H. OF R.] · Treaty with Great Britain. every part of it is guarded, that there is not a sin- peo [March, 1796. fluence, and use all reasonable and legal methods to obtain a ratification of the foregoing alterations and provisions, in the manner provided in the fifth article of the said Constitution; and in all Congressional laws to be passed in the mean time, to conform to the spirit of those amendments as far as the said Constitution will admit." Here is the voice, not of a few individuals, but of the people of Virginia, expressed, not on a sudden or trivial occasion, but when they were called for the express purpose of deliberating and deciding on an instrument the most important ever offered to the consideration of a nation; an instrument which was to bind thirteen independent sovereignties into a confederated Empire. Here are the standing instructions of the people of Virginia to their Representatives in Congress. These instructions have never been revoked or annulled, and speak in a voice too loud not to be heard by the gentleman, [Mr. GILES] if he really feels that reverence, nay adoration, for the voice of the people, as he declares; he now has an opportunity of manifesting to the world, that he did not use those strong expressions as mere words of sound, without meaning, as the words, the "voice of the people," and "love of country," are too often used by conforming to those instructions, and aiding a provision for carrying into effect a Treaty which has been made under the constituted authorities of the country, and has been ratified with the concurrence of two-thirds of the whole number of the members of the Senate, and has become of binding force even according to the true spirit of those amendments. The late Legislature of Virginia had acted a more consistent part, and though he did not approve of the object of their resolutions, yet he thought that in admitting the construction of the Constitution to be according to its obvious meaning, and to the understanding of the people, expressed by their Convention at the time of its adoption, and not attempting to rob it of what. in his opinion, is one of its brightest gems, by explaining away an express and important part of it by construction, though to obtain objects which they appeared to be seeking with great anxiety, but resorting to an amendment of the Constitution, that assembly had done honor to themselves and the State. This practice of doing away the Constitution by construction, if once admitted, would lead to the most dangerous consequences. Upon the construction contended for by some "That no Commercial Treaty shall be ratified with- used the word make; unless the Treaty was to gentlemen, it would have been improper to have out the concurrence of two-thirds of the whole number be completed by the PRESIDENT and Senate, it of the Senate; and no Treaty, ceding, contracting, restraining, or suspending the territorial rights or claims undoubtedly would have said, the PRESIDENT and of the United States, or any of them, or their, or any which, when sanctioned, according to the forms Senate shall have power to negotiate Treaties, of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, prescribed by the Constitution, &c. That this but in cases of the most urgent and extreme necessity, House can, by their own act, sanction a Treaty, nor any such Treaty be ratified without the concur- seems to be pretty much given up. The Constirence of three-fourths of the whole number of the mem-tution no where authorizes them to manifest their bers of both Houses respectively." "And the Convention do, in the name and behalf of the people of this Commonwealth, enjoin it upon their Representatives in Congress to exert all their in Legislative will, but by an act or resolution con- ate would not have been made necessary in the first instance. [H. of R. important in their operation, and such a construction ought to be given to the Constitution (if at all Great stress has been laid on the words, under doubtful) as will admit both to have the freest the authority of the United States, and in the and fullest exercise of their power. The consixth Article, which declares, "That the Consti-struction contended for by some gentlemen would tution, and laws of the United States which shall very much restrain, if not annihilate the functions be made in pursuance thereof; and all Treaties of the Treaty-making power, and give the Legismade, or which shall be made, under the authority lative power almost an absolute control over it; of the United States," as importing something but the construction which he contended for, more than what could be done by the PRESIDENT would admit the Treaty-making power to a fair and Senate, and as pointing to the Legislative and full exercise of its functions, and would opepowers of Congress; a little attention to the sub-rate as a very small restraint upon the Legislative ject will show, that those words are not used in power. .This construction ought therefore to that place for the purpose of limitation, but as prevail. descriptive of the kind of Treaties intended. For these reasons, and others that had been Under the Confederation the States had reserved stated by other gentlemen in a more striking and a right, with the consent of Congress, to make forcible language than was within the reach of Treaties; it would not have done, therefore, to his abilities, he was, he said, decidedly of opinion have used the word Treaties only, for that might that Treaties, when made and ratified by the have included other Treaties than those made by PRESIDENT, by and with the advice and consent the United States. The word Congress would of two-thirds of the Senate, are made under the not answer; for that would have excluded Trea- authority of the United States, have the binding ties made under this Government; it would not force of a law, repealing all antecedent laws repughave done to have used the words President and nant thereto, as a natural consequence of their Senate; that would have excluded Treaties made having the force of a law; for it is absurd to supby the old Congress. The words, under the au- pose there can be two laws directly opposite to thority of the United States, are the only words each other, and in operation and force at the same that would give a definite and concise description time. It is an invariable rule, that the last law reof the Treaties intended. It will be well to in-peals the former. Such a Treaty is, however, quire where is the authority of the United States? capable of being operated upon, suspended, or anNot in Congress, but in the people. He was nulled, so far as the citizens of the United States happy that he was born in a country where there are concerned, by a subsequent Legislative act. was no supreme power, but what rested in the This has been questioned, but no satisfactory reapeople, who have manifested their will by this son has been given why it should not be so; there Constitution, which they have made and promul- are many which make it appear necessary, othergated as a rule to guide all the administrators of wise the Government could not arrest the operathe Government. This Constitution, which was tions of a Treaty which had once become a law, intended, and he hoped would prove, the perma- though the other party should fail to fulfil some nent foundation of a free and happy Government, important article, or be guilty of a direct violation delegates certain powers to each branch, and each of the whole, but by a declaration of war; nor, if is independent of the other, excepting as far as found to be unequal, and to have been attained by the nature of the case, or the Constitution au- the fraud and bribery of the other party. This thorizes or gives a control or check. What part right has generally been lodged in the same of the Constitution authorizes Congress to claim hands that had the power of declaring war. It the right of being considered as the authority of would seem that the power of declaring war must the United States? In the first Article, they are naturally involve in it the power of doing lesser vested with certain Legislative power, but their acts, which might in their consequences lead to power is limited, and even Congress, in the dis- war, there being no superior to whom resort can charge of its Legislative functions, acts under the be had to determine when a nation has justifiable authority of the United States. In the second cause, according to the Laws of Nations, for deArticle, the PRESIDENT, with the advice and con- parting from a Treaty, or refusing to observe it. sent of the Senate, is authorized to appoint Judges From the nature of the case, it must rest in the of the Supreme Court. Under what authority judgment and discretion of each party, under this do they act? The PRESIDENT is made Com- penalty, however, that a misjudging will give the mander-in-Chief of the Army. Does he not act other nation justifiable cause of war. By our under the authority of the United States, inde- Constitution, the power of declaring war is vestpendent of Congress? Could not a pardon be ed in Congress, and it would appear to be a pretty plead in a Court of the United States, as being just inference to conclude, that they must also exgiven under the authority of the United States? ercise Legislative discretion in all the other cases In short, every act done under the Constitution, just enumerated. This power must be lodged is done under the authority of the United States. somewhere; it will not do to permit every indiMaking laws and making Treaties are very vidual in the nation to judge for himself when a different and distinct in their nature, one being a Treaty ceases to be binding. That it would be declaration of the will of the nation by a Legis-right or honorable for a nation, for slight causes, lative act, and the other being a compact entered to refuse or neglect to execute a Treaty he did into by two independent nations. Both are very not hold or believe; but a nice observance of a Treaty, and a strict regard to public faith, was of primary importance to every nation, and that a nation would ultimately find such a line of conduct highly to their honor and advantage. All he contended for was, that the Law of Nations admitted that there were causes which would justify a nation in departing from, or refusing to execute Treaties; and that Congress, in their Legislative capacity, were judges of those causes, so far as our nation might be concerned, and had power to pronounce that a Treaty was no longer the law of the land, and when they did pronounce they must be obeyed. A gentleman from Virginia [Mr. MADISON] observed, that if no Legislatiye sanction was necessary to give validity to a Treaty, and there being no limitation on the Treaty-making power in the second article of the Constitution, it might admit of a doubt whether the United States might not be enabled to do those things by Treaty which are forbidden to be done by Congress in the first article; but no such consequence can follow, for it is a sound rule of construction, that what is forbidden to be done by all the branches of the Government conjointly, cannot be done by one or more of them separately, therefore, those restrictions will operate upon all the following articles of the Constitution as effectually as if they had been repeated in each. That instrument is so admirably constructed, that there is not a single superfluous word to be found throughout the whole, nor a word used that does not seem to have been most carefully examined and cautiously chosen. [MARCH, 1796. all, it must operate equally upon both. All Governments are sufficiently prone to be lavish of public money: it never could be necessary to adopt principles that would facilitate the issuing money out of the Treasury, but all the checks which the art of man hath ever devised, or have ever been put in practice, have not, in most of the Governments of which we have any knowledge, prevented the too lavish expenditure of public money. Whether the check here contemplated was founded in policy, or prudence, or whether it may not in its operation produce great embarrassments to the Government, is not now under consideration, or proper for us to decide. They found this clause there, and he said he felt an irresistible impression on his mind to give the Constitution such a candid and fair construction as to admit every part to have its full operation. It was to him altogether unaccountable, that the Constitution should vest such an important power, which it is admitted is here given; a power which was so often to be called into exercise, if at the same time the right of exercising Legislative judgment and discretion was not intended. He looked upon it, however, to be a very different and more limited discretion than it would be right to exercise on the first formation of a law; in the latter case, it would be an unlimited discretion; but where a law had been passed, or a Treaty made, whereby the public faith was pledged, neither branch would hastily, or upon slight grounds, refuse the necessary appropriations. It is admitted they can do it, but, because It has been asked, shall this House, then, have a right or power may be abused, it is no sound no control over the Treaty-making power? He argument that it does not exist. Every existing could answer, he said, to his own satisfaction, that law or Treaty, he admitted, created a legal oblithere was, in the 9th section of article I, one that gation; but every legal obligation did not involve was sufficient to afford every reasonable security in it a moral obligation to comply. In case of against the abuse of that power, which is in these individuals, there may be a legal obligation upor words: "No money shall be drawn from the Trea- one party to perform his contract, and a moral sury, but in consequence of appropriations made obligation on the other party to forbear to enforce by law." Those who contend for the most limit-it. Upon this ground, Courts of Conscience, or ed construction admit that this clause vests in in other words, Courts of Chancery, are, in almost each branch the power of withholding an appro- every country, empowered to relieve, in certain priation. The very circumstance of appropri- cases, against claims or demands which might be ation laws being necessary, which it is in the enforced in a Court of Law. In legislation, the power of each branch to defeat, makes it operate in discretion and judgment of every member must a degree as a check. If it was not intended to be his court of conscience; no one can measure have that operation, but that appropriation laws his discretion by that of another; if the door is at were a matter of course, the clause does not ap- all opened, and discretion is admitted in the pear to be of sufficient importance to be entitled smallest degree, there is no drawing the line. It to a place in the Constitution. The money might was not an apprehension that the two branches as well have been permitted to have been drawn of the Government who have negotiated this from the Treasury by the law creating the obli- Treaty, were inclined or about to do anything ingations to pay, or that matter might have been jurious to the country, that influenced his mind; left to Legislative provision. No one will pretend he believed there never was a time when they that an appropriation law is what creates the ob- more merited the confidence of the people; but ligation upon the Government to pay, or that it this Constitution was meant as an abiding thing, has any relation to a revenue law. This clause and he hoped we should do nothing that would being in the Constitution, ought to be admitted disappoint this expectation; it was calculated for to have some important operations, if any such it tempestuous as well as peaceable times, and he can have upon a fair construction. A very im- could not but believe that some little controlling portant one, he said, readily suggested itself to his power or check would be useful even upon the mind, which was, that it was intended as a check, best of men. It might, at least, make them a litnot only upon the Treaty-making power, but upon tle more cautious and circumspect, and sometimes the Legislative power also; for, if it operates at prevent the hasty passage of a bad law, or adop MARCH, 1796.] Treaty with Great Britain. [H. OF R. tion of a bad Treaty. He believed, however, that cise the power. Congress have, therefore, always in practice it would be found that the Repre-appropriated such sums of money as they judged sentative branch would as often need this check as either of the others. Happily for this country, each branch is Representative. Judges of our Courts are commonly from the best and most honest of our citizens; yet, it will be generally admitted, that where their judgments are liable to the revision of another Court, they are apt to exercise a little more caution, circumspection, and diligence, in examining and fixing the principles upon which their judgments are grounded, than might other wise take place. No great inconvenience, he said, could arise from admitting the existence of this check. In such a Government as ours, there must be a degree of harmony and good understanding between the different branches, or the Government cannot go on. The same spirit that would withhold an appropriation, where it was right and proper it should be made, would also prevent the passage of all necessary laws; and if either branch of this Government could be supposed (an idea he could hardly admit to be possible) to be wicked enough to abuse this right, and exercise it improperly, that branch would not hesitate to exercise the power, which cannot be denied to exist. On the other hand, he could perceive many advantages which might arise from the existence of this check; more, however, by way of preventing the introduction of evil into the Government, than of its being often necessary to exercise it by way of correction. It has ever been considered as a wise policy, so to calculate laws as to prevent as much as possible the introduction of evil, rather than to inflict very severe penalties on offenders. proper for holding Treaties with the Indian tribes, and foreign intercourse. As to the extracts from the PRESIDENT's instructions to the Commissioners for holding an Indian Treaty, which have been read as a very striking case, where the PRESIDENT informs that twenty thousand dollars were appropriated to that object, and that no more could constitutionally be expended: Very true, there could not be more than that sum constitutionally expended for the expenses of the Treaty and presents to the Indians; but did the Commissioners, or the PRESIDENT, understand that they could not constitutionally stipulate in the Treaty for the payment of further sums? The fact is, that in the Treaty with this very tribe, a further and annual sum is stipulated to be paid, and appropriations have since been made for the payment, and it cannot be made without; but the consequence which those gentlemen draw from it by no means follows. He had not, he said, been able to find in the Journals or proceedings of this House any instance, and he called upon the gentleman to show one, where the PRESIDENT, in his communications, has given the least intimation, or either House have done a single act that recognises the right of this House, or of Congress, to interfere in the Treaty-making business. Their practice has uniformly been directly the reverse. The PRESIDENT and Senate have been in the habit of making Treaties ever since the formation of this Government. What one has ever been sent by the PRESIDENT for, or has received the concurrence or sanction of this House, or of Congress, except so far as to make appropriations to carry them into There was nothing, Mr. H. said, in those ex- effect? It has been said those are Indian Treaties, tracts from the Journals of this House, read by and that the present is the first with a foreign nathe gentleman from Massachusetts, [Mr. LYMAN,] tion under this Constitution. He called on the and since urged by the gentleman from New York, gentleman to show in what clause of the Consti[Mr. LIVINGSTON,] which at all militated against tution any distinction is made between Indian the construction which admits that the PRESI- Treaties and any other Treaties. The words DENT and Senate have the whole power of making "Indian Treaties" are not to be found in the Conand ratifying Treaties, without the concurrence stitution, and the PRESIDENT and Senate have no or approbation of this House, or of Congress. All power to enter into such Treaties, excepting unthat appeared from these extracts was, that the der the general power granted to make Treaties. PRESIDENT, as also the Senate and House of Re-It is also but in one section that power is granted presentatives, have always supposed that an ap- to Congress to regulate commerce with foreign propriation law was necessary to enable the PRE- nations, and trade with Indian tribes. He wished SIDENT to draw money out of the Treasury, and the gentleman would point out the authority that that each House have an unlimited discretion as would warrant the adoption of a different line of to the sums to be appropriated, or whether any conduct in the two cases; but he should, he said, thing at all, for the purpose of holding a Treaty, forbear any further remarks on that point, and or for foreign intercourse; neither of these propo- should not attempt to answer the arguments of sitions can be denied. An express clause of the other gentlemen, as he had already taken up too Constitution requires the first, and as to the se- much of the time of the Committee, and his obcond, most undoubtedly before a negotiation is com-ject in rising was rather to express his own sentimenced, or any stipulations entered into, the discretion of all the branches of the Government is unlimited. If no money is appropriated which can be applied to defray the expense, it is clear no Treaty can be held; so if the PRESIDENT has the power of sending Ambassadors or Ministers to foreign nations to negotiate Treaties, or for other purposes, it is equally clear that if no money is appropriated for that purpose, he cannot exer ments than to remark on those of others; but he asked the patience of the Committee, whilst he made a few observations more directly pointed to the resolution under consideration. He had not been impressed with the belief, that the passing the resolution would violate the Constitution. They might, he supposed, ask for any information, or such papers as were necessary to enlighten their minds, and enable them under, H. OF R.] Treaty with Great Britain. [MARCH, 1796. tives than a serious pursuit after information, which, it is expected, can be used to any valuable purpose; he should, therefore, be against the resolution. MARCH 23.-In Committee of the Whole, on Mr. LIVINGSTON's resolution. standingly to exercise their Legislative functions. The Executive also had an undoubted Constitutional right, and it would be his duty to exercise his discretion on this subject, and withhold any papers, the disclosure of which would, in his judgment, be injurious to the United States; for it is to be presumed that the House of Representatives Mr. GILBERT said, he hoped he should be pernever would intentionally ask for such papers. mitted to take some view of the subject which The discretion must be lodged somewhere, and had been already so long in discussion, and still no where can it be so well exercised, and more under consideration. He said, that, from personal safely trusted, than to the Executive. Mr. H. indisposition, the want of health, he had not consaid he had two objections to the resolution: first, templated taking any particular share in the dethat it was improperly and indelicately worded. bate; that his first impression, when the resoluIt was true that he loved and respected the man tion was at first called up in the House, had not as one who better deserved the love and respect of been withheld. But, said he, considering the arthe people of the United States than any one that dent strife and combat of principles, of fundaever has or perhaps ever will live whilst we are mental points, immensely interesting, in his judgknown as a nation; but he was constrained in this ment, to the Constitution, Government, reputacase to say, he reverenced the office as the repre- tion, glory, and welfare of this country; and persentation of the majesty of the people, and this ceiving the high ground strenuously taken by House, as the Representatives of the people, ought some of his colleagues, in opposition to his own never to approach that office but in the most re-judgment on the occasion, he was impelled, as spectful terms. In a call of this kind, which may well from the respect he owed to himself, as from reach papers of a very delicate and confidential the duty he owed his constituents, to explain and nature, the resolution ought to be so worded as to vindicate the sentiments he entertained on the leave to the PRESIDENT, upon the face of it, the subject-sentiments which would influence his full exercise of the discretion vested in him; but vote on the proposition. that is not the case as this resolution is now When the resolution, he said, was first presentworded; for it would appear, that no discretioned, it afforded to his mind no pleasant presage of was left to the PRESIDENT, excepting to withhold the disposition of the mover, or of his friends, relapapers that relate to pending negotiations; and if tive to the Treaty to which it refers; that when he should withhold any others, it might seem to it was candidly requested of them to disclose their thwart the call of the House. His second objec object, and state the particular purpose why they tion was, that no definite object was mentioned resolved to have those particular Cabinet papers, to which this information can apply; and it would it was evasively replied that they wanted them be improper to call for information which could for general information. Being further urged for be of no use when obtained. As to impeachment, a more explicit specification of the precise object, no gentleman had mentioned that in any way that it was said that, as Constitutional questions rehad the least appearance of seriousness; as to say-specting the validity of the Treaty would probaing we wanted information generally, without bly arise, these Cabinet papers might be necespointing to any object to which it is to apply, we sary to clear up and determine such points; being might as well call upon the PRESIDENT to send plainly told they could be of no use or avail on his whole Cabinet at once. Unless some spe- such questions which could only be decided by cific object is mentioned, the PRESIDENT cannot comparing and examining the instrument with know how to select the information that would the Constitution, it was then suggested that they be pertinent or proper. In calling for information might be necessary in case of an impeachment, from the Heads of Departments, we have always which, though not contemplated or expected, might pointed out what kind of information was wanted, be hereafter found expedient. But, more deciand stated the reasons for calling for it, and the sively to sound the resolution, it was openly asobjects to which it was to apply, and never called serted and insisted on that they wanted these conupon those officers to send all the documents and fidential papers in order to judge of the merits papers relative to any particular subject indefi- and expediency of the Treaty, in order to approve nitely. This mode of doing the business would or disapprove, adopt or reject it, as a matter of no involve this House in difficulty; but, by pointing obligation or validity, without the sanction of this out the information wanted, and the object to House, or approving act of the Legislature. On which it is to apply, that only is selected which is this ground, he said, the dispute principally arose, pertinent. If this rule is observed in relation to which involved the great principles of the ConHeads of Departments, much more ought it to be stitution and Government. He had, he said, been regarded in this case, where we are calli g upon attentive to the discussion during a long debate, the PRESIDENT to unlock his Cabinet and send us and should now endeavor to examine the great his secret and confi.lential correspondence with a points in controversy. Many gentlemen had so Minister sent to negotiate a Treaty with a foreign examined the subject that nothing really new nation. In short, from all the circumstances and could be expected from him. The principal quesobservations which attend this call, it seemed to tion, to wit: whether the House of Representahim more to assume the appearance of too great tives had or had not, by the Constitution, a coa degree of curiosity in the House of Representa-ordinate right with the Senate in making Treaties, |