ing in all our public places, and our country exhibiting a complete counterpart to the French revolution; with this shocking difference only, that, as they have called forth the whole energy of human nature, and given a loose rein to all the vindictive and turbulent passions, to cut down and destroy real tyrants, despots, traitors, and minions, we, in our blind zeal, might have been executing the same vengeance upon our ideal ones, the mere agents and faithful servants of the people. But, to conclude, if the will of the people is the only sovereign power in our Government; if the Constitution is the expression of that will; if that Constitution has made the PRESIDENT and Senate the sole agents for making Treaties, then we have nothing to do in calling for papers to judge of their expediency or merits. This resolution must, then, be a violation of the Constitution, and should he give his voice to the passing of it, America, when she shall return to that calm repose that she enjoyed when the Constitution was formed, might execrate his name, and generations, yet to rise, might join in the execration. Mr. GOODRICH said, that frequent assertions had been made in debate that no Constitutional question was involved in the present resolution. To attempt a refutation of that opinion would be time misspent. Those matters merely colorable or of little importance, which were introduced at the commencement of the discussion, have been lost in the consideration of a fundamental principle of the Government. Every speaker's example, and the uncommon exertion of talents they had witnessed, evince that to be the case. What are the Constitutional powers of the Executive, and what are those of this House, relative to Treaties, are questions which we must have met in the course of business, and probably they could not have been presented in any shape less exceptionable than under this motion. They are sufficiently pointed for our deliberations, and now are placed conspicuously before the public for temperate disquisition and determination. The people are the source of power. One of their first and essential rights is, to make and amend their systems of Government. Ours, formed by the dictates of an enlightened wisdom, and a spirit of conciliation, owes its ratification to the good sense of the people, and their inviolable attachment to the Union. It is our duty conscientiously to expound their written compact, and faithfully to administer the power it confides to us. [H. or R. act on some of the same objects. Probably every object embraced by the former would, on being critically analyzed, be found to be a subject of the latter. Legislative authority is the basis of all authority in Government. Both these powers are acknowledged to be essential to the interests of Government, not merely to their perfection, but also to their protection and existence. One acts by the coercion of statutes within the territorial limits of a nation; the other comes to its aid where it is incompetent to act, and by compact regulates the reciprocal concerns and relations of independent sovereignties. It is incident to every authority in well-organized Governments to possess the whole subject over which it must necessarily operate. What the Legislative authority cannot accomplish distinctly by itself, the Treaty-making power, in all cases proper for its management, must effect. If the Legislature, by the organization of the powers of a Government, is admitted to a participation in arranging its concerns, and making Treaties with foreign nations, it does not act in its appropriate capacity as a Legislature, but assumes the distinct office of a Treaty power. It is true, indeed, the sole right of pledging the public faith may be assigned to the Legislature; the Legislature then becomes the Treaty power. If it be partially assigned, in that case the Legislature becomes partially the Treaty power. To pursue the subject one step farther: this power may be assigned wholly or partially to one branch of the Legislature. In these cases, from its nature and offices, it would be a Treaty, and not a Legislative power. The last supposed case is the actual case of the Senate under our Constitution. In short, though these powers assume some of the same objects, yet, from their different functions and modes of operation, they are to be considered as distinct. Judicial and Executive power act on the same objects as the Legislative; the former declares the will of the Legislature, as applicable to a specific case; the latter executes that will. These instances, though not exactly parallel in all particulars to the case in question, may serve to illustrate the doctrine. The primary end of Treaties, or the chief motive for making them, are to protect and advance our national interests, and those of our citizens in foreign countries; to guard ourselves against aggressions within our jurisdiction or elsewhere. Other nations are actuated by the same views in respect In support of the motion, two principles are to us. Hence, effectually to consult and provide strenuously maintained: one, that this House has for our own interests, the Treaty power must nea co-operative power, with the PRESIDENT and Sen- cessarily possess the right of arranging and reguate, over Treaties embracing Legislative objects; lating by compact some of the affairs of internal another, that there results to the House a right to policy. The progress of civilization and of interdecide on the merits of the Treaty, to which the course between nations, renders their interests repapers refer, from the power Congress have rela-ciprocal. They can be permanently advanced tive to appropriations of money. The whole argument in favor of the first proposition itself, is, that this House possesses a controlling power over some Treaties, because they embrace objects upon which Congress may legislate. He admitted that these two powers, so often mentioned, the Treaty and Legislative powers, do and protected only by reciprocity of terms. To secure our own rights, we must secure the rights of others. To obtain privileges we must grant privileges. The only reason assigned why this House has a co-operative power with the PRESIDENT and Senate over Treaties, being because Treaties of H. OF R.] Treaty with Great Britain. [MARCH, 1796 the description over which this co-operative power thirds of the Senate present concur." "Who is to is claimed to operate do affect Legislative objects; make Treaties? The PRESIDENT. "By and with an explanation of the distinct offices and functions, the advice and consent of the Senate, provided together with the incidents that belong to these two-thirds of the Senators present concur." No respective powers, has been deemed to afford a Treaty can be made without the advice and consufficient answer to this reason. That the Legis-sent of the Senate. There must be a quorum of lative power merely by the force of its authority Senators present to constitute a Senate, and twoto make statutes in respect to certain objects over thirds of the Senators present must concur in the which the Treaty power acts by way of compact, advice and consent made essential to the ratificadoes not draw to itself an exclusive power to tion of a Treaty. The PRESIDENT is not pemake Treaties, relative to those objects, nor remptorily bound to conclude a Treaty, though thereby parcel out or limit the power to make the advice and consent of the Senate be given Treaties, or claim a co-operation with it, when thereto. The PRESIDENT's positive act is necesvested in a distinct department. No such con- sary; and he can withhold it in case his judgment struction arises fairly out of the nature of these dictates that to be his duty. In what view are the two powers, but they are to be distinguished Senate to be considered? As a check on the PREby the appropriate duties assigned to them re- SIDENT to prevent bad Treaties and further good spectively, and the different modifications under ones; as a controlling, negative, and constraining which they operate. If the construction con- power, or as a co-operative power. Their power tended for can be admitted, how are the respective in this respect is analagous to their other powers rights of these elementary powers in Govern- where they act on Executive business; instance ment to be determined? Placed in a state of col- the nomination and appointment of the officers of lison at least, if not of hostility, in the body politic, Government. The next word to be noted is how are we to designate which has the right of "make." In common use it denotes a full comspoiling or limiting the other? Where do its in-pletion of the act to be done; when applied to roads begin; how far extend, or what are the fit legal instruments its signification is the same. occasions for its warfare; or, are both to act offen- Such is its signification here, a perfect and conclusively and defensively like opposing powers? Did sive act. It has been often observed, that to exnot the framers of the Constitution know the na- pound the Constitution fairly we must compare ture of these two authorities, their respective and its parts together. The rule is a good one. relative offices? If so, must we not suppose they determine the use or sense of words, we resort to designed them to act separately and independently clauses of the instrument where the sante word is in their particular spheres, exclusively and con- used relative to the same subject. This word clusively performing their functions? Or, is it twice occurs in the sixth article, where we all more rational to suppose that they instituted these agree that the signification is the same as before two authorities, and left them to range at random mentioned-a perfect act. Power to make Treauntil they could find their true destiny from the ties; Treaties made, and Treaties that shall be custom of some foreign country? To suppose the made, all import a conclusive act done or to be latter is to reflect on those wise patriots the high- done. est disgrace, to hold up our much admired system to our citizens, and the world, as a system incorporating in itself the principles of incessant warfare between the great departments. It is to mar all its beauty and harmony. A critical examination of the expressions in the Constitution, and a sacred regard to their plain import, will leave no room for construction or conjecture on this point. To Gentlemen who support the motion content themselves with asserting the meaning of the whole sentence without defining precisely the signification of the terms. This has aided them to make out systems not warranted by a just interpretation of the words. Often has it been reiterated in favor of the resolution, that the PRESIDENT and Senate are empowered conclusively to make some Treaties, but are mere organs to form To interpret words was not a grateful task, it others. How are the Senate organs to form Treaafforded no scope for the powers of imagination. ties? Can they originate them, or form stipulaBut observing how attentively Judges, in constru- tions? Are they to act jointly with the PRESIing written instruments and statutes, regarded the DENT in those respects? They possess no such expressions, and how little latitude they allowed authority. When a Treaty is formed and placed to their inventive faculties, or their own fancies by the PRESIDENT before the Senate it is inchoate. about policy or expediency, he hoped he should And what is the effect of the advice and consent be pardoned for remarking that their example had of two-thirds of the Senators for its ratification? not been sufficiently imitated in the discussion of Is nothing more implied than that the inchoate stipu this Constitutional question. He would venture lations on which they have deliberated, shall reeven at this late hour of the debate to ask the atten-main inchoate till a majority of the Senate, in tion of the Committee to the parts of the Constitution connected with the present subject, and to mark and collect the precise meaning of the terms or phrases used. They are familiar to the Committee. "He shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two their Legislative capacity, deliberate again on the subject; and, by a majority only, either reject or confirm the inchoate act they had before, by the concurrence of two-thirds, consented should be formed? On the construction assumed by gentlemen in support of the co-operative power of the House, and on which their whole system rests MARCH, 1796.] Treaty with Great Britain. [H. of R. to do the final act; and when done the Treaty becomes a law, to be placed among the laws, pleadable as such, and the judicial power is expressly extended to all cases, in law or equity, arising under Treaties. He believed that this was peculiar to our Constitution. Treaties in other countries, by binding the public faith, impose an obligation on the body politic to provide laws; with us, so far as they are perfect, and their provisions can execute themselves, they need no auxiliary laws. If imperfect and destitute of necessary provisions, like other laws in themselves imperfect, they require further laws. Under the forms of our Government the Legislative and Executive functions cannot act in unison directly on a Treaty to confirm it. A simple vote of one branch gives no additional force to a Treaty ; the PRESIDENT's affirmative and positive act is necessary. A concurrence of two-thirds of the Senators present is requisite. In legislation, the affirmative act of the PRESIDENT is not made essential; a majority of the Senate is sufficient. Laws must originate in one of the Houses of Congress. Auxiliary laws have no direct effect on the Treaty itself. 2d. Because a check, or cooperative power, viz., the concurrence of twothirds of the Senators present, is expressly provided to restrain the Treaty power in the hands of the PRESIDENT. Is it not fully evident that the framers of the Constitution and the people have considered this subject, and declared their will in respect to a check? And shall we, in contradiction to that declaration, from remote and uncertain construction, multiply checks? two different significations are given up to the operative power of this House cannot be allowed. word "make" in this clause of the Constitution: 1st. Because the express terms of the ConstituOne denoting a perfect and conclusive act; ano- tion decide the question in every stage of the opether an inchoate act. For the purpose of illus-ration of the Treaty power. The PRESIDENT is trating this part of the subject, admit that the several specified articles of Legislative jurisdiction are excepted from the Treaty power, or that the Treaty power is thereby limited so that it cannot act on them; how is it reconcilable with the fair interpretation of words, that the term "make" should take to itself different meanings; that it denotes a thing actually complete, and a thing incomplete; that by it a limited and unlimited authority is granted? Is not the power of the PRESIDENT, relative to Treaties, single and uniform, whatever objects it constitutionally embraces, or under whatever limitations it acts? Can it be parcelled out, and over one set of subjects exert a perfect authority, and over others only a limited one? Such construction perverts the meaning of the terms. What are Treaties? Compacts between sovereign nations, relative to peace, war, commerce, and security, originating in their consent, and from thence deriving their binding influence or obligation. The power to make Treaties is nothing more or less than an authority to pledge the public faith relative to those objects. The sixth article has been often commented on: "This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and al! Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." "Under the authority of the United States." An authority of the United States empowered to make Treaties is intended. The PRESIDENT, with the advice and consent of the Senate, is the only authority named in the Constitution for that purpose. Two kinds of Treaties are contemplated. Treaties made under the Confederation, and Treaties to be made by the PRESIDENT and Senate. The words authority of the United States are inserted as comprehensive terms, including, without circumlocution, both description of Treaties. Law of the land: A rule of conduct for citizens and subjects within our jurisdiction, and for regulating all things therein to which the rule relates. The declarative part of the sentence ends; what follows is by way of caution or express injunction. There is no occasion to dwell longer on it. A clause in the third article, section two, is explicit: "That the judicial power shall extend to all cases in law or equity arising under this Constitutionthe laws of the United States, and Treaties made, or which shall be made, under their authority." A power distinct and separate from the other powers instituted in the Constitution; an authority to pledge the national faith is, in express terms, given to the PRESIDENT, under the control of the Senate. Its existence does not admit of doubt; and the design of its institution was, that it should be exercised on fit occasions. No exception is made, in respect to its objects, nor any limitation expressly provided; no special Treaty-making power is instituted.' Constructive reasoning in support of the co Grant we may amuse ourselves in researches for an extension of our powers by construction and conjecture, he apprehended that they should at last find themselves in a delusive dream. So far as he understood the arguments in favor of a co-operative power on the part of the House, they presented themselves in these two points of view: 1. That all Legislative objects specified in the eighth section of the first article of the Constitution are excepted out of the Treaty power. 2. That Legislative jurisdiction over certain objects limits the Treaty power so far only as that it cannot conclusively make Treaties relative to those objects, and thereby a controlling power is vested in Congress. He imagined that the first proposition was not true in point of fact. Many reasons had been offered to show that Legislative objects were not excepted from the Treaty power, merely because they were Legislative objects. He would endeavor to show that they were not excepted merely because they were enumerated. It is true that a special limits a general power, without express words of limitation; but the special must be of the same kind as the general power. Objects embraced by a general power may be withdrawn from it by being expressly vested in a special H. OF R.] Treaty with Great Britain. [MARCH, 1796. power of like kind, though no terms of exception Executive. If we adopt the principle we cannot are used. To explain: If the Constitution had restrain its full operation. There is no middle contained a special Treaty power, vested in a dif- ground. Nothing but our arbitrary will can asferent organ from the PRESIDENT, to act on Le-sign certain rights to be left still with the Execugislative objects, then the general power would tive, and certain powers to be exercised by this have been limited without a restrictive or except- House. On the construction assumed, all the ive cause. All that is left to implication in that Treaties made by the PRESIDENT and Senate are case is, to presume that the special is carved out unwarrantable assumptions of power. An error of the general power. The presumption is so ob- has crept into the public councils on this subject. vious as to become irresistible. Implication is Foreign negotiations have been carried on upon not to be extended further, for an obvious reason. the ground that the PRESIDENT and Senate could The intent to vest a general power is expressly conclusively make Treaties. Treaties, without declared by its being expressly vested. No spe- the sanction of this House, have been proclaimed cial power can be carved out of it, or a limitation as laws. In this situation the exigency of cirbe made on its exercise, except such intent also cumstances press with an almost irresistible be expressly declared. An institution of a spe- weight on the authors of this doctrine, to set cial power is a declaration of such intent. The some limits to its inroads on the powers of the evidence of a limitation upon the grant is of the Executive. If the principle were to be admitted same nature as the evidence by which the grant in its whole latitude that love of power and agwas made. Legislative power does not possess grandizement, described to us as so insinuating the essential capacities and attributes of the Trea- and invincible, could not be gratified by an allity power. By the Constitution they are contem-ance with the Treaty power. To determine the plated as distinct authorities. We shall act arbitrarily to commix them. authority heretofore assumed by the PRESIDENT to be usurped, and that in future he could not exBy recurring to the Constitution we shall find ercise it, would leave no basis for our co-operative the reason why these several articles are specified. power. The middle course also not only addressThe Legislative body is organized and defined by es itself to our ambition, but professes to avoid the first article of the Constitution. The power the most serious evils; though it mutilates the of legislation is between the General and State Constitution, it does not divest it of the Treaty Governments-all Legislative power herein grant-power, as the principle in its utmost extent would ed. By these words the grant is made and the do. It admits the constitutionality of the Treareservation expressed. The Legislative powers ties entered into by the PRESIDENT, so far as to of the General Government are defined in the render them proper for our sanction; and thus eighth section of the first article. The design of keeps in prospect the continuance of our national this definition was to ascertain the limits of juris- happiness. Temporizing policy may dictate this diction between the General and State Legisla- line of conduct, but a regard to the principle tures. The ninth section of the first article con- which the favorers of the resolution have adopttains certain limitations upon some of the powers ed, leads to conclusions far different-that the vested by the eighth section, and a denial of other objects of legislation are entirely withdrawn from powers, which might otherwise be assumed by the Executive, that his acts are void, and that implication. The tenth section contains a denial this House can never foster usurped authority in of other powers, to prevent disputes which might any of the departments of our Government. arise respecting a supposed jurisdiction between He observed that the other point of view in the General and State Governments on the sub- which gentlemen presented the subject, viz: that jects therein mentioned. The complexity of the the Legislative power limited the Treaty power Government has rendered this specific definition so far only that it could not conclusively act withof its power necessary. An enumeration of the out the co-operation of this House, was inconsistparticular subjects of legislation, in the eighth ent with the former proposition; it conceded that section of the first article, so often adverted to, is the enumerated objects of Legislative power were to ascertain the limits of jurisdiction between the not withdrawn from the jurisdiction of the ExeGeneral and State Legislatures. When the spe-cutive. He said, that on that principle the whole cification has been dictated by so obvious a rea- doctrine of the right now proffered to the House son, shall it be overthrown by a mere supposition rests. If these subjects of legislation are not exthat the enumeration is made for the purpose of ceptions out of the Treaty power, whence can divesting the other branches of the Government any authority be derived to us? From what of authorities expressly granted to them? On source does it originate? The power of the PREsome of these enumerated articles the State Le- SIDENT and Senate is conclusive over all the subgislatures have concurrent jurisdiction with Con-jects it can constitutionally act upon. To supgress; and, will it be pretended that they possess, port our co-operative power we are obliged to rob on that account, a co-operative power over Treaties? the Treaty power in part only at this time. We are now on Treaties already made. He would To view the question in all its attitudes, let us ask gentlemen where the co-operative power was suppose that the construction so forcibly pressed to commence, how far was it to be defined, what on the Committee is fully authorized; what is the were to be its effects? Was there any reason for result? All the objects so often alluded to are limiting it merely to a simple confirmation or reentirely withdrawn from the jurisdiction of thejection of a Treaty when made? Why not co MARCH, 1796.] Treaty with Great Britain. [H. OF R Mr. GALLATIN would not have requested once more the attention of the Committee, had not the floor been altogether occupied for the four last days by gentlemen opposed to the resolution, who had taken much new ground, and must have raised many doubts. At this period of the debate it might not be useless to try to state with precision the question, and the points on which opinions were divided, and to compare the arguments offered on both sides. operate in negotiation? The reverse to what has been may be the case. This House in future may prefer peaceable negotiation, while the Executive shall meditate a different line of conduct. And, might they not then, with as fair pretensions as on the present occasion, insist also on the right of negotiation? Indeed, why not in all cases? He would close his remarks on this branch of the subject, by observing that, if we substitute constructive reasoning in place of the express letter of the Constitution, the form of our Government, under pretence of providing checks against power, or of enlarging the powers of Government, would undergo perpetual changes. The question that now fixes the attention and hopes of the present age is, whether men can associate under written compacts, and govern themselves? Near-pact completely binding on the nation and Conly connected with that question undoubtedly is the consideration how far the agents of the people will regard these writ en compacts. Mr. G. said, he had so far trespassed on the patience of the Committee, that he would only ask their attention for a moment to a few remarks in respect to the right that was supposed to result to the House of determining on the merits of the Treaty in question, from their power over appropriations of money. The original question (the call for papers) had now resolved itself into another, which alone had become the subject of discussion, to wit: whether a Treaty made by the PRESIDENT and Senate was, although it embraced objects specifically delegated to Congress by the Constitution, a comgress, so as to repeal any law which stood in its way, so as to oblige Congress (without leaving them any discretion except that of breaking a binding compact) to pass any law the enacting of which was necessary to fulfil a condition of the Treaty, so as forever afterwards to restrain the Legislative discretion of Congress upon the subjects regulated by the Treaty; or, in other words, whether, when the PRESIDENT and Senate had, by Treaty, agreed with another nation that a cerHere the mind had been busy in devising ex- tain act should be done on our part, the doing of treme cases, which, from their extremity, formed which was vested in and depended solely on the their own rule and provided the remedy. He ob- will of Congress, Congress lost the freedom of served, that most of those cases which had been their will, the discretion of acting or refusing to brought forward were such as to destroy the in-act, and were bound to do the act thus agreed on struments or Treaties. In instances of their be- by the Treaty? ing obtained by bribery, fraud, or imposition, they had no obligation. Bribery, fraud, and imposition, entirely vitiate compacts. Under this class also are to be placed those Treaties which grossly sacrifice all the essential rights and interests of a nation. None of these circumstances can be candidly alleged against the British Treaty. The question is, if a Treaty, fairly and constitutionally made, stipulates the payment of money, what obligation does it impose on this House? It imposes a perfect obligation resulting from two sources. One imposed by the Author of Being a moral obligation; the other arising from our Constitution, which is formed by a moral and enlightened community to enforce moral obligation. If the nation, from the exigency of circumstances, is incapable of discharging its obligations, they become suspended. That is not pretended; and, if it were, the only document requisite for deliberation would be a statement of revenue and expenditure from the Treasury Department. Gentlemen who favor the resolution say that those in opposition to it have assumed high ground, and invite us to unite with them. We conscientiously believe that we stand on Constitutional ground; and gentlemen will permit us, in return, to solicit them to resist the love of power, which they represent to be so enticing and predominant, to afford the example of a numerous public body repressing the proffer of an extension of their own powers. On these grounds we shall obtain the noblest of conquests-the conquest of ourselves. An assertion, repeatedly made by the opposers of the motion that their doctrine rested on the letter of the Constitution, whilst that of those who contended for the powers of the House was grounded only on construction and implication, had not the least foundation. The clauses which vest certain specific Legislative powers in Congress are positive, and, indeed, far better defined than that which gives the power of making Treaties to the PRESIDENT and Senate; nor does the clause which declares laws and Treaties the supreme law of the land decide in favor of either, and say which shall be paramount. And yet some gentlemen had argued as if they meant to attend exclusively to one part of the Constitution, without noticing the other; the consequence was, that many of their arguments applied with equal force in support of the opposite doctrine. Thus, when they said that there was no part of the Constitution which declared that the Legislature had power to make a Treaty; that, had it been intended to except Legislative objects out of the general Treatymaking power, an express proviso for that purpose should have been added to the clause which gives the power of making Treaties; and that Congress, when making laws, were bound to obey the will of the people, as expressed by their agents the PRESIDENT and Senate; it might, with equal strength of argument, be replied, that there was no part of the Constitution which declared that the PRESIDENT and Senate had power to make laws; that if it had been intended to except out of and to limit the Legislative powers of Congress |