H. OF R.] Treaty with Great Britain. [MARCH, 1796. the negotiators would represent the situation of port the Constitution, but from a more generous their respective countries in the most favorable point of view. Would Mr. Grenville betray the secrets of his Government? Would he represent it to be exhausted with public debt, and crumbling to pieces, or exhibit its situation in the most splendid colors? On the other hand would Mr. Jay communicate any thing to the British Minister respecting the situation of this country, which it would be improper to be laid before the House of Representatives? Surely not. A gentleman from New York made some further observations which he should notice. He said common sense revolted at the construction put upon the Constitution, which he said had been well understood from the school-boy to the Senator. Mr. F. did not know how well the gentleman understood it, but for his own part he had his doubts. The Judges of the Supreme Court and other gentlemen of abilities had held different opinions on several parts of the Constitution. Was it wonderful then that members in that House should entertain different sentiments with respect to the extent of the Treaty-making power? The same gentleman said it was no matter whether the Treaty was good or bad; it was all stuff. That many people were determined not to like it, before it was promulgated. Mr. F. observed, that he should be extremely unhappy that the people should suppose that their Representatives assembled to support a side, not to investigate truth; that they voted one way or the other, just as party spirit or prejudice led them. Though he believed that gentleman had made up his mind on the subject, his mind, and he believed the minds of many others, were open to receive such impressions as the arguments which might yet be adduced ought to produce. The same gentleman had said that some persons were opposed to the Treaty, because it compelled them to pay their debts. Every one one knew that the remark was pointed to a particular State. But he would ask what clause in the Treaty placed an individual debtor of the United States in a worse situation, as to the payment of his debts, than he was before? He could discover none. He could not, he said, place his eye upon a single member in that House, and say, that he believed he wished to subvert the Government, or to destroy the peace and happiness of the United States. The same member had said, that the gentleman from Virginia ought to be bold, and that he might expect to be called jacobin, revolutionist, disorganizer, &c., as removers of ancient landmarks were always ill spoken of. Mr. F. held it to be criminal, not only to remove ancient landmarks, but to suffer them to moulder away through inattention. The present question was not intended to remove landmarks, but to ascertain and establish them; not to invade the powers of any department of the Go vernment, but to ascertain the true boundaries, and the appropriate powers of each. The gentleman had said he should vote in the negative, because he had sworn to support the Constitution. Mr. F. said, that he should contend for the right of the House, not only because he had sworn to sup principle, because he was attached to it. He could not give an impressive effect to his observations, by appealing to the blood which he had shed, or to a frame mutilated in acquiring the independence of his country; but if occasion required, he was willing to mutilate the one, and to shed the other in its defence; but the man who means in these times honestly to discharge his duty, must prepare for a severe destiny; to have his reputation assailed by unfounded calumnies; to be branded with epithets which he does not deserve; to have sentiments ascribed to him which he never felt; to be charged with base, dark, malignant designs against the Government, which the human heart is hardly capable of conceiving. With respect to the resolution before the House, when it was first laid on the table he viewed it with regret; but as the discussion had involved a different question, if the amendment, formerly moved by a gentleman from Virginia, should be renewed and obtain, he should vote for the resolution. Gentlemen asked what benefit would result from adopting the resolution? In the first place, it would be conciliatory. Many members wished to see the papers, and he was willing they should be gratified. In the second, they might explain any doubtful parts of the Treaty. If the present resolution was considered by him an encroachment upon the Executive, he certainly should be against it. On what principle was it that the Representatives were placed at such an immense distance from the Executive, that they could not approach him with decency and respect to ask for information on a subject before them? It had been observed that the papers might be seen in the office of the Secretary of the Senate. Why, then, should those members who wished to see them be compelled to go into the office of the Secretary of the Senate, and depend upon the courtesy of the Clerk for information which might as well be obtained in a more direct channel? Was it improper to have that information before the House, which might be obtained in a more indirect manner? The negotiator has publicly quoted a part of the correspondence, and, perhaps, if the whole could be seen by the House, they would be convinced of the general friendly disposition of Great Britain towards this country. Mr. F. did not conceive himself committed, as he claimed the right of changing his opinions as often as good reasons therefor presented themselves to his mind. [The observations made by Mr. FINDLEY were not distinctly heard on account of a high wind. He has, therefore, to prevent being misstated, favored us with the following extract of such of his notes as he spoke from. The incidental replies which fell from him in answer to observations made in the course of the debate, and the desultory enlargements which he went into in speaking from the principles he had digested previous to his taking the floor, are not included in the following sketch.] Mr. FINDLEY. It seems to be agreed by both parties, that the express words of the Constitution will not support either position without a liberty of construction. The difference of opinion is now confined to what construction is most agreeable to the general principles of the Constitution. That the construction which gives the fullest scope to all the powers vested in the different departments of the Government, and which, by combining their operation, is the best calculated for the preservation of the Government itself, offers fairest to be the true one, cannot reasonably be doubted. [H. of R. The Executive cannot assume or exercise any power expressly vested in the Legislature.__ If the Executive may, by an extension of the Treatymaking power, regulate commerce, make laws to raise and appropriate money, &c., or, which is the same thing, command laws to be made for carrying Treaties, which interfere with the Legislative powers, into effect; or if, as is contended, the Legislature has no moral power of discretion, no power to refuse to make laws to carry Treaties into effect, or even to form an opinion on the goodness or badness of Treaties, when they relate to powers explicitly intrusted to its deliberation:-on the same principle all Legislative discretion may be exercised by the Treaty-making power without regard to the Constitutional guards provided to prevent the abuses of those powers. For there is no Legislative power vested in Conexercised by the Treaty-making power. The Legislative powers, to regulate commerce with foreign nations, to levy taxes, appropriate money, &c., are specifically vested in Congress, and as deposited in the Legislature, are secured by numerous negative checks, declaring what things Congress shall not do, and guards regulating the manner in which it shall exercise its pow-gress but what may be either directly or indirectly ers on the proper subjects. The Treaty-making power is not vested in Congress; the negotiating part of making Treaties is partly of an Executive nature, and can be most conveniently exercised by that department, and is, therefore, vested in the PRESIDENT and Senate. The PRESIDENT shall have power to make Treaties, two-thirds of the Senate agreeing therewith. If the Treaty-making power is admitted to the extent pleaded for, and the specific powers vested in Congress are admitted in the extent in which they are unequivocally expressed, we are reduced to a dilemma, and the Constitution is necessarily admitted to have instituted two interfering Legislative authorities, acting in direct competition with each other on the same subjects, and both making supreme laws of the land; which though they may be nominally distinct, have the same effect on the citizens, with this difference only, that we may be relieved from the oppression of laws by a repeal of them, but cannot be relieved from the hardships resulting from a Treaty, without the consent of another nation. Even the power of negotiating, which includes the timing of Treaties, the appointment of Envoys, and instructing them, and approving of Treaties, so far as to present them for ratification, are powers of great importance, and may put the Government in such circumstances as to render it expedient to ratify a Treaty, which, if it had 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 aid is absolutely necessary to carry the Treaty into effect, we contend that the Legislature, in making such laws, exercise that moral power that is necessary for legislating in all other cases, and are not reduced to the situation of an executive officer, or mere treasurers of the United States. In this case, we say, that the powers are not intended to make war with each other; that the departments ought to concur in the exercise of them. This method preserves the exercise of both powers in their proper places; the other destroys the Legislative authority which is, by the Constitution, the most explicitly vested, and precisely guarded. The power of making Treaties is admitted to be so extensive as to embrace all subjects arising under the Law of Nations, for securing amity and friendship betwixt nations, and for the mutual protection of the citizens in their correspondence with each other. Authority for this purpose is not vested in Congress among the enumerated powers, but expressly given to the PRESIDENT and Senate; therefore, Treaties, to this extent, ratified under their authority, are the laws of the land, according to the Constitution. The powers specifically vested in Congress are so explicitly checked and guarded, as to form an unequivocal limitation to the Treaty-making power, when it extends to powers specifically vested in the Legislature, consisting of the Senate and House of Representatives, with the approbation of the PRESIDENT. The Legislature cannot transfer its essential powers, nor evade them; the exercise of its privileges it may dispense with, but if it may dispense with or transfer any one Legislative power. it may, on the same principle, dispense with or transfer every power with which it is vested, and for the exercise of which the Legislature only are responsible. The 18th Legislative power vested in Congress, which has been generally called the sweeping clause, has been often objected to as, in a great measure, defeating the checks on the specified powers vested in Congress, and as endangering the powers reserved to the States, and enabling Congress to enact laws of a questionable nature. To these purposes it might have been improperly applied. As a shield, however, against Executive encroachments, it has always been acknowledged as proper and necessary. It not only vests Con gress with authority to carry the foregoing seventeen powers into effect, but all other powers vested in any department or officer of the Government. The PRESIDENT and Senate, in the exercise of the Treaty-making power, are a department of the Government, and, as such, subjected to the Legislative power of Congress, of which they are a part. This clause would go far to prove the right of Congress to exercise a formal negative over Treaties of every description, before they become the law of the land; and this was what the minority of the Convention of Pennsylvania plead for as an amendment to the Constitution. I did not then believe it was secured in the Constitution, nor do I contend for it now. That the concurrence plead for is not impracticable, as has been alleged, is evident from the practice of all other limited and free Governments. It is an established principle, by writers on the Law of Nations, and is agreeable to reason, that Treaties are to be made in every nation by those who exercise the supreme sovereign authority, and this is agreeable to the practice of all nations. In despotic Governments, the Monarch who makes the Treaty exercises both the Legislative and Executive authority; therefore, Treaties made by him are, of course, the law of the land. In Britain, Holland, &c., where the sovereign power is vested in different departments, the consent of all the departments to a Treaty, which embraces the powers vested in those departments, is uniformly necessary to make those Treaties the law of the land. That there are inconveniences attending this concurrence in making Treaties, is admitted. There are inconveniences attending the operation of all the checks peculiar to a limited Government; but they have not been found detrimental in practice. Britain and Holland have arisen to as much grandeur, in proportion to their means, and have been as successful in making Treaties, as any nations under the sun; yet Treaties, at least on Legislative subjects, in Holland, must have the approbation of the different provinces, and in Britain, of the Parliament, before they are the law of the land. That the Treaty with Britain now before this House was laid before the British Parliament for its approbation, was announced by the latest accounts from that country. The construction which gives a latitude to all the powers vested by the Constitution, is most agreeable to the division of powers, essential to free Governments, and best suited to the preservation of the Government itself. A concurrence of powers where they interfere in their exercise, is a salutary guard against abuses; but if, where the interference happens, one of the powers must yield absolute and implicit obedience to the other, without limitation, as is contended, the submitting power must, in the event, be annihilated by the paramount power, or become a mere formal and inefficient agent. In opposition to the resolution, it is asserted, that this doctrine is new. To me, the opposite opinion is novel and surprising. The minority of [MARCH, 1796. the ratifying Convention of Pennsylvania has been adduced to prove, that this was not believed to be the meaning of the Constitution at that time. Only the arguments in favor of the Constitution made in that body were preserved; but, being a member of it, and in the minority, I have a good recollection of the sentiments expressed in it. The advocates of the Constitution, one of whom was a celebrated politician, and had an eminent hand in framing the Constitution itself, maintain- . ed that an effective, though indirect check on the Treaty-making power, would naturally grow out of the exercise of the Legislative authority; that this would be a complete check on the exercise of the Treaty-making power, so far as respected the authority of Congress. This was admitted by the minority, but they objected to the effects which Treaties might have on the State Governments; and that, in some cases, the Constitution itself might be infringed by it. The State Governments have since beer secured by an amendment to the Constitution. I did not, however, expect the sentiments of a minority, acting under peculiar circumstances of irritation, and consisting of but about one-fifth of the members, to be quoted as a good authority for the true sense of the Constitution on this occasion. There is a discernible difference between the mode of expression in the article by which the Treaty-making power is vested in the Executive, and in the article where it is declared to be the supreme law of the land; in the first, it is said generally, that the PRESIDENT and Senate shall make Treaties, without defining the extent of the objects to which they shall extend, nor of their obligation; this, of itself, may be reasonably construed to extend to such objects as were not previously vested in Congress. Thus, a man, in making his will, bequeaths expressly such portions of his estate as he thinks proper to his children in common; and, by a subsequent clause, bequeaths his estate, in general words, to his eldest son. By a reasonable construction, this does not entitle the eldest son to the whole estate, but to such parts of it as were not otherwise disposed of. In the article where Treaties are declared to be the supreme law of the land, they are joined with the Constitution, the laws, and the then existing Treaties, and in connexion with them, declared to be superior to the Constitutions and laws of the States; but in this clause it is not said they are so simply, as made by the PRESIDENT and Senate, but as made under the authority of the United States. The different manner of expression in the two places could not have been introduced without design; it was as easy to have said by the PRESIDENT and Senate, as under the authority of the United States, if the latter had not been intended to mean, in some cases, a more extensive concurrence of authority than the former. It is no more extraordinary to say, that the PRESIDENT and Senate make Treaties, while it is understood that, where these Treaties embrace Legislative cases, they ought, for carrying them into effect, to be submitted to the discretion of Con gress, consisting of the Senate, the House of Representatives, and the PRESIDENT, than it is to say, as in the first section of the Constitution, that the powers of making all laws shall be vested in a Congress, consisting of a Senate and House of Representatives, while a reserve is understood in favor of the approbation of the PRESIDENT, without which no act of Congress can be the law of the land, even though sanctioned with the unanimous consent of both Houses of Congress. The small States can receive no injury from the discretion of the Legislature being exercised in making laws to carry Treaties into effect; as exercised by the Legislature, there is ample security that no preference shall be given to the ports, or, by analogy, to the exports of any State, large or small; and it is evident that the Treatymaking power, not being bound by the Constitutional guards, may suppress or burden the exports of any number of States. The first instance given operates against the exports of small States; witness the restrictions on the exportation of the cotton of South Carolina and Georgia, by the Treaty as negotiated. If the papers called for contain information concerning the state of the Union, there can be no doubt but we have a right to call for them; on this the question can only be about the expediency, and not the right, of calling on the PRESIDENT for them. It is not because the Treaty was made with Britain, or is thought a bad one, that I insist on the right of Legislative discretion; I would insist on the same right, let the Treaty be good or bad, or if it had been made with any other European Power. [H. of R. be denominated extreme cases-cases of an abuse of power, such as that of palpably or manifestly betraying and sacrificing the private interests of the State. Such Treaties, he conceived, had no binding influence on the nation, and this upon natural principles. But it would not be contended, that the papers in question were necessary to enable the House to decide on these questions. He conceived they were not. If the House of Representatives have any agency in the business of making Treaties; if their sanction is necessary before the instrument acquires any binding influence on the nation; if it be not valid without such sanction, he conceived there was the same reason that all the papers which relate to the formation of the Treaty should be laid before that House, as there was that these papers should have been laid before the Senate. This had been asserted. If he believed in this doctrine, he should feel himself bound to vote for the call; but he denied that this was the case; and he said that in the course of his observations he should endeavor to prove that no such doctrine was to be found in the Constitution. As this question involved the Constitutional powers of the House, he viewed it as important; it was a delicate question. We were called upon to decide as to our own powers. For these reasons he thought that the discussion should be conducted with moderation, coolness, and candor; that such a temper was most favorable to truth. However gentlemen might differ, he observed, on other subjects, in this we are all agreed, that, in forming our judgments on all such questions, the Constitution must be our 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 House. It had been said, that this instrument was unconstitutional. If it were so, he admitted that it was not binding on the nation, and that the House were not bound to give their aid to fulfil it. There were other cases in which he should feel himself at liberty to refuse to provide the means for carrying a Treaty into effect. These might and Navigation, and embraces all those subjects, and comprehends all those objects, which can with propriety be the subject of convention or compact between nations; that is, every thing in which they have a mutual or common interest. That a compact so made which does not change the Constitution, and which does not palpably and manifestly betray or sacrifice the private in terests of the State, (which is invalid on natural principles) is binding on the nation without any sanction on the part of the House of Representatives. That such a Treaty is by the Constitution paramount to the Constitution and laws of the several States; that the Judges in the several States are bound to obey it. That it is by the reason and nature of the thing paramount to a law of the United States, and abrogates and annuls all pre-existing laws contrary to it, and, as long as it remains in force, limits and restricts the power of the Legislature of the United States to pass any laws in contravention of it. That, when such a Treaty requires money to be provided, or other Legislative acts to be performed, it is the duty of the Legislature to provide and appropriate the money in the same manner as it is their duty to provide and appropriate money for the payment of our debts. That the nation must judge whether it be constitutionally formed or not; whether the stipulations contained in it be such as in good faith they are bound to execute, and whether any circumstances have happened which would justify a non-observance of it. That on these subjects they must exercise a sound discretion. That neither the nation, nor any departments of the Government, are at liberty to reject a Treaty merely because it is a hard bargain. [MARCH, 1796. between Legislative and Executive powers. Some of these powers were of such a nature that it was easy to pronounce concerning them; but there were cases in which there was much room for doubt; there was a sort of middle ground, where in practice the power over the same subject was sometimes exercised by the one and sometimes by the other. According to the theory of most Governments, the Treaty-making power is, for obvious reasons, given to the Executive; yet he conceived that this power was, in its nature, more analogous to Legislative than to Executive power. Had the Constitution been silent as to the organ which should exercise this power there might have been plausible arguments in favor of giving it to the Legislature. But the Constitution had not been silent; it was extremely clear that the Treaty-making power, to whatever objects it may extend, is vested in the PRESIDENT, with this limitation, that the consent of two-thirds of the Senate is necessary to give validity to the act. It is also clear, that, according to our Constitution, (however the thing may be in theory) the Treaty power is not Legislative, for all the Legislative power is given to Congress, while this is given to the PRESIDENT and Senate. It seems scarce necessary to add, that these powers are exclusively given, for Congress can no more make Treaties than the PRESIDENT and two-thirds of the Senate can make laws. Do the Legislative powers vested in Congress interfere with the power of making Treaties vested in the PRESI DENT and Senate; and if they do, which shall yield to the other? The doctrine on the other side isThat the power to make Treaties is limited to such objects as are not comprehended and included in the specified powers given to Congress by the Constitution; or, that a Treaty which comprehends or embraces any such object is not valid; 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 a 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. He said he had thought it proper to present to the Committee this general view of the subject, to guard against all misconception, that the real difference of opinion entertained on this part of the Constitution might be discerned, and that his subsequent remarks might be the better understood. He should now, he said, inquire what were the objects embraced by the Treaty power; how far this power might be extended? The Constitution declares that all the Legislative power therein granted shall be vested in Congress, and that the Executive power shall be vested in the PRESIDENT. He said it was difficult, perhaps impossible, with perfect accuracy, to draw the line I annihilate the Treaty power. For what nation would treat with us, and by compact agree to give our citizens privileges, when our contracting organ had no power to promise any thing on our behalf? From the nature of the thing it must be evident, that the Treaty power must extend to objects which may, under other circumstances, be the foundation of Legislative acts. Treaties do what laws cannot do ; but in order to do this, they must extend to some things which laws can regulate, with reference to ourselves. They must, in some small degree, restrict the exercise of Legislative power. Treaties, if made by Congress, would have the same effect precisely. If they are not repealable, all succeeding Legislatures are re |