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law for holding a Treaty to establish peace between the United States and the Wabash, Miami, and other nations of Indians, Northwest of the river Ohio; also, for regulating trade and intercourse with the Indian tribes, and the mode of extinguishing their claims to lands within the limits of the United States." On the 29th March, following, a bill passed the House of Representatives, the title of which was amended in the Senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution.

[H. OF R.

The second instance of the exercise of this dreaded discretion, was in the law of March 3d, 1791, appropriating twenty thousand dollars to enable the PRESIDENT to effect a negotiation of the Treaty with Morocco. This originated in the Senate, and is a decided proof that neither the PRESIDENT nor Senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new Emperor for the payment of the necessary sum, which must have been provided by the House.

In a third case, the PRESIDENT had thought proper to take the sense of that House in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. He adverted to the Message of 30th December, 1790, where the PRESIDENT says: "I lay before you a Report of the Secretary of State, on the subject of the citizens of the United States in captivity at Algiers, that you may provide in their behalf what to you shall seem expedient."

No act having been passed by Congress in consequence of this Message, the PRESIDENT did not conceive himself authorized to bind the United States by Treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent Message and previous

Mr. L. said this case was important, as it was the first communication relative to a Treaty made under the Constitution. An attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. He would first observe, that the discretion of the House of Representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the Indian tribes; that if one could be done without their concurrence, by Treaty, the other might also; and that, therefore, when the PRESIDENT recognised their right to deliberate in one case, he virtually did it in the other. Let us then attend to the language of the Message, said Mr. L., and we shall find that right of deliberation most expressly referred to. "If it should be the judgment of Congress that it would be most expedient"-what can be more explicit than this lan-appropriation, in the year 1793, when another guage? And again, "I think proper to suggest the consideration of the expediency of instituting a temporary commission." Here the same discretion is not only applied to, but the PRESIDENT, at that time supposing that no implicated power could deprive Congress of the right to regulate trade and intercourse with the Indian tribes, submitted to their consideration the expediency of appointing Commissioners. They passed the necessary laws, and he instructed the Commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that Congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Why, (if the doctrine is true that we are under an obligation to comply with the terms of every Treaty The next transaction that he should quote, Mr. made by the PRESIDENT and Senate) why did he L. said, as favorable to his doctrine, was the Messay no further sum could constitutionally be ex-sage of the PRESIDENT of the 5th December, 1793, pended? If that doctrine were indeed true, his language would have been, Use what money may be necessary, contract for the payment of it in your Treaty, and Congress are constitutionally obliged to carry your stipulations into effect.

The resolution above quoted, Mr. L. said, was important, as it proved that Congress then supposed that they ought not only to provide by law for holding a Treaty with the Indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the United States; but all this, said he, it is now discovered may be done without their aid, by Treaty.

Message was sent relative to the negotiations with Morocco and Algiers, then pending: "While it is proper [he says] that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their Legislature and Executive, it would still be improper that some part of this communication should be made known." Part of this Message, therefore, was confidentially communicated, which shows, Mr. L. said, on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet; and in consequence of this Message. a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the Algerines. It was ostensibly appropriated to a more general purpose, but the intent was well understood.

and the measure to which it gave rise. The PRESIDENT says: "As the present situation of the several nations of Europe, and especially those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may, indeed, give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondence which has taken place.

This Message, Mr. L. said, accompanied the papers relative to France, to Great Britain, and to Spain; and a question would immediately occur, what were the deliberations to which the PRESIDENT then thought the Legislature alone

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was competent, and which he therefore thought it his duty to communicate. All our disputes with the nations referred to in the Message, were such as on the new construction of the Treaty power he could have adjusted by compact, without any reference to the House of Representatives; but it is plain, by the express words of the Message, that he did not believe that construction. It was no answer, Mr. L. said, to the argument drawn from this transaction, to say, that the PRESIDENT only submitted the question of War or Peace to the Legislature by this Message:

1. Because the Message related to the three principal nations in Europe, and he never could have imagined that Congress would have deliberated on going to war with them all.

2. This was evidently not his intention, because as soon as measures were proposed in that House, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an Envoy, and the commencement of negotiation.

[MARCH, 1796.

House to interfere. The Legislatures spoke the same language; some had approved of the conduct of those who made the Treaty ; but all he believed were silent as to the power of this House. As to the town-meetings, he did not expect to hear them quoted as authority by the gentleman who had introduced them. His fellow-citizens of New York, Mr. L. said, would be surprised when they heard the name of the gentleman who had ushered them on the floor of that House; since they were there, however, said Mr. L., let us hear the language of their Address to the PRESIDENT. They need not be ashamed of it, and he would answer for its contradicting the position of the gentleman who quoted it. [He then read several extracts from the New York resolves to show that they thought the rights of the House were infringed by the Treaty.]

Thus, said Mr. L., to whatever source of argument we refer, we find the Constitutional power of this House fully established, whether we recur to the words of the Constitution, where the power is expressly given, and is to be lost only by implication; whether we have recourse to the opinions of the majorities who adopted the Constitution; to the uniform practice of the Government under

It was clear, then, that the PRESIDENT thought the matters communicated by his Message, which related to commerce and boundary, were constitutionally vested in the discretion of Congress. The idea was corroborated by the words of ait; to the opinions of our constituents, as expressed Message relative to the negotiation with Spain: "And, therefore, by and with the advice and consent of the Senate, I appointed Commissioners Plenipotentiary for negotiating and concluding a Treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated."

Why, said Mr. L., communicate the instructions to the Ministers? Because they related to commerce, to navigation, to boundary, on all which subjects the PRESIDENT must have thought the Legislature had a right of decision. He must have thought so at that period; but, unfortunately, all precedent of free communication ended here: Mr. Jay's negotiation began, and a different construction was assumed.

in their petitions; or, to the analogous proceedings in a Government constructed, in this particular, like our own. Yet, after all this, we are told, said he, that if we question the supremacy of the Treaty-making power, we commit treason against the constituted authorities, and were in rebellion against Government. These were serious charges, and made in improper language. He had not been so long in public life as the gentlemen who made them; but he would boldly pronounce it unparliamentary and improper. Besides, said Mr. L., this language is wrong in another view; it may fri ̧hten men of weak nerves from a worthy pursuit; for my own part, said he, when I heard the member from Vermont compare the authority of the PRESIDENT and Senate to the From this view of the acts of Government, Mr. majesty of Heaven, and the Proclamation to the L. said, he trusted that a far different impression voice of thunder; when he appealed to his serwould be made, than that the doctrine he con- vices for his country, and showed the wounds retended for was a new one, originating in opposi-ceived in her defence; when he completed his tion to the English Treaty, and a desire to disorganize the Government. That, on the contrary, it had been declared by the PRESIDENT, acquiesced in by the Senate, and acted upon by the House of Representatives.

3. One other test of construction remained for examination. It had been relied on by a member from South Carolina [Mr. SMITH] he would therefore notice it; it was the present opinion of the citizens of the United States, as expressed by their town-meetings, and by their Legislatures. Mr. L. said, he did not suppose that the sense of the people on this subject could be perfectly collected, it could only be known by their applications to this House; and in those, he said, an appeal was made to that very discretion which it was contended did not exist. The petitions in favor of Treaty, and those which were presented against it, both acknowledged the right of the

pathetic address by a charge of treason and rebel-
lion, I was, for a moment, astonished at my own
temerity; his eloquence so overpowered me, that,

"Methought the clouds did speak and tell me of it,
The winds did sing it to me, and the thunder,
That deep and dreadful organ pipe, pronounced
The charge of treason."

I was, however, relieved from this trepidation (continued Mr. L.) by a moment's reflection, which convinced me that all the dreadful consequence arose from the gentleman's taking that for granted, which remained to be proved. He had only assumed that the measure was unconstitutional, and then the rest followed of course. From my soul, said Mr. L., I honor the veteran who has fought to establish the liberties of his country; I look with reverence on his wounds; I feel humbled in his presence, and regret that a tender age did not permit me to share his glorious deeds. I

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can forgive every thing that such a man can say, when he imagines the liberty for which he has fought is about to be destroyed; but I cannot extend my charity to men who, without the same merits, coolly re-echo the charge. Another observation had escaped from the same member in the heat of debate, which another from South Carolina [Mr. SMITH] to whom he before alluded had repeated with high encomiums. It was this, that encroachment was more to be apprehended from the popular, than from any other branch of Government. This doctrine Mr. L. considered as highly pernicious to liberty; and as unfounded in fact, as it was improper. Where, he asked, will gentlemen find facts to justify their opinions?

If it were true, there would now be none but popular Governments in existence; they would have encroached on the Kingly power, until all power was centered in them alone. The sad reverse, however, was the fact. All Europe had once been free; all Europe, with the exception of France and Switzerland, were now in chains. Where, then, would historical facts be found to justify the charge? In the obsequious Parliament of Britain? In the houseless assembly of Naples? Or, the degraded Cortes of Spain? In the hundred years' sleep that had involved the States of Portugal? Would gentlemen look for them in the tyranny of Russia and Germany? In the military despotism of Prussia, or the ecclesiastical one of Rome? Why, then, if unsupported either by theory or fact, are the people told, be on your guard against the popular part of your Constitution; shut your eyes to the conduct of the Executive and Senate, they can never encroach, but beware of the ambition of your Representatives!

He would notice one other objection that had been raised, and then conclude: It was said, if the PRESIDENT Supposed these papers necessary, he would have sent them; and that we might offend him by this request. Mr. L. said, this was not the first time that measures were endeavored to be carried, by appealing to the character of the PRESIDENT. He sincerely admired and respected the character of that great man; he was jealous of his reputation, and, as an American. was interested in his glory; no consideration should ever tempt him to destroy one leaf of his well-earned laurels ; but, while he had the honor of a seat in that House, he would resist every attempt to cover improper measures by the splendor of any man's reputa

tion.

He had before remarked the singular tendency of argument in this question towards the mystery of theology; it was not only predestination and free agency, we are now told that we must have full faith in the PRESIDENT, and that he and the Senate can do no wrong. What, sir. said Mr. L., has faith, banished by modern infidelity from religion, taken refuge in politics? Has this doctrine of human infallibility been transferred from the ritual into our Constitution?

Mr. L. concluded, begging the pardon of the Committee for the unavoidable length of his investigation; he felt how utterly incompetent he

[H. OF R.

had been to the task, but he was consoled by reflecting on the eloquence and ability by which the motion had been supported by others.

MARCH 21.-In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. WILLIAMS observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended.

It was contended that in a Republican Government there ought to be no secrets; but he would ask whether it was not specified in the Constitution that secrecy should be observed on particular occasions? and, had not his colleague [Mr. LIVINGSTON] quoted the secret Journals of the House? He believed if the Constitution of France were examined, it would be found that their system admitted of secrets. He had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. With respect to the present papers, he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that House might have seen them. It was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young Government, they ought to be cautious how they established bad precedents. It was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? Hence this country, when in the greatest danger, may be much injured by improper precedents.

He quoted authorities to prove that there never was but one precedent in Great Britain of a negotiator's papers being given up, that was in the last year of the reign of Queen Anne, when the Ministry were soon afterwards obliged to fly their country. He was sorry that a gentleman returned by the Republican interest of one of the first cities of the Union should have had recourse to a desperate Tory faction for a precedent.

Some gentlemen had observed that the papers ought to be obtained, because the PRESIDENT had intimated, in his Speech, that he would lay the papers before the House with the Treaty; but they were mistaken in their observations, because the papers had not been laid before us.

A gentleman from Pennsylvania said, because the King of England laid the papers relative to a negotiation before Parliament along with the Treaty to which they related, they had also a right to papers, the Governments being similar; but when the King did this, he informed them that he had concluded such a Treaty; and after a thing was concluded, he did not know what could remain for Parliament to do. He would refer to a recent authority, and not go back to 1714; it was to the case of the Treaty with Great Britain respecting American loyalists, when papers were refused to be given up, and it was deemed a most inconsistent thing to require them. This busines

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caused great debates in Parliament, and the motion for papers was lost, there being only sixtythree for it, and one hundred and four against it. Mr. W. read the observations of different members of Parliament on the occasion, and observed, that although he was unwilling to quote precedents from a Government not similar to ours, yet this was a case in point, and this Treaty was negotiated between Mr. JAY, on the part of the United States, and Mr. OSWALD on the part of Great Britain.

The resolution before them called for all papers, whether public or private, except such as related to any existing negotiation; but as the Treaty was completed the resolution included all papers. He should have had less objection to the motion, if the amendment proposed by the gentleman from Virginia had been adopted. He did not see the use the papers would be of if they were got. The House was not vested with either the power to alter or amend the Treaty. But, say gentlemen, they are wanted for information. But he believed they ought to form their judgments of the Treaty from the instrument itself. Suppose I were to employ an agent, and give him instructions to make a contract for me, on condition that it should not be binding until I had approved it; and my agent return and I approve of the contract, what light can be thrown upon it by the instructions which were given to the agent? The instrument alone was what must be had recourse to; because he had it in his power to have withheld his sanction.

If his information was right, when certain resolutions were brought forward in the year 1793, a gentleman from Virginia said that Great Britain would refuse to negotiate with this country; but immediately upon the Treaty being made known, it was everything that was bad.

He would endeavor to answer some observations which had fallen from a gentleman from Virginia [Mr. GILES.] It was asked if the Treaty power could receive any check? He conceived the will of the people ought to be obeyed. They had given power to the PRESIDENT and Senate to make Treaties, which if not complied with, would be to oppose their will. In speaking of the amendments proposed to the Constitution by the Legislature of Virginia, it was said they were only intended to make the check more certain than at present; but he read the resolution, viz: "That no Treaty containing any stipulations upon the subject of the powers vested in Congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority in the House of Representatives: That the PRESIDENT, before he shall ratify any Treaty, shall submit the same to the House of Representatives;" and insisted that it might be clearly deduced from them, that they did not conceive the Treaty power to have any check in that House. That State had kept uniformly the same ground in all their actions; but the different State Legislatures, to which their amendments had been proposed, had determined the Treaty power rightly placed

[MARCH, 1796.

where it is at present. But because the people will not agree that they should have a check upon the Treaty power, gentlemen seem disposed to usurp it by their present doctrines,

The same gentleman [Mr. GILES] observed, that the checks in the Government of the United States had been completely routed for these six years. He was exceedingly sorry that the PRESIDENT could bind that House, but he said that was a sword that cut two ways. It was too late in the day to assert this doctrine, when the people were become so enlightened as to be better acquainted with the nature of Government, and better educated than the people of any other nation in the world. They would, therefore, take care of themselves.

He said that a gentleman from South Carolina had observed that the Treaty was put into operation by the Proclamation of the PRESIDENT, and made a part of the laws of the land. An honorable gentleman from Virginia [Mr. GILES] granted that, when completed, the Treaty ought to be annexed to the laws. Mr. W. asked, was this not done? It had been promulgated in the way in which Treaties are directed to be promulgated; and he would ask, if a case were to come before the Judges upon it, whether they would not be bound to consider it as the law of the land? If the member from Virginia [Mr. GILES] had been opposed to the Treaty going into operation, why did he not take the proper mode to prevent it? He knew of the resolution which directed how Treaties are to be promulgated and annexed to our code of laws, he knew the Treaty had arrived, and he might have had the subject discussed. If a majority were for preventing the Treaty from being promulgated in the ordinary way, then the resolution might have been done away, and some other mode adopted which was thought most prudent.

The same gentleman next contended that law can annul Treaties. But he believed that the Constitution decided that there was no other way of repealing Treaties but by mutual agreement of the parties, or by war. To break one article of a Treaty was to break the whole, and war, or a new Treaty, must be the consequence. The reason he gave why laws could repeal Treaties was, because laws were the will of the people. Treaties, Mr. W. said, were as much the will of the people as laws. The people had fixed barriers to the different branches of the Constitution, which could not be overleaped without endangering the whole fabric.

In speaking of power, gentlemen say it is more likely to be abused in the Executive than in that House. But, in the year 1789, when amendments were first proposed to the States, a gentleman from Virginia [Mr. MADISON] asserted "that it was less necessary to guard against abuse in the Execuive department than any other, because it was not the stronger branch of the system, but the weaker; it therefore must be levelled against the Legislative, for it is the most powerful, and the most likely to be abused, because it is under the least control ;" and Mr. W. quoted several

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laws which had originated in that House, by which very large sums of money had been expended to little purpose, which he would explain when they were in a Committee of the Whole on the report from the Committee of Ways and Means.

[H. OF R.

said before, were open for ten weeks, during which time gentlemen might have had access to them. But that gentleman said, they had denied him of late, and so they had been to him; but he understood they were at the Secretary of State's office, and might be seen there. He mentioned a case of a Treaty with a foreign country, in which their Minister might have received presents; but declared, that he did not believe there was any corruption in the negotiation of the Treaty in question. It appeared to him, therefore, inconsistent still to talk of impeachment.

Suppose, for instance, his colleague was Attorney General of the State of New York, and a man were to charge another with being guilty of burglary, whose character, reputation, and standing in life were irreproachable, would he subpona him to meet the charge? No, he would not. And still the case is exactly similar to the present.

But gentlemen say, "Have we not as much power as the House of Commons in Great Britain ?" He answered, their powers were limited; the Constitution was their guide. He thought gentlemen proceeded as if they were about to form a Constitution rather than discuss a Constitutional question. Some gentlemen had said, Treaties of Amity ought to be vested in the PRESIDENT and Senate; others, that Treaties for a cessation of arms ought to be vested in the Executive; thus they wander, well knowing the ground they had taken was not tenable. It brought to his mind an observation made by an Indian chief, in a Treaty at Albany, since the If, said Mr. W., his colleague or any member of late war, who, after thanking the Great Spirit for the House wanted the papers, they had only to directing them back in the good old path, which rise in their place and declare there were grounds made them happy, lamented, that ever since they of suspicion for an impeachment; would any had wandered from that path, they had been mis-member refuse the call? But he presumed no erable. So it would be with them if they left the Constitution; they would wander from the right path, and involve themselves in difficulties. Appropriations for the army and navy in Great Britain must be made annually, without which they must be discharged. By our Constitution, we may appropriate for two years for the Army, and no mention as to what time for the Navy; so that we can make appropriations for a longer time for our Army and Navy than in Great Britain.

The gentleman [Mr. GILES] further observed, that the opinions entertained in that House three years ago, were not to influence them now; it was necessary, however, in Mr. W.'s opinion, that whenever nations changed their customs, some notice ought to be given of the change, that it might be known by nations with whom they may have any transactions. To prove this, he quoted Marten's Law of Nations. The Treaty had been laid before them, that they might appropriate money for carrying it into effect. On the first of June, the British were to give up the Western posts; if money was not appropriated, would they not be deceived?

Before he proceeded to remark on what had fallen from his colleague [Mr. LIVINGSTON] he would mention, that they had, for some years, in general concurred in their political opinions, and during the present session they had varied very little; in the question before the House, howeyer, they should differ very considerably. Soon after the Constitution was framed, a Convention was held in the State of New York, in which he had the honor to be a member. He was fully of opinion at that time, as he was now, that the Treaty power was a dangerous power, and, in consequence, gave his dissent to it.

He would proceed to remark on what had fallen from his colleague. He had said, how could they determine whether the Treaty was Constitutional or not, or whether an impeachment was necessary without information? The papers, as he had

such thing was thought of. Why, then, expend so much precious time unnecessarily? The gentleman believed that the Minister had deviated from the instructions originally given him; but that he received new instructions. Whatever instructions were given to him, it appears, by the Treaty being ratified, that he executed them to the satisfaction of his employer.

It may be, said Mr. W., that this House may determine that it has a check on the Treaty-making power; but the next Congress may say there is no such thing. Whether there is or there is not this check, it is necessary for the stability of the Government to have it determined; and he would join in sentiment with the gentleman from Maryland in a wish that it might be settled. But he would have the amendment constitutionally made; for, if we ourselves do not understand the Constitution, it is not likely that our constituent at large should understand it. If I am wrong now in the true meaning of the Constitution, I have been wrong since its adoption. The people are the sovereign; their will shall be my guide, from which I will not, knowingly, depart. I live in the midst of a body of plain but intelligent freemen, whose employment is the cultivation of the earth, and who prize nothing beyond the freedom they enjoy. They are jealous of their liberties, but they are obedient to, and willing to respect and support the laws of the land. How will they know the laws, if we do not understand the Constitution after it has been in operation for nearly eight years?

Gentlemen observed, that if the Treaty-making power was meant to be vested solely in the PRESIDENT and Senate, it would have been said so explicitly; but, he thought, if the Constitution had intended that House to have interfered in Treaties, that would have been expressed, as a few words would have done it.

His colleague asserted, that that House had the power of carrying into effect or not any Treaty ;

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