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Treaty with Great Britain.

[MARCH, 1796.

reduced to a simple acceptance of peace, a cessation of arms, without the power of availing themselves of any of the advantages of victory in war, derivable from the reserved objects of Congress, such as the rights of a more enlarged and beneficial commerce; or an acknowledgment by stipulation of the rights of nations, though these would probably, nine times out of ten, form the subject of the war. For if the PRESIDENT and Senate cannot make a Treaty upon these points, and they are among the objects of legislation, they could not enter into a negotiation at all upon them. If they could negotiate upon them, it must be in virtue of their power under the Constitution, and the same expressions that would justify them in negotiating, would warrant them in concluding a negotiation by a ratification of a Treaty upon them; because, under the Constitution, there cannot be found any middle ground upon which the other branch of Government could come into co-operation in the making of a Treaty. Its sole agency is under the cogency of a Constitutional duty, which is to display itself in complying with the contracts of this sort, not in making them.

the Constitution; but does not enlarge the Legislative power of Congress. It may do harm, but never good; establish it, and the Constitution is a nullity in that grant of power, which is designated to present an efficient organ of sovereignty, through which the foreign relations of the Union are to be preserved for our use, and recognised by others. It violates the Constitution, because it renders one of its most important grants of power void. It violates the Constitution, because it assumes a right of either sharing in the Treaty power, which, whatever may be meant by the terms "make Treaties," is exclusively given to the PRESIDENT and Senate. It violates the Constitution, in the assumption of a capacity in this branch of the Government, to give validity to what it prejudges to be unconstitutional. If the propositions which he had mentioned as maintained by gentlemen, be correct, there either is no Treaty-making power in the Government, or this House, to fulfil and give efficacy, in some way or other, to this power, must be obliged to violate the Constitution; one of the consequences appeared to his mind to be necessary. When he said this construction could do harm, and act by obstruction, but never do It is, on all sides, admitted that the Treaty good, he would here remark, what he would af- power is competent to make peace. But here, terwards a little enlarge on, that there were in-under the doctrine contended for, the fruits of war, stances in which the House might rightfully obstruct; but these would be found to be, not where there was a Treaty binding by the Law of Nations, but where fraud or other cause justified and often enjoined upon a nation to obstruct. In those cases he would remark, the right to obstruct, or to refuse to act, resulted either from a Treaty that had ceased to be obligatory, as in case of infraction by the opposite party, or an instrument not at all obligatory, as a fraudulent one.

in an advantageous peace, are to be rendered doubtful, if not totally lost. The cause of war might be upon some of the reserved powers, as upon a commercial question, or upon an offence against the Law of Nations. The PRESIDENT and Senate could make peace, but could come to no binding stipulation upon the very objects of the war. At most, they could but negotiate upon them, but could not make a Treaty upon them that would be unconstitutional; but could they even negotiate upon them? They could make a Treaty upon them, or they could not negotiate upon them?

By the Constitution, they are to make Treaties. No where in that explicit and luminous body of our Government is there to be found an expression that gives a right to Congress to negotiate or to make Treaties. This power is classed with the Executive power expressly, and must exclude the Legislature. There cannot be shown in the instrument a power in this House to aid or to consent to negotiation; he meant to distinguish clearly between a negotiation and a Treaty made; the one is the agency merely, the last the thing completed in the view and meaning of the Law of Nations. Now, either the PRESIDENT and Senate

If the doctrine contended for, that a Treaty operating upon the reserved powers of Congress, is unconstitutional, be correct, it will be found that the Treaty power of the PRESIDENT and Senate is reduced to a degree of insignificance below the dignity of the Constitution, were it, instead of being what it is, the most exalted monument of good faith, justice, and liberty, the most vile and inefficient compact that was ever framed-strip the Treaty power of a right to negotiate upon commerce, upon contraband as falling under the commercial view, of free bottoms, as belonging to commercial affairs, of the rites of hospitality to ships, of offences against the Law of Nations, of Consular rights, as affecting a certain degree of the judicial power, of privateers and their conduct, of the fitting out of armed ships during the neu-may make a Treaty, or they cannot negotiate trality of a foreign power, when the United States are at war, and upon what can the Treaty power operate? These reserved powers, in fact, occupy almost every object that it would be Constitutional for the PRESIDENT to treat upon; they embrace the whole of the commercial regulations with foreign Powers; they reserve all the right of defining and of punishing offences against the Law of Nations. Could it be ascertained that the PRESIDENT and Senate were not at liberty to enter into the boundary of these objects of legislation, the whole of their Treaty power would be

upon these reserved points, because if it be admitted that these points would be essential in such a situation of our affairs, and that this House could not either negotiate or make a Treaty upon them, either the Treaty power under the Constitution must be adequate to the making of a Treaty upon them, or no Treaty could be made. The Constitution could never intend to preclude Treaties upon commercial subjects; it has shown that it protected those already made, and our own practice has proved, that they are superior to our own laws. Besides, had the Constitution devolved the

national capacity upon the General Government, by excluding from States a right to enter into Treaties or negotiations with foreign Powers, the right to make Treaties would, of necessity, be in the General Government, this collective capacity of a nation must always reside somewhere; it must exist, because every nation is a moral person standing in certain well-defined relations to other nations. There must exist somewhere a power, an organ to preserve these relations, to fulfil the duties, and discharge the obligations which flow from the Law of Nations. Can it be conceived, that the Constitution designed to destroy, or to render impotent, the organ by which the national character was to be presented to the nations of the world, or can a construction that nullifies the clear and forcible expressions of the instrument be a sound one? The Constitution not only recognises this collective and essential capacity of the American nation, but organizes it for action in a way that scarcely admits of even ingenious misconstructions; it has placed it in the Executive, who, by and with the advice of twothirds of the Senate, can make Treaties.

[H. OF R.

tlemen that the Treaty containing stipulations upon them must be contrary to the Constitution, and erected upon powers usurped from this body; because, by the eighth section of the Constitution, the Congress have power, among other objects. purely of a domestic nature, the following, which relate to the present question: To lay imposts, to regulate commerce, to constitute tribunals inferior in their jurisdiction, to define and punish piracies and felonies committed on the high seas, and offences against the Law of Nations-which, Mr. M. said, he would repeat, and to punish offences against the Law of Nations; because it must open to any man capable of pursuing a regular track of reflection a variety of points in contact with the remarks which he had lately presented to the Committee. These powers, he remarked, were relative to two classes of objects and persons. The first class comprehended all persons and things within the jurisdiction and dominion of the nation. The other, such as were out of the dominion but within the jurisdiction of the nation. They likewise presented to view things which were incomplete in their nature, unless considered as connected with foreign relations; of the first class were imposts, commerce with foreign nations, inferior tribunals of justice, offences against the Law of Nations committed in the United States; of the second class were offences committed against the Law of Nations by American citizens on the high seas, or out of the limits of the United States; piracies committed by our citizens. Upon all these points it was certain that Congress could legislate. It might pass laws relative to the imposts which foreigners are to pay upon goods which they may bring into the United States; but Congress could not produce reciprocity under a stipulation pledging the faith of a foreign nation that the citizens of the United States should not pay more than the subjects of that nation paid in our ports. Congress might pass a law giving a French Consular Chancery a limited jurisdiction, but never by its agency could secure to the seamen of America a similar protection in France. It might define and punish offences against the Law of Nations, piracies, contraband trade, the outfitting of armed ships during Can the nation avail itself under the rigor of a neutrality. It might, by a generous legislation, this construction which is imposed upon the Con- extend the blessings of a more refined age to stitution, so as to render the Legislative power a foreigners, by withholding the operation of its means of obtaining the full exercise of the re-impost and tonnage laws where storms or distress served objects considered in their relation to foreign nations? Or does it, if it cannot accomplish these great ends by Legislative means, intend to abandon them when they present objects of advantage, or disengage itself from the duties that arise under that class of them which relate to the Law of Nations?

If, as has been contended, a Treaty touching the reserved powers, as they have been assumed to be, be unconstitutional, it must be shown either that the nation can avail itself of the Legislative power in carrying into effect its national relations, its wants, its rights, and a redress of its wrongs, in those reserved objects and rights, or that the nation relinquishes them, as they afford the means of intercourse, or the medium of redress; or, that the Treaty power, agreeably to the second proposition contended for by gentlemen, was to be considered as the mere instrument of negotiation, but not of a capacity to bind the nation upon these points. This must be made out by the gentlemen, or they must yield to our construction. The second proposition which was held up to view to be exposed for its extreme fallacy, is, that a Treaty comprehending the objects within the pale of the reserved powers, was not the law of the land, agreeably to the terms of the Constitution, unless consented to or sanctioned by this House. This proposition shall be examined after a remark upon what precedes it.

The last is impossible to be the case, as it would be impossible to accomplish the end were it intended. The first is impracticable either in point of fact, or under the Constitution, as a doctrine that can for one moment be maintained.

These reserved powers, so perpetually recurred to, constitute the basis upon which the question asked must be considered. It is contended by gen

drove unfortunate foreigners into our ports; it might restrain the privateers of the United States; it might declare that when the United States are at war, neutral bottoms shall afford a sanctuary from rapine to the goods of an enemy; it might declare the debt of an enemy should not be confiscated during a war. All this Congress could doubtless do, and would have honor in the doing, but this accumulation of kindness would not secure to the citizens or to the nation a reciprocity of good upon all these points. It might permit a free trade to all nations, but it could not secure that right which is an imperfect right to our enterprise by converting it through the medium of a compact into a perfect one. Thus, he observed

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Treaty with Great Britain.

[MARCH, 1796.

had attempted to show the necessity of some organ to answer this purpose. If he had succeeded in these two points, the consideration of the other proposition of the friends of the resolution would support his reasoning with a force that he thought not easily overcome.

Either the paper upon the table is a Treaty, and as such is obligatory upon us as being part only of the nation, because it binds the nation; or it cannot be a Treaty. It cannot be a neutral inchoate act; it is either binding, because it is a Treaty in the eye of the Law of Nations, or it is nothing. If it is not binding, it is because it is not a Treaty; if it be unconstitutional, it cannot be a Treaty; if it be fraudulent, it is no Treaty; but if it has been made and ratified without fraud, by an authority competent to make it, then it is a Treaty, and, as such, the supreme law of the land, agreeably to the strong and plain language of the Constitution.

giving the fullest enjoyment to the reserved pow-ground of reciprocal benefits solidly secured. He ers, let them operate in their fullest extent, you stop short of all the objects of the Treaty power operating upon the same objects. You thus construe the powers under the Constitution so as strictly to restrain the general grant to the PRESIDENT and Senate by the reserved powers agreeably to the idea of a gentleman from Virginia, and you fall short of any one object that the Constitution could have had in view in the general grant of the Treaty power. Mr. M. argued that no construction of the Constitution which defeated and rendered either null or unnatural in its enjoyment any grants of power in the Constitution, could possibly be the true one. Here was a construction that narrowed down the Treaty power to a mere cessation of hostilities-not into a capacity of promoting our own rights and advantages with validity; not of preserving the common relations of nation to nation; of converting by Treaty imperfect into perfect right; of upholding the spirit of commercial enterprise by a Having endeavored to prove the necessity of high obligation of reciprocity; of restraining the the existence of a power somewhere in the Conavarice or the injustice of nations by pacific and stitution, nay, bound in some instances to make social relations and engagements; not of blunting Treaties upon many of the objects which are prethe calamities of war when we are engaged in it. judgingly termed powers exclusively reserved to No. All this according to this construction that Congress, and that Congress is incompetent to is to paralyze our power of self-preservation while this great, this imprescriptible right and power, it empowers and invigorates our benevolence to- Mr. M. said, he would attempt to show that the wards others. All this Congress can do in favor Treaty was made by the only power under the of foreigners, but the Government has no organ Constitution competent to make Treaties. Acof intercourse by which the like good can be se- cording to the Law of Nations, five things are necured to ourselves from others. Strange and un-cessary to the validity of a public Treaty, or an natural construction by which the relative powers express covenant between two nations: that the of a people may be organized for the good of parties had power to consent, that they do conothers, but are disorganized when their own per- sent, that they consent freely, that the consent be manent good is to be obtained! This construction, mutual, that the execution be possible. It would which leads to consequences of perfect impotence, be an unnecessary trespass on the indulgence of that robs the Executive and Treaty powers, but the Committee to consider any of the requisites enriches not the Legislative power, cannot be a but the first; if the first can be made out by a fair sound or a rational construction. Yet this must construction of the Constitution, it is all that is follow the construction, that the reserved powers necessary to overset the general doctrine contendoperate as restraining the general grant of the ed for by the supporters of the resolution, to wit: Treaty power in the PRESIDENT and Senate. that a Treaty is not the supreme law unless this House consent to it, or because it may include the commercial powers. If this can be fairly inferred, it will follow, that the instant the covenant is ratified it is obligatory upon the nations contracting; from that moment it is a subject taken out of the reach of municipal regulations, and is within the jurisdiction of the Law of Nations, and receives from that law a validity to which Legislative acts can add nothing; it is then among the statutes of nations, and its force and operation as a contract must be adjudged by the maxims of that law alone.

This must be the consequence, unless it can be shown by gentlemen how and in what manner the Treaty power may be enabled to perform its offices, such as the nation may be supposed to have intended; that is, how it may be a valid and not a void grant of power. They must show how it might attain the ends, how preserve the relations and duties which the Law of Nations imposes on us as a nation, or prove that the ends may be accomplished constitutionally, through the intervention and active agency of Congress acting upon their reserved powers, which are specifically granted as Legislative powers, and which he had attempted to show could not be organized by Congress so as to attain the same end that the Treaty power is perfectly adapted to, if it can be admitted into the agency. He said he had attempted to prove from this course of reasoning that Congress were incompetent, acting legislatively, to obtain the objects he had mentioned, to wit: the reserved powers thrown into action relatively to foreign nations, and considered as affording a

The power of the PRESIDENT, as the organ of the nation's sovereignty, must be considered, when we attempt to ascertain his power to consent. If he had not power to consent, nothing can make this a Treaty; we cannot give him this power. His power must be derived from such a construction of the Constitution as would attain the objects which he had attempted to prove to be inherent in every nation, and must be somewhere in the Constitution. If the Constitution gives him

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the power to make Treaties, and he has made this agreeably to the mode pointed out as essential to his power of consenting, by the Senate's advice, and upon a subject-matter which does not violate the Constitution or the necessary Law of Nations, then it would follow that as a Treaty, in the eye of the Law of Nations, it would bind this nation, and being a Treaty in the meaning of the Constitution, it must be a supreme law of the land. If it is not a Treaty in the view of the Constitution, nothing that we can do can make it Constitutional.

Mr. M. said that he would, in order to support this reasoning, produce an inference, if not amounting to absolute conviction in the minds of gentlemen, at least conclusive against their doctrine, by going into an examination of the second proposition, which he mentioned soon after he rose as one upon which they relied. It was, that a Treaty which negotiated at all upon any of the specified and reserved powers of Congress was not a law of the land unless it be consented to by this House.

He remarked, that if it be proved that they failed in making out any hypothesis by which the Treaty-making power could constitutionally be brought to act, so as to fulfil the objects of the Constitution, their construction, which took the power from the PRESIDENT and Senate, without giving it operation through any other channel, could not be the just one. This opinion or proposition must have been intended by those who have used it for one of two conclusions: either that the PRESIDENT might ratify a Commercial Treaty only upon a condition that this House would, as a branch of Congress, having exclusive power over commercial regulations, consent to such Treaty, and pass laws conformably to it; or that any such Treaty, being already, in their opinion, unconstitutional, might receive validity by the consent of this House. If neither of these conclusions could be warranted by the Constitution, the gentlemen would fail in the only plan of reasoning which he had yet heard from them, in which they had approached in the smallest degree to the point of conciliating the Treaty power with their opinions of the exclusive right of Congress upon the reserved powers. If they could not maintain these conclusions, they must abandon the Treaty power as lodged at all in the Constitution, except in the case they all agreed in, its competency to treat of peace.

Here, Mr. M. said, it was proper to remark, that a Treaty, when ratified, is, by the Law of Nations, a solemn compact. It is admitted that Congress cannot make Treaties. It must be admitted there is a power somewhere in the Constitution that is to justify the making of Treaties; and the point to which the reasoning of gentlemen leads them is, that the PRESIDENT and Senate may make Treaties on the subjects of commerce and other specified objects, but that this Treaty would be the law of the land, unless this House consent and pass laws upon the subject. Let us see where this construction of the Constitutional powers will lead us. The PRESIDENT ratifies a Treaty, with the advice and con

[H. OF R.

sent of the Senate, touching the objects granted to the Legislative branches; but that he may not be entangled by the force which the Law of Nations attaches to a ratification of the instrument, he ratifies sub modo, under a proviso annexed, that the compact shall be obligatory if Congress shall pass laws to give it effect, or shall consent to it. He sends in the instrument to this House for their approbation, consent, or co-operation-call it what you will-how would this House, in such a predicament, act? what have they a right to do? The first question would be, is this a Treaty? No, it is not a Treaty unless you consent to it; it depends for its existence on you; it has no obligation without your intervention. Were it a Treaty it would be obligatory; but it is not a Treaty, nor binding, till you consent. Could this House do anything agreeably to their Constitutional powers in the making of Treaties? No; that authority, which by its agency is to give validity to a Treaty, is concerned in the making of it. Yet here is a case in which the instrument is to receive its validity as a Treaty, its quality by which only it can be a Treaty in the view of the Law of Nations, its force of obligation, from your act. If you give that assent, by which the proviso is accomplished, it is then to be a Treaty. In doing that, upon the execution of which the validity of the Treaty was dependant, do you not, in fact, by a subterfuge from the Constitution, take to yourselves an active agency in the making of Treaties? This, then, which is in strict pursuance of the reasoning of gentlemen as a consequence of the admission that a Treaty touching the reserved powers is not a law of the land, without the consent of this House, will follow that the House may aid in the making Treaties. The condition upon which the validity that makes it a Treaty, and, as such, law, depends. is a void condition, because giving an agency in the making of Treaties would be contrary to the Constitution. But we must pursue this mode, or have no Treaties; for the PRESIDENT and Senate cannot make such Treaties laws of the land, Congress cannot make them, nor do anything in the making of them. Where, then, is this Treaty power, so essential to every nation? Yet there is one more construction to console a nation under so ambiguous a Constitution.

A Treaty embracing commercial objects, stipulations relative to offences against the Law of Nations, agreements relative to cases during war, sequestration, free bottoms, contraband, rights of war, all acknowledged objects within the Legislative sphere, is, by the construction contended for by the supporters of the resolution, considered as unconstitutional. The Treaty power, he had attempted to show, must be deemed competent to act upon these objects conclusively, or not at all, as there is no middle ground upon which the Legislative power could co-operate in the making of a Treaty, by which it could produce an act inchohate, till sanctioned by Congress. Now, the Treaty-power must reach those objects, or they cannot be obtained at all. Yet it is contended, that though such a Treaty cannot constitutional

ly be made binding, that it is in the power of Congress to make it so by its agency. This reasoning amounts to this: that Congress may legitimate what is not legitimate; that Congress may make by its connivance, or its express assent, that to be Constitutional which was before unconstitutional. This is the only consolation left by the construction relied upon: If the Treaty be Constitutional, it is a law of the land; Congress, or this House, acknowledged in many cases to be necessary as the agent of its execution, may violate such a compact by refusing to comply with its obligations, or by doing what shall violate its stipulations. But he contended that no construction of the Constitution which is designed to gratify its powers can be a sound one, which is at war with the supremacy of the Constitution, as a great rule of conduct to us. If a Treaty be unconstitutional, no act of this House can make it Constitutional. Such a construction of the Constitutional powers can never be sustained against a moment's reflection; it must be abandoned, and with it the very last refuge which sophistry had taken in the wiles of interpretation, to give an operation to the capacity to make Treaties upon the Legislative objects, so as to render it dependant upon the will of this House.

[MARCH, 1796*

full and complete. If he has the power to consent or to ratify, the Treaty is placed beyond the reach of municipal control. It is among the Laws of Nations of the Conventional class. We may violate and destroy its operation, but we cannot invalidate its solemn obligations. There appeared to him to be an error springing from the true idea, that Congress has an agency in carrying Treaties into effect. This is a mere agency, limited to the rights which are left free to choice, and not bound by Treaty. Those rights can be but as to the most convenient mode of executing what the nation has promised to perform. Those who have a duty to discharge, may have a choice over the means by which the duty is to be fulfilled; but, from a power of discharging a duty, no conclusion can be drawn that the party has a right not to discharge the obligation. It is impossible to suppose that a whole nation can rightfully bind itself by a compact to do or not to do a thing, and yet there can exist in the same nation a power that can rightfully obstruct the execution of the agreement. If, then, the nation is bound, we are bound, as the agents for the nation, and we are no more, having no powers but those which the Constitution, which is the nation acting by principles, has trusted us with. If the Treaty binds the nation, it Mr. M. said, he had attempted to show that the does the whole of it. Its supremacy as a law must Treaty power, not being in Congress, must be be tried by that idea. If it is a Treaty, it is the law somewhere in the Constitution. That the Legis- of the land. Its relation is to the whole. If it is lative power upon commerce, and other specified a law of the land, it is constitutionally placed objects, could not be construed into an exclusion over every other law in its way. The idea of the of the Executive operating through Treaties made gentleman from Georgia, [Mr. BALDWIN,] that its by the consent of the Senate upon the same ob- supremacy relates merely to State laws, is a most jects. That none of the propositions which he extraordinary and unmeasured position. If it is a had combated afforded any mode by which the supreme law, relatively to the State laws, from Treaty power could take hold of the Legislative whence does it derive its binding force? It is beobjects provisionally; and that if the Legislative cause it is a Treaty. Can a Treaty, he would grant were construed as an exclusion against the ask, be binding over State laws, and yet be infeTreaty power, there could not be a Treaty made rior to the laws of Congress? If it does this, it is by the PRESIDENT and Senate, except a mere ar-in virtue of its obligation as a Treaty. If it be a mistice, or at best a Treaty of Peace; and that. Treaty at all, it must have the full force of a too, without the power of attaining the immedi-Treaty in all its action. If the Treaty, supposing ate and just objects of war, which are often upon the commercial points: And he had endeavored to show that, according to his first position, if the paper upon the table, which the Proclamation calls a Treaty, be not now a Treaty in the eye of the Constitution, nothing we can do will make it a Treaty.

The power to enter into Treaties is in the PRESIDENT and Senate, or no where. That the PRESIDENT has the power, to be exercised by the advice of the Senate, is to be shown to all who can read the Constitution. That this power must embrace commercial and all objects and things upon which we have a right, or might as a nation be bound to treat, appeared to be a plain consequence, both from the force of the terms giving the power, and from the impossibility of admitting a construction, that robbed the Treaty power of all right over the specified objects, but provided no mode of attaining the advantages and rights related to those objects, through any other channel. The power of the PRESIDENT to consent, then, to a ratification, appeared clearly to his mind to be

it to be made consistently with the Constitution, binds the nation, it is because it is the will of the nation, expressed by an organ competent to speak it. If the nation bind itself, it must have done so in good faith, and not with any mental reservation. Now, if a Treaty be a full and explicit promise, and yet the laws of the nation relative to its own concerns may rightfully obstruct it, in the denial of its supremacy over internal laws, then the nation violates its good faith, by making a promise with what amounts to a reservation not expressed nor known to the other party. If it be a supreme law of the land, in the plain but appropriate language of the Constitution, and be acknowledged to be superior to the laws of the States repugnant to it, it must be so in virtue of its obligation as a compact binding the whole nation, including, of course, all the communities and authorities within the nation. To suppose that a part of a Treaty can bind, and that a part is not binding, is contrary to every interpretation of the Law of Nations; and no construction can be found that violates the Law of Nations.