an eminent ties of every description, before they become the hand in framing the Constitution itself, maintain- , law of the land; and this was what the minority ed that an effective, though indirect check on the of the Convention of Pennsylvania plead for as Treaty-making power. would naturally grow out an amendment to the Constitution. I did not of the exercise of the Legislative authority; that then believe it was secured in the Constitution, this would be a complete check on the exercise of nor do I contend for it now.
the Treaty-making power, so far as respected the That the concurrence plead for is not impracti- authority of Congress. This was admitted by the cable, as has been alleged, is evident from the minority, but they objected to the effects which practice of all other limited and free Governments. Treaties might have on the State Governments; It is an established principle, by writers on the Law and that, in some cases, the Constitution itself of Nations, and is agreeable to reason, that Trea- might be infringed by it. The State Governties are to be made in every nation by those who ments have since beer secured by an amendment exercise the supreme sovereign authority, and this to the Constitution. I did not, however, expect is agreeable to the practice of all nations.
the sentiments of a minority, acting under peculiar In despotic Governments, the Monarch who circumstances of irritation, and consisting of but makes the Treaty exercises both the Legislative about one-fifth of the members, to be quoted as a and Executive authority; therefore, Treaties good authority for the true sense of the Constitúmade by him are, of course, the law of the land. tion on this occasion. In Britain, Holland, &c., where the sovereign There is a discernible difference between the power is vested in different departments, the con- mode of expression in the article by which the sent of all the departments to a Treaty, which em- | Treaty-making power is vested in the Executive, braces the powers vested in those departments, and in the article where it is declared to be the is uniformly necessary to make those Treaties the supreme law of the land; in the first, it is said gelaw of the land.
nerally, that the PRESIDENT and Senate shall make That there are inconveniences attending this | Treaties, without defining the extent of the objects concurrence in making Treaties, is admitted to which they shall extend, nor of their obligation; There are inconveniences attending the operation this, of itself, may be reasonably construed to exof all the checks peculiar to a limited Govern- tend to such objects as were not previously vested ment; but they have not been found detrimental in Congress. Thus, a man, in making his will, in practice. Britain and Holland have arisen to bequeaths expressly such portions of his estate as as much grandeur, in proportion to their means, he thinks proper to his children in common; and, and have been as successful in making Treaties, by a subsequent clause, bequeaths his estate, in as any nations under the sun; yet Treaties, general words, to his eldest son. By a reasonable at least on Legislative subjects, in Holland, must construction, this does not entitle the eldest son to have the approbation of the different provinces, the whole estate, but to such parts of it as were and in Britain, of the Parliament, before they are not otherwise disposed of. the law of the land. That the Treaty with Bri- ! In the article where Treaties are declared to be tain now before this House was laid before the the supreme law of the land, they are joined with British Parliament for its approbation, was an- the Constitution, the laws, and the then existing nounced by the latest accounts from that country. Treaties, and in connexion with them, declared to
The construction which gives a latitude to all be superior to the Constitutions and laws of the the powers vested by the Constitution, is most States; but in this clause it is not said they are so agreeable to the division of powers, essential to simply, as made by the PRESIDENT and Senate, free Governments, and best suited to the preserva- but as made under the authority of the United tion of the Government itself. A concurrence of States. The different manner of expression in the powers where they interfere in their exercise, is a two places could not have been introduced withsalutary guard against abuses ; but if, where the out design ; it was as easy to have said by the interference happens, one of the powers must yield PRESIDENT and Senate, as under the authority of absolute and implicit obedience to the other, with the United States, if the latter had not been inout limitation, as is contended, the submitting tended to mean, in some cases, a more extensive power must, in the event, be annihilated by the concurrence of authority than the former. paramount power, or become a mere formal and It is no more extraordinary to say, that the PREinefficient agent.
SIDENT and Senate make Treaties, while it is unIn opposition to the resolution, it is asserted, derstood that, where these Treaties embrace Lethat this doctrine is new. To me, the opposite Igislative cases, they ought, for carrying them into opinion is novel and surprising. The minority of effect, to be submitted to the discretion of Con
Treaty with. Great Britain.
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gress, consisting of the Senate, the House of Re- be denominated extreme cases-cases of an abuse presentatives, and the PRESIDENT, than it is to say, of power, such as that of palpably or manifestly as in the first section of the Constitution, that the betraying and sacrificing the private interests of powers of making all laws shall be vested in a the Siate. Such Treaties, he conceived, had no Congress, consisting of a Senate and House of binding influence on the nation, and this upon Representatives, while a reserve is understood in natural principles. But it would not be contended, favor of the approbation of the PRESIDENT, with that the papers in question were necessary to enout which no act of Congress can be the law of able the House to decide on these questions. He the land, even though sanctioned with the unani-conceived they were not. mous consent of both Houses of Congress.
If the House of Representatives have any agency The small States can receive no injury from in the business of making Treaties; if their sancthe discretion of the Legislature being exercised tion is necessary before the instrument acquires in making laws to carry Treaties into effect; as any binding influence on the nation ; if it be not exercised by the Legislature, there is ample se- valid without such sanction, he conceived there curity that no preference shall be given to the was the same reason that all the papers which reports, or, by analogy, to the exports of any State, late to the formation of the Treaty should be laid large or small; and it is evident that the Treaty- | before that House, as there was that these papers making power, not being bound by the Constitu- should have been laid before the Senate." This tional guards, may suppress or burden the exports had been asserted. If he believed in this doctrine, of any number of States. The first instance given he should feel himself bound to vote for the call; operates against the exports of small States; wit- but he denied that this was the case; and he said ness the restrictions on the exportation of the cot-that in the course of his observations he should enton of South Carolina and Georgia, by the Treaty deavor to prove that no such doctrine was to be as negotiated.
found in the Constitution. As this question inIf the papers called for contain information con- volved the Constitutional powers of the House, cerning the state of the Union, there can be no he viewed it as important; it was a delicate quesdoubt but we have a right to call for them; on tion. We were called upon to decide as to our this the question can only be about the expedien- own powers. For these reasons he thought that cy, and not the right, of calling on the PRESIDENT the discussion should be conducted with m for them. It is not because the Treaty was made tion, coolness, and candor; that such a temper with Britain, or is thought a bad one, that I in- was most favorable to truth. However gentlemen sist on the right of Legislative discretion; I would might differ, he observed, on other subjects, in this insist on the same right, let the Treaty be good or we are all agreed, that, in forming our judgments bad, or if it had been made with any other Euro- on all such questions, the Constitution must be pean Power.
Jour sole guide. It was this instrument, he said, Mr. Smith, of New Hampshire, said, he had which defines the powers given to the General not intended to have delivered his sentiments on Government, and which distributes these powers the question before the Committee, but as he did among the several departments. If the Constitunot fully agree in opinion with any gentleman tion had not assigned to each its peculiar portion who had spoken, it became necessary for him to of power, these departments, like the original eleexpress the grounds of his opinion. This he would ments, would be engaged in a perpetual war for do as briefly as possible.
power. All would be confusion, disorder, and The question was, shall we call on the PRESI- anarchy. He proposed, in the first place, to give DENT for his instructions given to the Minister what he conceived to be the true exposition of who negotiated the Treaty lately made with the Constitution, on the subject of Treaties in Great Britain; the correspondence and other docu- general. He should then, he said, state as corments which relate to the formation of that in- rectly as possible the exposition or construction of strument ? He agreed in opinion with those gen- the Constitution contended for by the gentleman tlemen who saw nothing unconstitutional in call-opposed to him. He lamented that he could not ing for papers containing information upon sub- do this with greater accuracy. The gentlemen jects on which the House were called upon to decide. had not agreed among themselves. He could only It was certainly within the powers of the House. state what seemed to be the general current of He conceived they not only possessed the right, opinion. The construction which he advocated but that it was their duty to call for all papers and was, that, by the Constitution of the United States, documents which could enlighten their minds or the power of making Treaties is exclusively vested inform their judgments on all subjects within in the PRESIDENT and two-thirds of the Senate. their sphere of agency. He had always been in That this power extends to all kinds of Treatiesfavor of such calls. A Treaty made with Great of Peace, of Alliance, of Amity, of Commerce Britain had lately been communicated to the and Navigation, and embraces all those subjects, House. It had been said, that this instrument was and comprehends all those objects, which can with unconstitutional. If it were so, he admitted that propriety be the subject of convention or comit was not binding on the nation, and that the pact between nations; that is, every thing in House were not bound to give their aid to fulfil it. which they have a mutual or common interest. There were other cases in which he should feel That a compact so made which does not change himself at liberty to refuse to provide the means the Constitution, and which does not palpably for carrying a Treaty into effect. These might and manifestly betray or sacrifice the private in
Treaty with Great Britain.
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terests of the State, (which is invalid on natural between Legislative and Executive powers. Some principles) is binding on the nation without any of these powers were of such a nature that it was sanction on the part of the House of Representa- easy to pronounce concerning them; but there tives. That such a Treaty is by the Constitution were cases in which there was much room for paramount to the Constitution and laws of the doubt; there was a sort of middle ground, where several States; that the Judges in the several in practice the power over the same subject was States are bound to obey it. That it is by the sometimes exercised by the one and sometimes reason and nature of the thing paramount to a law by the other. According to the theory of most of the United States, and abrogates and annuls all Governments, the Treaty-making power is, for pre-existing laws contrary to it, and, as long as it obvious reasons, given to the Executive; yet he remains in force, limits and restricts the power of conceived that this power was, in its nature, more the Legislature of the United States to pass any analogous to Legislative than to Executive power. laws in contravention of it. That, when such a Had the Constitution been silent as to the organ Treaty requires money to be provided, or other which should exercise this power there might Legislative acts to be performed, it is the duty of the have been plausible arguments in favor of giving Legislature to provide and appropriate the money it to the Legislature. But the Constitution had in the same manner as it is their duty to provide not been silent; it was extremely clear that the and appropriate money for the payment of our Treaty-making power, to whatever objects it may debts. That the nation must judge whether it be extend, is rested in the PRESIDENT, with this limitconstitutionally formed or not; whether the stipu- ation, that the consent of two-thirds of the Selations contained in it be such as in good faith nate is necessary to give validity to the act. It is they are bound to execute, and whether any cir- also clear, that, according to our Constitution, cumstances have happened which would justify (however the thing may be in theory,) the a non-observance of it. That on these subjects Treaty power is not Legislative, for all the Legisthey must exercise a sound discretion. That nei- lative power is given to Congress, while this is ther the nation, nor any departments of the Go-given to the PRESIDENT and Senate. It seems vernment, are at liberty to reject a Treaty merely scarce necessary to add, that these powers are exbecause it is a hard bargain.
clusively given, for Congress can no more make The doctrine on the other side is,
Treaties than the PRESIDENT and two-thirds of That the power to make Treaties is limited to the Senate can make laws. Do the Legislative such objects as are not comprehended and in-powers vested in Congress interfere with the cluded in the specified powers given to Congress power of making Treaties vested in the PRESIby the Constitution; or, that a Treaty which com- DENT and Senate; and if they do, which shall prehends or embraces any such object is not valid; yield to the other? that is, not the supreme law of the land, until the When it is said that Congress shall have the House of Representatives have added their sanc- power to do certain things, for example, to regution to it; or, if this be not admitted, that the late commerce with foreign nations, it means no House of Representatives, by the theory of our more than this, that Congress shall have all LeConstitution, have check on the Treaty-making gislative power over this subject, not that the enpower, in providing and appropriating money ne- tire power over foreign commerce is given to cessary to carry a Treaty into effect; which power, Congress. Laws, from the nature of the thing, it is admitted on all hands, they possess; and thus cannot fully accomplish this; they can have no in this way control the doings of the PRESIDENT binding force within a foreign jurisdiction. If it and Senate, and can reject à Treaty, or at least be said, that under the general power to make certain parts of it. That they can and ought to Treaties is not included the power of regulating do this if they believe the Treaty to be a bad one, foreign commerce by Treaty, then there is no though not injurious in an extreme, such as mani- power vested in the General Government comfestly betraying or sacrificing the private interest pletely to regulate foreign commerce. Shall it of the State, (which by the Law of Nations nulli- | be said, that the Treaty power shall be restricted fies such a compact,) and which on all hands would to the making of such regulations as laws cannot readily be admitted as a sufficient cause for re- reach, and such only? This is absurd; it would fusing to carry it into execution.
annihilate the Treaty power. For what nation He said he had thought it proper to present would treat with us, and by compact agree to give to the Committee this general view of the sub- our citizens privileges, when our contracting orject, to guard against all misconception, that gan had no power to promise any thing on our the real difference of opinion entertained on this behalf ? From the nature of the thing it must be part of the Constitution might be discerned, and evident, that the Treaty power must extend to that his subsequent remarks might be the better objects which may, under other circumstances, be understood. He should now, he said, inquire what the foundation of Legislative acts. Treaties do were the objects embraced by the Treaty power; / what laws cannot do; but in order to do this, they how far this power might be extended ? The Con- must extend to some things which laws can regustitution declares that all the Legislative power late, with reference to ourselves. They must, in therein granted shall be vested in Congress, and some small degree, restrict the exercise of Legisthat the Executive power shall be vested in the lative power. Treaties, if made by Congress, PRESIDENT. He said it was difficult, perhaps im- would have the same effect precisely. If they are possible, with perfect accuracy, to draw the line l not repealable, all succeeding Legislatures are re