MARCH, 1796.] Treaty with Great Britain. [H. OF R. he should first consider, together also with the resided in the same person. That, in Governments distinction between one sort of Treaties and ano-framed by compact, as in our own. and arranged ther, made by some gentlemen. He would, how into several distinct departments, particular powever, first remark, that the merits of the proposi-ers and functions expressly assigned to each-when tion seemed to be lost sight of, in the general de- the question arose, what any of these deparments bate of abstract principles, which he thought very possessed, it was to be determined, not by the name unnecessarily connected with it, and only became or denomination of the department, as whether so from the ground which had been chosen to Legislative, Executive, or Judicial; but from the support it. He would also remark, that, in gene- designation of the Constitution, and precise mode ral, he had been pleased with the temper of gen- or form prescribed for them to exercise such powtlemen manifested in the discussion; but was er. He said, he considered that, by our Constitusorry to observe some instances to the contrary, tion, the PRESIDENT and Senate were constituted and to hear some gentlemen say, that, if the reso- a particular department for exercising solely the lution should not be adopted, they should vote Treaty power. It need never be a question, or against the Treaty, be against carrying it into deemed at all material, whether this power parexecution, admitting it to be the very best Treaty took of a Legislative or Executive nature, or of that ever was negotiated. He hoped, he said, that each. It was observable, however, that the framers he had misunderstood those gentlemen, and that of the Constitution well considered the nature and such was not their meaning; if it was, he hoped quality of this power, and, as if they judged it to they would reconsider it, and renounce such sen- partake of each, connected with the Executive one entire branch of the Legislature, restricting its operations, at the same time, to the necessity of acting by two-thirds of its members. Here, he said, was the check, here was the Legislative check, and, he religiously believed, the only check intended by the Constitution. This branch of the Legislature, he said, was selected for qualities which eminently rendered them the most fit for the exercise of this important power. timent. Mr. G. then adverted to the first section of the first article in the Constitution; observed upon some remarks which had been made by gentlemen opposed to his principles. On this section he observed that, if the word all, which had been so emphatically dwelt upon by them, conveyed an exclusive power of legislation to the Senate and House of Representatives, the only bodies therein named, he would wish to know how the PRESI- Had the House of Representatives, he asked, DENT became invested with his Legislative pow- any right to complain, because it had not been seer, as a constituent part of the Legislature? for, lected also with the Senate, or because it had not upon their construction, he could not be entitled been selected for such department instead of the to any share or degree of this power. He said, Senate? In a Government like ours, said he, of that it had been repeatedly remarked, that the departments, should one branch complain because subsequent specification of the powers granted to it had not been placed in the station of another? Congress, in the same article, section eighth, must Should the foot complain because it had not been operate so as to consign to Congress, exclusively, made the hand, or the hand murmur because it all the objects therein specified, and so far, at least, has not been made the head? Should this House restrain the general power afterwards granted to complain, because it had not been put in the place the Treaty department. This he denied. He of the Senate? or should the PRESIDENT complain said, this specification was made, in his opinion, because he was tied down and trammelled by these for another purpose entirely. He said it had been two members? On this point, also, he adverted a pretty generally received principle of construc- to the circumstance of equality of State sovereigntion, that all powers not expressly mentioned or ty being insisted upon and retained by the respectnecessarily implied in the Constitution to be there-ive States in the Senate of the United States. He in granted, were reserved to the people of the re- was conclusively of opinion, he said, that, by our spective States. The words in the first section, Constitution, the PRESIDENT and Senate possess "herein granted," were noticeable in this view, the Treaty-making power, and, together, constiand related to the powers therein not granted.tuted a particular department for that express To determine precisely what powers were by the Constitution granted to Congress, as well as what were reserved, such specification was made; and not for the purpose of abridging the general grant thereafter made of the Treaty power, and therefore could not have any such effect. He said, there was no specification made in the grant of He asked, where this distinction could be found? the Treaty power, because no such reason for it He could not find it in the Constitution. He could existed, as the whole Treaty power was granted not find it in his imagination, as he could not conwithout any reservations thereof to the States.ceive such distinction could consistently exist in He said, it was incorrect to decide what power the nature of things. It is said, in support of this any department or branch of the Government pos distinction, that our Treaty department may make sessed, merely from the name or general denomi a valid Treaty, provided such Treaty does not touch nation of such department. That, in some coun anything or object lying within the sphere or jutries, in absolute monarchies, and despotic Govern risdiction of legislation; but, if it at all comprements, there was no distinction. to be found, alhends anything within such ground or jurisdic purpose He would next consider, he said, the distinction which some gentlemen had taken on this subject, between the different sorts of Treaties, as between Treaties of Peace and Amity, and those of Commerce. H. of R.] Treaty with Great Britain. [MARCH, 1796 tion, such Treaty is of no validity without the but one organ, by which it acts, is destined to masanction of the Legislature. This, said he, is sup-nage those things lying within the Territorial juposing the sovereign will of the nation cannot risdiction only, and can exercise or extend the somake a rule, or law, otherwise than by its parti-vereign will of the nation no further. The intercular Legislative body, and in the particular form est of the nation, arising from foreign intercourse, or mode prescribed for that particular organ to act. its objects connected with foreign nations, can be The nation acts by different organs: by its Legis- managed and accomplished by the Treaty departlative organ, to wit, the Legislature; it can only ment, by allowing them a sufficient portion of the act upon things within the Territorial jurisdic-national power to accomplish its object, and he tion of the nation: but by another organ, it can believed it could not be supposed that this departact beyond this sphere, as by the organ constituted ment were not intended to possess all such powers to exercise the Treaty power. This power exists, as the Treaty power required, being designed by and must exist, inherently in every Government. the nation solely as an organ for the exercise of It may be concisely defined to be the power to this power. Whatever, then, this organ transactaccomplish those objects which no other power ored with foreign nations, which reasonably and neorgan can effect. If this is the power of the na- cessarily involved such objects of the nation, lying tion, to be exercised for the nation, it has a right within its Territorial sphere, as were naturally to use all the things or means belonging to the na-connected with the great objects of foreign intertion, reasonable and fit, and which are necessary course, was done by the sovereign will of the nato accomplish the great objects of the nation, be- tion, and must and would be respected as such, yond the jurisdiction and power of any other na-and as such was equal to any declaration of its tional power, or organ; for, otherwise, the inter-will, by any other organ in the Constitution. The est and important objects of the sovereign will rules and regulations prescribed by the nation would not be accomplished at all. through this organ are, he said, of that transcendThe distinction, said he, made between Treaties, ent authority that would nullify any impediment whether of one sort or of another, cannot there- from any other source. The acts of this organ of fore exist. He said, no such distinction could be the will of the nation become obligatory upon the supposed to have been entertained by the enlight-nation and laws to the citizens and members of ened framers of the Constitution, for they had it, so as to repeal any law of the Legislature remade no such discrimination. The terms they pugnant to this sovereign will of the nation. This, had used in granting this Treaty power could not he said, had always been the received doctrine, possibly imply any such distinction, and if we even in our own country and Government under were to look to the terms they had used, and to the Old Confederation. The same Treaty power our own former Government, for the most proba- there existed, and was exclusively exercised by ble source of their meaning, examine all the Trea- the several States in Congress. The acts of this ties ever made by this country, and he said he be-power, exercised by them, were always considered lieved we might also examine every Treaty ex-sovereign, controlling laws, to which the State isting between other nations, and we should find no such distinction, or possible ground for it. All will be found to comprehend objects more or less lying within the ordinary sphere of legislation, as exercised by one organ for legislating and making statutes-this construction must fail. He asked, if any Treaty with a foreign nation, negotiated in a foreign country, by Ministers despatched for the purpose, could be carried on without some expense Mr. G. then asked, whether, from this view of to the nation? And if such expense would be the subject, a Treaty could not constitutionally be defrayed without money? And if such money made by the department constituted for the specould constitutionally be advanced without appro- cial purpose of making Treaties, without the copriation made by law? If not, then the difference operation of this House? Certainly, he said, of contended for between a valid and an invalid this he had no doubt. And he was persuaded, the Treaty, could not exist. He would, he said, next distinction which had been taken between differproceed to consider the objection which had been ent sorts of Treaties could not exist, without opemade on the ground, that, upon this doctrine, there rating an extinguishment of the Treaty power of would exist two supreme Legislative powers acting the nation, which could not be admitted. This powwithout control on each other upon the same per-er being the authority of the nation had, he said, sons and things, within the nation. as he had already observed, a right to use all the Such, he observed, had been said and relied reasonable and proper things or means of the naupon as the unanswerable objection. He had, he tion, necessary for accomplishing its objects for said, already remarked upon a principle, in look-the interest of the nation. In article 6th of the ing at the distinction contended for, just noticed, Constitution, Treaties made under the authority which would discover, in his opinion, the fallacy of the United States were declared to be laws of this supposed unanswerable objection. The of the land; yet, it was denied by the gentlemen sovereign will of the nation, acting by or through opposed to this doctrine, and to satisfy this declaits constituted organs, regulates and controls eve-ration in the Constitution, it was contended, very rything within its power. The Legislature being gravely by the gentlemen, that this particular de Constitutions and laws yielded. It was, he said, the same thing now, operating upon the same principle; therefore, the objection, that two opposite independent Legislatures were constituted within the same nation, must fail; as such a thing had no existence-the supreme authority of the nation being the same, and equally to be respected, when expressed by one organ as by another. claration, so far as it comprehended Treaties, only | related, from the succeeding words in the same article, to the individual States, so as to bind the State Judges; and one of the gentlemen from Virginia had said, there also resulted a problem how the State Legislatures were to be affected, as the Judges only are said therein to be bound by such Treaties. For his part, Mr. G. said, he could not perceive the problematical mystery which seemed so forcibly to have presented itself to the mind of that gentleman; for, even allowing this article only to relate to the individual States, any Constitution or law therein to the contrary, as expressed, and that the Judges should be bound thereby, he said he could not possibly conceive how the State Legislature, by acting, by legislating, one way or the other, could constitutionally affect the operations of a Treaty. [H. OF R. country, introduce and establish nobility, aristocracy, despotism, abolish our own Constitution, laws, liberty, and religion. Mr. G. said, this was a frightful picture; and suppose they should thus attempt to abuse their power, or that any other department, or all combined, should thus attempt to abuse their power, where would be the remedy? He should be very sorry, indeed, to be without a remedy. The remedy, the sovereign remedy, for all intolerable abuses of power, rests in the rights of man, and is to be found in this country, every where: but he hoped there would never be occasion to resort to this remedy. The objection certainly was no argument to prove the want of suitable power, for it only went to the abuse of legitimate authority, and was as applicable to all other cases, and to all other departments as to the one at It was impossible, Mr. G. said, for him to admit which it was aimed. The history and practice the idea that Treaties, which had the effect of a of the British Government, of Spain, and other law upon all the individual States, should have at foreign nations, have been resorted to by the genthe same time no such effect upon the United tlemen on this occasion to support a doctrine States. He said, if the absurdity of any thing which appeared to him not only repugnant to our were mathematically capable of demonstration, own Constitution, but never before contemplated this idea was so, as opposed to the truth of a self- by our own Government. Gentlemen had told evident proposition, viz: that a Treaty should af- us of civilians, of jurists, and sages of public law, fect and bind all the parts, and at the same time but for his part he had never, in the small course not affect or bind the whole. He would notice of his reading, except among our own countryanother objection which had been urged as deci- men, seen any one who ever saw or contemsive against admitting Treaties to be laws, or plated the American Constitution, nor did he behaving such effect, the declaration made in the lieve that there was one to be found out of the Constitution notwithstanding. It had been said, whole class, up to Solon, the Grecian sage, who that Treaties could not be considered as laws, if had ever entertained ideas of such sort or plan of they require the aid or acts of the Legislature for Government. As to the doctrine of checks, which their execution. Can this idea be sound? Do had been so much insisted upon by the gentlemen not many laws of our Legislature require the aid in favor of their positions, he said he would make and acts of the Executive for their execution? a few remarks in order to show how, in his Or do the gentlemen suppose it no law, or a very judgment, that doctrine was to be understood and poor one, that cannot execute itself? He thought applied. Checks in Government, limited and such logic could never satisfy the meaning of the constituted as ours is, if misunderstood and misConstitution. The expressions in the Constitu- applied, would produce more injury than, when tion declaring Treaties to be laws, was compre- rightly applied, they could do good. He said, he hended in the same sentence and expressed by the never understood, in regard to Constitutional same words with the Constitution itself and laws checks in Government, that part only of a whole of the United States. As well, then, might it be branch or department could check a whole departsaid that, by the same construction, the Constitu- ment, but always supposed that nothing short of tion and laws of the United States only related to a whole department could check another. The and bound the Judges of the individual States. Legislature could check the Judiciary; so the JuIt had also been said by gentlemen, who seemed diciary might, in some cases, in order to guard the to wish to find some meaning for the words of Constitution, check the Legislature; but no conthe Constitution which would suit their doctrine, stituent part only, or part of the Legislature, could that the words therein mentioned, under the au- do this. It was true that, in a particular departthority of the United States, meant only and ex-ment, consisting of constituent branches, who clusively Congress, comprehending the Legislature only; but this was too palpably absurd to be dwelt upon. The great and alarming objections which seemed constantly to be resorted to, and into which Mr. G. said, all others may be resolved, was not that the PRESIDENT and Senate were not fit to exercise the Treaty power, nor, indeed, that they were not the most fit for that business; but, admitting all this, it had been seriously stated what they might do were they to abuse the power and trust placed in them by the Constitution. They might, it was said, combine with some foreign nation, league themselves against our own 4th CoN. 23 could only act in co-operation, one of these branches might operate as a check to another, as was the case in the Legislature, where the benefit and security from checks had, to our own observation, been conspicuously eminent; but the check here contended for was to arise from one branch of the Legislative department only, and operate against another distinct separate department-the Treaty making department; which was, in his opinion, quite contrary to the principle of this doctrine of checks. Mr. G. said, he would advert to the objection which had been greatly urged and relied upon H. or R.] Treaty with Great Britain. [MARCH, 1796. against the doctrine he advocated, to wit: the ing or repelling a corrupt, void Treaty, being unwant of right, Constitutional power, and discre- | derstood, and entirely different from the princition in this House to withhold appropriations ne- ples contended for on the ground of our sharing cessary for executing the Treaty, or in any man- in making a Treaty, Mr. G. said he hoped there ner to resist and repel this compact. Mr. G. said, would be some reconciliation and less diversity of if it was allowed to be a proper Constitutional opinion on the point discussed. As to the merits Treaty, it having been completed by its ratifica- of the resolution, he should just make a few retion and exchange, it was obligatory, in point of marks more, and then quit the subject. It seemed moral and political obligation, upon the parties, to him that it had been placed upon a ground and only remained to be executed; and, if so, he by the mover and his friends, so as to involve princonsidered it incumbent on the nation to fulfil it, ciples vastly important, but not necessarily conand consequently the duty of its Representatives nected with it. If the proposition resolving to to do whatever was proper and necessary for such call for the Cabinet papers had been placed on purpose. They had, in such case, then, no other the ground of expediency and policy, which, in discretion than as free, moral, intelligent agents, his opinion, was the only ground on which it in choosing and doing right or wrong. Every ought to have been put, there could not have been honest contract, made voluntarily, by intelligent great difficulty in the judgment of any one in deagents, created a moral obligation. Every moral ciding it. He made this remark in hopes that obligation ought to be regarded. No one will say gentlemen who agreed with him in this sentiment the contrary. When we feel this obligation, can would vote upon the motion on its merits, we complain of the want of freedom and right to without reference to those Constitutional princidisregard it? Surely not. But, said Mr. G., every ples, if they did not suppose them necessarily inengagement or compact may not have this quali- volved. He could not conceive that it was at all ty, may not create any such obligation to regard expedient for them to have those Cabinet papers. it. It may be, in this respect, so destitute of ho- If they were to be considered upon the ground nesty, so replete with corruption and baseness, as only of official papers of our own Government, it to be altogether void. This would depend upon would be very different in his judgment; but circumstances. These circumstances we may, those papers related to the Cabinet concerns and we ought to look to; and, if we found the Treaty transactions of a foreign nation, whose Cabinet attended with such circumstances, we were bound was equally concerned with our own, and, howto resist and repel it. This was a duty incum-ever inclined we might be to expose all our own bent upon us, which could not be dispensed with; but this right, this indisputable right, Mr. G. said, resulted from principles entirely distinct from the principles which had brought on this discussion. They did not result from any Constitutional right or power of making Treaties; they did not proceed from a ground which gentle- If any particular purpose rendered them necesmen had assumed of our exercising at all the Trea- sary, it ought to be specifically mentioned in the rety power, or having a right to affirm or disaffirm solution; and, if it was such evidently as required such compact as a constituent branch of the Trea- the papers, it would evince the propriety of callty department; but, from principles of self-pre- ing for them, otherwise it would seem not only servation, of natural right, paramount to all Con- | inexpedient, but impolitic and unjustifiable ; and, stitution and law. From confounding principles if they were to be called for on the ground of any and things so entirely distinct, Mr. G. said, ap- | co-ordinate right we had to act in making or parently by some gentlemen, or not leaving them sufficiently distinguished, had, he believed, occasioned great part of that diversity of opinion so visible on this subject. If a Treaty should be replete with all the terrible evils that have been He observed, that he had occupied more time of frightfully described to our imagination; or, if it the Committee than he ever expected on this subshould contain any one of them, or any thing elseject; that he had little confidence of having sugwhich we deemed intolerable and corruptly de- gested any new light, or pursuaded any one from signed for our ruin, we should repel it, at the prior sentiment; but, the most he expected was, hazard of war or any thing else; choosing, as to have communicated himself on the occasion, upon all other occasions, the least evil of the two. as that his own honest sentiments should be well But this right of thus resisting or repelling a void understood; sentiments, he said, which would alTreaty, will not apply to one which is not void, together influence his mind against the resolution, that is, not destitute of moral obligation-will not and regulate his judgment in considering the subapply to a compact that may be merely consider-ject of the Treaty. ed a hard bargain. And here, Mr. G. said, as his colleague had borrowed from the poets, he would, on this point, since it occurred, refer to one poetically describing the character of the good man, saying, "though to his own hurt he swear, still he performs his word.” The principles of resist | secret negotiations and Cabinet transactions, he said it could not be proper, contrary to the practice of all other nations, to expose wantonly the Cabinet negotiations and concerns of another nation, which had been confidentially conducted and committed to the custody of our own Cabinet. sanctioning the Treaty, it was, in his judgment, decidedly unconstitutional. From every consideration, therefore, he hoped the resolution would not pass. Mr. MURRAY felt, in the fatigue of which he himself was sensible from attention to the debate, that whoever should attempt to engage the ear of the Committee would have much to apprehend, unless he could promise some novelty of remark. This, however, he would not promise, but he re MARCH, 1796.] Treaty with Great Britain. [H. or R that the first foreign Treaty made by the Government should shed this new light upon the minds of gentlemen. lied upon the sense of duty which animated every member there for a little indulgence, while he attempted to deliver his opinions against the resolution upon the table. It was a question of great He said, that the important question before the magnitude. Its consequences affected not only the House, independent of the immediate object of the Constitution of his country, but were closely in-resolution, was, whether the printed paper upon terwoven with its character in the eyes of foreign nations. It affected the Constitution by a new construction of its respective powers. It affected the character of the country in the eyes of foreign nations, by an endeavor to give a power to this House to control, to admit, or to reject, those public and hitherto sacred covenants which bind nation to nation in good faith. The importance of a question involving such considerations would be an apology to any member for engaging the Com-troy its validity, though we may break it. If it mittee's attention. the table, purporting to be a Treaty, was a Treaty or not? If it is a Treaty, it is the supreme law of the land; a public covenant, binding the nations who are parties to it, as fully as if every individual of each nation had personally consented to the ratification of it. If it is not a Treaty in the eye of the Constitution, nothing that we can do will make it so. If it be a Treaty in the eye of the Law of Nations, nothing that we can refuse to do, can des be a Treaty, nothing that we can do can add to its validity, though it may to its practical operation. The resolution proposed by the gentleman from New York, [Mr. LIVINGSTON] was but the intro- The question is not as to the mode of breaking duction to the question. On the first day's debate, Treaties, but of making them; not an estimate of before the subject was committed, he had opposed circumstances that are to free us from all duty this resolution. He had not then certainly reflect- to fulfil an engagement, but whether the moral ed as much upon the doctrine to which it led as and public obligation of Treaties when made is to he had since done; but a few simple truths which bind us; upon the adoption or rejection of a prinhad long rested in his mind, undisturbed by pas-ciple, which, if adopted, is to weaken the bands of sion or by new lights, early showed him the ne- nations by a denial of the Law of Nations in concessity of opposing a measure which was predica- verting the mere power of breaking them asunder, ted on a right of which he had never heard or into a right to do so in the face of the highest comthought, except since the late discussion of the pact known to independent nations; this our counTreaty, through the newspapers and pamphlets of try could never have designated to us under a the day. He insisted that the novelty of the doc- Constitution breathing good faith, justice, and trine contended for was of itself sufficient to ex- true freedom. cite an anxious investigation, considering that we He would, he said, state some of the opinions act under a Government and Constitution so ex- that had been the most ably argued in support of tremely definite and precise, both in the quantum the resolution. There were several propositions and modification of its powers, that any doctrine laid down: It had been said that a Treaty which highly constructive, upon any important part of contained stipulations upon any of the reserved the Constitution, will forever be a hazardous ex-powers granted by the 8th article of the Constituperiment. He had listened with candid attention tion to Congress, was unconstitutional: Another to the arguments that had been most ingeniously brought forward to sustain those new doctrines, but still found in the simplicity of those opinions that had kept pace with his acquaintance with the Constitution from its origin, and which had been so congenial with its practice, a basis of conviction which nothing that he had heard had shaken. The Government of the United States had been in operation more than seven years. Treaties had been formed and acquiesced in. These Treaties had established peace, boundaries, and the rights of persons and of social intercourse; they had been made by the PRESIDENT by and with the advice of the Senate; they had not, that he had heard of, been questioned as supreme laws of the land. This Treaty power is now disputed, on a question which was connected with an event upon which much sensibility had been excited. He did not know how far the minds of gentlemen might not be affected by the merits of the Treaty which had given occasion to the motion; how far the genuine maxims of construction might not have been swallowed up by the sensibility that flowed from a construction of the Treaty power when applied to this particular instance of its exercise. The minds of gentlemen could alone determine that matter, and to them he left it. But it was a little singular, is, that a Treaty comprehending any of these specified objects as reserved to Congress, as mere Legislative objects, was not the law of the land till consented to by this House; and that no Treaty which required the agency of this House was a law of the land, if this House refused its agency, and that the House has a Constitutional right to refuse it. He said that he would state his own opinions in opposition to those, and then endeavor to show that these were fallacious, and destructive of the ends which the Constitution must be presumed to have contemplated. From the letter and spirit of the Constitution, made up, as it certainly was, of national and State capacities; from a plain, unlettered, and self-consistent construction, going hand in hand with an undisputed course of practice for seven years, it had always appeared to him that the PRESIDENT, by the advice of two-thirds of the Senate, had power to make Treaties. It he would conwas, tend, from a plain and unsophisticated construction of the Constitution, that this opinion was drawn. The doctrine now contended for, is to uphold an assumed power that can at best only defeat, but never can be rendered instrumental in giving exercise to the Treaty power. It totally destroys the Treaty power given by |