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H. OF R.]
Treaty wilh Great Britain.

[March, 1796. Constitutional point, by calling for the question reasons, they said they would see the papers first, from day to day, now proposed to consume it in and then they would say what use they meant to the way proposed. He should, however, now make of thein. The PRESIDENT, said Mr. S., had show that economy on account of time, which acted in the way gentlemen said he ought to act. had been so much insisted upon on a former oc- Did not gentlemen say the PRESIDENT would ex

ercise his discretion with respect to sending the Mr. THATCHER hoped the Committee would papers ? and yet, now he had exercised his discreexcuse his making a few remarks on the subject iion, there seemed to be an inclination in gentlebefore them, as it seemed not to be understood.1 men to enter on the Journals rrasons to convince In the first place, he asked, what was the answer the world he was wrong. How did that House of the PRESIDENT ? It was No, and nothing more. proceed when the PRESIDENT negatived one of What, then, can be expected from referring this their bills ? His reasons were entered on the answer to a Committee of the Whole? It was not Journals, and they proceeded to reconsider the the answer which gentleinen wished to refer; subject. But did ihey enter on the Journals their but they say, the PRESIDENT was not contented reasons for passing the bill? No: they merely put with giving an answer, but had gone on to give the question, whether the bill should still pass, the reasons on which his negative was predicated. and were ruled by the event. He thought this an Might they not, say they, prove the PRESIDENT to analogous case to the present. He saw nothing be wrong, and ought they not to give their rea- improper in the PRESIDENT's having given bis sons why they think him wrong? They, therefore, reasons for declining to send the papers requested. determine to enter into a forensic dispute with the Had he not done so, but refused to have answered PRESTIJENT, in order that, though he had once said the request, without having given any reasons for No, he might hereafter say Yes. Contrary to all it, he would have been charged with a want of former experience, he said, the majority, and not respect to the House. He considered his complithe minority, wished to enter a protest upon their ance would have been a violation of the ConstiJournals. In the English Parliament they fre- tution. Was that a reason why they should eater quently heard of a minority protesting, but he their reasons on the Journals ? Surely not. Innever heard of a majority doing so. But this ma- deed, it appeared to him, that the discussion projority want to enter their protest, in the form of posed would have no effect but to excite a misa syllogism, in order to convince the world that understanding between two branches of the Gothe PRESIDENT had reasoned ill. But he thoughtvernment, which might ultimately affect the peace the people of the United States would believe he of the country. He wished gentleinen to recolreasoned tolerably well. Nor did he believe the lect the calmness with which that House received gentleman from Pennsylvania would overturn in the negative of the PRESIDENT on a bill which a week the reasuning of the PRESIDENT. But it respected the great principles of representation, bad been said, politeness required that they should which had passed both Houses. No attempt was notice the PRESIDENT's Message. He believed he made to go into a Committee of the Whole on would excuse the House on that head. He be- the reasons for the negative. He hoped they lieved his mind was determined on the subject. should proceed with the same dignity on the preIf gentlemen were dissatisfied with the reasoning sent occasion. of the PRESIDENT, let them go individually to him Mr. FINDLEY said, it was customary in the Leand say, "you have given us a major and a minor, gislature of Pennsylvania to enter reasons for but you have drawn a wrong conclusion." But adopti g measures upon their Journals. He had was it right that these arguments should be often known the sentiments of men long dead, brought forward on that floor? for, if the majo- brought forward there. It was not for themselves, rity sent their reasons to the PRESIDENT, instead but for posterity, that their reasons for calling for of having a reply of two or three pages, they the papers in question should be entered upon the might have the next time ten or twelve, and the Journals along with the PRESIDENT's refusal. It controversy would not e::d. Mr. T. was there had been said, that majorities never entered their fore opposed to the motion.

reasons on Journals, but minorities; but he said Mr. CLAIBORNE thought the motion a proper he had known both. These reasons, which would one; for, if they passed the present Message over be thus entered, will be those of the House, and in silence, they might as well come to a resolu- not of any individual. tion, that whatever the PRESIDENT said should be The yeas and nays were now taken on the law, and not to be examined.

question of a reference of the PRESIDENT's MesMr. W. SMITA did not think the present mo- sage to a Committee of the Whole; and the motion could have any other effect than to involve tion was agreed to-yeas 55, nays 37, as follows: two different branches of the Government in an Yas.-Theodorus Bailey. David Bard, Abraunpleasant dispute on a Constitutional question.

ham Baldwin, Lemuel Benton, Thomas Blount, If gentlemen wished to convince the PRESIDENT

Nathan Bryan, Dempsey Burges, Samuel J. Cabell, he was wrong, it would be better a committee Gabriel Christie, Thomas Claiborne, John Clopton, should be appointed for a conference with him on Isaac Coles, Jeremiah Crabb, Henry Dearborn, Samuel the occasion. Gentlemen said they wished to en- Earle, William Findley, Jesse Franklin, Albert Galter their reasons upon the Journals for calling for latin, William B. Giles, James Gillespie, Christopher papers; whereas, when they laid the resolution Greenup, Andrew Gregg, William B. Grove, Wadupon the table, and were called upon for those Hampton, George Hancock, Carter B. Harrison, John

APRIL, 1796.1

Treaty with Great Britain.

[H. OP R.

Hathorn, Jonathan N. Havens, John Heath, James well known that many gentlemen in that House
Holland, George Jackson, Aaron Kitchell, Matthew had declared that the Treaty lately concluded
Locke, Samuel Mac'ay, Nathaniel Macon, James Madi- with Great Britain was not obligatory on the na-
son, John Milledge, Andrew Moore, Frederick A. tion, was not obligatory on that House until it
Muhlenberg, Anthony New, John Nicholas, Alexander had received their sanction. If this opinion was
D. Orr, John Page, Josiah Parker, John Patton, Francis just, he apprehended the British were not bound
Preston, Robert Rutherford, Israel Smith, Samuel
Smith, Thomas Sprigg, John Swanwick, Absalom Ta: the Treaty binding. He was one of those who

to give up the posts until that House had declared tom, Philip Van Cortlandt, Joseph B. Varnum, and believed this opinion incorrect; he believed that Abraham Venable. Nays.-Benjamin Bourne, Theophilus Bradbury,

House had no participating power in making Daniel Buck, Joshua Coit, William Cooper, George Treaties; but there was no man who would say Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, they had not the physical power to break the Nicholas Gilman, Henry Glen, Benjamin Goodhue, Treaty; and, after what had taken place in that Chauncey Goodrich, Roger Griswold, Robert Goodloe House, may it not be conceived the British will Harper, Thomas Hartley, James Hillhouse, William refuse to give up the posts before the Treaty had Hindman, John Wilkes Kittera, Samuel Lyman, Francis been acted upon by them? If this was likely to be Malbone, William Vans Murray, John Reed, Theodore the case, they had no time to lose. It was then Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathan- the 6th of April; it would take a month to transiel Smith, Isaac Smith, William Smith, Zephaniah mit the ratification to the necessary place; and Swift, George Thatcher, Richard Thomas, Mark Thomp- there would remain only twenty-three or twentyson, Uriah Tracy, John E. Van Allen, Peleg Wads- four days for the business to pass through both worth, and John Williams.

Houses. This, it would be allowed, was a short The business was then made the order of the day period, and what said he may be the event of defor Wednesday next. An earlier day was proposed; laying the consideration so long, as that the Bribut Wednesday was carried by the Speaker's tish will not deliver up the posts at the time apcasting vote.

pointed? This could not be determined; but of APRIL 1.-Mr. KiTCHELL said, as it appeared this much he was certain, nations were judges in from the Message of the PRESIDENT, lately com- their own cause. As long as each nation kept municated to that House, that he had conceived exactly the line marked out, there could be no the majority of that House, who passed the reso-excuse for the breach in the other party; but, as lution to which that Message was an answer, had soon as one or the other is guilty of a breach of entertained opinions, which he himself, as one of contract, the consequences cannot be foreseen. that majority, wished to disavow, he proposed to The two nations being judges in theirown cause, submit two resolutions to the consideration of the it may be expected they will judge like parties. It House, which contained his sentiments upon the was out of his power to say what might be the event; occasion, and which he should wish to be referred but it might involve the two nations in serious difto the Committee of the Whole to whom was re-ficulties. He did not say the British would refuse ferred the said Message. They were referred, and to give up the posts; or, if they did, that difficulare in substance, as follows:

ties would ensue; but it was in their power to Resolved, As the opinion of this House, that the Con- prevent the possibility of mischief, provided they stitution has vested the power of making Treaties ex- went immediately into the business. And why clusively in the President and Senate ; and that the should they not do this? Of what importance was House of Representatives do not claim an agency in it to go into a Committee of the Whole on the making or ratifying them when made.

Message of the PRESIDENT? Was there included Resolved, As the opinion of this House, that when a in it any proposition of great national advantage ? Treaty is made, which requires a law or laws to be Did they expect to get the papers by it? No. passed to carry it into effect, that, in such case, the They expected to enter their reasons on the JourHouse of Representatives have a Constitutional right nals for calling for the papers. Let them do what to deliberate and determine the propriety or impropriety they pleased, no material national advantage was of passing such laws, and to act thereon as the public connected with the question; and if there was, it good shall require.

was not necessary to go into the consideration now. APRIL 6.-Mr. BOURNE called for the order of If they wanted to enter into a negotiation with the day, on the Message of the President, in the PRESIDENT on the subject, or declare the sense answer to the resolution of that House, calling for of the Constitution, they might do it the next sescertain papers relative to the Treaty lately con- sion as well as this. cluded with Great Britain ; when, just as the But the discussion of the Message at all, he thought, Speaker was about to put the question,

would be attended with serious consequences. They Mr. N. Smith rose to oppose the motion. He had been told, on a former occasion, that the sensaid he wished the House to go into a Committee sibility of the country had been excited by the of the Whole on the st te of the Union. It ap- Treaty: that sensibility, he feared, hal in some peared to him very necessary to go into a Com-degree made its way into that House; and it was mittee of the Whole on that subject, and perfectly that, in his opinion, which had caused the present unnecessary to take up time in discussing the motion. He said this, because he could not disMessage of the President. It was well known cover any benefit to be derived from the proposed that the first of June was the time fixed for the discussion : he believed it would only serve to add British to give up the Western posts. It was also I fuel to a fame which it would be well to extin

H. OF R.)
Treaty with Great Britain.

FAPRIL, 1796 guish. He thought a business in which the public purpose for which such information may be wanted, or interest was concerned should first claim their to which the same may be applied, should be stated in attention; and, as there were very strong reasons the application.” for taking up the business relative to the state of Mr. HARPER, Mr. Dayton, and Mr. KITCHELL, the Union, he hoped they would negative the mo- offered a few remarks with respect to the proprition before them, and take up the other.

ety of considering the resolutions now moved, or After a few observations from Mr. Giles, in those laid upon the table, by Mr. Kitchell, a few favor of going into the consideration of the Pre- days ago. After whichSIDENT's Message; from Mr. Sedgwick, in oppo Mr. Madison rose, and spoke as follows: When sition to it, (in which he moved for the yeas and the Message was first proposed to be committed, pays;) and a few conciliatory remarks from Mr. the proposition had been treated by some gentleKITCHELL-the yeas and nays were taken, and men not only with leyity but with ridicule. He stood-yeas 57, nays 36, as follow:

persuaded himself that the subject would appear Yeas.-Theodorus Bailey, Abraham Baldwin, David in a very different light to the Committee; and Bard, Lemuel Benton, Thomas Blount, Richard Brent, he hoped that it would be discussed on both sides Nathan Bryan, Samuel J. Cabell, Gabriel Christie, without either levity, intemperance, or illibeJohn Clopton, Isaac Coles, Jeremiah Crabb, Henry rality; Dearborn, Samuel Earle, William Findley, Jesse Frank

If there were any question which could make a lin, Albert Gallatin, William B. Giles, James Gillespie, serious appeal to the dispassionate judgment, it Christopher Greenup, Andrew Gregg, William Barry must be one which respected the meaning of the Grove, Wade Hampton, George Hancock, Carter B. Constitution; and if any Constitutional question Harrison, John Hathorn, Jonathan N. Havens, John could make the appeal with peculiar solemnity, Heath, Daniel Heister, James Holland, Aaron Kitchell

, it must be in a case like the present, where two Edwaru Livingston, Matthew Locke, Samuel Maclay, of the constituted authorities interpreted differNathaniel Macon, James Madison, John Milledge, An- ently the extent of their respective powers. drew Moore, Frederick A. Muhlenberg, Anthony New, It was a consolation, however, of which every John Nicholas, Alexander D. Orr, John Page, Josiah member would be sensible, to reflect on the happy Parker, John Patton, Francis Preston, John Richards, difference of our situation, on such occurrences, Robert Rutherford, Israel Smith, Samuel Smith, Thomas from that of Governments in which the constituSprigg, John Swanwick, Absalom Taton, Philip Van ent members possessed independent and hereditary Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn.

prerogatives. In such Governments, the parties

having a personal interest in their public stations, Nars.-Benjamin Bourne, Theophilus Bradbury, and not being amenable to the national will

, disDaniel Buck, Joshua Coit, William Cooper, Geo. Dent, putes concerving the limits of their respective auAbiel Foster, Dwight Foster, Ezekiel Gilbert, Henry thorities might be productive of the most fatal Glen, Benjamin Goodhue, Chauncey Goodrich, Roger consequences. With us, on the contrary, although Thomas Henderson, James Hillhouse, William Hind disputes of that kind are always to be regretted, man, Samuel Lyman, Francis Malbone, William Vans there were three most precious resources against Murray, John Reed, Theodore Sedgwick, John S. Sher- the evil tendency of them. In the first place, the burne, Samuel Sitgreaves, Jeremiah Smith, Nathaniel responsibility which every department feels to Smith, William Smith, Zephaniah Swift, Geo. Thatcher, the public will

, under the forms of the ConstituRichard Thomas, Mark Thompson, Uriah Tracy, John tion, may be expected to prevent the excesses inE. Van Allen, Peleg Wadsworth, and John Williams. cident to conflicts between rival and irresponThe House accordingly resolved itself into a ence cannot be adjusted by friendly conference

sible authorities. In the next place, if the differCommittee of the Whole on said Message. Mr. Blount brought forward the following reso- ent body, brought into the Government through

and mutual concession, the sense of the constitulutions:

the ordinary elective channels, may supply a reResolved, That, it being declared by the second medy. And if this resource should fail, there resection of the second article of the Constitution, that mains, in the third and last place, that provident the President shall have power, by and with the advice article in the Constitution itself, by which an aveof the Senate, to make Treaties, provided two-thirds of nue is always open to the sovereignty of the peothe Senate present concur,' the House of Representa- ple, for explanations or amendmenis, as they might tives do not claim any agency in making Treaties; but, be found indispensable. that when a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of larly regretted that the existing difference of opi

If, in the present instance, it was to be particuCongress, it must depend, for its execution, as to such nion had arisen, every motive to the regret was a And it is the Constitutional right and duty of the House motive to calmness, to candor, and the most reof Representatives, in all such cases, to deliberate on the spectful delicacy towards the other constituted expediency or inexpediency of carrying such Treaty authority. On the other hand, the duty which into effect, and to determine and act thereon, as, in their the House of Representatives must feel to themjudgment, may be most conducive to the public good.

selves and to their constituents, required that they ** Resolved, "That it is not necessary to the propriety should examine the subject with accuracy, as well of any application from this House to the Executive, as with candor, and decide on it with firmness, as for information desired by them, and which may relate well as with moderation. to any Constitutional functions of the House, that the In this temper, he should proceed to make some

April, 1796.]
Treaty with Great Britain.

[H. of R. observations on the Message before the Commit- referred to in the Message, it might be evidently tee, and on the reasons contained in it.

improper to state that to be the object of informaThe Message related to two points: First. The tion which might possibly lead to it, because it application made for the papers. Secondly. The would involve the preposterous idea of first deterConstitutional rights of Congress, and of the mining to impeach, and then inquiring whether House of Representatives, on the subject of an impeachment ought to take place. Even the Treaties.

molding out an impeachment as a contemplated or On the first point, he observed, that the right of contingent result of the information called for, the House to apply for any information they might might be extremely disagreeable in practice, as it want, had been admitted by a number in the mi- might inflict a temporary pain on an individual, nority, who had opposed the exercise of the right whom an investigation of facts. might prove to be in this particular case. He thought it clear that innocent and perhaps meritorious. the House must have a right, in all cases, to ask for From this view of the subject he could not forinformation which might assist their deliberations bear wishing that, if the papers were to be refuson the subjects submitted to them by the Consti- ed, other reasons had been assigned for it. He tution; being responsible, nevertheless, for the thought the resolutions offered by the gentleman propriety of the measure. He was as ready to ad- from North Carolina, one of which related to this mit that the Executive had a right, under a due subject, ought to stand on the Journal along with responsibility, also, to withhold information, when the Message which had been entered there. Both of a nature that did not permit a disclosure of it the resolutions were penned with moderation and at the time. And if the refusal of the PRESIDENT propriety. They went no farther than to assert had been founded simply on a representation, that the rights of the House; they courted no reply; the state of the business within his department, and it ought not to be supposed they could give and the contents of the papers asked for, required any offence. it, although he might have regretted the refusal, The second object to which the measure relathe should have been little disposed to criticise it

. ed,

was the Constitutional power of the House on But the Message had contested what appeared to the subject of Treaties. him a clear and important right of the House; Here, again, he hoped it may be allowable to and stated reasons for refusing the papers, which, wish that it had not been deemed necessary to with all the respect he could feel for the Execu- take up, in so solemn a manner, a great Constitutive, he could not regard as satisfactory or proper. tional question, which was not contained in the

One of the reasons was, that it did not occur to resolution presented by the House, which had the Executive that the papers could be relative to been incidental only to the discussion of that reany purpose under the cognizance, and in the solution, and which could only have been brought contemplation of the House. The other was, that into view through the unauthentic medium of the the purpose for which they were wanted was not newspapers. This, however, would well account expressed in the resolution of the House.

for the misconception which had taken place in With respect to the first, it implied that the the doctrine maintained by the majority in the Executive was not only to judge of the proper late question. It had been understood by the objects and functions of the Executive depart- Executive, that the House asserted its assent to ment, but, also, of the objects and functions of the be necessary to the validity of Treaties. This House. He was not only to decide how far the was not the doctrine maintained by them. It was, Executive trust would permit a disclosure of in- he believed, fairly laid down in the resolution proformation, but how far the Legislative trust could posed, which limited the power of the House over derive advantage from it. It belonged, he said, 10 Treaties, to cases where Treaties embraced Leeach department to judge for itself. if the Exegislative subjects, submitted by the Constitution cutive conceived that, in relation to his own de to the power of the Housc. partment, papers could not be safely communicat Mr. M. did not mean 10 go into the general meed, he might, on that ground, refuse them, because rits of this question, as discussed when the former he was the competent though a responsible judge resolution was before the Committee. The Meswithin his own department. If the papers could sage did not request it, having drawn none of its be communicated without injury to the objects of reasoning from the text of the Constitution. It his department, he ought not to refuse them as ir-had merely affirmed that the power of making relative to the objects

of the House of Represent- Treaties is exclusively vested by the Constitution atives; because the House was, in such cases, the in the PRESIDENT, by and with the advice and only proper judge of its own objects.

consent of the Senate. Nothing more was necesThe other reason of refusal was, that the use sary on this point than to observe, that the Conwhich the House meant to make of the papers stitution had as expressly and exclusively vestwas not expressed in the resolution.

ed in Congress the power of making laws, as it As far as he could recollect, no precedent could had vested in the President and Senate the be found in the records of the House, or elsewhere, power of making Treaties. in which the particular object in calling for in He proceeded to review the several topics on formation was expressed in the call. li was not which the Message relied. First. The iniention only contrary to right to require this, but it would of the body which framed the Constitution. Seoften be improper in the House to express the ob-condly. The opinions of the State Conventions ject. In the particular case of an impeachment who adopted it. Thirdly. The peculiar rights

H. op R.]

Treaty with Great Britain.

[APRIL, 1796.

and interests of the smaller States. Fourthly. The gentleman from Massachusetts, who had himself manner in which the Constitution had been un- been a member of the Convention, and whose rederstood by the Executive and the foreign nations, marks were not unworthy the attention of the with which Treaties had been formed. Fifthly Committee. Here Mr. M. read a paragraph from The acquiescence and acts of the House on for- Mr. Gerry's speech, from the Gazeite of the mer occasions.

United States, page 814, protesting, in strong terms, 1. When the members on the floor, who were against arguments drawn from that source. members of the General Convention, particularly Mr. M. said, he did not believe a single instance a member from Georgia and himself, were called could be cited'in which the sense of the Convenon in a former debate for the sense of that body tion had been required or admitted as material in on the Constitutional question, it was a matter of any Constitutional question. In the case of the some surprise, which was much increased by the Bank, the Committee had seen how a glance at peculiar stress laid on the intormation expected. that authority had been treated in this House. He acknowledged his surprise, also, at seeing the When the question on the suability of the States Message of the Executive appealing to the same was depending in the Supreme Court, he asked, proceedings in the General Convention, as a clue whether it had ever been understoo, that the to the meaning of the Constitution.

members of the Bench, who had been members It had been his purpose, during the late debate, to of the Convention, were called on for the meanmake some observations on what had fallen from ing of the Convention on that very important the gentlemen from Connecticut and Maryland, point, although no Constitutional question would if the sudden termination of the debate had not be presumed more susceptible of elucidation from cut him off from the opportunity. He should have that source ? reminded them that t is was the ninth year since He then adverted to that part of the Message the Convention executed their trust, and that he which contained an extract from the Journal of had not a single note in this place to assist his the Convention, showing that a proposition that memory. He should have remarked, that neither no Treaty should be binding on the United States, himself'nor the other members who had belonged which was not ratified by law," was explicitly re'to the Federal Convention, could be under any jected. He allowed this to be much more precise particular obligation to rise in answer to a few than any evidence drawn from the debates in the gentlemen, with information, not merely of their Convention, or resting on the memory of indiviown ideas at that period, but of the intention of duals. But, admitting the case to be as stated, of the whole body; many members of which, too, which he had no doubt, although he had no recol. had probably never entered into the discussions of lection of it, and admitting the record of the Conthe subject. He might have further remarked, vention to be the oracle that ought to decide the that there would not be much delicacy in the un- true meaning of the Constitution, what did this dertaking, as it appeared that a sense had been abstract vote amount to? Did it condemn the put on the Constitution by some who were mem- doctrine of the majority ? So far from it, that, bers of the Convention, different from that which as he understood their doctrine, they must have must have been entertained by others, who had voted as the Convention did; for they do not conconcurred in ratifying the Treaty.

tend that no Treaty shall be operative without a After taking notice of the doctrine of Judge law to sanction it'; on the contrary, they admit Wilson, who was a member of the Federal Con- that some Treaties will operate without this sancvention, as quoted by Mr. Gallatin from the tion; and that it is no further applicable in any Pennsylvania debates, he proceeded to mention that case than where Legislative objects are embraced three gentlemen, who had been members of the by Treaties. The term “ratify" also deserved Convention, were parties to the proceedings in some attention; for, although of loose significaCharleston, South Carolina, which, among other tion in general, it had a technical meaning differobjections to the Treaty, represented it as violat- ent from the agency claimed by the House on the ing the Constitution. That the very respectable subject of Treaties. citizen, who presided at the meeting in Wilming But, after all, whatever veneration might be ton, whose resolutions made a similar complaint, entertained for the body of men who formed our ha i also been a distinguished member of the body Constitution, the sense of that body could never that formed the Constitution.

be regarded as the oracular guide in expounding It would have been proper for him, also, to have the Constitution. As the instrument came from recollected what had, on a former occasion, hap- them it was nothing more than the draft of a plan, pened to himself during a debate in the House of nothing but a dead letter, until life and validity Representatives. When the bill for establishing were breathed into it by the voice of the people, a National Bank was under consideration, he had speaking through the sereral State Conventions. opposed it, as not warranted by the Constitution, If we were to look, therefore, for the meaning of and incidentally remarked, that his impression the instrument beyond the face of the instrument, might be stronger, as he remembered that, in the we must look for'it, not in the General ConvenConvention, a motion was made and negatived, tion, which proposed, but in the State Convenfor giving Congress a power to grant charters of tions, which accepted and ratified the Constituincorporation. This slight reference to the Con- tion. To these also the Message had referred, vention, he said, was animadverted on by sereral, and it would be proper to follow it. in the course of the debate, and particularly by a 2. The debates of the Conventions in three

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