Constitutional point, by calling for the question from day to day, now proposed to consume it in the way proposed. He should, however, now show that economy on account of time, which had been so much insisted upon on a former occasion. [MARCH. 1796. reasons, they said they would see the papers first, and then they would say what use they meant to make of them. The PRESIDENT, said Mr. S., had acted in the way gentlemen said he ought to act. Did not gentlemen say the PRESIDENT would exercise his discretion with respect to sending the papers? and yet, now he had exercised his discretion, there seemed to be an inclination in gentlemen to enter on the Journals reasons to convince the world he was wrong. How did that House proceed when the PRESIDENT negatived one of their bills? His reasons were entered on the Journals, and they proceeded to reconsider the subject. But did they enter on the Journals their reasons for passing the bill? No: they merely put the question, whether the bill should still pass, and were ruled by the event. He thought this an analogous case to the present. He saw nothing Mr. THATCHER hoped the Committee would excuse his making a few remarks on the subject before them, as it seemed not to be understood. In the first place, he asked, what was the answer of the PRESIDENT? It was No, and nothing more. What, then, can be expected from referring this answer to a Committee of the Whole? It was not the answer which gentlemen wished to refer; but they say, the PRESIDENT was not contented with giving an answer, but had gone on to give the reasons on which his negative was predicated. Might they not, say they, prove the PRESIDENT to be wrong, and ought they not to give their rea-improper in the PRESIDENT's having given his sons why they think him wrong? They, therefore, determine to enter into a forensic dispute with the PRESIDENT, in order that, though he had once said No, he might hereafter say Yes. Contrary to all former experience, he said, the majority, and not the minority, wished to enter a protest upon their Journals. In the English Parliament they frequently heard of a minority protesting, but he never heard of a majority doing so. But this majority want to enter their protest, in the form of a syllogism, in order to convince the world that the PRESIDENT had reasoned ill. But he thought the people of the United States would believe he reasoned tolerably well. Nor did he believe the gentleman from Pennsylvania would overturn in a week the reasoning of the PRESIDENT. But it had been said, politeness required that they should notice the PRESIDENT's Message. He believed he would excuse the House on that head. He believed his mind was determined on the subject. If gentlemen were dissatisfied with the reasoning of the PRESIDENT, let them go individually to him and say, "you have given us a major and a minor, but you have drawn a wrong conclusion." But was it right that these arguments should be brought forward on that floor? for, if the majority sent their reasons to the PRESIDENT, instead of having a reply of two or three pages, they might have the next time ten or twelve, and the controversy would not end. Mr. T. was therefore opposed to the motion. Mr. CLAIBORNE thought the motion a proper one; for, if they passed the present Message over in silence, they might as well come to a resolution, that whatever the PRESIDENT said should be law, and not to be examined. Mr. W. SMITH did not think the present motion could have any other effect than to involve two different branches of the Government in an unpleasant dispute on a Constitutional question. If gentlemen wished to convince the PRESIDENT he was wrong, it would be better a committee should be appointed for a conference with him on the occasion. Gentlemen said they wished to enter their reasons upon the Journals for calling for papers; whereas, when they laid the resolution upon the table, and were called upon for those reasons for declining to send the papers requested. Had he not done so, but refused to have answered the request, without having given any reasons for it, he would have been charged with a want of respect to the House. He considered his compliance would have been a violation of the Constitution. Was that a reason why they should enter their reasons on the Journals? Surely not. Indeed, it appeared to him, that the discussion proposed would have no effect but to excite a misunderstanding between two branches of the Government, which might ultimately affect the peace of the country. He wished gentlemen to recollect the calmness with which that House received the negative of the PRESIDENT on a bill which respected the great principles of representation, which had passed both Houses. No attempt was made to go into a Committee of the Whole on the reasons for the negative. He hoped they should proceed with the same dignity on the present occasion. Mr. FINDLEY said, it was customary in the Legislature of Pennsylvania to enter reasons for adopti g measures upon their Journals. He had often known the sentiments of men long dead, brought forward there. It was not for themselves, but for posterity, that their reasons for calling for the papers in question should be entered upon the Journals along with the PRESIDENT's refusal. It had been said, that majorities never entered their reasons on Journals, but minorities; but he said he had known both. These reasons, which would be thus entered, will be those of the House, and not of any individual. The yeas and nays were now taken on the question of a reference of the PRESIDENT'S Message to a Committee of the Whole; and the motion was agreed to-yeas 55, nays 37, as follows: ham Baldwin, Lemuel Benton, Thomas Blount, NAYS.-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, James Hillhouse, William Hindman, John Wilkes Kittera, Samuel Lyman, Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, Isaac Smith, William Smith, Zephaniah Swift, George Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. The business was then made the order of the day for Wednesday next. An earlier day was proposed; but Wednesday was carried by the SPEAKER'S casting vote. [H. OF R. well known, that many gentlemen in that House had declared that the Treaty lately concluded with Great Britain was not obligatory on the nation, was not obligatory on that House until it had received their sanction. If this opinion was just, he apprehended the British were not bound to give up the posts until that House had declared the Treaty binding. He was one of those who believed this opinion incorrect; he believed that House had no participating power in making Treaties; but there was no man who would say they had not the physical power to break the Treaty; and, after what had taken place in that House, may it not be conceived the British will refuse to give up the posts before the Treaty had been acted upon by them? If this was likely to be the case, they had no time to lose. It was then the 6th of April; it would take a month to transmit the ratification to the necessary place; and there would remain only twenty-three or twentyfour days for the business to pass through both Houses. This, it would be allowed, was a short period, and what, said he, may be the event of delaying the consideration so long, as that the British will not deliver up the posts at the time appointed? This could not be determined; but of this much he was certain, nations were judges in their own cause. As long as each nation kept exactly the line marked out, there could be no excuse for the breach in the other party; but, as soon as one or the other is guilty of a breach of contract, the consequences cannot be foreseen. APRIL 1.-Mr. KITCHELL said, as it appeared from the Message of the PRESIDENT, lately communicated to that House, that he had conceived the majority of that House, who passed the resolution to which that Message was an answer, had entertained opinions, which he himself, as one of that majority, wished to disavow, he proposed to The two nations being judges in their own 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 are in substance, as follows: Resolved, As the opinion of this House, that the Constitution has vested the power of making Treaties exclusively in the President and Senate; and that the House of Representatives do not claim an agency in making or ratifying them when made. Resolved, As the opinion of this House, that when a Treaty is made, which requires a law or laws to be passed to carry it into effect, that, in such case, the House of Representatives have a Constitutional right to deliberate and determine the propriety or impropriety of passing such laws, and to act thereon as the public good shall require. APRIL 6. Mr. BOURNE called for the order of the day, on the Message of the PRESIDENT, in answer to the resolution of that House, calling for certain papers relative to the Treaty lately concluded with Great Britain; when, just as the SPEAKER was about to put the question, to give up the posts; or, if they did, that difficulties would ensue; but it was in their power to prevent the possibility of mischief, provided they went immediately into the business. And why should they not do this? Of what importance was it to go into a Committee of the Whole on the Message of the PRESIDENT? Was there included in it any proposition of great national advantage? Did they expect to get the papers by it? No. They expected to enter their reasons on the Journals for calling for the papers. Let them do what they pleased, no material national advantage was connected with the question; and if there was, it was not necessary to go into the consideration now. If they wanted to enter into a negotiation with the PRESIDENT on the subject. or declare the sense of the Constitution, they might do it the next session as well as this. But the discussion of the Message at all, he thought, 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, ha 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 unnecessary to take up time in discussing the Message of the PRESIDENT. It was well known that the first of June was the time fixed for the British to give up the Western posts. It was also that, in his opinion, which had caused the present motion. He said this, because he could not discover any benefit to be derived from the proposed discussion: he believed it would only serve to add fuel to a flame which it would be well to extin guish. He thought a business in which the public interest was concerned should first claim their attention; and, as there were very strong reasons for taking up the business relative to the state of the Union, he hoped they would negative the motion before them, and take up the other. After a few observations from Mr. GILES, in favor of going into the consideration of the PRESIDENT'S Message; from Mr. SEDGWICK, in opposition to it, (in which he moved for the yeas and nays;) and a few conciliatory remarks from Mr. KITCHELL the yeas and nays were taken, and stood-yeas 57, nays 36, as follow: [APRIL. 1796 purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application." Mr. HARPER, Mr. DAYTON, and Mr. KITCHELL, offered a few remarks with respect to the propriety of considering the resolutions now moved, or those laid upon the table, by Mr. KITCHELL, a few days ago. After which Mr. MADISON rose, and spoke as follows: When the Message was first proposed to be committed, the proposition had been treated by some gentlemen not only with levity but with ridicule. He persuaded himself that the subject would appear in a very different light to the Committee; and he hoped that it would be discussed on both sides without either levity, intemperance, or illiberality, If there were any question which could make a serious appeal to the dispassionate judgment, it must be one which respected the meaning of the Constitution; and if any Constitutional question could make the appeal with peculiar solemnity, it must be in a case like the present, where two of the constituted authorities interpreted differently the extent of their respective powers. YEAS.-Theodorus Bailey, Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan, Samuel J. Cabell, Gabriel Christie, John Clopton, Isaac Coles, Jeremiah Crabb, Henry Dearborn, Samuel Earle, William Findley, Jesse Franklin, Albert Gallatin, William B. Giles, James Gillespie, Christopher Greenup, Andrew Gregg, William Barry Grove, Wade Hampton, George Hancock, Carter B. Harrison, John Hathorn, Jonathan N. Havens, John Heath, Daniel Heister, James Holland, Aaron Kitchell, Edward Livingston, Matthew Locke, Samuel Maclay, Nathaniel Macon, James Madison, John Milledge, Andrew 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 Vanent members possessed independent and hereditary Cortlandt, Joseph B. Varnum, Abraham Venable, and Richard Winn. NAYS.-Benjamin Bourne, Theophilus Bradbury, Daniel Buck, Joshua Coit, William Cooper, Geo. Dent, Abiel Foster, Dwight Foster, Ezekiel Gilbert, Henry Glen, Benjamin Goodhue, Chauncey Goodrich, Roger Griswold, Robert Goodloe Harper, Thomas Hartley, Thomas Henderson, James Hillhouse, William Hindman, Samuel Lyman, Francis Malbone, William Vans Murray, John Reed, Theodore Sedgwick, John S. Sherburne, Samuel Sitgreaves, Jeremiah Smith, Nathaniel Smith, William Smith, Zephaniah Swift, Geo. Thatcher, Richard Thomas, Mark Thompson, Uriah Tracy, John E. Van Allen, Peleg Wadsworth, and John Williams. prerogatives. In such Governments, the parties having a personal interest in their public stations, and not being amenable to the national will, disputes concerning the limits of their respective authorities might be productive of the most fatal consequences. With us, on the contrary, although disputes of that kind are always to be regretted, there were three most precious resources against the evil tendency of them. In the first place, the responsibility which every department feels to the public will, under the forms of the Constitution, may be expected to prevent the excesses incident to conflicts between rival and irresponsible authorities. In the next place, if the differThe House accordingly resolved itself into a Committee of the Whole on said Message. ence cannot be adjusted by friendly conference Mr. BLOUNT brought forward the following reso-ent body, brought into the Government through and mutual concession, the sense of the constitu lutions: the ordinary elective channels, may supply a re"Resolved, 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 Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good. "Resolved, That it is not necessary to the propriety of any application from this House to the Executive, for information desired by them, and which may relate to any Constitutional functions of the House, that the larly regretted that the existing difference of opiIf, in the present instance, it was to be particunion had arisen, every motive to the regret was a motive to calmness, to candor, and the most respectful delicacy towards the other constituted authority. On the other hand, the duty which the House of Representatives must feel to themselves and to their constituents, required that they should examine the subject with accuracy, as well as with candor, and decide on it with firmness, as well as with moderation. 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. The Message related to two points: First. The application made for the papers. Secondly. The Constitutional rights of Congress, and of the House of Representatives, on the subject of Treaties. On the first point, he observed, that the right of the House to apply for any information they might want, had been admitted by a number in the minority, who had opposed the exercise of the right in this particular case. He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations on the subjects submitted to them by the Constitution; being responsible, nevertheless, for the propriety of the measure. He was as ready to admit that the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time. And if the refusal of the PRESIDENT had been founded simply on a representation, that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticise it. But the Message had contested what appeared to him a clear and important right of the House; and stated reasons for refusing the papers, which, with all the respect he could feel for the Executive, he could not regard as satisfactory or proper. One of the reasons was, that it did not occur to the Executive that the papers could be relative to any purpose under the cognizance, and in the contemplation of the House. The other was, that the purpose for which they were wanted was not expressed in the resolution of the House. improper to state that to be the object of information which might possibly lead to it, because it would involve the preposterous idea of first determining to impeach, and then inquiring_whether an impeachment ought to take place. Even the olding out an impeachment as a contemplated or contingent result of the information called for, might be extremely disagreeable in practice, as it might inflict a temporary pain on an individual, whom an investigation of facts might prove to be innocent and perhaps meritorious. From this view of the subject he could not forbear wishing that, if the papers were to be refused, other reasons had been assigned for it. He thought the resolutions offered by the gentleman from North Carolina, one of which related to this subject, ought to stand on the Journal along with the Message which had been entered there. Both the resolutions were penned with moderation and propriety. They went no farther than to assert the rights of the House; they courted no reply; and it ought not to be supposed they could give any offence. The second object to which the measure related, was the Constitutional power of the House on the subject of Treaties. Here, again, he hoped it may be allowable to wish that it had not been deemed necessary to take up, in so solemn a manner, a great Constitutional question, which was not contained in the resolution presented by the House, which had been incidental only to the discussion of that resolution, and which could only have been brought into view through the unauthentic medium of the newspapers. This, however, would well account for the misconception which had taken place in the doctrine maintained by the majority in the late question. It had been understood by the Executive, that the House asserted its assent to be necessary to the validity of Treaties. This was not the doctrine maintained by them. It was, he believed, fairly laid down in the resolution proposed, which limited the power of the House over Treaties, to cases where Treaties embraced Legislative subjects, submitted by the Constitution to the power of the Housc. With respect to the first, it implied that the Executive was not only to judge of the proper objects and functions of the Executive department, but, also, of the objects and functions of the House. He was not only to decide how far the Executive trust would permit a disclosure of information, but how far the Legislative trust could derive advantage from it. It belonged, he said, to each department to judge for itself. If the Executive conceived that, in relation to his own de partment, papers could not be safely communicat- Mr. M. did not mean to 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 only proper judge of its own objects. The other reason of refusal was, that the use which the House meant to make of the papers was not expressed in the resolution. in the PRESIDENT, by and with the advice and consent of the Senate. Nothing more was necessary on this point than to observe, that the Constitution had as expressly and exclusively vested in Congress the power of making laws, as it had vested in the PRESIDENT and Senate the power of making Treaties. As far as he could recollect, no precedent could be found in the records of the House, or elsewhere, in which the particular object in calling for in- He proceeded to review the several topics on formation was expressed in the call. It was not which the Message relied. First. The intention 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. and interests of the smaller States. Fourthly. The manner in which the Constitution had been understood by the Executive and the foreign nations, with which Treaties had been formed. Fifthly. The acquiescence and acts of the House on former occasions. 1. When the members on the floor, who were members of the General Convention, particularly a member from Georgia and himself, were called on in a former debate for the sense of that body on the Constitutional question, it was a matter of some surprise, which was much increased by the peculiar stress laid on the information expected. He acknowledged his surprise, also, at seeing the Message of the Executive appealing to the same proceedings in the General Convention, as a clue to the meaning of the Constitution. It had been his purpose, during the late debate, to make some observations on what had fallen from the gentlemen from Connecticut and Maryland, if the sudden termination of the debate had not cut him off from the opportunity. He should have reminded them that this was the ninth year since the Convention executed their trust, and that he had not a single note in this place to assist his memory. He should have remarked, that neither himself nor the other members who had belonged to the Federal Convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject. He might have further remarked, that there would not be much delicacy in the undertaking, as it appeared that a sense had been put on the Constitution by some who were members of the Convention, different from that which must have been entertained by others, who had concurred in ratifying the Treaty. [APRIL, 1796. gentleman from Massachusetts, who had himself been a member of the Convention, and whose remarks were not unworthy the attention of the Committee. Here Mr. M. read a paragraph from Mr. GERRY's speech, from the Gazette of the United States, page 814, protesting, in strong terms, against arguments drawn from that source. Mr. M. said, he did not believe a single instance could be cited in which the sense of the Convention had been required or admitted as material in any Constitutional question. In the case of the Bank, the Committee had seen how a glance at that authority had been treated in this House. When the question on the suability of the States was depending in the Supreme Court, he asked, whether it had ever been understood that the members of the Bench, who had been members of the Convention, were called on for the meaning of the Convention on that very important point, although no Constitutional question would be presumed more susceptible of elucidation from that source? He then adverted to that part of the Message which contained an extract from the Journal of the Convention, showing that a proposition "that no Treaty should be binding on the United States, which was not ratified by law," was explicitly rejected. He allowed this to be much more precise than any evidence drawn from the debates in the Convention, or resting on the memory of individuals. But, admitting the case to be as stated, of which he had no doubt, although he had no recollection of it, and admitting the record of the Convention to be the oracle that ought to decide the true meaning of the Constitution, what did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it, that, as he understood their doctrine, they must have voted as the Convention did; for they do not contend 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 Wilmington, whose resolutions made a similar complaint, hai also been a distinguished member of the body that formed the Constitution. It would have been proper for him, also, to have recollected what had, on a former occasion, happened to himself during a debate in the House of Representatives. When the bill for establishing a National Bank was under consideration, he had opposed it, as not warranted by the Constitution, and incidentally remarked, that his impression might be stronger, as he remembered that, in the Convention, a motion was made and negatived, for giving Congress a power to grant charters of incorporation. This slight reference to the Convention, he said, was animadverted on by several, in the course of the debate, and particularly by a But. after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution. To these also the Message had referred, and it would be proper to follow it. 2. The debates of the Conventions in thres |
