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H. OF R.J

Treaty with Great Britain.

[MARCH, 1796.

purpose of inquiring if he had taken correctly an sanction of this House. He had drawn arguidea that was urged with great force by that gen- ments in aid of it from all the various sources of tleman, which_was, that it was highly improper reasoning and authority, and from thence had to call on the Representatives present, who assist- very ably deduced conclusions, some of which ed at framing the Constitution, to declare what were solid, all of which were ingenious, and all the construction of that body was of the Treaty-deserving of serious examination. making power; for, says he, why travel back for this information? We have the Constitution before us, and from the instrument the explanation must be drawn. Why then does the scope of the gentleman's argument go to demand those papers out of which the Treaty hath arisen? Why not explain, on the gentleman's own principles, the Treaty by the instrument itself? It seems to me, said Mr. C., that there is a manifest inconsistency in the gentleman's reasoning, unless he means to destroy his principle by his doctrine; in that case it is proper.

Mr. HARPER rose and observed, he should not consider himself as having discharged his duty to the public, did he suffer the question to be taken without any observations being made on what had been advanced by the member last up from Pennsylvania; and he was the more willing to take this task on himself, as the debate had taken a turn altogether different since he first had the honor of addressing the Committee on the subject of the present resolution.

The observations, he said, of the honorable member had been directed to two points: First, that a Treaty, though ratified by the PRESIDENT and Senate, with all the forms of the Constitution, does not become complete and valid as such, does not in fact become a Treaty, till passed by this House. Secondly, that a Treaty, when completely made, cannot repeal or supersede an existing law.

The first position he had supported by various arguments, drawn from the Law of Nations, from our own Constitution, and from the practice of other Governments.

The authorities cited from the Law of Nations, Mr. H. said, from Vattel, prove that, in limited Governments, the power of making Treaties may be limited; that, when a nation bestowed the Treaty-making power on any branch of its Government, it might bestow it under various limitations. Of this, said he, no body could doubt. Nobody could doubt that the American people might, when they were forming their Constitution, have bestowed this power on any other branch of the Government, or under any kind or number of restrictions; but the question was, had they restricted it? Not what they could do, but what they did. And this led to a consideration of the Constitution itself.

The Constitution gave the power of making Treaties to the PRESIDENT and Senate; the power of making laws, the whole Legislative power delegated to the Government, was given to Congress. There was no direct, express restriction to the Treaty-making power; but an indirect, implied restriction was contended for from the Legislative power.

[Here there was some noise in the Committee, and a call for order; on which Mr. H. observed, that he should not ask for order; that, if he could not command it, he hoped he should have the good sense to understand the language of the Committee and be silent; and, while he could engage attention he would continue his remarks.] Mr. H. went on to observe, that, when he had formerly been up on this question, the only discretion claimed on the part of the House, by the supporters of this resolution, was a discretion to withhold its aid, where Legislative aid was requisite, in carrying Treaties into effect. He had opposed the resolution on this ground, that the papers to be called for were not necessary for enabling the House to execute this discretion; that their decision on it was to be guided by the instrument itself, and not by the instructions or the previous negotiations, the call for which implied an opinion that the House had a right, not only to determine whether it would co-operate in carrying a Treaty into effect, but also to interfere in making Treaties. The supporters of this motion finding, as he supposed, that the discretion to refuse or give the aid of the House in carrying Treaties into effect, would not justify the call for papers, had immediately changed their ground, and asserted a right to interference in making Treaties. The honorable member from Pennsylvania, [Mr. GALLATIN,] to use his own expression, had come boldly out and asserted, "that a Treaty Treaties, he observed, then, derived their origin is not valid, does not bind the nation as such. till and their existence from the consent of equals; it has received the sanction of the House of Re-laws from the authority of a superior. The formpresentatives." On this point a very able and lengthy debate had arisen; and, in the close of it, the honorable member had collected all his force to support this principle, that a Treaty is incomplete, is an inchoate thing, till it receives the

In order to discover how far these powers could restrict each other, it was necessary to inquire how far they might interfere; and that inquiry would lead us to consider the nature of Treaties and the nature of laws, the origin from which each is derived, the objects on which they act, the manner of their operation, the purposes for which they are intended, and the effects which they are able to produce. If it should appear that in all these respects they were different, that they could neither produce the same effects, operate in the same manner, nor effect the same objects, it would follow that they moved in different spheres, in which each operated uncontrollably and supreme, could neither encroach on, interfere with, or restrict each other.

er were compacts, the latter commands. Treaties derived their sanction from good faith, from national honor, from the interest of the parties to observe them: laws derive their sanction from the authority of the community, which enforces

MARCH, 1796.]

Treaty with Great Britain.

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necessary to be made; both are essential to the attainment of those advantages which result from civilized society; and the power of making each must exist in every Government. In ours these powers are placed in different departments, which must sometimes co-operate, in order to produce the desired effects, but neither could execute the business of the other. The Legislature could not make a compact, nor could the Treaty-making power make a law. It may stipulate, and very often must stipulate, that a thing requiring a law shall be done, but this does not render the law less necessary, and can be no more considered as an invasion of the Legislative power, than a law directing a compact to be made with a foreign nation, as an invasion of the Treaty-making power. The law would not produce the effect of a Treaty, nor render the agency of the Treaty-making power less necessary.

their observance and punishes disobedience. A Treaty stipulates that a thing shall be done, a law commands it. A Treaty of consequence may stipulate that a law shall be passed, but it cannot pass a law; that belongs to the Legislative power. A Treaty may agree that a tax shall be laid, or a crime shall be punished; but it cannot lay the tax or inflict the punishment-that must be done by a law, and is the exclusive_province of the Legislative power. Suppose a Treaty should stipulate that ten per cent. additional duty should be laid on goods imported in Swedish vessels: will any one say that the revenue officers could go on and collect the outy without a law? Surely not. The faith of the nation is bound, and the Legislature is under all that obligation to pass the law, which results from considerations of good faith, from the necessity of observing Treaties; but still the effect cannot be produced, the duty cannot be collected, till a law is passed. So, if a Treaty should stipulate that certain acts should be punished with fine, imprisonment, or death, could indictments be founded on the Treaty, and the punishment be inflicted without a law? Certainly not. Treaties, therefore, can never, in their nature, operate as laws, can never produce the effect of legisla-making power, so much the object of gentlemen's tion: they are compacts and nothing more, and, apprehensions, this devouring monster, before in the sphereof compacts, they are supreme and un- which the rights of this House, the powers of Conlimited. They may bind the nation, may lay the gress, and the liberties of the people, are to fall Legislature under the obligations of good faith; and be extinguished, appears on examination to but they cannot encroach on the Legislative pow-be the most harmless of powers-a power to make er, cannot produce a Legislative effect.

Whence then, he demanded, these alarms about the encroachments of the Treaty-making power? Whence these outcries about the subversion of all Legislative authority in Congress? Whence these phantoms conjured up to frighten us out of our reason and common sense? This Treaty

Representatives; bound the faith of the nation as completely as a Treaty can bind it, and that the House of Representatives had nothing to do with it, but to consider whether and how far they they could carry it into effect. In this, and this alone, their agency was necessary; and here, from the nature of the thing, they had a free agency.

compacts, which must depend for their execution A distinction here ought to be observed be- on the aid of the Legislature-a power, therefore, tween the Law of Nations and the Municipal at all times, and, of necessity, under Legislative Law. The former is the province of Treaties, control in all its most essential and important opthe latter of the Legislative power. The Law of erations. He therefore contended that the TreaNations is made of compacts, express or implied; ty-making power was free and unrestricted in the of Treaties which are direct declarations of the PRESIDENT and Senate; so that a Treaty, when consent of sovereign States, and of customs which ratified by them as the Constitution requires, berest upon the general consent of nations, implied came complete in its own nature, perfect as a from long acquiescence. In all subjects, then, re-Treaty, without the concurrence of the House of lative to the Law of Nations, to matters external, to the conduct of nations towards each other, Treaties are laws, and produce immediately and indirectly the effect of laws. As such, the Maritime Courts, which are guided by the Law of Nations, are bound to take notice of them and enforce them. This was from the necessity of the case, because the matters on which the Law Some gentlemen had said that the House was of Nations operates lie beyond the reach of ordi- bound to carry a Treaty into effect. But how was nary legislation, without the jurisdiction of indi- it bound? By a superior and external force actvidual States, and consequently can only be regu-ing upon it, and compelling it to do the thing, as lated by laws derived from the general consent of an individual is bound to fulfil his contracts? No. nations, of which Treaties form a part. But, as It is bound by considerations of good faith, by conto the municipal laws, he said the case was differ-siderations of duty and propriety, by the obligaent. They affected objects within the jurisdic- tion to do right, by the responsibility of each memtion of the respective sovereigns, and belonged exclusively to the Legislative power. These Treaties lost their character of laws, and became merely compacts, binding on the good faith of the nation, but depending for their execution on the acts of the Legislative authority.

ber to himself, his constituents, and the public. But who is to judge what is right; what good faith, public good, and moral obligation prescribe? Each individual must judge for himself, and must act according to his own scale of the force of the motives. The motives which induce to the exe

Thus, he said, it appeared that the Treaty-mak-cution of Treaties are always of a very forcible ing and Legislative powers being each supreme in their respective orbits, could not interfere with or restrict each other. Both compacts and laws are

nature, and generally altogether conclusive. When the question is, shall a thing be done, it having been agreed to be done by a Treaty, the national

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faith having been pledged to do it, will always, and with all persons, be a powerful reason for it; in almost every case the reason would be conclusive, but still there are cases in which it would not be conclusive; and when a case occurs, each individual must judge for himself whether it is of that description or not.

[MARCH. 1796.

and industry would bring it to their knowledge if such a one did exist, and he challenged them to produce one in which the British Parliament has refused to execute a Treaty, their consent to which was not made a condition in the Treaty itself. The Treaty of Utrecht is produced as an instance. But that proves nothing. The Treaty of Utrecht Much of the alarm, he said, which gentlemen contained two commercial articles, and it was a had felt, many of the mistakes into which they condition expressed in the Treaty itself that those had fallen, arose from their forgetting the distinc- articles should become parts of it, should be bindtion between making a contract and executing it. ing, when the British Parliament should pass laws The first belonged to the Treaty-making power, in conformity to them. The House of Comthe second to the Legislative; but they had been mous refused to pass these laws, in which they exconfounded together, and gentlemen had imagin-ercised a right derived to them, not from the Coned that, because the power of making national stitution, but from the Treaty itself, which had stipulations was asserted to belong, without re- made their consent to the condition on which it striction, to the PRESIDENT and Senate, the power should become obligatory. Such conditions, inof doing the things stipulated was also claimed; deed, he said, were not unusual in British Treaties but these powers were as distinct as the act of of Commerce. There was a similar one in the giving a bond and the act of paying it. Suppose, Commercial Treaty with Spain, concluded at said he, I give a man a power of attorney to make Utrecht about the same time, and in the Treaty a contract in my name, will he have the power to concluded with France in 1786. But he again take my property and deliver it in execution of challenged gentlemen to produce an instance in the contract? Surely not. The contract must which the British Parliament had refused to pass be fulfilled by me. The difference between me laws in aid of a Treaty completely and uncondiand a community is, that the laws will compel tionally ratified. And if they had refused, still it me to fulfil the contract; will judge for me, and would prove nothing in favor of the position which take away my free agency; whereas the commu- gentlemen contend for. It would prove that the nity has no superior by whom it can be compelled, Parliament might refuse to execute a Treaty, but must judge for itself, and therefore remains a which nobody denied; but not that the consent of free agent, impelled only by the motives which the House of Commons was necessary in making exist for doing or withholding the act. a Treaty. We all admitted here that Congress As to examples drawn from other Governments, may refuse to execute a Treaty, but we contend Mr. H. said, he would admit it to be a fair mode that it has nothing to do with making the Treaty. of reasoning, though by no means conclusive. As Thus, in the case cited from the British Parliafar as it could be conclusive, it was perfectly fair ment by a gentleman from Pennsylvania, [Mr. to draw examples from Governments, which, SWANWICK.] In the case of the Treaty lately made though very different from our own, were yet in with this country, the same distinction was mansome particulars analogous. The British Govern- ifest. The King, in his Speech, tells the Comment, he said, which had been recurred to for ex- mons that, as soon as ratifications were exchanged, amples, was indeed widely different from ours, he would lay the Treaty before them. For what and he most heartily joined the honorable member purpose? That they might ratify it? That they from Virginia [Mr. GILES] in his hope that it might consider whether it should be a Treaty or might never become less so. There were, how-not? By no means; but that they might conever, some points of similarity, and the examples he would allow to have weight as far as they apply.

What, then, do these examples prove? That the British House of Commons have ever exercised or ever claimed a right to interfere in making Treaties; have ever pretended that a Treaty was not valid; that it was only an inchoate thing, to use the expression of the honorable member from Pennsylvania, [Mr. GALLATIN,] till they had given their sanction? That it was not a Treaty, though ratified by the King, till they had passed upon it? No such thing. They prove that the House of Commons claim the right, and that alone, of concurring in laws to carry the Treaty into effect. In deliberating upon this question, they regard it, as we contend this House ought to do, as a Treaty binding the national faith, and this consideration is always conclusive with them to pass the necessary laws. Always, said he, for no contrary instance can be produced, and he challenged gentlemen to produce one; their zeal

sider of the propriety of carrying it into effect. It was then a Treaty without their assistance; the compact was completely made, and binding on the nation, and they were called upon to execute it.

When, therefore, an honorable member from New Hampshire, [Mr. SMITH.] asked if the concurrence of this House is necessary in making Treaties, what is the paper now lying on the table, and purporting to be a Treaty with Great Britain, with Algiers, with the Indian tribes? It was no answer to say they were the same things as Treaties laid before the House of Commons in Great Britain, and not confirmed by law; for Treaties laid before the House of Commens are Treaties, complete as such, before the House: cts upon them. The compact is completely made; but it is the business of Parliament to carry it into execution.

Vattel, indeed. had contradicted this doctrine, with respect to Treaties of subsidy, but in this as in some other instances, he had showed himself to possess less knowledge than reputation. He had

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said that the King of Great Britain could not make Treaties of subsidy without the concurrence of Parliament; and the reason he assigned for this opinion was, that the King could raise no money without the consent of Parliament. Here he forgot the distinction between raising money and stipulating to pay it-between making the contract and executing it; and because the King could not do one, he therefore inferred he could not do the other-an inference contrary to constant experience. Treaties of subsidy, Mr. H. said. were very frequent in Britain. Several had lately been made, and he instanced those with Sardinia, Prussia, and some of the German Powers. Were these Treaties laid before Parliament for their sanction? No. Parliament was indeed called on for money; it was made an item in the estimate of expences for the year, and in that shape voted by the committee of supply. Mr. Fox, indeed, and his friends, once moved to strike out this item, and there was no doubt that Parliament might have done so, and refused the money. But what would that have amounted to? A breach of the Treaty; not a proof that it did not become a Treaty till Parliament concurred in it.

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tion, Treaties were incomplete till concurred in by the House of Commons.

A further use made of this Barrier Treaty was to prove that the House of Commons have a right to call for papers respecting the negotiation of Treaties. It was no way wonderful, he said, that this call was made, and that it was obeyed. The new Ministry, who had possession of these papers, and were desirous of making it an engine for destroying its authors, were themselves at the head of the House of Commons, and occasioned the call to be made. They very readily obeyed it, as might have been expected.

It was worthy of remark, he said, that these very ministers, who procured a vote of censure on the Barrier Treaty, banished its authors, and altered it by the Treaty of Utrecht, were themselves, the instant the breath was out of the Queen's body, by whose confidence they had been supported, not only driven from their places for making the Treaty of Utrecht, but banished, attainted, and their estates confiscated; and this by that very House of Commons which had lately assisted them in inflicting similar calamities on the opposite party. This might show us how much sysThe Barrier Treaty between Holland and Eng-tem and consistency were to be found in the Briland, in 1709, had been cited on this subject. It tish House of Commons, and how much respect had been adduced to show two things: First, that was due to precedents drawn from their proceedTreaties were not complete in England till agreed ings. Indeed, he said, there were many reasons why to by the House of Commons, and that the House these precedents should have little weight with could destroy a Treaty. This instance, he said, us. Every body knew the history of the British was peculiarly unfortunate for those who adduced Constitution. It had been a constant subject of it. Had they attended a little more particularly contention, a continued struggle for almost seven to the history of that transaction, they would have hundred years, between the different departments. found in it a complete refutation of both their po- This struggle ended in a conviction on the part sitions. The Barrier Treaty was made in Octo- of the monarch that he could not govern to his ber, 1709, and it stipulated that England and Hol- mind without possessing a complete command land should continue the war in which they were over the House of Commons; and for the last one engaged against France till they had attained a hundred years a system had been pursued which certain object. The war was carried on for two had fully produced that effect. The House of years under this Treaty. It had its full effect all Commons had now notoriously become an implethat time. A change in the Ministry then took ment in the hands of the Crown; the instrument place. The Whig party, which acted under the by which the King and his Ministers effected Duke of Marlborough, was turned out, the Tories their purposes. The mandates of a British Mingained the ascendant in the House of Commons; ister were as irresistible in the House of Comtheir leaders, Lord Bolingbroke and the Earl of mons, as those of a Grand Vizier in the Turkish Oxford, got possession of the Ministry, and being Divan; and the instant they ceased to be so, the resolved to stigmatize and destroy their opponents Minister must go out, and give place to some and predecessors, who had made the Treaty, they other, who can govern the House. The comchose that as a proper engine by which to demol- mands of the King are absolute; and though he ish them. A vote of censure was passed on the chooses to convey them in the style of politeness Treaty. It was resolved that Lord Townsend, in and urbanity so properly recommended by the making it, had exceeded his instructions, and that honorable member from New York, they are not it was ruinous and disgraceful to England. What the less absolute. It did not seem very just reahappened after all this? The war went on ac-soning to conclude, that because the British King cording to the Treaty; that very Parliament grant- is in the habit of directing the House of Comed the supplies, and it continued in full operation mons to do certain things which he wants done, till two years afterwards, when it was done away the House had a right to do the same thing in reby the Treaty of Utrecht, to which Holland was spect to our Government. a party. Here, it appeared that the Treaty was in full operation two years before the resolutions for censuring it were passed, and continued in operation some years after them; and yet it had been said that these resolutions prevented the effect of the Barrier Treaty; and that Treaty had been cited to prove that, by the British Constitu

The second position which the honorable member from Pennsylvania [Mr. GALLATIN] had attempted to establish was, that Treaties cannot repeal existing laws. He would observe, in the first place, that this question was perfectly unnecessary to the present discussion; because the British Treaty, which had given rise to the dis

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Treaty with Great Britain.

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cussion was repugnant to no law of the United did the honorable gentleman learn that the Law States; this, he said, he undertook to prove when of Nations could control or repeal the municipal the Treaty should come under consideration, and laws of States? I wish to know where he found to prove it to the satisfaction of the two honorable this principle-a principle which I deny, and members themselves [Mr. BALDWIN and Mr. GAL- which is recognised by no writer on the subject? LATIN] who had asserted the contrary. Though The Law of Nations can produce no such effect. they had somehow fallen into a misapprehension The municipal laws within their sphere are suon this subject, he had such confidence in their preme; and those laws of the States were repealcandor as to believe they would readily admit their ed, not by the Law of Nations, but by the Treaty. own mistake when the truth should be placed be- As to confiscation, the honorable member had fore their eyes. At present it would be improper taken much pains to show that no laws on that to go into that investigation. In the second place, subject were repealed by the Treaty of Peace; it ought to be remarked, that this was purely a and his manner of proving this was curious. Conjudicial question. The business of the Legisla- fiscation laws were in force in most of the States ture was to make laws; of the PRESIDENT and when the Treaty was signed, and in most of them Senate to make Treaties; but it belonged to the many confiscations had actually taken place under Judicial power to decide about the effect of laws those laws. The British were very desirous not and Treaties after they should be made. He had only to prevent future confiscations, but also to great doubts, he said, about this question; and obtain a restoration of property previously confisshould always think it proper to remove any laws cated. To the first our Commissioners readily out of the way of a Treaty by a formal repeal; consented, and an article was inserted to that but still, if a case should occur in which a Treaty effect, which completely repealed the laws-comstood opposed to a law, the Courts of Justice must pletely, and that without Legislative aid, preventdecide which would supersede the other. Noted future confiscations. The second they posiwithstanding, however, he did not think it neces- tively refused, alleging, and alleging truly, that sary to decide this question here, or that such a they had no such power; that Congress had no decision, if made, could or ought to have any influ- such power. No power to do what? To repeal ence on the Judicial determination of it, yet as the the confiscation laws? No; that they actually honorable member had made many observations did; for a law is completely repealed when its to support the negative of the question, he would operation and future effect is destroyed; but no not pass them by without remark. power to divest rights acquired under a law; no power to alter what was already done: and here, he said, lay the fallacy of the honorable member's reasoning, in overlooking the distinction between repealing a law and divesting rights acquired under it before the repeal. These two operations were altogether distinct; and a repeal never did and never could alter what had been done before it. Suppose a law be passed imposing a penalty; that the penalty is incurred, sued for, and recovered; and then the law repealed. Can the person from whom this penalty has been exacted recover it back again in consequence of the repeal? Surely not. Suppose a land office be opened by a law, and lands granted, and then the law to be repealed; will this repeal destroy the grants? Surely not. When, therefore, the Commissioners declared that they had no power to stipulate for the restoration of confiscated property, they declared what was strictly true, that they had no power, or Congress either, to destroy rights acquired under existing laws; but did it follow from hence, he asked, that they had no power, by a Treaty, to repeal those laws? So far from it, that they actually did repeal them. The sixth article stipulated that there should be no future confiscations, and confiscations ceased.

To prove that Treaties could not repeal laws, the honorable member had adverted first to the Commercial Treaty with France, and secondly to the Treaty of Peace with Great Britain. The Commercial Treaty with France, he had said, contained one stipulation repugnant to the laws of the States; it being provided by the 11th article, that the subjects of France, though aliens, might inherit lands, or receive them by devise or donation. Two of the States, the honorable member had told us, Maryland and New Jersey, had passed laws conformably to this article: Maryland in part, and New Jersey completely. But what, said Mr. H., does this prove? It proves that those two States, and some others, for others also passed laws on the subject, thought it proper to take away all doubt on the point by express acts. But does this prove that the Treaty would not have been effectual without these laws? By no means; for many of the States passed no such laws, and yet the Treaty had its operation; it superseded and repealed the laws which stood opposed to it. The honorable gentleman had cited three instances in which the Treaty of Peace was opposed to laws of the States. One was the stipulation that there should be no impediment to the recovering of debts; another, that there should be no future confiscations. As to the first, he had asserted, that it was not in fact a repeal of the laws prohibiting the recovery of debts, because those laws were contrary to the Law of Nations, which directs that. after a war is over, debts contracted before it should be recovered: those laws, therefore, were repealed and destroyed by the Law of Nations, and not by the Treaty. But where, said Mr. H.,

This doctrine, he said, of the repeal of laws by Treaties, had been ably argued, and very fully established on a very interesting occasion, by a former Secretary of State, [Mr. JEFFERSON,] whose reputation for talents was high and universal. In his correspondence with the British Minister, respecting the inexecution of the Treaty of Peace, he had expressly declared, "that the repeal of laws contrary to the Treaty, in the different

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