The arguments which had been urged for placing certain powers in that House with respect to Treaties were drawn from the practice of Great Britain, and from the danger of the Treaty power being vested wholly in the PRESIDENT and Senate. He It appeared to him that a subject of such recent did not think that the Government of Great Britain date as their Constitution could not receive much had been introduced for any other purpose than elucidation from the opinions held concerning it illustration, though other use had been made of it in the Conventions, at or about the time of pass- out of doors. With respect to the principles of ing it. He confessed he found little aid to assist that Government, let them inquire into its sovehis mind to form a judgment on the matter from reign power; for it was a just position that Treaany other source than the Constitution itself; ties must be made by the sovereign power of a indeed, he thought the light was there so clear nation. Where should they find that power in that nothing more was wanted. There were Great Britain? The King and Parliament were four members, he said, in that House, who were allowed to be omnipotent: Parliament have altered members of the Convention who formed the Con- the continuation of their existence from three to stitution. The sentiments of two of those gen- seven years. Where must they look in the Unittlemen he was not acquainted with; but two of ed States for the sovereign power? They must them had spoken on this subject. If those gentle-go to the people at large; for in them it lay alone. men had come forward and declared that such a Their Constitution limited the powers of every power as the Treaty power was contended to be branch of Government, and it was therefore im

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Treaty with Great Britain.

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proper to apply foreign ideas to their Constitution. before the Committee, he should not consider the But if a Treaty was made by the agents of a sove-question as decided; but if the construction was reign power, authorized for the purpose, the end still insisted upon, he was happy the Constitution was answered: in the United States, the sovereign was not wholly in their hands-that there were power can act only by its agents. joined with them in the guardianship of it, the PRESIDENT, the Senate, and the people of the United States.

Mr. HILLHOUSE said, it was with diffidence he rose to speak on a subject which had been so copiously and ably handled by gentlemen who had preceded him. It had been his intention to have given a silent vote on the resolution on the table, but the turn which the debates had taken-involving an important Constitutional question, relative to the powers vested in the different branches of Government-seemed to create a necessity of expressing his sentiments, lest by his vote he might

The Legislature of Great Britain, he said, it was true, consisted of three branches, and that was almost the only feature in that Government resembling that of the United States. In Great Britain, their Executive is an hereditary Monarch, whereas the PRESIDENT OF THE UNITED STATES is elected every four years. Their House of Lords consisted of bishops and an hereditary nobility-the bishops appointed by the Crown, and the nobility were increased at the King's pleasure; whilst the Senate of the United States is elected every six years. Gentlemen say the Senators are not elected by the people, but they are chosen by the Legislatures seem to subscribe to certain doctrines in the latiof the different States, who are elected by the peo-tude in which they had been laid down. And as ple. The House of Commons in Britain, which he should differ in some respects from most of the is the only representation of the people their Go-gentlemen that had spoken, he asked the indulgence vernment contains, is elected by a very small part of the people; and the Crown has such an influence in it as to be able to carry most questions at its pleasure. How could it then bear a comparison with that House, who were chosen by the whole people every two years? The absurdity might be admitted, in that Government, that the King had the power to make Treaties, and that the sanction of the Legislature was still necessary to give them legal validity, because the influence of the Crown was so great in both Houses as to carry any measure it pleased through them. But it would not do in this country. The comparison, therefore, betwixt the two Governments fails, and no arguments can be drawn from it.

of the Committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their Government which might be of serious consequence.

could not, under any circumstances, be the subject On the one hand, he did not think that Treaties of Legislative consideration or discussion, and that they were not to look into them. It appeared to him, that they not only had the right, but that it Treaty, when called upon to aid it in its operation; was their indispensable duty to look into every to see whether it had the Constitutional forms; whether it related to objects within the province The other argument respecting the danger of not unlimited. The objects upon which it can of the Treaty-making power, a power which is the power being placed solely in the Executive arose from the comparison with Great Britain. If operate are understood and well defined, and if the the powers of the PRESIDENT and Senate of this jects, their doings would have no more binding Treaty-making power were to embrace other obcountry could with any tolerable degree of justice force than if the Legislature were to assume and be compared to those of the King and House of exercise judicial powers under the name of legisLords in Great Britain, as little taste as he had for lation. It might be proper, also, to examine the revolutions, he would not say but he should be merits of a Treaty, so far as to see whether it be indu ed to join gentlemen, either by fraud or force, of such a ruinous nature as, according to the law to overturn the Constitution. He looked on the of nations, it would be null,* and whether they representation in the Senate to be as complete as in would be justified in withholding Legislative prothat House. Gentlemen were very fond of calling vision to carry it into effect. that House the popular branch of Government. Treaties as subject to Legislative control, so that He also considered He agreed that a criticism on words was in gen- their operation, so far as related to the people of eral trifling. That gentlemen from Virginia might the United States, might be suspended or annulassert this, he allowed, as they had nineteen mem-led whenever, in the opinion of the Legislature, bers out of the hundred and five in that House, there was sufficient cause. and in the Senate only a fifteenth part of the body; clause in the Constitution which provides that no And further, that the but gentlemen did not mean, when they spoke on that subject,, to have reference to particular States, consequence of appropriations made by law," as money shall be drawn from the Treasury, but "in but to the whole. The Senators and Representa-vesting in the different branches of Government tives were regularly apportioned for the whole Union; and, though on different principles, were a check adequate to every purpose of security. On the other hand he did not consider the House as completely represented in the one House as in the other.

Mr. C. concluded with saying, that he had no doubt the powers vested by the Constitution were well vested; and if the Constitution was fairly considered, little doubt could remain on the subject. But if the House passed the resolution now

"Though the simple injury or some disadvantage in a Treaty is not sufficient to render it invalid. the case is not the same with those inconveniences that lead to the ruin of the State. Since every Treaty ought to be made with a sufficient power, a Treaty ductor of the nation having the power to enter into engagements to

pernicious to the State is null, and not at all obligatory; no condo such things as are capable of destroying the State, for the safety

of which the empire is intrusted to him."-VAT. 180.

There was a great difference between giving that House a right to participate in making Treaties, and admitting them to have the same discretionary control (whatever that may be) which they have over laws; to be admitted to the exercise of such a discretion might be expected, but making Treaties is the highest exercise of sovereignty. Every one must reflect how very tenacious the States have been of their sovereignty ever since the Declaration of Independence, and have opposed every idea of consolidation, considering themselves in that respect as being upon a footing of perfect equality, being all equally sovereign, whatever might be their territorial limits. This principle is fully recognised in Vattel, who says: "A dwarf is as much a man as a giant; a small Republic is as much a sovereign State as the most powerful Kingdom." Upon this principle was the old Confederation formed; and can it be fairly presumed, then, that under this view of the subject, the States would ever have consented so to form this Constitution, as to admit that the power of making Treaties, this highest act of Sovereignty, should have been lodged or submitted to the control of a body, where four States should control the sovereignty of the fifteen, and one State that of seven? This would be consolidation in good earnest.

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of Representatives as having a Constitutional right two-thirds of the Senators present concur," we to interfere in making Treaties, or that a Treaty must advert to the general definition of the Treatyneeded any concurrence of that House, or Legis-making power-what objects it may embrace, and lative sanction, to make it the law of the land. He how far it can interfere with Legislative power. had always supposed that Treaties were exactly A Treaty is a compact entered into by two indeon the footing of laws in their operation on ante- pendent nations, for mutual advantage or defence. cedent laws, suspending and repealing such as Nothing can, therefore, come within the Treatywere repugnant. Treaties may sometimes re- making power but what has a relation to both naquire Legislative aid to carry them into effect; so tions, and in which they have a mutual interest. may laws, and they were constantly in the habit The object of this power is to secure to our citiof making laws to carry into effect laws hereto-zens advantages in foreign countries which are fore made. without or beyond our Legislative jurisdiction, to enable the Treaty-making power to obtain which, it must necessarily be authorized to give some consideration or equivalent therefor. If the United States authorize an agent to make a bargain or purchase, the power of binding the United States for a reasonable consideration is necessarily given. Whenever the Treaty-making power departs from these rules, it is without its jurisdiction, and such a Treaty would be of no validity. Under this view of the subject, if we look into our code of laws, we shall find few of them that can be affected, to any great degree, by the Treatymaking power. All laws regulating our own internal police, so far as the citizens of the United States alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. He could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present Treaty, which was the revenue law; which provides that certain duties shall be paid on goods imported into the United States, and on goods coming in foreign bottoms ten per cent. advance on the amount of such duties. This is a law no Treaty can repeal, admitting the repealing power in its fullest latitude, because no foreign nation can have any interest or concern in the duties payable by our own citizens into our own Treasury. All that a Treaty could do, would be to suspend or arrest its operation, so far as the citizens or subjects of the nations with whom we treated, were or might be affected by it. The only operation which the British Treaty has upon that law is, that in consideration of our being freely admitted to the fur trade and the trade into Canada, which opens to the enterprise of our citizens a vast source of wealth and advantage, we only give in return to the subjects of the King of Great Britain the privilege of bringing, by land or inland navigation, into the United States, goods for which they pay no more duties than our citizens pay on goods imported in American bottoms. British subjects have always been permitted to reside and trade in the United States, and peltry is to be duty free in the territories of each. According to this definition of the Treaty-making power, and as far as he could judge, he said, it was correct, it cannot have that unlimited extension which has been ascribed to it. It cannot be that monster which has been described as about to swallow up all the

It was of high importance to the commercial States, that the Treaty-making power should be lodged where there could be a prompt and energetic exercise of it. The United States have no maritime force to protect their trade; the principal security these States have for the immense property they have continually floating on the water, must arise from the exercise of this power, in forming compacts for commercial purposes, or alliances for mutual defence. In this way, said he, we may combine the power of other nations with our own, for mutual security and advantage; and during the sufferings which our commerce has experienced, we have found the merchants looking to the exercise of this power, as almost their only resource and hope.

After these preliminary observations, Mr. H. proceeded to inquire, not what ought to be, but what was the Constitution of the United States? We were not, he said, in Convention, but in the discharge of Legislative functions under the Constitution; and to understand the extent of the powers intended to be granted in the second article, section two, by these words, "the PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided

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Treaty with Great Britain.

[MARCH, 1796.

making power. Under this power, Congress did make Treaties of every description, which received no other ratification or sanction than that of Congress; which Treaties were declared by Congress, considered by the States, and admitted by the ablest lawyers and adjudications of the highest courts of law in every part of the Union, as the law of the land, and as having operated as a repeal of all laws that were in opposition thereto. To evince this, he read two extracts from an Address of Congress to the several States, containing a resolution expressive of their opinion, passed April 13, 1787:

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Legislative powers of Congress; nor can there be any danger of the PRESIDENT and Senate having it in their power, by forming Treaties with an Indian tribe or a foreign nation, to legislate over the United States. The Treaty-making power cannot affect the Legislative power of Congress but in a very small and limited degree. Because a Treaty or an Executive act may, in some instances, arrest the operation or progress of a law, it is no argument against the existence of the power. In article first, section eighth, of the Constitution, a specific power is granted to Congress to provide for the punishment of the counterfeiters of the securities or coins of the United States. In When, therefore, a Treaty is constitutionally made, another article, the PRESIDENT is authorized, ge- ratified, and published by us, it immediately becomes nerally, to grant reprieves or pardons for offences binding on the whole nation, and superadded to the against the United States, excepting in cases of im- laws of the land, without the intervention of State Lepeachment. Can any one seriously contend that gislatures. Treaties derive their obligation from being the PRESIDENT has not the power of granting a compacts between the sovereigns of this and of another pardon to a counterfeiter of securities or coins, be- nation; whereas laws or statutes derive their force from cause it would suspend and defeat the operation being the acts of a Legislature competent to the passing of a law, on a subject specially delegated to Con- of them." gress? If this doctrine be true, that all LegislaResolved, That the Legislatures of the several States tive power may be exercised by the Treaty- cannot of right pass any act or acts for interpreting, exmaking power, Congress, under the old Confede-plaining, or construing a National Treaty, or any part ration, had unlimited Legislative power over the or clause of it; nor for restraining, limiting, or in any States. The old Confederation vested in Con- manner impeding, retarding, or counteracting the operation and execution of the same: for that, on being gress an unlimited power to make Treaties, ex- constitutionally made, ratified, and published, they be cepting only that the States were to be at liberty come, in virtue of the Confederation, part of the law of to impose like duties on foreigners as on their own the land, and are not only independent of the will and people, and that the exportation or importation of power of such Legislature, but also binding and obligagoods was not to be prohibited. Was it ever tory on them." imagined that, by this general power, Congress had a right, by forming a Treaty with a foreign Power, to legislate over the States to any extent? Suppose Congress, instead of taking so much pains to persuade the States to consent to their laying the five per cent. impost, and in obtaining which they were finally defeated by the refusal of one State, after every possible exertion, had undertaken to have done it by Treaty ? Would not the measures have been reprobated with one voice, and the Treaty considered as a nullity?

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Notwithstanding, he said, the Courts construed the Treaty as having repealed all laws repugnant to it, and had so decided in all cases that came before them, yet to remove the smallest ground of complaint, (for there had arisen dissatis- · faction on account of the non-execution of the Treaty of 1783 with Great Britain,) Congress, in that Address, recommended the passing a general repealing law, which, though it could be of no use here, might give perfect satisfaction to Great Britain, that every obstruction was removed. Secondly, he read from the letter written by Mr. JEFFERSON, when Secretary of State, a letter which did honor both to the author and to the United States, the following passages, viz:

The next object of his inquiry was, what was the extent of the Treaty-making power granted by the Confederation to Congress? Under what limitations, and where, was the Legislative power to regulate trade and commerce? It had been shown, he said, that the Treaty-making power "For indeed all this (speaking of repealing laws ophad been granted to Congress in the most general posed to the Treaty) was supererogation. It resulted terms, with only the limitation mentioned; but from the instrument of Confederation among the States, the most unlimited Legislative power to regulate that Treaties made by Congress according to the Concommerce rested with the States, with one excep- federation, were superior to the laws of the States. tion only, which was, that no impost or duties The circular letter of Congress had declared and deshould be laid that should interfere with any stipu-monstrated it, and the several States, by their acts and lations entered into in pursuance of any Treaty then proposed to France or Spain. Each State did also, by the second article, "reserve its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled." There was no mention made in the Confederation that Congress should have a right to make Treaties repealing laws, yet it was considered as necessarily granted by the general grant of the Treaty

explanations before mentioned, had shown it to be their own sense, as we may safely affirm it to have been the general sense of those at least who were of the profesthe act of Confederation itself, the declaration of Consion of the law. Besides, the proof of this, drawn from gress, and the acts of the States before mentioned, the same principle will be found acknowledged in several of the documents hereto annexed for other purposes."

Speaking of a letter from the Governor of Rhode Island, relative to the operation of the Treaty, Mr. JEFFERSON says:

MARCH, 1796.]

Treaty with Great Britain.

"Plainly implying that the absolute parts did not depend upon Legislative discretion."

"Mr. Canning, the Attorney for the United States (Rhode Island.) This act was considered by our Courts as annulled by the Treaty of Peace." "Governor of Connecticut. The Courts adopted it as a principle of law."

"Mr. Lewis, Attorney for the United States (Pennsylvania.) The Judges have uniformly and without hesitation declared in favor of the Treaty, on the ground of its being the supreme law of the land."

"Virginia. Mr. Monroe, one of the Senators in Congress, and a lawyer of eminence, tells us, that both Court and Council there, avowed the opinion, that the Treaty would control any law of the State opposed to

it."

"In New York, Mr. Harrison, Attorney for the United States, assures us, that the act of 1782, of the State, relative to debts due to persons within the enemy's lines, was immediately after the Treaty restrained by the Superior Courts of the State, from operating on British creditors, and that he did not know a single instance to the contrary. A full proof that they considered the Treaty as a law of the land, paramount to the law of the State."

"The case of Rutgers vs. Waddington. Waddington pleaded the Treaty, and the Court declared the Treaty a justification, in opposition to the law of the State."

"The case of John Smith Hatfield, New Jersey. Mr. Boudinot. His friends, confident in the opinion of their counsel, and the integrity of the Judges, have determined to plead the Treaty, and not give themselves the trouble of asking a release from the Legislature."

In Georgia, in a case wherein the plaintiffs were Brailsford and others, British subjects, whose debts had been sequestered (not confiscated) by an act of the State during the war, the judges declared the Treaty of Peace a repeal of the act of the State."

And that this was a well-founded and correct opinion, Mr. H. said, had since been confirmed by an opinion of the Supreme Court of the United States. It may be said, that these were State laws that were repealed. This makes no difference as to the principle; whether there be the check of thirteen independent Legislatures to pass the laws, or three branches of one Legislature; it only creates a greater difficulty in getting the law through, but does not add to, or diminish the Supreme Legislative power, which must be admitted to have been possessed by the States, in as full and ample a manner as it can now be by Congress, and when similar laws were passed by the Legislatures of the several States on any subject, they had as great an operation, and as binding a force, as any law that possibly can be made or passed by Congress.

Mr. H. further said, that in May, 1787, the Convention, composed of the best informed and most respectable of our citizens, and who were the framers of our present Constitution, met for that purpose, and being perfectly acquainted with all the above recited facts, opinions and judgments of Courts, and there being seven of their number who were members of and present in the old Congress, when the Address and resolution just now mentioned was promulgated, which was done only one month previous to the meeting of

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this Convention, and having before them all the Congress, they proceeded to draw up this ConstiTreaties which had been made under the old tution.

lative body, and delegating to them, not all, but a In the first place, in Art. I., organizing a Legispart only of the Legislative power of the States, in these words: "All Legislative powers herein granted shall be vested in a Congress ;" and among the specified powers, the right of regulat. ing commerce with foreign nations. How were they to regulate commerce? Not by the exercise of the Treaty-making power. This article of the Constitution has not the least relation to that kind was meant: it vested Congress with the whole of power: it was Legislative power only that power, as far as the object could be accomplished by a Legislative act; but this power would embrace but a small part of the objects which come within the term of regulating commerce with foreign nations; it could extend no further than the bounds of our own jurisdiction. There is not a single expression that looks like authorizing them to act in any other than their Legislative character.

The Constitution then proceeds, in the second Article, to the establishment of an Executive power, to be vested in a PRESIDENT, and in the second section, says: "the PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." The most general eration had been understood to embrace every terms are used, and such as under the old Confedkind of Treaty, Commercial as well as others, and had been exercised in the most ample and unlimited manner, and the Treaties thus formed had been declared and adjudged to have the force and operation of a law, and that they repealed all laws that were opposed to them; and these Treaties were then in full force and operation, and were the supreme law of the land. It cannot be presumed that the framers of our Constitution were ignorant of the laws of the land, or that they had not well attended to and examined Treaties, which, by the Constitution, they were again about to declare to be the supreme law of the land under the new Government. Now, if it really was intended that the Treaty-making power should not be as broad, and have the same extension and operation as had been exercised under the old Confederation, or that there was to be a distinction between Commercial Treaties and others, or that Treaties generally should not so operate as to repeal pre-existing laws, or that the concurrence of the House of Representatives, or sanction of Congress, should, under any circumstances, be necessary to give validity or force to a Treaty, how can we account for the total silence of the Constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? If any limitation was intended, the Convention certainly knew that it was necessary it should be inserted. When we examine the Constitution, and see with what accuracy and care it is drawn up, how wonderfully