APRIL, 1796.]

Treaty with Great Britain.

[H. OF R.

States (Pennsylvania, Virginia, and North Caro- | hand, it was no proof that those particular Conlina) had been before introduced into the discus-ventions, in annexing these guards to the Treaty sion of this subject, and were believed the only power, understood it as different from that espublications of the sort which contained any poused by the majority of the House. They lights with respect to it. He would not fatigue the might consider Congress as having the power Committee with a repetition of the passages then contended for over Treaties stipulating on Legisread to them. He would only appeal to the Com- lative subjects, and still very consistently wish mittee to decide whether it did not appear, from for the amendment they proposed. They might a candid and collected view of the debates in not consider the Territorial rights and other obthose Conventions, and particularly in that of jects for which they required the concurrence of Virginia, that the Treaty-making power was a three-fourths of the members of both Houses, as limited power; and that the powers in our Con- coming within any of the enumerated powers of stitution, on this subject bore an analogy to the Congress, and, therefore, as not protected by that powers on the same subject in the Government control over Treaties. And although they might of Great Britain. He wished, as little as any be sensible that Commercial Treaties were under member could, to extend the analogies between that control, yet, as they would always come before the two Governments; but it was clear that the Congress with great weight after they had passed constituent parts of two Governments might be through the regular forms and sanctions of the perfectly heterogeneous, and yet the powers be Treaty department, it might be deemed of real similar. importance that the authority should be better guarded which was to give that weight to them.

At once to illustrate his meaning, and give a brief reply to some arguments on the other side, which had heretofore been urged with ingenuity and learning, he would mention, as an example, the power of pardoning offences. This power was vested in the PRESIDENT; it was a prerogative also of the British King. And, in order to ascertain the extent of the technical term "pardon," in our Constitution, it would not be irregular to search into the meaning and exercise of the power in Great Britain. Yet, where is the general analogy between an hereditary Sovereign, not accountable for his conduct, and a Magistrate like the PRESIDENT OF THE UNITED STATES, elected for four years, with limited powers, and liable to impeachment for the abuse of them?

In referring to the debates of the State Conventions as published, he wished not to be understood as putting entire confidence in the accuracy of them. Even those of Virginia, which had been probably taken down by the most skilful hand, (whose merit he wished by no means to disparage,) contained internal evidence in abundance of chasms and misconceptions of what

was said.

He asked, whether it might not happen, even in the progress of a Treaty through the Treaty department, that each succeeding sanction might be given, more on account of preceding sanctions than of any positive approbation? And no one could doubt, therefore, that a Treaty which had received all these sanctions would be controlled with great reluctance by the Legislature, and, consequently, that it might be desirable to strengthen the barriers against making improper Treaties, rather than trust too much to the Legislative control over carrying them into effect.

But, said Mr. M., it will be proper to attend to other amendments proposed by the ratifying Conventions, which may throw light on their opinions and intentions on the subject in question. He then read from the Declaration of Rights proposed by Virginia to be prefixed to the Constitution, the seventh article, which is as follows:

"That all power of suspending laws, or the execution of laws, by any authority, without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised."

principles of civil and religious liberty, and the inalienable rights of the people," as expressed by the Convention of North Carolina. It must follow that these two Conventions considered it as a fun

The Convention of North Carolina, as he The amendments proposed by the several Con- showed, had laid down the same principle in the ventions were better authority, and would be same words. And it was to be observed that, in found, on a general view, to favor the sense of both Conventions, the article was under the head the Constitution which had prevailed in this of a Declaration of Rights, "asserting and securHouse. But even here it would not be reasona- ing from encroachment the essential and inalienble to expect a perfect precision and system in all able rights of the people," according to the lantheir votes and proceedings. The agitations of guage of the Virginia Convention; and "assertthe public mind on that occasion, with the hurrying and securing from encroachment the great and compromise which generally prevailed in settling the amendments to be proposed, would at once explain and apologize for the several apparent inconsistencies which might be discovered. He would not undertake to say that the parti-damental, inviolable, and universal principle in a cular amendment referred to in the Message, by which two States require that "no Commercial Treaty should be ratified without the consent of two-thirds of the whole number of Senators, and that no Territorial rights, &c. should be ceded without the consent of three-fourths of the members of both Houses," was digested with an accurate attention to the whole subject. On the other 4th CoN.-26

free Government, that no power could supersede a law without the consent of the Representatives of the people in the Legislature.

In the Maryland Convention also, it was among the amendments proposed, though he believed rot decided on, "that no power of suspending laws, or the execution of laws, unless derived from the Legislature, ought to be exercised or allowed."

H. OF R.]

Treaty with Great Britain.

[APRIL, 1796.

The Convention of North Carolina had further this delicate part of the discussion, as he happenexplained themselves on this point, by their twen-ed to be from a State which was in one of the exty-third amendment proposed to the Constitution, in the following words: "That no Treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made conformable to such Treaty; nor shall any Treaty be valid which is contradictory to the Constitution of the United States."

The latter part of the amendment was an evidence that the amendment was intended to ascertain rather than to alter the meaning of the Constitution; as it could not be supposed to have been the real intention of the Constitution that a Treaty contrary to it should be valid.

He proceeded to read the following amendments accompanying the ratification of State Conventions:

The New York Convention had proposed "that no standing army or regular troops shall be raised or kept up in time of peace without the consent of two-thirds of the Senators and Representatives

in each House."

"That no money be borrowed on the credit of the United States, without the assent of twothirds of the Senators and Representatives in each House."

The New Hampshire Convention had proposed "that no standing army shall be kept up in time of peace, unless with the consent of three quarters of the members of each branch of Congress." In the Maryland Convention a proposition was made in the same words.

The Virginia Convention had proposed "that no navigation law, or law regulating commerce, shall be passed without the consent of two-thirds of the members present in both Houses."

"That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two-thirds of the members present in both Houses."

"That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war."

The Convention of North Carolina had proposed the same three amendments in the same words.

On a review of these proceedings, may not, said he, the question be fairly asked, whether it ought to be supposed that the several Conventions who showed so much jealousy with respect to the powers of commerce, of the sword, and of the purse, as to require, for the exercise of them, in some cases two-thirds, in others three-fourths of both branches of the Legislature, could have understood that, by the Treaty clauses in Constitution, they had given to the PRESIDENT and Senate, without any control whatever from the House of Representatives, an absolute and unlimited power over all those great objects?

tremes in point of size. He should limit himself, therefore, to two observations. The first was, that if the spirit of amity and mutual concession from which the Constitution resulted was to be consulted on expounding it, that construction ought to bẹ favored which would preserve the mutual control between the Senate and House of Representatives, rather than that which gave powers to the Senate not controllable by, and paramount over those of the House of Representatives, whilst the House of Representatives could in no instance exercise their powers without the participation and control of the Senate. The second observation was, that, whatever jealousy might unhappily have prevailed between the smaller and larger States, as they had most weight in one or the other branch of Government, it was a fact, for which he appealed to the Journals of the old Congress, from its birth to its dissolution, and to those of the Congress under the present Government, that in no instance would it appear, from the yeas and nays, that a question had been decided by a division of the votes according to the size of the States. He considered this truth as affording the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the States.

4. A fourth argument in the Message was drawn from the manner by which the Treaty power had been understood by both parties in the negotiations with foreign Powers. "In all the Treaties made, we have declared and they have believed," &c. By we, he remarked, was to be understood the Executive alone, who had made the declaration, and in no respect the House of Representatives. It was certainly to be regretted, as had often been expressed, that different branches of the Government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the Executive could in this case be no more an authority overruling the judgment of the House than the judgment of the House could be an authority overruling that of the Executive. It was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our Constitution. But no principle was better established in the Laws of Nations, as well as in common reason, than that one nation is not to be the interpreter of the Constitution of another. Each nation must adjust the forms and operations of its own Government, and all others are bound to understand them accordingly. It had before been remarked, and it would be proper to repeat it here, that of all nations Great Britain would be the least likely to object to this principle, because the construction given to our Government was particularly exemplified in her own.

5. In the fifth and last place, he had to take no3. It was with great reluctance, he said, that tice of the suggestion, that every House of Reprehe should touch on the third topic-the alleged in-sentatives had concurred in the construction of the terest of the smaller States in the present ques- Treaty power, now maintained by the Executive; tion. He was the more unwilling to enter into from which it followed that the House could not

APRIL, 1796.]

Treaty with Great Britain.

[H. OF R.

defeat them, he wished them at once to say so. If they went into the present discussion at length, there would not be time sufficient to determine upon the Treaties. He was willing to let the matter rest upon the representation of the gentleshare in the debate, though, if it were to be again man from Virginia. He himself had taken no gone into, he should desire to be heard as well as others. But he was fully satisfied that gentlemen who had spoken on a former occasion would unite with him in wishing the question to be then taken.

The resolutions were then severally put and

now consistently act under a different construction. On this point, it might be sufficient to remark, that this was the first instance in which a foreign Treaty had been made since the establishment of the Constitution; and that this was the first time the Treaty-making power had come under formal and accurate discussion. Precedents, therefore, would readily be perceived to lose much of their weight. But whether the precedents found in the proceedings preparatory to the Algerine Treaty, or in the provisions relative to the Indian Treaties, were inconsistent with the right which had been contended for in behalf of the House, he should leave to be decided by the Com-carried-51 members rising for each. mittee. A view of these precedents had been pretty fully presented to them by a gentleman from New York, [Mr. LIVINGSTON,] with all the observations which the subject seemed to require. On the whole, it appeared that the rights of the House on the two great Constitutional points had been denied by a high authority in the Message before the Committee. This Message was entered on the Journals of the House. If nothing was entered in opposition thereto, it would be inferred that the reasons in the Message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper, therefore, that the questions, brought fairly before the Committee in the propositions of the gentleman [Mr. BLOUNT] from North Carolina, should be examined and formally decided. If the reasoning of the Message should be deemed satisfactory, it would be the duty of this branch of the Government to reject the propositions, and thus accede to the doctrines asserted by the Executive. If, on the other hand, this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent terms, as are proposed, to enter their opinions on record. In either way, the meaning of the Constitution would be established, as far as depends on the vote of the House of Representatives.

The House then took them up.

the question now be put? on which the yeas and The previous question was called, viz: Shall nays were taken, and stood—yeas 54, nays 37, as follows:

APRIL 7-The order of the day being called for on the consideration of the PRESIDENT'S Message, the House resolved itself into a Committee of the Whole on that subject, and the resolutions of Mr. BLOUNT having been read

Mr. SWIFT and Mr. W. SMITH rose together, but Mr. SMITH giving way, Mr. SWIFT proceeded to remark, that he did not rise for the purpose of going into the subject, but to move that the question might be then taken. The same principles which were involved in the present question had already undergone a discussion of three weeks, and no doubt could remain on the mind of any gentleman in that House on the subject; nor did he think that if three weeks more were to be consumed in the discussion, one opinion would be changed. Therefore, as business of the utmost consequence called for their attention, as it was of the last importance that the Treaties lately formed with foreign nations should be carried into effect, he hoped they would enter upon the question of the state of the Union. If gentlemen wished to carry the Treaties into effect, he entreated them to come forward and do so; or, if they meant to

vid Bard, Lemuel Benton, Thomas Blount, Nathan YEAS.-Theodorus Bailey, Abraham Baldwin, DaBryan, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Jeremiah Crabb, Henry Dearborn, Samuel Earle, William Findley, Jesse Franklin, Albert Gallatin, William B. Giles, Andrew Gregg, William B. Grove, Wade Hampton, George Hancock, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, George Jackson, Edward Livingston, Matthew Locke, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robert Rutherford, Jno. S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn.

NAYS.-Fisher Ames, Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, George Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Nicholas Gilman, Henry Glen, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, ThoJohn Wilkes Kittera, Samuel Lyman, Francis Malmas Henderson, James Hillhouse, William Hindman, bone, William Vans Murray, John Reed, Theodore Sedgwick, Jeremiah Smith, Nathaniel Smith, William Thomas, Mark Thompson, Uriah Tracy, John E. Van Smith, Zephaniah Swift, George Thatcher, Richard Allen, Peleg Wadsworth, and John Williams.

The yeas and nays were taken on the first reso

lution, and stood-yeas 57, nays 35, as follows:

YEAS.-Theodorus Bailey, Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Nathan Bryan, Dempsey Burges, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Jeremiah Crabb, Henry Dearborn, George Dent, Samuel Earle, William Findley, Jesse Franklin, Albert Gallatin, William B. Grove, Wade Hampton, George Hancock, Carliam B. Giles, Nicholas Gilman, Andrew Gregg, Wilter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, George Jackson, Edward Livingston, Matthew Locke, William Lyman, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew Moore, Frederick A. Muhlenberg, John Nicholas, Alexander D. Orr, John Page, Josiah Parker, John Patton, Francis Preston, John Richards, Robert

Rutherford, John S. Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn.

[MARCH, 1796.

to the House and read. They were referred to
the Committee of the Whole on the state of the
Union.

The following Message was received from the
PRESIDENT OF THE UNITED STATES:
Gentlemen of the Senate, and

of the House of Representatives: .

NAYS.-Fisher Ames, Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Henry Glen, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas I send herewith, for the information of Congress, the Hartley, Thomas Henderson, James Hillhouse, Wil-Treaty concluded between the United States and the liam Hindman, John Wilkes Kittera, Samuel Lyman, Dey and Regency of Algiers. Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, Jeremiah Smith, Nathaniel Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. The second resolution was then taken up, and the yeas and nays stood as on the first.

The following members were absent when the yeas and nays were called on the main questions: Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, New, and Sitgreaves.

The following members were away upon leave

of absence:

Messrs. Freeman, Kitchell, Leonard and Isaac Smith.

It was understood that the following members would have voted for the resolutions had they

been present:

Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, and New.

A motion being made and agreed to, that the unfinished business should give way to take up a resolution laid on the table some days ago, recommending that a committee be appointed to make inquiry whether the contract entered into by Government with John Cleves Symmes. in October, 1783, for a tract of land in the Northwestern Territory, be fulfilled, or whether the nature of the contract be altered by any subsequent event, and to make report thereon-the resolution was agreed to, and a committee of three members appointed.

Petitions and representations of sundry citizens and inhabitants of the State of North Carolina, whose names are thereunto subscribed, to the same effect with others from the States of Vermont, New York, Virginia, and Georgia, on the subject of the late Treaty negotiated with Great Britair, and in opposition thereto, were presented

G. WASHINGTON. UNITED STATES, March 8, 1796.

The said Message and Treaty were read, and ordered to lie on the table.

TREATY WITH GREAT BRITAIN.
The order of the day was then taken up, on
the resolution calling for papers from the PRESI-
DENT relative to the late Treaty.

mencing on the 7th of March, and continuing
[The whole debate upon this subject, com-
from day to day, till the 7th of April, is given en-
tire in preceding pages, beginning with page 426,
and concluding with page 783. The debate on
carrying the Treaty into effect will be found in
subsequent pages, among the proceedings of the
day.]

WEDNESDAY, March 9.

TREATY WITH ALGIERS.

The Treaty lately concluded between the United States and the Dey and Regency of Algiers, which was yesterday communicated by the PRESIDENT, and laid upon the table, was taken up for the purpose of committing it to the Committee of the Whole on the state of the Union, when

Mr. COOPER observed, that if the Treaty was referred to a Committee of the Whole with any other view than that of making the necessary appropriations for carrying it into effect, he should object to it, for except the Treaty was evidently unconstitutional, it was a law of the land, and that House had no right to discuss its merits, and therefore they might as well refer the Constitution to a Committee of the Whole, as such a Treaty, which did not come under Legislative control.

Mr. GILES said he should vote for the Treaty alluded to being committed to a Committee of the Whole, not for the purpose only of providing appropriations for carrying it into effect, but in order to examine whether it was a Treaty proper to be carried into effect; if not, he should vote against giving aid for the purpose. If it was committed, therefore, he trusted it would be with that view. It appeared to him as if gentlemen seemed to be aware of the embarrassments which

their arguments threw them into. When they went into a Committee of the Whole, they went officially, whether they should vote for it or not. Gentlemen say, that after the PRESIDENT and Senate have ratified a Treaty, nothing remains for them to do; but they should recollect that a very essential point is yet to be attended to, viz :

Challenging a Member.

nothing less than the granting of money to carry with Great Britain, on which it spent the reit into execution. mainder of the day.

Mr. JEREMIAH SMITH, from the committee to whom was recommitted the bill authorizing a Loan for the use of the City of Washington, in the District of Columbia, and for other purposes therein mentioned, with instructions to inquire whether any, and what, alterations ought to be made in the plans of the buildings intended for public use at the said City: and, also, to inquire into the state of the public buildings, the expenses already incurred in erecting, and the probable expenses of completing the same, made a report; which was read, and ordered to be committed to a Committee of the Whole House on Monday next.

Mr. J. S. also reported an amendatory bill authorizing a Loan for the use of the City of Washington, in the District of Columbia, and for other purposes therein mentioned; which was received, read twice, and committed to a Committee of the Whole House for Monday next.

The House then resolved itself into a Committee of the Whole on the resolution calling for papers from the PRESIDENT relative to the Treaty