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strained in the exercise of the power of legislation, by the stipulations which may be in the Treaty It is not correct to say, that the Treaty power does not extend to the objects enumerated in the 8th section of the first article of the Constitution. It does to most, if not all of them; the hypothesis therefore is inadmissible, that the objects over which Congress have Legislative power are expected out of the Treaty power; though it is strictly true, that the PRESIDENT and Senate cannot legislate on these objects in the sense in which that term is used in our Constitution.

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ought not to declare war without such cause. A Treaty may stipulate for the payment of a sum of money; the power and right of appropriation of this money is no more destroyed or lessened than in the case of any other contract made by the Government for the payment of money. Congress may by Treaty be restricted as to some objects of taxation, but as to many they cannot ; and no money can be raised without a law for that purpose; it cannot be raised by Treaty.

Mr. S. then proceeded to inquire who, by the Constitution, are vested with the power of making Treaties; or, in other words, whose sanction or concurrence must they receive before they acquire any binding influence over the nation?

By way of objection, it is said, that the Treatymaking power is indefinite and unlimited, and therefore the specific powers given to Congress should be considered as exceptions to it, or limita- He said, he would not enter into the theory of tions to the exercise of it. The answer is, that the subject; this was a wide field. Gentlemen it is ridiculous to talk of excepting Legislative might amuse us, but it would afford very little inpower from Treaty power, for they are different instruction. We were not making a Constitution, their nature, in their means, and in their subjects. but construing one already made. No words, in Legislative power can always act on all subjects his opinion, could be clearer than those used in the proper for its exercise. But it is not strictly true Constitution, all construction seemed precluded. that the Treaty power is indefinite and unlimited. The PRESIDENT, by and with the advice and conThe word Treaty is a technical word, and as cer- sent of the Senate, shall make Treaties, and Treatain and definite in its meaning as any word in ties when made shall be the law of the land. Not a the language. syllable is said about the House of Representatives. If it had been the intention of the framers of that instrument, to give the House of Representatives any agency in this business, is it not reasonable to presume that intention would have been clearly expressed? Mr. S. then adverted to the argument of a gentleman from Pennsylvania [Mr. GALLATIN] who had discovered this power of the House to interfere in the expressions used in that clause, which declares the effect of Treaties; that Treaties made "under the authority of the United States" shall be the supreme law of the land; and endeavored to show that this did not prove the doctrine.

The Treaty power is in its nature limited. The PRESIDENT and Senate cannot, as has been already stated, alter the Constitution or change it. Many of the cases mentioned by gentlemen, of the exercise of this power, fall under this exception. There is a natural exception to this power which respects the abuses of it, and which comprehends many of the instances alluded to by gentlemen. In all those cases, though a Treaty may have the form of a compact, yet it possesses no binding influence, and the nation must from the necessity of the case judge whether the compact be really binding, for there is no common tribunal to which both parties can resort. It has been argued against this But it has been said, with some show of plausilatitude given to the Treaty power, and which is bility, that the House of Representives possess this no more than the words really import, that a pow-power, because it is of a Legislative nature. But er so broad and extensive may be abused. It may be so, and is not this equally true of all delegated authority? By the same mode of reasoning we might narrow the powers of Congress, for they may also be abused; many of these latter powers are equally indefinite and unlimited, and equally liable to abuse. Mr. S. instanced the power to raise taxes, borrow money, declare war, &c.

It has been further urged, that this construction goes to annihilate the Legislative power altogether, and to render the House of Representatives an useless body. He denied the fact to be so. On the fullest legitimate exercise of the Treaty power there would be much ground for legislation, even on those subjects where the Treaty power was most necessary and would probably be the most employed. He instanced, the making regulations respecting foreign commerce.

it has been shown that in the sense in which the Constitution uses the words, Legislative power, Treaty power is not Legislative. It is true it bears some resemblance to Legislative power; but is this a sufficient reason for introducing the House of Representatives into the exercise of it? Mr. S. said, if the House possessed the power contended for, there must be some way in which this power was to be exercised. He inquired, what that mode was?

He could conceive of but three modes. By a vote on the Treaty generally; by passing a law declaring it valid, or by means of passing appropriation laws.

It could not be by the first of these modes, for the House could only act on those subjects where power was given to Congress; for they could act only as a constituent part of that body, and in the As to many of the objects specified in the sec-way pointed out, to wit, a majority of each House tion containing an enumeration of the powers of possessing a negative on the other, and a qualified Congress, the perfect power of legislation remain-negative in the Executive. In this case the powers ed. He mentioned the case of a Treaty of Peace. This did not prevent Congress, when there was any sufficient cause, from declaring war, and they

as well as the mode would be different. The PRESIDENT proposed the act, the consent of two-thirds of the Senate was necessary. Was the House to act

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by a majority or two-thirds? If the sanction of the House is to be given by a law, this absurdity seems to be involved in it, that a law is necessary to give that the force and validity of a law, which the Constitution declares already possesses it. Beside, this law is either repealable or not. If it be said that it is repealable, then it must follow, that. as its existence was necessary to give validity to a compact, its repeal must destroy it, and thus one of the parties can repeal a bargain. If irrepealable, the consequences stated before, of its narrowing Legislative ground, exists in full force as to all future Legislatures.

Mr. S. wished to inquire of the gentlemen who advocated the doctrine, that the sanction of the House was necessary to give validity to the compact, what was the state or condition of the instrument before that sanction was given? The Constitution declares that it shall, when made, bind the Judges in the several States, and the law and usages of nations consider it as made at the time of signing, and complete at the moment of the exchange of ratifications. Is Great Britain at this moment bound by the late Treaty? Will Great Britain be excused from delivering up the posts till they hear that this sanction is given? Suppose they should deliver them up, and then the House should refuse their sanction?

Respecting appropriation laws, at present he would only say, that these laws were always founded on the idea of a pre-existent law or compact already made and valid, and barely made provision for the fulfilling them. It was ridicufous to say, that providing the means of paying a debt or fulfilling a contract, created the debt or gave any validity to the contract which it did not possess before.

He then proceeded to inquire what were the effects of a Treaty when made? From the nature of the thing it must be evident that both parties were bound by it. He contended also, that it must be good for the whole or for nothing. He adverted to what fell from a gentleman from Virginia [Mr. PAGE] that the amity part was good and the rest void. He asked how it was with that part which respected navigation? He believed the gentleman would find it difficult to separate the parts from each other. It is not pretended but that a Treaty of Peace is within the Treaty power, and not within the specified powers given to Congress; yet it is difficult to conceive of such a Treaty, which shall not contain settlement of boundary, &c., these things may be the consideration on which the peace is granted by one of the parties; shall the consideration be void, and yet the peace good? That article which one of the parties chooses to consider as void, may have been the only reason, at least among the reasons which induced the making of the other articles, which are to be considered as good. This was strange doctrine. Mr. S. also contended, that a Treaty must abrogate all pre-existent laws contrary to it, from the nature of the thing. He did not derive any argument from the words of the Constitution, that Treaties should be the supreme law of the land; but he insisted as the Constitution had given them the force

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of laws, they must have this among other effects, that of repealing former ones, every later law repealed all former ones inconsistent with it. He saw no difficulty in this. The nation by one organ make a law, by another organ they repeal it. Treaties, he insisted, had this effect before the adoption of the present Constitution. He referred to the correspondence between the Secretary of State and the British Minister in proof of this.

Mr. S. said, he would trouble the Committee with one further inquiry only, and that was as to the nature of the check or control which this House have over the Treaty-making power in passing appropriation laws or by any other means. He agreed in opinion with the gentleman from Virginia [Mr. GILES] that the Constitution was full of checks and balances, and therefore he thought we ought not to travel out of it for checks. That we could not add any not to be found in the instrument itself. In this way we might, and he was afraid would, give a check to the wheels of Government, which would make them stand still. He would not say that gentlemen intended this, but he was persuaded this was the effect their measures were calculated to produce. Over Treaties which required no Legislative act to carry them into execution, the House certainly had no control, if the Treaties were of such a nature as to be binding in good faith on the nation. The Legislature had indeed the power to violate them; they could declare war immediately after a Treaty of Peace was concluded. If a Treaty require any Legislative aid, such as money to carry it into execution, to fulfil any stipulation contained in it, the House of Representatives could refuse to give this aid, and the Treaty would be broke by the denial. He admitted there were cases where they could with propriety refuse to fulfil. The cases had been mentioned-unconstitutional Treaties, or abuses of power in any of the extreme cases, were instances of the kind to which he alluded. He would add another case, where the Treaty in the opinion of the nation is broken by the other party, or a disposition to break it is so manifest as not to be mistaken. In every such case the House must judge whether the Treaty be valid or not. The question will not be whether it is a good bargain or not, but whether it is a bargain honestly and fairly entered into. The Treaty, he believed, received all the validity or force it was susceptible of before the House of Representatives could act upon it. Our carrying it into execution added nothing to its validity; our refusing did not weaken the obligation, or destroy the compact, any more than the refusing to pay a debt we justly owe destroys the contract by which the debt has a legal existence. On the question whether the compact was of such a nature as to be binding on the nation, he had no doubt but the House had the fullest and most perfect discretion; instead of saying that we ought to act without discretion, he was of opinion that we had no right to act without it.

The power which he supposed existed in the House, existed in every other department of the Government; it is incorrect to say, that the House

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of Representatives exclusively possess it. Because a Treaty may really be a hard bargain this no more justifies the non-observance of it than an individual can be justified in refusing to fulfil a legal contract more favorable to the other party than to himself. He hoped gentlemen would not take the advice given them, to throw away their discretion. He was of opinion they would stand in need of all they had, and advised them to keep it, and exercise it on all proper subjects. A gentleman from Virginia had insisted on it that he would not part with his moral sense. If some of the opinions which that gentleman had just delivered might be considered as a specimen of his morality, he must say, he liked that gentleman's sense much better than his moral sense.

Mr. S. concluded with observing, that he had taken that view of the subject which appeared to him to be the most proper. The arguments he had used, and the construction he had given to the Constitution, however other gentlemen might view the subject, were such as were perfectly satisfactory to his own mind.

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now be exercised; and this, he said, brought into consideration their Constitutional powers with those of the other branches of the Government, and what limits had been marked to each; to what objects the Legislative powers extended, and within what bounds the power of making Treaties was restrained, and in what manner they were controlled by the Legislative power.

The House would therefore contemplate themselves as sitting and acting in a judicial capacity, to determine the extent of their powers; and as, on the one hand, he trusted that no motives of an overweening partiality to themselves would in any degree influence, to give too great a scope; so, on the other, he hoped they would possess the firmness not to surrender any of those which had been delegated to them. He said, he considered appeals to fears and panics, as made for the want of solid argument; and that all addresses to the passions implied a real fear to apply to the understanding. His passions, he said, he believed, would never be so operated upon, as to overwhelm his judgment, and that all attempts of that sort would be without the least effect. Those attempts to alarm, he thought, might very well be abandoned, as wholly irrelevant; and that then the discussion would be, as it ought, the investigation of truth. If, upon a candid and temperate inquiry, the re

Mr. WILLIAM LYMAN began with remarking, that the gentlemen opposed to the resolution had at first contended, that the House had not a Constitutional right to require papers of the Executive, relative to any subject whatever; and that if a requisition was made, it would be discretion-sult should be, that the House had a Constitutionary with the Executive, whether it should be complied with or not.

case, how they could withhold their vote.

al authority to judge of the expediency or inexpediency of carrying the Treaty into effect, it must To this he replied, that the House possessed the be obvious to every one, that they ought to have power of impeachment solely, and that this autho- the possession of the papers required in the resority certainly implied the right to inspect every lution. This must be admitted even by the genpaper and transaction in any department, other-tlemen opposed to it; and he did not see, in that wise the power of impeachment could never be exercised with any effect. But not to rely solely on this, he recollected one case, he said, perfectly in point, which was in the correspondence of the former Secretary of State [Mr. JEFFERSON] with the British Minister, communicated to the House. From dates and references, there appeared in that correspondence a chasm. The House, therefore, passed a resolution requesting the Executive to lay before them what had been omitted; and further, the resolution in that case was offered by the gentleman from South Carolina. [Mr. SMITH,] who was now so vehemently opposed to the present. The right of calling for papers was sanctioned, he said, by the uniform and undeniable practice of the House ever since the organization of the Government; they had called for papers and information whenever it was judged expedient; and he asserted, that the House had the fullest right to the possession of any papers in the Executive department; they were constituted the especial guardians of the people for that purpose; and he would undertake to say, that this was the first time it had ever been controverted.

However, he should not longer dwell upon this point, as it had been abandoned, nor would he charge the gentlemen with inconsistency in so doing; he thought they acted very judiciously in giving up a position so untenable.

As the authority of the House was therefore admitted, the only question was, whether it should

In order to ascertain the powers of the House, he would advert to the Constitution. In the first article and first section, it was declared, “that all Legislative powers therein granted, were vested in a Congress, to consist of a Senate and House of Representatives;" and in the eighth section of the same article, the powers granted were defined and specified, such as to lay and collect taxes, borrow money, regulate commerce, and to exercise other important powers enumerated in the several clauses of that important section. He said it was unnecessary to read them, as they had been so frequently referred to in the course of the debate; but he would request gentlemen to pause and reflect whether it could be supposed that this section was not to be efficacious and operative; was it possibly conceivable that a section so definite and so important had been introduced in the Constitution merely for the purpose of being nullified and rendered nugatory by a subsequent article or section? The very supposition, he said, appeared to him the height of absurdity, and an affront to common sense; and yet this would be the case, if the doctrines advanced were true, viz: that Treaties, when made and ratified by the PRESIDENT and Senate, were supereme law, and that they controlled and repealed all laws that stood in their way. Congress could neither regulate commerce, borrow money, prescribe rules of naturalization, nor legislate on any other subject, because the PRESI

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Treaty with Great Britain.

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them to such time only as he should think proper within the time fixed in the Constitution, or by law, for their annual meeting. Even the gospels of Heaven might, he said, by disconnecting and considering only detached parts, be rendered blasphemous. For example: "the fool hath said

DENT and Senate, by Treaty, would abrogate them the two Houses with respect to the time of adall. It was in vain to consult the House of Repre-journment, that the PRESIDENT could adjourn sentatives in the formation of laws, if they thus were liable to be annulled at the pleasure of the PRESIDENT and Senate. The present question, he said, was not, whether the House should make Treaties, but whether the PRESIDENT and Senate should make laws; all the power contended for on the part of the House was the power of self-in his heart there is no God." If only the latter preservation; it was a repelling power, a power part of this verse or clause should be read, the poto prevent the PRESIDENT and Senate, under the sition would be, that there is no God; whereas, color of making Treaties, from making all the when the whole verse or clause is taken together, laws. A gentleman from Connecticut [Mr. GRIS-it imputes the conception only to a fool. WOLD] had said, that the Legislative power occu- It appeared, therefore, to him, that Constitupied all ground, and was vested in Congress; and tions, laws, and all writings, ought to receive such that the Treaty-making power occupied all ground, interpretation and construction as to render them and was vested in the PRESIDENT and Senate; and consistent with themselves; and that it was highthat although Congress, who were the agents for ly presumptive a construction was erroneous when the people, should make laws, yet, that the PRESI-it produced an absurd conclusion. If the several DENT and Senate, who were also their agents, parts of the Constitution were compared and critimight, by Treaty, repeal them. This, Mr. L. cally examined, the determination must be, that, said, contradicted a sound axiom, and one he had although the PRESIDENT and Senate could make never before heard controverted, viz: that it re-Treaties, yet it could not be intended, those Treaquired the same power to repeal as to make a law. ties that entrenched on the specific Legislative Such incongruities as the gentleman had advanced, powers of Congress, unless with their concurrence Mr. L. said, could never be reduced to practice; and consent; otherwise, it followed, that, although two persons could not be possessed fully and com- the three branches were consulted in the enacting pletely of the same thing and at the same time. laws, two might repeal them. But it had been asThe gentleman could never reconcile his posi-serted that this power, insisted upon on the part tions, the one would certainly defeat the other; upon his construction, the Treaty-making power must absorb the Legislative power, or the Legislative power would absorb the Treaty-making power. This, then, induced the necessity of a different construction. In the interpretation and construction of laws or Constitutions, the following rules had always been deemed sound: First, to regard the true spirit and meaning, and not merely the letter. It was a maxim very ancient, and at the same time very common, that qui hæret in litera hæret in cortice; that is, that he who adhered only to the letter stuck in the bark, and never arrived at the pith. Another rule was, to resort to the context or other parts of a law or writing for a true interpretation, and not unfrequently even to the preamble and title, which had very justly and emphatically been termed a window to let in light upon the subject. By viewing certain parts, abstracted and detached from other parts of the same writing or instrument, it might be rendered absurd and contradictory. An example he would offer from the Constitution of the United States: In the second article and third section it was declared, that in case of disagreement of the two Houses of Congress, with respect to the time of adjournment, that the PRESIDENT might adjourn them to such time as he should think proper; but was it supposed that he could adjourn them for two, ten, or twenty years? No, it could not be pretended; for, in another part of the Constitution, it was declared, that they should meet once every year, and that such meeting should be on the first Monday of December, unless they, by law, should appoint a different day or time. Taking both these parts of the Constitution together, it resulted, that in the case of disagreement between

of the House, was a novel doctrine, introduced merely upon the spur of the present occasion; notwithstanding which, it had been proved by several gentlemen who had spoken upon the question, that this interpretation was given to the Constitution in most of the State Conventions at the time of its adoption; that the same interpretation had also been given, at that time, by the writers both for and against its adoption. It had appeared, from the extracts of publications at that period, that whatever might have been the diversity of opinion in other respects relative to the Constitution, that, in this construction, at least, both its friends and opposers perfectly agreed. This principle, then, being thus settled and understood, it remained only to show that it had been invariably admitted and recognised from the first organization of the Government until this time. The first Treaty that had been made under this Constitution, he said, was that with the Creek Indians, in the year 1789; previously to the making of which, the PRESIDENT Communicated the subject to Congress; an extract from which communication he would read, viz: "If it should be the judgment of Congress, that it would be most expedient to terminate all differences in the Southern District, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest," &c. Here, Mr. L. said, he wished it might be particularly noticed, that this subject was expressly referred to the judgment of Congress to determine on its expediency or inexpediency, and for what purpose, he would ask, was it referred? If the Senate and PRESIDENT possessed the full power of making Treaties, there could be no occasion for consulting the House of Representatives; and yet, in this

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case, the first that presented itself, it had been conceived necessary. In consequence of this communication, Congress had judged it expedient to hold the Treaty, and on the 20th of August, the same year, enacted a law in which the sum of twenty thousand dollars was appropriated for that purpose; and, in conformity thereto, the PRESIDENT appointed Commissioners and gave them instructions, which instructions had been also communicated to Congress, from which he would also read one paragraph; it was as follows: "You will observe that the whole sum that can be constitutionally expended for the proposed Treaty shall not exceed twenty thousand dollars." On this, he said, any commentary was unnecessary, as the principle that the Legislative power operated to restrain the power of making Treaties, was so fully and explicitly recognised and admitted by the PRESIDENT himself. By pushing inquiry further, it would be found that, in January, 1790, in consequence of communications from the Executive which were referred to a select committee, and a report made thereon, the House came to the following resolution, to wit: "That provision ought to be made by law for holding a Treaty with the Wabash, Miami, and other Indian tribes Northwest of the river Ohio." In March following, a law was made, the title of which was " An act entitled an act providing for holding a Treaty to establish peace with certain Indian tribes."

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the United States? 2d. What the proportion between gold and silver, if coins of both metals are to be established? 3d. What the proportion and composition of alloy in each kind? 4th. Whether the expense of coinage shall be defrayed by Government, or out of the material itself? 5th. What shall be the number, denomination, sizes, and devices of the coins? and 6th, Whether foreign coins shall be permitted to be current or not; if the former, at what rate, and for what period?" Another paragraph was in the following words: "The foregoing suggestions respecting the sizes of the several coins, are made on the supposition that the Legislature may think fit to regulate this matter; perhaps, however, it may be judged not unadvisable to leave it to Executive discretion.

And another yet, as follows:

"It may, nevertheless, be advisable, in addition to the precautions here suggested, to repose a discretionary authority in the President, to continue the currency of the Spanish dollar, at a value corresponding with the quantity of fine silver contained in it, beyond the period above mentioned for the cessation of the circulation of the foreign coins."

Mr. L. said he would make but one citation more, and that was from a Report of the first Secretary of State, [Mr. Jefferson,] of the 14th of April, 1790, on the letter of John H. Mitchell, reciting certain proposals for supplying the United States with copper coinage. In that Report the Secretary observed:

In March, 1791, the sum of twenty thousand “Coinage is particularly an attribute of sovereignty; dollars was appropriated for obtaining a recog- to transfer its exercise into another country is to subnition of the Treaty with the Emperor of Moroc-mit it to another sovereign. In fine, the carrying on a In March, 1793, one hundred thousand dol- coinage in another country, as far as the Secretary lars were appropriated to defray the expense of a knows, is without example, and general example is Treaty with the Indian tribes Northwest of the weighty authority.” river Ohio.

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From both these Reports, it was evident, he Thus it was apparent that laws had always been said, that as the regulation of the coins was among deemed necessary to provide for holding Treaties the specified powers of Congress, it was the opinand for defraying the expenses thereof. How-ion of the two Secretaries that they could not be ever, still to continue the investigation: in the Messages of the PRESIDENT, on the 6th December, 1794, the following paragraphs would be found,

to wit:

"I lay before you a Report of the Secretary of State on the measures taken for obtaining a recognition of the Treaty with the Emperor of Morocco."

"Also, I must add, that the Spanish Representatives now perceiving that their last communications had made considerable impression, endeavored to abate this by some subsequent professions, which being among the communications to the Legislature, they will be able to

form their own conclusions."

But this, he said, was not all that might be adduced, from even the Journals upon the Clerk's table, to illustrate the question. In the Report of the late Secretary of the Treasury, Mr. Hamilton, (made to the House on the 6th January, 1791, in conformity to their order of the 15th day of January, 1790,) of a plan for the establishment of a Mint, he would beg leave to notice, for the consideration of the Committee, a few clauses, as follows:

"In order to a right judgment of what ought to be done, the following particulars require to be discussed: 1st. What ought to be the nature of the money-unit of

regulated otherwise than by an act of Congress; but from the Treaty-making doctrines now advocated, the PRESIDENT and Senate might authorize the currency of foreign coins, or even a coinage in a foreign country. For example, could they not, in the Treaty with Spain, have agreed, that the Spanish dollar should be current in the United States? Certainly they could, if their Treaty doctrines were well founded; if the interpretation of the Constitution now insisted on in the House had depended solely on theory, and unsupported by the multiplicity of precedents on their own Journals. The charge of innovation that had been so constantly sounded by the opposers of the resolution might have created, perhaps, some real apprehensions. But now he thought the world must be convinced, that the principles by which the resolution was defended, were clothed with both Legislative and Executive sanction; that so far from being tenets but of yesterday, they had been generated by the Constitution, and matured and ripened under its operations. To whom, then, did the charges of innovation and usurpation attach? Surely to those who, in the exercise of the Treaty-making power, were endeavoring and aiming at the Legislative power. Those were

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