vidual capacity) conjointly. In this, it differs from every Government we know," &c.

[H. of R.

had defined the powers of the King of Great Britain to be unlimited in the making of Treaties. He observed, that, let Blackstone or any other Crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to Parliament the consideration of Treaties, and that usage was a part of their Constitution; and he rejoiced, that in that particular the Constitution of his country was different. Gentlemen had said, Shall this House not have as much power respecting Treaties as the House of Commons in Great Britain? This question was both improper in itself, and calculated to mislead. Were we in Convention, and forming a Constitution, it might have weight; but in a cool discussion of a Constitution already formed and adopted, and the question is, What powers are given? it could not be proper. And it ought to be remembered that Parliament, and not the Commons alone, had this right in Great Britain. In defining the relative powers given by the Constitution, there was danon the other branches, under pretence of favoring the liberties of the people. This pretence, however grateful it might sound in debate, he thought was but a pretence. It was the duty of the House to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. He said, he considered the responsibility which was so very necessary on those in the exercise of the Treaty-making power could not exist if it was extended to the House of Representatives.

He acknowledged, that, from such debates, the real state of men's minds or opinions may not always be collected with accuracy; but he was induced to quote the above in this part of his argument to show that whatever might have been thought by the members of that Convention to be checks on the operation of Treaties, by virtue of the power of withholding appropriations, yet no one took such extensive ground as is now contended for by some of the supporters of the resolution under consideration. The principal objection to the Treaty-making power in that Convention seemed to be grounded on a fear that Territory might be ceded by the PRESIDENT and Senate without the consent of the whole Legislature. Consonant to this idea is the amendment agreed to by the Convention: For in that they connect the House of Representatives with the PRESIDENT and Senate, in forming all Treaties which are to cede Territory. But in another sentence of the same amend-ger of the popular branch making encroachments ment, when they mention Commercial Treaties, they only wish to add, that two-thirds of all the Senate shall consent, and not two-thirds only of those present. It had been said, that the Constitution was similar to that of Great Britain in the part respecting Treaties. This, he contended, was an incorrect statement: in his opinion they were very different. The Constitution of Great Britain was formed almost entirely of usages. It had been, for a great length of time, the usage for the King to lay before Parliament, for their approbation, Treaties-especially those of a commercial nature. If this was a usage, all that could be said of it was, that it was a part of their Constitution. He supposed this right had been given by the Crown, at some time, to obtain a grant of money; but he could not recollect that the Parliament, with all their pretensions to a right of rejecting Treaties, had ever exercised it. They generally made a pretext of dislike to a Treaty to change the Administration. This had been often done: it was on the Treaty of Peace of 1783. The Treaty of Utrecht, which was concluded in 1713, had been cited as an instance of rejection by the British Parliament. It was a fact, in that instance, that nothing was rejected but a conditional Treaty. In forming the Treaty, there were many distinct parts: one part of it was a Commercial Treaty between England and France, separately signed, and conditional-that is, "within the space of two months after a law shall pass in Great Britain, whereby it shall be sufficiently provided, &c., the general tariff made in France, &c., shall take place there again, &c." The law did not pass in Great Britain, and of course the Commercial Treaty failed. Mr. T. said he had searched all the Treaties made by Great Britain since the Treaty of Munster, which, if his memory was accurate, was concluded in 1648. and could not find an instance of the Parliament's refusing their assent to a Treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their Government. It had been said, Blackstone in his Commentaries 4th CoN.-21

The remarks of the gentleman from Virginia, [Mr. GILES,] that he, and those who advocated the same opinions, by constant association and thinking on one side only, had become, like pulpit reasoners, inattentive to the weight and force of what might be said in opposition, might be just in application to himself; for he acknowledged he had been accustomed to hear but one opinion on this subject; and from the first appearance of the Constitution to this time, it had been a uniform opinion with him, and those with whom he generally associated; and he confessed he could not retort the observation on the gentleman, for the opinion advanced by him was a new one, and probably the gentleman had not been in habits of hearing it often declared or advocated. He thought it singular that, in a discussion of this nature, there should be a resort to the British Constitution, and still more so, that a very exceptionable part of it should be claimed. Could any man seriously wish that Treaties, generally made in some critical period of national affairs, after being settled with a view to existing circumstances, should in a length of time afterwards be subject to the consideration of any other branch of the Government who could not know many of the motives for particular cast it may have? Those who thought with him on this subject, he said, had been accused of a design to give up the exercise of rights properly vested in them by the Constitution to the PRESIDENT and Senate, and this was called sacrificing the rights of the people. He

thought it not the first time he had heard a struggle for power, dignified by the name of a virtuous attempt to protect the liberties of mankind. Could it be supposed that he or any other man could wish to resign rights given by the Constitution? Power, it was said, was intoxicating; but it must be a singular operation of the human mind, under the fascinating influence of power, to seek every opportunity to give it up, and become a slave. He wished gentlemen to apply their own maxim of the intoxication of power to the present struggle, and discern on which side its influence will most probably carry them. He asked why a parallel was drawn between this. House and the British House of Commons?

In that country, the immediate representatives of the people had been for a long time obtaining privileges from an hereditary Executive and nobles, which by them had been usurped. In this country, the Executive and Senate were the representatives of the people, possessing powers exactly marked out and defined by a written Constitution; and the attempt to give an alarm against the despotism of the PRESIDENT and Senate, by comparing them with King and Lords, could not, on any principle, be proper, delicate, or justifiable. He had often heard before he came into the Government and since, that we had a Constitution, giving portions of power, exactly defined, and that if we thought it might even become beneficial to the people, to take a constructive latitude, in the exercise of power, yet to step off of the written and defined limits given us would be improper in the extreme: this doctrine, although used on occasions, which in his opinion were inapplicable, was weighty and important. He asked gentlemen to reflect in what way this power, now contended for, was to be obtained? Was it found in the Constitution, or by a construction, which, if not directly in violation of terms, was nearly so?

[MARCH, 1796.

or contract complete, when made by the PRESIDENT and Senate; and if money was necessary to carry it into effect, it did not invalidate the contract to refuse an appropriation; it was only saying the nation had made a contract, and then refused to fulfil. He requested a few minutes indulgence on the subject of appropriation, which was the second and last view he had proposed to take of the subject.

Gentlemen had exclaimed, with some warmth, "Are we to be machines perfectly at command of the PRESIDENT and Senate; and are appropriations to be made without exercising any discretion ?"

He considered this House, in all Legislative acts, to possess a full and unlimited discretion, with some few exceptions, which he would point out. A bill comes under the consideration of this House to establish trading-houses with the Indian tribes. Full and perfect discretion to accept or refuse is certainly vested in this House. Suppose they, in concurrence with the other branches, pass the bill, and employ an agent, with a promise contained in the same bill to pay him one thousand dollars for certain services, and this agent renders the services and produces his account, it is well known he cannot be paid without an appropriation by law. Can any man say, that, in considering the bill of appropriation, a complete discretion is left to pass or not? Would it be called a correct idea to assert that a man was possessed of full and complete discretion to embrace truth or falsehood, after both were distinctly held up to his view? Would not the truth force his acceptance? Suppose there was a clause in the Constitution subjecting the United States to a suit, and suppose a suit instituted and judgment rendered against them, would this House say, before we appropriate moneys to pay this judgment, we will look into the merits of the case, and if the deHe said, that a writer, under the signature of cision is not, in our opinion, grounded on proper Publius, in a series of papers called the Federalist, testimony, we will refuse an appropriation? Or had been quoted as favoring this doctrine of asso- would they say, the sum of the judgment has now ciating the House of Representatives in the for- become an obligation on us, declared to be such mation of Treaties. He said it was an unfound-by the constituted authority, and we are bound in ed assertion: what that author had said upon the subject was contained in two chapters; the first begins with page 201, and the other in page 272, both of the 2d vol. He requested gentlemen to read those two chapters, and he was much mistaken if all would not acknowledge that the opinions of the Federalist were not to associate the House of Representatives with the PRESIDENT in the making of Treaties. What was said in page 133 of the same volume he would notice in the other branch of the argument.

But gentlemen had said, if this extensive right must be abandoned, yet a Constitutional check remains with the House of Representatives, to defeat all Treaties, which may require appropriations of money to carry them into effect. If this was called a right of co-operation in making Treaties, he did not understand it; to say, a payment of a debt was part of a contract, and a refusal to pay made void the contract was to him perfectly unintelligible. He considered a Treaty a bargain

good conscience and by the rules of morality to appropriate? The salaries to the PRESIDENT and Judges had been acknowledged to be situated by the Constitution itself in such a manner that we are bound to appropriate. He considered all Constitutional obligations, and those arising from laws and Treaties constitutionally made, on the same footing. He said there was now a Treaty concluded with the Dey of Algiers contracting to pay him an annuity of 12,000 sequins. Suppose, ten years hence, the House of Representatives should not think proper to appropriate this sum, war would be the consequence, and in this exercise of discretion, as it was called, one branch of the Government would have it completely in its power to declare war. The difficulty would not rest here; for by taking this ground the Senate will have the same power of refusing appropriations, and they exclusively make war; whereas the Constitution has given that power to Congress, with a view that each House should be a check

on the other. If the House should believe at any time it was better to go to war with the Algerines than pay the annuity, their duty would be to institute a bill of the kind; if the Senate agree, a Treaty can undoubtedly thus be annulled; but if the Senate negative the bill, the duty of this House would become very strong, if not irresistible, to appropriate.

[H. of R.

cy] through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that Treaties were the supreme law-a doctrine that was admitted by all, that is, when under the authority of the United States. He also had taken much pains to convince that a contract being by authority of Congress for 1,000 dollars, money ought and would be appropriated to pay the contractor. Does any one deny this to be sound doctrine? Yet he thought he had seen conduct which might be construed against it.

He said the resolution requested certain papers to be laid before the House. What had been the custom of the House heretofore? Invariably to ask for all and every paper that might lead to information. He well recollected that, in 1793, a great ferment had arisen in the public mind in consequence of the Proclamation of Neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of Congress a great with respect to foreign nations were submitted, some of them of a most confidential nature, relating to Treaties then depending, particularly that with Spain. The PRESIDENT was not afraid to place his confidence in that House, and he was right; the public mind was restored to quiet, and the people of Kentucky (then restless) were satisfied that the Executive were doing every thing in their power to obtain the free navigation of the Mississippi. The PRESIDENT went farther; he sent a special agent to Kentucky to communicate to that Government the line of conduct then pursuing for their welfare. Had the public mind been less disturbed on the late Treaty than in 1793? He thought not; and that every paper which would tend to satisfy that the Treaty was expedient, or to give information on a subject that must be discussed before that House, might with propriety be asked for.

Mr. T. said he would not detain the Committee any longer than to hint at what was said of a sentence in page 133 of the Federalist, which is "And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet, from the necessary connexion between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular Legislative sanction and co-operation." He conceived that laws might become necessary in the various exigencies of a Government in consequence of Treaties being made that might be called sanc-number of useful papers relative to our situation tioning them, and yet not so immediately connected with them as to preclude a full or nearly a full and complete discretion whether to pass them or not; but he could not agree that in the act of appropriation which might be the only desideratum in a Treaty, that a full and complete discretion to appropriate, or not, was left to any one or all branches of the Government. He acknowledged if a Treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a Treaty was so terrible in itself, and manifest consequences ruinous to the nation no argument could be drawn from such a statement to establish general rules. The moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? But could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? He thought not. He supposed the first extensive and unlimited right of interfering in the making of a Commercial Treaty could alone justify the call, and he believed that ground must be given up. He said his colleagues [Messrs. SMITH and GRISWOLD] had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this House had no will of their own, but must in all cases implicitly obey the PRESIDENT and Senate. The construction he had given to the Constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the House was guided in the investigation by the purest motives.

Mr. S. SMITH said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. He would not pursue he sophistry of the gentleman last up [Mr. TRA

A gentleman from Vermont [Mr. Buck] repeated by another from South Carolina Mr. SMITH] said, to vote for this resolution would be treason against the laws and Constitution. Why this harsh language? Did it lead to a discovery of truth? Where did these gentlemen find that definition of treason? Not in the Constitution, for there it was properly defined.

A gentleman from South Carolina [Mr. SMITH] had said, that none of the various town meetings, relative to the Treaty, had asked for papers; the various Legislatures who had judged of the Treaty, had they requested papers? Did the gentleman mean this as good reason why that House should not ask for them? If he did, it was certainly argument not worthy of refutation. Another gentleman from South Carolina [Mr. HARPER] had said, the House might institute an inquiry into the conduct of the Envoy; and he challenged the opposers of the Treaty on that ground, it may investigate the Treaty itself. Mr. S. would ask, whether the papers were not necessary to such inquiry and to such investigation? The same gentleman said, that if these papers were necessary, he would demand them as a right, not

Treaty with Great Britain.

ask for them in the milk-and-water style pro- Union. But say gentlemen, it is unfair to reason posed. Here the gentleman felt bold. But this has not been the custom. It had been usual, and | he hoped always would be, to approach the Chief Magistrate of the Union with proper respect and decorum. To ask for the papers (he added) was unconstitutional, because unnecessary; he might as well have endeavored to convince by saying, it is so, because it is so. A gentleman from Connecticut [Mr. GRISWOLD] had opposed the pass-jected to no higher duty than goods imported in ing of the resolution in a masterly manner. He had never, at any time, listened to any man in that House with greater pleasure than to him; but, upon re-examining what he heard, he found the merits of the orator lay in the ingenuity, not in the strength of his reasoning.