DEBATES IN THE HOUSE OF REPRESEN­TATIVES. (Continued from page 67.)

MR. S. SMITH observed, that, ‘were there but one man, and he a negro, suffering under the gal­ling yoke of impressment, it was the duty of the government to provide relief for that man.’ Now, Mr. Smith, have you not several negroes? How easy, then, is it for you to do an act of phi­lanthropy, without application to the government, and without plunging the country into a dangerous dispute with another nation? You will say, with­out doubt, that your negroes are not suffering un­der the galling "yoke of impressment;" but, where is the difference, whether they are under the yoke of the British or under your yoke; slavery is still slavery; nor is the yoke the weight of a hair lighter, for lasting durante vita, or because it is im­posed [Page 72] by a man who pretends to be the advocate of liberty.

Nothing that I have said, or shall say, on this subject, is intended to justify the British in their im­pressment of Americans: I look upon their conduct in this respect as tyrannical; as the effect of that overbearing insolence which is the characteristic of but too many among their subaltern officers, and I think that redress ought to be obtained, with all convenient speed. But, I here confine myself to Americans alone, by which word I mean, those who were born in the United States, or were inhabi­tants of them at the peace of 1783, not including deserters from the British during the war. These are Americans, and no others are, and, I venture to predict, that, whatever schemes the Congress may fall on, whatever registers, certificates or oaths of civism they may think proper to furnish sailors with, Great Britain will ever seize hers, where she finds them.

Mr. LIVINGSTON said, that ‘it would be no difficult matter to prove, that foreigners natural­ized since the Declaration of Independence, were entitled to the protection of the govern­ment.’ He attempted to prove this, and I shall not contradict him, for the thing is, in itself so evidently absurd as to need no remark.—As to what he pleases to call the naturalization of foreigners (whole cargoes at a time or otherwise) the rights of citizenship they enjoy under their new masters, &c. &c. shall be reserved for a future opportunity. It will be sufficient to add, on this article, that a bill was at last agreed to for appointing agents for the relief and protection of impressed seamen. But if these agents are to be employed (as the instru­ments [Page 73] of a predominant) faction to embroil this country in a war, it were far better they had never been appointed.

PAPERS RELATIVE TO THE TREATY WITH GREAT BRITAIN. MARCH 2nd.

Mr. LIVINGSTON (from N. York) said that it was ge­nerally understood that some important constitutional que­stions would be discussed, when the treaty lately conclud­ed between this country and Great Britain should come under consideration, it was very desirable, therefore, that every document which might tend to throw light on the subject should be before the House.—For this purpose, he would move the following resolution:

‘Resolved, that the President of the United States be requested to lay before this House, a copy of the in­structions given to the minister of the United States who negociated the treaty with Great Britain, commu­nicated by his message on the 1st inst. together with the correspondence and documents relative to the said treaty.’ Ordered to lie on the table.

To this resolution the following exception was after­wards added:— ‘excepting such of said papers as any existing negociation may render improper to be dis­closed.’

Mr. TRACEY (Connecticut) requested the gentleman who brought forward this resolution to give his reasons for doing so. He had at present only told the House that, as the constitutionality of the treaty might be discussed, he thought it necessary to propose the measure. It was well known by every man in that House that much differ­ence of opinion, and much sensibility had been occasioned by the treaty in question all over the Union.—He thought that the only way to treat the matter fairly, would be for every member on that floor to come forward and express himself openly. Perhaps the happiness of the country [Page 74] might depend upon the issue of their deliberations upon it. In order to avoid all bitterness and misunderstanding, it would be best for members to come forward at first and state their opinions fully. He, therefore asked why this motion was made? If made barely to enable the House to examine into the constitutionality of the treaty, he thought that might be determined by comparing it with the constitution itself. It may be thought necessary that these papers be produced in order to impeach any of the persons employed in the negociation, or the Precident. He wished to know for what purpose these papers are called. He thought to declare the whole intention of the motion would be a means of harmonizing the House upon the subject. However, until he knew the real intention, he would hope it was a good one. If he disagreed from the honourable mover, he should give his reasons for it, it was a delicate subject. That they had a right to the papers called for for a good purpose, could not be doubted, but unless the House had real occasion for them, the President would be justified, in keeping them where they are. What, said he, do we want with these papers? Is it to make a better treaty, or to do away the one made? He wished to know the mover's reasons fully.

Mr. LIVINGSTON said he had never any wish to con­ceal his intention, as he trusted he never should have any which he should be ashamed to avow. The gentleman asked with propriety for information: he answered, his motion was made for the purpose of gaining information. He asked to what particular point. It may be to all the points he has mentioned. It was impossible to know un­til the papers were before him. He wished for infor­mation, the result would depend upon the information re­ceived. He did not know that the impeachment of any person would be determined upon by that House. He did not think so himself; but he thought it necessary they should have an opportunity of making a fair judgment of the matter. They were the proper persons to whom was delegated the power of punishing officers; they ought therefore, to have full opportunity of judging of their conduct. It was simply for information that the resolu­tion asked, not only with respect to the officers who were employed on the occasion, but with respect to the thing [Page 75] itself. He believed, that House had the power to carry into effect any Treaty, or not. It was for this purpose that he wanted information; and if the House were of the same opinion, they would support the motion. Some­thing had been said as to the delicacy of the subject. If, said he, any reason of State will not permit the President to give the papers they asked for, he will give his reasons for refusing them. He meant not to invade the rights of any branch of government; it was information which he sought for.

Mr. GILES (Virginia) said he would briefly state the reasons which induced him to support the passing of the resolution which lay on the table. The gentleman from Connecticut had justly said that the treaty had caused great sensibility throughout the United States. It was on this account that he wanted that information which they had a right to expect, and without which they could not pro­ceed to consider the subject. If he were to judge of the treaty itself, it would not allay that sensibility which had been raised against it, but he trusted the information which was called for would be of a sort to reconcile the public mind. If no information was given he must own it would have an unfavorable impression on his mind. He wished, therefore, for information.

Mr. MURRAY (Maryland) observed that if the mover of the resolution before the House had clearly declared that the object of it was for information, he should not have an objection to it; but the explanation given, led him to be­lieve that it had in view the establishment of a very alarm­ing doctrine—no less than to determine whether the trea­ty shall be carried into effect or not. By the Constitution, he said, the treaty was become the law of the land, and obligatory on all the citizens of the United States. From the explanation given, he should give the measure his de­cided negative; for if that House had the power to decide on the legality of the treaty, in vain has the Constitution given power to the President and Senate to make treaties. It appeared to him that the House had no right to enquire into the particular ground upon which this treaty has be­come the law of the land, since it appears that the Presi­dent and Senate have acted agreeably to the Constitution. [Page 76] It would be a solecism in Government, to say that there were two powers which could controul each other. He thought the resolution unconstitutional, as it was predi­cated on the right of that House to interfere with the pow­er placed in the President and Senate to make treaties. In order to justify this motion, the House should first de­termine the treaty to be unconstitutional, and that [...] not to be the law of the land. If it was agreed [...] House had a right to examine all the secrets [...] negociations, a plan will be adopted which may open secrets that may be of great injury to the nation. Every man knows, said he, that in diplomatic transactions there are certain secret negociations; he did not know that it was the case in this, but it might be so. To carry into effect this resolution, appeared to him a direct invasion upon the constitutional rights placed in the President, in conjunction with the Senate. He doubted whether the Senate could make this demand.

Thus did the discussion wander from its object. This motion of Mr. Livingston was the signal of hostile preparation. The Friends of the treaty took the alarm, and the question became, not whether the House had a right to call for the pa­pers or not, but whether their sanction was neces­sary to the execution of a treaty.

The debates occupied the House and the pub­lic during nearly a month. It is incompatible with my plan to give all the speeches at length, many of which do honour to the hearts and ma­ny others to the heads of the speakers: among the former may be noticed those of Messieurs Buck, Sedgwick, Harper and William Smith; among the latter, those of Messieurs Gallatin and Giles; and, on the whole, the debate contains as masterly a display of polemical talents as, perhaps, was ever exhibited by any assembly in the world.

[Page 77]I shall content myself with inserting here two of these speeches only, which as they contain the substance of all that was said on both sides, will suffice, at once to give the reader a complete view of the arguments adduced, and a specimen of the rhetorical abilities of the members of the House of Representatives.

Mr. GILES said, when the present motion was first brought forward, he saw no other consideration attached to it, than the expediency, or inexpediency of calling for the papers in question. It was expected the President was possessed of information respecting the treaty, as such it became a question whether it was not proper to make a call for it. The very referring of the treaty to a com­mittee of the whole shewed an intention of acting upon it. Indeed the communication from the President at the opening of the session, shewed that he expected that House to exercise an agency on the treaty. It appeared to him, that if the papers would serve to explain any thing in the treaty, it was desireable to have them. He was one of those who, in reflecting on the treaty, and judging from the face of it, felt unfavorably towards it. He was per­swaded that he had the right, and he conceived it to be his duty, to oppose the execution of, the instrument; but, knowing there was great responsibility attached to the business, he wished for information. For the final issue, the weight of responsibility would never make him swerve from his duty. These were his motives for con­curring in the motion.

That the House had a right to call for these papers was not denied; the right being conceded, it appeared to him that they might have confined themselves to the expediency of the motion. But the opposition had not been so much against the motion, as against the argu­ments which have been used, that do not relate to the subject. But tho' he believed that these were all the con­sequences, yet, as it seemed to be deemed a test respect­ing another business, and members appeared inclined now to express an opinion on that head, he would ask indul­gence [Page 78] of the committee whilst he stated his sentiments on that subject.

The real question appeared to be this, whether the treaty making power, can receive any check, in conse­quence of provisions placed in the Congress of the United States, and whether they have a right to question the me­rits of the instruments?—Various arguments have been used to shew, that that House have not the power to ex­amine the treaty, or check its execution. Some of them have grown from the Constitution, others from the face of the instrument. Though, he said, it would have been more agreeable to him to have explained his sentiments in a different way, yet, as gentlemen have chosen to en­ter upon the discussion of the great Constitutional questi­on, he should proceed to answer the objections which had been urged against what he conceived to be the pow­ers of that assembly.

Of the description of objection against the rights of that House, which grew out of the instrument itself, he should begin with remarks on what had fallen from the gentleman from South Carolina yesterday. That gentle­man had introduced the Convention held in the state of Virginia near the time of adopting the Constitution, and said, that it proposed an amendment, containing, amongst other checks, one respecting the treaty power, viz. that there should be a concurrence of two thirds of the whole of the Senate, instead of two thirds of the Senate present. He believed it was so. But he would ask the gentleman how this operated? The amendment was not to lessen, but to increase the checks, which, from the extent of the treaty making power, as it stands in the Constitution, was thought to be necessary. But how the gentleman could infer that they believed there was no other check, he was at a loss to determine. If he would refer to the proceed­ings of that Convention, he would find the reasons urged in support of the proposed amendments, which, indeed, were the opinions of individuals only. The next consi­deration which he resorted to was, that of the opinion of certain citizens, at a meeting held at New-York, to shew that they considered the business of the treaty, wholly an executive business. He little expected, from a gentleman [Page 79] who is apt to speak rather contemptuously of such assem­blies, that the proceedings of town's meeting should have been adduced in support of his argument. He ac­knowledged that the expressions of such meetings of the people would always have an effect on his mind. Was the gentleman willing to rely on the opinions of those whom he has mentioned? If not, why introduce them? If the gentleman will admit that such meetings are the or­thodox expositors of the public Constitution, as they are expositors of the will, he had no objections to their being adduced. It did not appear, however, that he drew cor­rectly the sentiments of the public meeting in question; it was held to petition the President to withhold his signa­ture from the treaty. Would not the strongest arguments, then, be used to induce the President not to execute the treaty? But he wished to be permitted to take the gentle­man's own rule. What was the situation of their table; was it not covered with petitions from all parts of the Union against the treaty? Finding their petitions in vain to the President, the people flew to that House, and the table never had, upon any occasion, so many petitions up­on it, praying them not to give up the rights which the constitution had placed in their hands, of checking the treaty making power.—The next argument adduced by the gentleman was, the opinion expressed in the amend­ments lately proposed by the State of Virginia, to the constitution; from which, he drew an implication that there was at present no check on the treaty making power, it was not so. It had not been contended that there was any particular words in the constitution which directly goes to this construction, but that it grows out of ano­ther powers. This was the idea of the State of Virginia. The amendment was proposed to relieve them from con­structive power, by giving them an express power. It was unnecessary to remind them of the fate which these amendments had met with. He hoped, however, the State of Virginia would persue that conduct which had always marked her political character; and he trusted it would be admitted, that she was not more distinguished for her love of liberty, than she was for her love of vir­tue, of order and good conduct at home. He prided himself in being a Representative of such a state; and he [Page 80] was persuaded, though her sister states differed from her in opinion, she would never cease to pay them proper respect. He was sorry the subject had been mentioned. If Virginia, he said, had been the cause of indelicacy in others, she was the innocent cause and therefore not re­sponsible. In making the proposed amendments, she was impelled by the best motives to attain an important object, an object, which, he doubted not, would ultimately be attended with success.

The gentleman from South-Carolina had resorted to another subject with but little success. He read a reso­lution from the journals of the house, importing, that when treaties were made under the authority of the United States, they should be annexed to the laws.

He believed it proper they should be so. But does this shew that the practice of the House had been against ex­pressing their opinion on great national objects? The gentleman's next observation was with respect to appro­priations for carrying into effect Indian treaties, saying that there was no difference betwixt treaties with foreign nations, and treaties with the Indian tribes. Mr. Giles remarked there always had been a distinction.—In the time of the Colonial Government, that distinction was made and it had never been done away. By means of Indian treaties, the treaty-making power had been vastly increas­ed, he could not say whether for a good or bad purpose. Provision had been made for carrying Indian treaties in­to effect, because they thought it right. But suppose a motion had been made to strike out the appropriation clause, in one of those bills, would it have been out of order? No. That question had been lately discussed (he referred to the business respecting the mint) and determi­ned upon. There was another subject that gentleman mentioned, which he was very sorry to hear, though he seemed to plume himself upon it, that the President of the United States had accompanied the publication of this treaty with his proclamation to carry it into effect. Why was this mentioned? It was not to illuminate that House. He was afraid it might have a tendency to check investi­gation. Persons were too often brought before that House; not to illustrate a subject, but to hinder free debate. He [Page 81] would even admit that the President believed that that House had not the right to judge of the treaty. Were his opinion to be authority? No. What is the nature of the question? It implies contested rights of different branch­es of government. His introducing the President, there­fore, as an authoritative opinion, might alarm, but could not convince. Notwithstanding the President's proclama­tion, he still thought the treaty was sent to that House to be acted upon.

Having answered most of the objections from collateral sources, he should proceed to more interesting matter— to the Constitution itself, it was a little unfortunate, he said, that sentiments could not be so combined as to pro­duce always the same ideas in every mind. Hence arose difference of opinion.—It is not wonderful, that in the Congress of the United States, there should be a variety of opinion. Of all the expositions of the treaty-making power, he thought that was the least probable and most dangerous, which fell from the member from Connecti­cut—That power, he informed the House, was undefined in its nature, unlimited in its object, and supreme in its operation. He would not say there had been no attempts at a definition of this extravagant power. It was said, it might embrace legislative objects by compacts. He would not say that objection had been attended to, that it could not go beyond the Constitution, nor encroach on power placed by the Constitution in any branch of Government.

On this construction he would examine the question. The first consequence was, that the treaty supercedes the discussion of that House. The next was, that it repeals all laws which stand in its way. When he proceeded to examine the constitution, he would touch on both those particulars. He would remark, that as far as he had been able to examine the history of mankind, there was always an effort of the people to guard their rights, and an op­posite effort in government to encroach on them. The American people were called upon to establish such a con­stitution as would ensure their rights and liberties. It had been said that the American people had been more sagaci­ous than any other nation. But whilst it appears that they have been more sagacious to furnish checks, there have not [Page 82] been wanting continual attempts to invade them. In no nation has the doctrine of checks been so completely routed as in this, and if the opinions now contended for, prevail, nothing will remain to be done by checks. This construction has been deduced from two sources. One from the constitution, and the other from the nature of the thing. Gentlemen have read the clause of the consti­tution which gives a power to the President and Senate to make treaties. Here they stop, and say that this gives them a complete authority. If there was no other clause, it might be so. But let the question be examined. The gentlemen then resort to another clause, viz. ‘This con­stitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land.’ Here they stop again, and if there were no other words, it would seem to support their doctrine. But the clause ex­plains itself, ‘and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.’ Can any thing be more evident, that this clause relates to former en­croachments of particular states? It was necessary that the constitution and laws of each state should yield to the general Government. Gentlemen finding difficulties oc­cur, contend for the supremacy of treaties over all laws. It is admitted the clauses of the constitution will not sup­port this: and he would ask where they found the doc­trine, that treaties are superior to laws? Gentlemen say that it is from the nature of things. He believed the reverse. In this point he differed from the gentleman from Pennsylvania; for he would contend that laws could annul treaties, but that treaties could not annul laws. This being a new doctrine, he would beg leave to illus­trate it. He inferred it from the nature of the two pow­ers. Gentlemen assert that treaties cannot be repealed, because they consist of two parts, and nothing less than the consent of both, or war, can annul them. He would ask that House, if they ever heard of a convention be­tween two foreign nations for this purpose? if it could be done, he should wish another envoy extraordinary to be appointed and sent to repeal this treaty. But no such meeting having ever taken place, from whence comes this [Page 83] theory? But is it reasonable that laws should repeal trea­ties? Yes. But why? because laws were the expression of the national will, through its proper organ.

It is admitted on all hands, said Mr. Giles, that Con­gress has the power of declaring war; suppose it did de­clare war with Great Britain, would not the treaty be an­nulled? would the treaty operate during the war? No. At least that part of it which speaks of mutual amity, would be destroyed. He would go farther, the treaty makes an equalization of duties in the Canada trade. Could not this regulation be repealed? but this it might be said, would lead to war. That might be; but he contended for the right. He said that a law pro tanto renders the treaty void. Suppose Great Britain by her parliament, were to repeal any law relative the treaty, what would be the consequence? Great Britain would make herself responsible. True; but she might do it. Treaties were said not to be repealable; was not that say­ing that the laws of the United States were like the laws of the Medes and Persians, which change not? if gentle­men took time to examine the doctrine they would find it less sound than they expected.

In proportion as an authority was supposed to be un­limited or undefined, in the same proportion was the ne­cessity of a check upon it. When he looked into the constitution, he found this check. Would it not, indeed have been the height of folly in the people to have given unbounded power with respect to making treaties, whilst some of the regulations in the constitution give instances of well founded jealousy in their rulers? if the doctrine contended for were just, it would afford a remarkable in­stance of the folly of the American people.

The constitution, he said, contained a distribution of powers. It had three distinct checks. The first related to the different species of authority. Each distinct au­thority was placed in separate hands. The next was, the same species of authority is placed in two different branch­es of the government, which renders a concurrence of opi­nion necessary to any act. Another check, or denial of [Page 84] authority altogether, was the qualified veto of the Presi­dent.

As an instance of the caution which the people thought necessary against the encroachment of power, it was made an article of the constitution that no appropriation for an army could he made for more than two years. By which it appears that they were not satisfied, though they had provided that there should be a concurrence of sentiment in the Senate and Legislature, but determined to prevent the posibility of keeping up an army establishment longer than necessary. Another check was the biennial elections, as every new election was considered as a fresh check up­on the executive. No one will doubt that this was the motive; and the doctrine at present insisted on, seemed to shew the necessity of this caution.

The checks on the treaty making power might consist of several parts; he should rely upon two. The first was, the necessity for the concurrence of that House to give the efficacy to a treaty whenever it embraces any object which is contained in the power given by the constitution to Congress. The President and Senate, it is acknowledged, have power to make treaties; but who have the power to regulate commerce? Congress. Who have the power to declare war? Congress. Who have the power to raise armies? Congress. Gentlemen talked much about the will of the people. If he adored any thing on earth, he said, it was the will of the people. The question was, what was the will of the people? That will was expressed in the constitution. And that House, being the direct represen­tatives of the people, might be reasonably supposed to be the representatives of the public will; and it was necessary, therefore, that they should concur in a measure of so great importance as that of a commerical treaty. But gentle­men seem to speak of that House as mere cyphers. What was the oath they took on taking their seats? Not to sit silent to see the rights of the people invaded; but to guard the constitution. Shall they them shrink from their duty; be trusted they would not.

The other check to the treaty making power, was that of the right of appropriation placed in Congress. ‘No [Page 85] money shall be drawn from the treasury but in conse­quence of appropriations made by law.’ Whence came this caution? From the same spirit which dictated the other checks in the constitution. Without an appropria­tion no mischief can be effected. He would ask the meaning of the word law? Law, said he, is a rule of conduct prescribed by competent authority, Does the law mentioned in this clause refer to the treaty making power? No. What does it mean? It refers to Congress and not to the treaty making power, then the law necessary to make appropriation is the exercise of the whole of the authority appointed by the people to make laws. But gentlemen finding that a new distinction must be made with respect to discrimination, have undertaken a new definition. The gentleman from Connecticut, speaking on this sub­ject, asked whether all distinction was to be disclaimed? No, he said they were to exercise sound discretion; but he was at a loss to know what discretion was left them, if they might not refuse to appropriate money to carry in­to effect what appeared to them mischievous. The gen­tleman from South Carolina attempted to define this sort of discretion, and finished his remarks by saying, that they could never have a right to do wrong. But this did not define their idea. He would undertake to define the discretion they set up, it was a predestinated discretion, not giving its votaries a power of choice, but impelling them by necessity. Indeed the whole force of the remarks of gentlemen, was to recommend an easy, docile kind of discretion, which would be influenced by the opinions of others. Some gentlemen finding this doctrine would not do, have taken what they call moral obligation as their ground. He hoped they would give up constitutional ob­ligation, because he believed a constitutional obligation was a moral one also.

There had been much difficulty, he said, with respect to moral obligation. The exercise of moral sense was put in the discrimination of the President and Senate, in their having made a treaty which gentlemen say binds that House to carry it into effect. He always understood that moral sense must reside in an agent. There was a re­markable instance of it in Great Britain, and more re­markable, because their King can do no wrong. This [Page 86] brought him again to the word law. It was said they intended to repeal the treaty. No. They claimed a power to refuse the passing of a law—a mere negative power. When he was called upon to pass a law, was he to do it without consideration? Legislation necessari­ly includes deliberation. It was the meaning of it. How then can a Legislature be addressed in this language, ‘al­though we acknowledge you are a legislative body, yet, in this case, you have no right to discuss the me­rits of the treaty which you are to appropriate money to carry into effect,’ The gentleman from Connecticut, who was entitled to much praise for his ability and ingenuity, said he could exercise his opinion as a citizen upon the treaty, but not as a legislator. He could not enter into this distinction; for every opinion which he formed as a citizen, he held as a legislator. Gentlemen should consider that in passing a law, they were on legislative and not on executive ground. It ap­peared to him that these opinions had been fostered by gentlemen who were in the habit of associating together, and considered to have more force than they will be found to possess. He had been told that pulpit orators were less able to support an argument than other men, from their dictatorial habits; and he believed the gentlemen who supported the arguments in favour of prerogative, though they appeared smooth and feasible, would find a difficul­ty in supporting them.

They had been told it was unfair to make allusions to the British House of Commons.—The reference had been made for two purposes, viz, to shew the practicability and the use of the check insisted upon, as it is fully ac­knowledged in that government. When prerogative was the question, those gentlemen who now oppose the appeal, are themselves the first to make it; and he did not ex­pect that in the year 1796, the British House of Commons would have been acknowledged to possess greater privile­ges than the Legislature of the United States; but this was the fact, that they were struggling for popular rights, and obliged to refer to Britain to strengthen their claim. He acknowledged that the British Constitution was made up of customs, but these were their Constitution equally with their written one. The clause of their Constitution which [Page 87] forbids the drawing of money from the Treasury but by law, is copied from the English practice; but now an at­tempt was made to wrest this privilege from their hands. If checks are necessary, said Mr. Giles, no danger can arise from multiplying them, but were the contrary doc­trine to prevail, it would lead to this, that the President and Senate might reduce that House from the real and efficient, to mere formal guardians of the people.

It was said, that when a treaty is made by the Presi­dent, with the approbation of two thirds of the Senate, it is the supreme law of the land, and they were bound to obey it. It should be recollected, that about three years ago, Congress was occupied in discussing the necessary measures to be pursued with respect to Great Britain. The House of representatives differed in opinion from the other branches. They deemed it advisable not to trust solely on the magnanimity of the king, nor to any of his other qualities; several regulations were proposed. What was done? Certain measures were agreed upon in that House, sent to the Senate, but there negatived by the presiding voice only. A negociator was then appointed, and the consequence has been found to be a treaty, which goes to an inhibition of the powers of that House, which gives a power to legislate against legislation. He would not say what evil consequences might arise from such an in­strument. He only remarked upon the evil of a treaty making power, which would oblige that House to grant money to carry into effect measures which might be sub­versive of the public interest.

The difference of opinion which he had mentioned, was not the only instance in which the Senate and that House disagreed in sentiment. He believed the Senate passed two or three bills to increase the military establish­ment which were negatived by them. The doctrine of checks was fully illustrated. If, the President and Se­nate can, by the association of a foreign power, legislate and bind their measures conclusively on that House, may they not go on to any extent? what security have the peo­ple against such a power? the treaty in question is yet open for farther negociation. Suppose Great Britain on [Page 88] pretence of guarding her frontier, were to send 10,000 troops into Canada; and suppose the United States were to raise 10,000 men to keep the Indians in order. Sup­pose the thing was presented to that House, not for de­liberation, but obedience, what could be done? how would this operate with respect to appropriation? the li­mitation might be for ten or twenty years, they could not withhold appropriations, because, it is said, they are under a moral obligation to do it. Ought they not, then, to be cautious how they admitted the extravagant doctrine laid down? he asked what were the feelings of the people in general, on account of the injuries received from a fo­reign nation? did they wish to rely upon the magnanimi­ty of the British monarch? No; they wished a redress of grievances, not a surrender of rights or a concession of interests.

The doctrine espoused by gentlemen in opposition to this motion, would cut up all checks, all power of thinking in the legislative body on occasions where treaties inter­fered. This was not all. Two of these gentlemen had asserted, that if that House went into a discussion of the treaty, it would be rebellion against the other authorities. What, said he, can justify such language? might it not be replied that they were destroying the liberties of their constituents, and so the debate end in abuse? gentlemen can have little respect for the opinions of those who dif­fer from them in sentiment, who give way to such ex­pressions. Another argument which had been a common place one, was, that the effect of any hindrance to carrying into effect this treaty, would be the disorganizing of the government. He supposed that the proposition before the House, with the negative vote insisted on, as the right of that assembly, was a sort of acquasortis which was to eat up the whole powers of government. Suppose, said he, there should be a vote that the treaty should not be carried into effect, would not that House go on with its business as usual? surely it would. There was not the least foundation for such assertions. They were mere clamour; a voice, and nothing besides. Whenever the different branches of government, instead of checking each other, coalefeed together, and confidence in the Ex­ecutive is the only security for good government, the [Page 89] system will be reduced indeed. But even then, the Ame­rican people would not be intimidated by any military establishment; for, finding the inefficacy of proper checks in their government, they would unitedly resist any at­tempt to deprive them of their liberties.

It was said that certain advantages were to be derived to the United States from the late treaty, but he knew not of what sort. And, he exclaimed, is the government of the United States brought to so low an ebb, as to be indebted to foreign nations for aid? if it was, he sup­posed by and by new concessions would be made, for further services. But if it be once understood, that there is not sufficient merits in the government to secure the affections of the people, but that the President and Se­nate must lean on Great Britain for support, to what a lamentable situation will the United States be reduced! he believed that if the doctrine attempted to be supported were to prevail, and by that means to destroy the pro­vision of checks, the despotism of a President and twen­ty Senators (he did not mean the present President and Senators) might operate to an association of Despotism, which, if ever effected, must be by coercive measures.

Mr. Giles said he might be mistaken, but there was certainly an attempt to establish principles leading to that end. He spoke of calumnies which had been spread abroad against him, but which he disdained to answer. He left his conduct to speak for him. If the public were to be led astray by declamations about war, disorganization and confusion, very little reliance could be placed on them. He concluded, by saying, that he hoped the importance of the subject, and his earnest wish to retain the wholesome provisions against the possibility of incroachments upon the liberties of the people, would be a sufficient apology for having so long engaged the attention of the com­mittee.

The task of answering this artful speech fell to Mr. Sedgwick. How he acquitted himself the reader will see.

[Page 90]Mr. SEDGWICK (Massachusetts) said that after the length of time which had been consumed, and the talents which had been so ably exerted, in the discussion of this sub­ject, he should not think himself authorised to call the attention of the committee, to any observations of his, but that he considered it in principle, and in its conse­quences, as the most important question, which had ever been debated in this House. It was no less, than whe­ther this House should, by construction and implication, extend its controuling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the Government. We had heretofore been warned emphatically against seizing on power, by construction and implication. He had known no instance, in which the caution which that warning en­forced, deserved more attention than on the present occa­sion.

It must, he said, have been foreseen by the author of the motion, that it would ultimately be contested on the present ground. No sufficient reason had been given as an object for the call. The various reasons which had been hinted at, had hardly been suggested, before they were respectively abandoned. It would be remembered, and indeed had been avowed, that a request such as the present, was in nature of a demand. That, it was true, if we had an authority on the subject of forming treaties, we had a right to all the means of exercising an intelli­gent discretion; and the demand, of course, was well founded. But if we had no such authority, and we had none unless it could be discovered in the Constitution, then the demand had no good foundation on which it could rest, and was in his opinion, an attempt at seizing on power by usurpation.

He was perfectly sensible in how disagreeable an atti­tude a man would stand, who should attempt to limit the extent of power, claimed by an assembly to which he should address himself. He had some of the most power­ful inclinations of human nature to contend with. He felt the full force of the influence of this principle, as it would afford the cause of repulsion and resistance, to the arguments which he might submit. But having for­med [Page 91] an opinion, perfectly satisfactory to his own mind, from the best light which honest investigation could pro­cure, he thought it a duty he owed his country and pos­terity, a duty rendered more indispensable, from the ob­ligations which were upon him to obey the will of the people, expressed in the Constitution of their government, which he had sworn to support, solemnly to declare that opinion and the reasons on which it was founded.

He in his conscience believed, that if the Constitution could operate the benefits its original institution intended, that if the government should be rendered adequate to the protection of liberty and the security of the people: it must be, by keeping its sevaral departments distinct, and within their prescribed limits. Hence that man would give as good evidence of republicanism, of virtue, of sin­cere love of country, who should defend the executive in the exercise of his constitutional rights, as the man who should contend for any other department of govern­ment. If either should usurp the appropriate powers of another, anarchy, confusion or despotism must ensue. The functions of the usurping power would not be legiti­mate but their exercise, despotism. If the power of con­trouling treaties was not in the House, the same spirit which might usurp it, might also declare the existence of the House perpetual and fill the vacancies as they should occur. The merits of the present question it seem­ed to be agreed, depended on this right; it was of infi­nite importance therefore to decide it justly.

It would be taken for granted that it would be con­ceded, on all hands, that we were to resort to the Con­stitution, to know the extent and limits of our power, and that if we found not there a clear evidence of its existence, we ought to abandon the exercise. It was certain we had not any express delegation to make or to controul the public will in any of our relations with fo­reign nations. On the other hand we found it declared, that the President should have power to make treaties, by and with the advice and consent of the Senate, provided two thirds of the Senators present concurred. Treaties to attain the ends for which they were designed were from their nature supreme laws: but the Constitution had in ano­ther [Page 92] place declared, that treaties made under the authori­ty of the United States should be supreme laws. Gen­tlemen had said that it was not declared that treaties made by the President and Senate should have this effect; but those made under the authority of the United States. The question then recurred what treaties were made under the authority of the United States. The true answer un­doubtedly was, treaties made by those, to whom the peo­ple, by their Constitution, had delegated the power. The President, qualified as had been mentioned, had ex­pressly and none else had such power. If we were to rest the subject here, it would seem to follow irresista­bly, and to be incapable almost of higher proof, that whenever a compact was formed by the President, with a foreign nation, and had received the advice and con­sent of the Senate, if it was of such a nature as to be properly denominated a treaty, all its stipulations would thereby and from that moment become "supreme laws."

That such had been the construction from the com­mencement of the government to the promulgation of the British treaty, he believed, would be universally ad­mitted; and but for that treaty, probably, never would have been denied. Did this afford no evidence, that the construction was a just one. Was the subject a less im­portant one, its decision might be safely trusted on this ground. But all important as it was for the purpose of further investigation, it might be useful to consider the nature, extent, objects and effects of this power.

What authority was then delegated under a grant of power to form treaties; did not the term Treaty include all stipulations between independent nations, relative to subjects, in which the contracting parties, had a mutual or common interest? if it had a more confined or limited sense it became those who contended for it, to make the limits and designate the boundaries. Without a power so extensive, much of the benefits resulting from amicable intercourse, between independent nations, would be lost; and disputes and differences, which are inevitable, would have no means of amicable termination. From the ob­vious utility and indeed the absolute necessity, that such power should be exercised, we know of no civilized na­tion, [Page 93] either ancient or modern, which had not provided the organs of negociation, to the extent substantially which he had mentioned. The power indispensible had always been delegated, though guards had been provided against its abuse by different means:

It was not now to be enquired, whether the power of treating was wisely deposited, (although he was inclined to believe it could not be intrusted to safer hands.) It was sufficient that those who had the right, the citizens of America, had declared their will, which we were bound to respect, because we had sworn to support it, and because we were their deputies.

The power of treating between independent nations might be classed under the following heads. 1. To com­pose and adjust differences whether to terminate or to prevent war. 2. To form contracts for mutual security or defence; or to make treaties offensive or defensive. 3. To regulate an intercourse for mutual benefit, or to form treaties of commerce. Without the first war and con­tention could only be terminated, by the destruction of one of the parties: without the second there could be no defence, by means of union and concurrence, against superior force, and without the last, a profitable and be­neficial intercouse, could not be arranged on terms of re­ciprocity. Hence, then, it must be evident to every un­prejudiced mind, that by a grant of power to make trea­ties, authority was given to bind the nation by stipulations to preserve peace or terminate war—to enter into alli­ances offensive and defensive, and to form commercial treaties.

This power, he held, unlimited by the constitution, and he held, too, that in its nature, to the extent he had mentioned, it was illimitable. Did a serious difference exist with a foreign nation, in determining on the nature and extent of the stipulations which might be necessary to adjust it; the cause of injury—national rights and ho­nour—the evils of war, and all circumstances of relation between the two countries, must be taken into account.

[Page 94]In forming alliances, the threatened pressure, your own and your enemies relative strength, the objects of acqui­sition or defence, must be considered. And in adjusting an equitable intercourse for commercial purposes, a thou­sand circumstances present themselves for nice calcu­lations. A thousand circumstances of foreign relations would occur in the history of every country, under which nothing short of unlimited powers of negociation would be adequate to a prevention of enormous perhaps ruinous evils.

But it might be objected that a power so enormous, and comprehending such essential interests might be abused, and thence asked, where is the remedy? to this he an­swered, that a national association required, for the great purpose of preservation, an unlimited confidence on ma­ny subjects. Hence not only this, but perhaps every other national government, had delegated to it, an unlimit­ed controul over the persons and property of the nation. It might, by the express power given to it of raising ar­mies, convert every citizen into a soldier, and by a single assessment of a tax, it might command the use of all the property in the country.

The power to raise armies and taxes was limited in its exercise by nothing but the discretion of the Legislature, under the direction of its prudence, wisdom and virtue. Was there no security against a wanton abuse of these enor­mous powers? yes; it was to be hoped that the people in electing the members of this House, and the states in chusing those of the other, would not select characters, who regardless of the public good would wantonly impose on their constituents unnecessary burthens. It would be an additional security that the interests of the rulers, were inseparably connected, with those of the people— that they could impose no burthens in which themselves did not equally participate. But should all those guards be insufficient, was there no dependence to be placed in the President? the man elected by a refined process, pre-emi­nent in fame and virtue as in rank? was there no secu­rity in the watchful guardianship of such a character re­sponsible by every thing dear and valuable to man—his reputation, his own and his fellow citizens happi­ness? [Page 95] was there no well founded reliance on all these considerations, for security against oppression? if not, we had not the requisite materials, with which to administer a republican government, and the project might be aban­doned.—After all however, should the unlimited powers he had mentioned, and such powers must always be unli­mited, be wantonly abused, was there no remedy? yes, in the good sense and manly independent spirit of the peo­ple. If intolerable burthens were wantonly imposed, if necessary to defeat the oppression, opposition and insurrection would not only be authorized, but become a duty. And if any man could honestly lay his hand on his heart, and in sincerity declare, that a compliance with an existing treaty, was worth more than our government, our constitution, our union and the liberty protected by them; to that man he was ready to declare, that opposition had become a duty. Gentlemen had spoken of the subject, as if the members of this House were the only representatives of the people, as their only protectors against the usurpations and oppressions of the other departments of government. Who then he asked were the Senators? were they unfeel­ing tyrants, whose interests were separated from and op­posed to those of the people? No. Did they possess hereditary power and honours? No. Who, as contem­plated by the constitution, were they? the most enlight­ened and the most virtuous of our citizens. What was the source from whence they derive their elevation? from the confidence of the people, and the free choice of their electors. Who were those electors? not an ignorant herd, who could be cajoled, flattered and deceived, not even the body of the enlightened American citizens: but their legislatures—men to whom the real characters of the candidates would be known. For what purposes were they elected? to represent the most essential interests of their country—As the guardians of the sovereignty of the states, the happiness of the people and their liber­ties—Who as contemplated by the constitution was the President? the man elected, by means intended to ex­clude the operation of faction and ambition, as the one best entitled to public confidence and esteem—And was no confidence to be reposed in such characters, thus elect­ed? might it not, to say no more, be at least doubtful whe­ther [Page 96] the treating power might not be as safely intrusted in such hands exclusively, as with the participation and un­der the controul of the more numerous branch of the le­gislature, elected in small districts, assailed by party and faction, and exposed to influence and intrigue? whatever merits this as an original question might possess, the people had decided their will. To the President and Se­nate they have given powers to make treaties, they have given no such powers to this House.

It was not in his opinion, proper when investigating the constitutional question of the extent of a particular power and in what hands it was deposited, to divert the attention to a possible abuse of that power. Should it become a question whether Congress was by the consti­tution authorised to raise armies, and the extent to which the power might be exercised, it would be unfair and improper to divert the attention from the enquiry of what was the truth, to the abuse which might result from the exercise of the power—To state that if such power existed, every citizen might by the wanton abuse of it, be degraded from his rank and subjected to the despotism of a military discipline. To shew that armies might be em­ployed as the instruments of destroying liberty—To picture your country as strewed with human carcasses and stained with human blood by their means. What would this be but to substantiate prejudices instead of arguments? still however it would remain true, that the power of Con­gress to raise armies, was only limited, by its discretion, under the direction of wisdom and patriotism. The same observations changing their relations, may with equal justness be applied to the treaty making power. To be, and continue a nation, required on these subjects unlimit­ed confidence in the delegation of the necessary powers. The people had granted them and provided, against their abuse, such guard as their wisdom dictated.

The gentleman from Virginia (Mr. Madison) had stated five different constructions which possibly might be given to the constitution on this subject. Three of which (and for none of them to Mr. Sedgwick's knowledge had any man ever contended) the gentleman had proved to be unsound­ed. The fourth, that which we had given to the consti­tution, [Page 97] if admitted, and it should be abused might pro­duce mischievous effects. Was not this true of all the great and essential powers of government? if the con­trouling influence of the House was added would the pow­er be less? and if under these circumstances, abused would the injury be more tolerable? in short was not this a kind of argument infinitely more tending to the pro­duction of prejudice than to the discovery of truth?

The gentleman had really given no decisive opinion what was the true construction. He had however seemed to incline to a belief, that to the stipulation of a treaty relative to any subject committed to the controul of the Legislature, to give it validity, legislative co-operation was necessary. Of consequence if this was withheld, the operation of the treaty would be defeated. That it was at the will and within the discretion of the Legisla­ture to withhold such co-operation, and of course the House might controul and defeat the solemn engagements of the President and Senate.

The gentleman who had suggested this opinion was well known to the committee and through America. Mr. Sedgwick could not but observe, that it was per­fectly unaccountable to his mind, that that gentleman had yet to form an opinion to whom was delegated that power, the nature, extent and effects of which he had so strongly and perspicuously detailed. The capacity of that gentleman's mind, long exercised on political sub­jects, his known caution and prudence, would authorize a request, that he or his friends would explain, how it was possible, if such as he states should have been the intention of those who framed the Constitution, that the true meaning should not have been expressed in the in­struments? that when the gentleman went from the As­sembly which framed the Constitution, immediately after­wards to one of those which ratified it; he should have admit­ted an opposite construction. As Mr. Sedgwick would under­take by and by to prove that in the Convention of Virginia he did admit the very construction for which we now contended. He would take the liberty further to enquire, how it happen­ed that if such was really the intention of the instrument, that such was the meaning of the people, no man had [Page 98] heard of it, until the discovery was produced, by the British treaty? strange national intention unknown for years, to every individual!—As the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the government, he would take the liber­ty to state what had been ably explained by other gentle­men, that the power of making treaties was wholly dif­ferent from that of making ordinary laws, originating from different motives, producing different effects and operating to a different extent. In all those particulars the difference had been perfectly understood. For in­stance the ordinary legal protection of property and the punishment of its violation could never be extended be­yond your own jurisdiction, but by treaty, the same pro­tection could be extended within the jurisdiction of a foreign government. You could not legislate an adjust­ment of disputes, nor a peace with another country, but by treaty both might be effected. Your laws in no in­stance could operate except in your own jurisdiction, and on your own citizens; by treaty an operation was given to stipulations, within the jurisdiction of both the contract­ing parties.

It had been said that treaties would not operate on those subjects which were consigned to legislative con­troul. "If this be true," said he, ‘how impotent in this respect is the power of the government? what, then permit me to enquire can the power of treating effect? I will tell you what it cannot do—it can make no alliances, because any stipulations for offensive or defensive operations will infringe on the legislative pow­er of declaring war, laying taxes or raising armies or all of them. No treaty of peace can probably be made which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money or a cession of territory, and certainly no treaty of commerce can be made.’

Was it not strange that to this late hour it should have been delayed, and that now all at once it should have been discovered, that no power was delegated to any bo­dy to regulate our foreign relations? that although a power was granted to the President and Senate to form [Page 99] treaties, that yet there were such reservations and restrict­ions, that there remained nothing on which this power could operate? or was it true that this power, was com­petent to treat with every government on earth but that of Great Britain? might he not be permitted further to enquire if this treaty had been formed with any other power, with the precise stipulations it now contained, whether there ever could have existed this doubt of con­stitutionality?

We had, he said, entered into treaties of commerce with many nations, we had formed an alliance and en­tered into a guarantee with France, we had gived consul­ar power including judicial authority to the citizens of that country, within our own jurisdiction, we had defin­ed piracies and provided for their punishment, we have removed the disabilities of alienage, we had granted sub­sidies and ceded territory: all this and much more we had done, while the power of the government remained unquestioned and none even thought that such treaties re­quired legislative co-operation. Treaties such as those could without opposition and by unanimous consent be ratified and considered by force of such ratification as su­preme laws; but similar stipulations with Great Britain, were clearly perceived to be unconstitutional, and Presi­dent, Envoy and Senate were denounced for their re­spective agency as infractors of the constitution.

The objection which he had just answered had been brought forward by a gentleman from Pennsylvania [Mr. Gallatin] with another nearly allied to it, if not resting on precisely the same foundation—that whatever stipula­tion in a treaty required legislative provision or repealed a law, did not become a supreme law, until it had received le­gislative sanction. There was no limitation expressed in the constitution on which to found either of those objections. If we claimed the power which the objections imported the claim must rest on construction and implication alone. In­deed the whole reasoning of the gentlemen seemed to him to be capable of being expressed in a few words. ‘The President and Senate, in the sole and uncontrouled exercise of the treaty making power, may sacrifice the most important interests of the people. The House [Page 100] of Representative is more worthy the public confi­dence, and therefore by our influence we will pre­vent the abuse of power.’

The gentleman, to prove his position stated that the power of treating in Great Britain and the United States is precisely the same. He then had read a passage from Judge Blackstone ‘that the sovereign power of treat­ing with foreign nations was vested in the person of the king, and that any contract he engaged in, no power in the kingdom could delay, resist or annul.’ At the same time he said that certain treaties, such as those of subsidy and commerce were not binding until ratified by parliament. Now both these could not be true; for it was no less than a direct contradiction in terms to say, that there was no power in the nation which could de­lay, resist or annul the contracts of the king, and at the same time to say, there was a power in the nation. The parliament, which could delay, resist and annul those contracts. Both the assertions could not be true. He was willing however to allow that the treaties which the gentlemen had mentioned were not the supreme laws of that country until approved by the legislature. He had already said that different countries had provided different guards, against the abuse of this power. But why attempt to divert our attention from a construction of our own constitution, to the vague uncertain customs and practices of other countries? why compare the Pre­sident and Senate to the king of Great Britain? in what was there a resemblance? in nothing. Why then perplex the subject by the introduction of irrelative matter? was there perceived an interest in a diversion from the only le­gitimate source of information the declared will of the peo­ple? if we found not there the power we claimed, we could exercise it only by usurpation.

Why did not gentlemen extend their reasoning further? where in point of principle was the difference between restraining and controuling the legislative power? the in­jury may be as great in the one instance as in the other; nor is there any more foundation for denying to the Pre­sident and Senate the power in the one case than in the other, from any words or expressions in the constitution.

[Page 101]If the gentlemen are right in their construction, if this was the understanding of the people at the time they de­liberated on and ratified the constitution, the power of the President and Senate of making treaties which then created the most serious deliberation and alarming ap­prehension was the most innocent thing in nature. It could bind the essential interests of the nation in nothing. Could any man really believe that the agitation which a discussion of this subject occasioned, more perhaps than any other in the constitution, could have for its object only the power of the President and Senate, in which two thirds of the latter must concur, to digest schemes of treaties to be laid before the legislature for its appro­bation?

The gentleman from New York (Mr. Havens) and the gentleman from Virginia (Mr. Giles) had asserted the power of the legislature to repeal treaties—whenever the wisdom of Congress should concur in opinion, with these gentlemen we should then cease to contend respecting the construction of the constitution on this subject. For whenever our nation should in defiance of every principle of morality and common honesty, by usurpation establish its right, to prostrate national honor, by sporting with the public faith, no nation would submit to be contaminated by a connexion with one which avowed the right of viola­ting its faith by the infraction of solemn treaties.

On all subjects of this sort the real enquiry was and ought to be, what was the intention of the parties to this instrument. Hence a brief review of some interesting oc­currences, which took place at the adoption of the go­vernment would not be impertinent, but might be useful.

A cotemporaneous exposition of any instrument, and especially by those who were agents in its fabrication, had been allowed, and was in fact among the best guides to finding its true meaning. Gentlemen who had been members of the convention, and unfriendly to the con­stitution, with an intention of preventing its adoption, had stated to their constituents that the power of making treaties as consided to the President and Senate was as ex­tensive as was now contended for. Their intention would [Page 102] have been no other than to alarm the people with the dan­gerous extent and what would be the pernicious exercise of this power. If this charge was unjust and groundless, what would have have been the conduct of the friends of that instrument? they would have proved the charge mali­cious and ill founded. They would have shewn that the con­stitution was not liable to such an objection. That it could bear no such construction. They would in the language of novel discovery have said, that every subject of legisla­tion, was an exception from the power of making treaties; and thus they would have proved to the world, that the sages of our country, had devised and offered to their en­lightened countrymen a scheme of government destitute, by an express delegation, of the the essential attribute of adjusting differences with other nations; and of agreeing with them on the terms of amicable intercourse. But they did no such thing—they admitted the power, proved the necessity of it and contended that it would be safe in practice. ‘Let me here, said he, appeal to any unpre­judiced man, if he can possibly believe that the ene­mies of the constitution could have made the charge against it, and that its friends would have admitted the truth of it, on the hypothesis that it was unfounded and false.’ They certainly knew what they had so recent­ly intended, and having opposite objects in view which ex­cited their strongest wishes, it was impossible they should agree in imposing on the people a false and unwarranta­ble construction. So far had he extended his reflections as resulting from the conduct of those who formed the constitution; a conduct from which he flattered himself there flowed demonstration, that the power of making treaties was as extensive as that which was now contended for. This being the concurrence of men who could not have united to deceive, with regard to which it was im­possible they should be mistaken, formed a guide for their opinion, which could not mislead, which no degree of stupidity could mistake, nor the most ingenious sophistry successfully misrepresent.

So much he had thought proper to say as respected the construction given to this part of the instrument by those who formed, who could not mistake, and who were un­der no temptation to misrepresent it. It might be necessa­ry [Page 103] in the next place enquire under what opinion it was adopted? and if we perceived a correspondence of construc­tion between those who formed and those who received and approved; we might then surely derive all reasonable sa­tisfation that we had discovered the truth. Here he be­lieved that it might be asserted without any danger of con­tradiction, that in the state conventions it was on one hand affirmed, that the President and Senate would, by the constitution have power to form treaties on any sub­ject in which the United States and a foreign nation had a common interest, and that treaties so formed without any other aid or circumstance whatever, would thereby become the supreme law of the land: and that the exer­cise of this power was not so guarded as to render, it safe to the public interests. On the other hand, it was admit­ted that such was the extent of the power, and it was at­tempted, at least, to be proved, that it was so guarded that danger could not reasonably be apprehended, from its exercise. It would be too tedious and well might be thought unnecessary to consult all the materials, which might be within our reach on this subject: but he dared appeal to the recollection of every gentleman, who was in a situation to know the facts, for the correctness of the statement which he had made, and he would read some few passages, from the debates of the convention of Vir­ginia, which would probably be on this occasion, for ma­ny reasons admitted, as the best authority; and particu­larly because the subject, there was examined by eminent and scrupulous investigation.

He then read several passages to prove the statement which he had made, and said, the construction he contended for was assented to by a solemn act of the convention which proposed an amendment, which he also read, which would be wholly unnecessary on any other hypothesis; and that by the late conduct of the same state, in the amendment proposed to the con­stitution, it was manifest that it still entertained the same opinion.

Mr. SEDGWICK, in the course of his speech, read the following extracts from the third volume of ‘debates and proceedings of the Convention of Virginia.’

[Page 104]Mr. MASON, ‘thought this a most dangerous clause. By the confederation, nine states were necessary to con­cur in a treaty. This secured justice and moderation. His principal fear however, was not that five but seven states, a bare majority, would make treaties, to bind the union.’

Mr. NICHOLAS said, ‘the approbation of the President, who had no local views, being elected by no parti­al state, but the people at large, was an additional se­curity.’

Mr. MADISON ‘thought it astonishing, that gentlemen should think a treaty should be got with surprise, or that foreign nations should be solicitous to get a treaty ratified by the senators of a few states—that should the President summon only a few states, he would for so atrocious a thing be impeachable.’

Mr. HENRY, ‘If two thirds of a quorum would be empowered to make a treaty, they might relinquish and alienate territorial rights, and our most valuable com­mercial advantages; in short, if any thing should be left, it would be because the President and Senate were pleased to admit it." The power of making treaties was ill guarded, as it extended farther than it did in any country in the world. "Treaties were to have more force here than in any part of christendom.’

(How, Mr. Sedgwick asked, could this be true, if the doctrine now laid down, in support of the motion, was well founded?)

Mr. MADISON. ‘Are not treaties the law of the land in England? I will refer you to a book, which is in every man's hand—Blackstone's Commentaries. It will inform you, that treaties made by the king, are to be the supreme laws of the land. If they are to have any efficacy they must be the laws of the land. They are so in every country.’

[Page 105]Gov. RANDOLPH. ‘It is said there is no limitation of treaties. I defy the wisdom of that gentleman to shew how they ought to be limited.’

Mr. NICHOLAS. ‘Have we not seen in America that treaties were violated, though they are in all countries considered as the supreme laws of the land?’

Mr. MASON. ‘It is true, that it is one of the greatest acts of sovereignty, and therefore ought to be most strongly guarded. The cession of such power without such checks and guards cannot be justified—yet I ac­knowledge such a power must be somewhere. It is so in all governments. If in the course of an unsuc­cessful war, we should be compelled to give up part of our territories, or undergo subjugation, if the general government could not make a treaty to give up such a part, for the preservation of the residue, the govern­ment itself, and consequently the rights of the people must fall. Such a power must therefore rest some­where. For my part, I never heard it denied that such a power must be vested in the government. Our com­plaint is that it is not sufficiently guarded, and that it requires much more solemnity and caution, than are delineated in that system.’

(Strange, Mr. Sedgwick said, that this gentleman did not discover, or was not told, that treaties before they should become laws, must receive legislative sanction!)

‘There are other things which the king of England cannot do, which may be done by the President and Senate in this case. Could the king by his prerogative enable foreign subjects to purchase lands, and have an hereditary indefeasible title? will any gentleman say, that they (the President and Senate) may not make a treaty, whereby the subjects of France, England and other powers may buy what lands they please in this country? the President and Senate can make any trea­ty whatsoever. We wish not to refuse but to guard this power, as it is done in England. We wish an explicit declaration in that paper, that the power which can make other treaties cannot without the consent of the [Page 106] national parliament, the national legislature, dismember the empire. The Senate alone ought not to have this power.’

Mr. CORBIN (who was in favour of the constitution) ‘If there be any found part in the constitution, it is in this clause. The representatives are excluded from in­terposing in making treaties, because large popular as­semblies are very improper to transact such business, from the impossibility of their acting with sufficient se­crecy, dispatch and decision, which can only be found in small bodies, and are always subject to factions and party animosities. It would be dangerous to give this power to the President alone, as the concession of such a power to one individual, is repugnant to republican principles. It is therefore given to the President and Senate (who represent the states in their individual capa­cities) conjointly. In this it differs from every govern­ment we know. It steers with admirable dexterity be­tween the two extremes—neither leaving it to the exe­cutive as in most other governments, nor to the legis­lature, which would too much retard such negociations.’

That another member of the convention, Mr. Henry, after contending, that the constitution ought to be amend­ed, so as to guard against the abuse of the treaty making power, by requiring the consent of the House, concluded his observations by saying:

‘That when their consent is necessary there will be a certainty of attending to the public interests.’

Mr. MADISON concluded this interesting debate, not by insisting on that security, which he had now discovered the constitution to have provided against the abuse of this power: he stated:

‘That the power was precisely in the new constitu­tion as it was in the confederation.’

The gentleman stated the checks which the constituti­on had in fact provided, but it did not then occur to him, that the consent of this House was amongst them.

[Page 107]Mr. Sedgwick then read the amendment which the convention of Virginia proposed to the constitution.

‘That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the Se­nate; and no treaty ceding, controuling, restraining, or suspending, territorial rights or claims of the United States or any of them, or their or any of their rights or claims to fishing in the American sea, or navigat­ing the American rivers, shall be made but in cases of the most urgent necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both Houses respectively.’

He had stated that the real inquiry was, what opinion was entertained on this subject by those who ratified the constitution? if that opinion would be discovered with honest minds, it must be conclusive on the present debate. He had shewn what opinion was entertained by Virgi­nia—what power she meant to delegate and to whom. That this opinion remained from that time until she pro­posed her late amendments, unaltered, appeared from the amendments themselves. That state, then, and her repre­sentatives here, who had expressed themselves, differed in opinion. He did not mention Virginia with intention of producing any unpleasant sensations. He was willing to allow that she was great, wise, intelligent, enlightened, and if gentlemen pleased, moral; her opinion derived additional authority from her respectability.—It was not Virginia alone, but he was persuaded every other state, had given precisely the same construction.— That the treaty making power with all its effects and consequences, was solely and exclusively in the President and Senate: And he would dare to challenge gentlemen to produce a solitary instance of its being adopted under any other idea. Indeed, the agita­tion which was at that time produced, would of all things be the most ridiculous, if any of the other constructi­ons were true. If the power was checked as was now con­tended, it was impossible danger should be apprehended from its exercise—it could indeed do neither good nor evil.

[Page 108]Here then he said we had the evidence of those who framed and of those who received and approved the con­stitution. There was another source of enquiry, which would confirm if it wanted confirmation, that construc­tion for which he had contended. It was the construct­ion which had been, practically given, by those who had administered our government, from the commence­ment of our foreign relations, to the present session—a construction which had been assumed, admitted or acquies­ed in, by our national and state governments and by every individual citizen until they received new light, by our having accomodated our causes of contention with Great Britain and escaped the evils with which we had been threatened from that source.

The association which preceded any express contract between the states, was supposed to imply an authority to form national compacts, imposing national obligations, and pledging the public faith. Hence our treaty with France, which preceded two years our national associati­on, the confederation, had been supposed binding on us, and not only obliging us to the faithful performance of our express engagements, but as drawing after it undefin­ed, unlimited and perpetual obligations of gratitude. This seemed so far as respected defined obligations, to be a ra­tional deduction from what is an inseparable attendant on national associations, and without which a nation would be destitute, of one of the best means of securing its hap­piness and even existence,

To pursue, he said, the history of our country on this subject, in the order of time, it would not be pretended that under the confederation, the powers of Congress to form "treaties and aiiiances" were more extensive than those of the President and Senate under the constitution to form "treaties." The legislative powers of the nati­on, then residing with the several states, were as obstruc­tive to the operation of treaties (and extended to all the objects which the national and state legislatures now com­prehended) as the congressional legislature can now be. Yet under the confederation treaties of alliance, of peace, of commerce, were made, nor until the present moment has their obligation been denied, though they contained [Page 109] stipulations, perhaps, on all the subjects to which the treating power could extend. No legislative provision had been thought necessary to give them validity; and he dared appeal to every member of the committee, that eve­ry enlightened citizen had admitted their binding obliga­tion as supreme laws—that the treaty of peace in particu­lar, which controuled the most important rights of sove­reignty—arrested the hand of justice in inflicting punish­ment for the highest crime which a citizen could commit, treason—and stayed proceedings in cases of confiscation, for forfeitures which had been incurred had always received this construction—He would add that it was well under­stood to be the opinion of that tribunal which the consti­tution had authorised to pronounce the law the supreme court; that the treaty, from its own powers repealed all antecedent laws, which stood in the way of its execution.

To proceed further on. Since the adoption of the con­stitution, the powers now denied, had been constantly ex­ercised with all the consequences and effects now contend­ed for and until the present moment unquestioned. Peace had been concluded, subsidies granted, payment of money stipulated, territorial rights discussed and decided on. Trea­ties for those purposes had been ratified, not by venal and corrupt majorities, but by virtuous unanimity. Hence from the moment we had become a nation, under every form of our implied or expressed association, the powers now denied had been exercised, not only without questi­on but with unqualified approbation.

There was one more point of light in which this sub­ject ought to be viewed. In the year 1789, it was pro­posed to discriminate in the imposition of our duties, be­tween the nations with whom we had, and those with whom we had not treaties of commerce. The author of this proposition renewed the same in the year 1794. This was virtually acknowledging the validity of the treaties which did exist, and inviting those nations who had not already, to form commerical treaties. Something more than this was done by the motions which some gentlemen of the minority of the Senate, are said to have made when this very treaty was in discussion. Their motions recom­mended an accomodation by treaty of all subsisting dif­ferences [Page 110] between the two countries. It could not escape remark, that these several propositions and motions were supported by all that description of persons who now op­pose the treaty.

It would not then be deemed impertinent to enquire, it was worthy attention, what was imported and admitted by this conduct and by those propositions? they undoubt­edly implied a concession that the subsisting treaties were of validity; why else should they be considered as a me­ritorious cause of favourable discriminations? they impli­ed, too, that there existed in this country a power to treat on commerical relations, and to adjust subsisting dif­ferences.

If without legislative aid (and they had received none) those treaties would authorise the legislature to derange the commerical pursuits of the nation, and enter in legis­lative hostility with that nation with which we had the most extensive relations; it must be from the competen­cy of the treaty making power on the principles which we contended. Strange again he would say, it must ap­pear, that the true construction of the constitution, on this very important subject, should have escaped the pe­netration and segacity, of the author of those propositions, during the time of forming and ratifying the instrument, and his whole active public life from those periods, until that of the publication of the British treaty.

If, then, it was true, as he had endeavoured to prove, by that power, given by the constitution, to the Presi­dent and Senate, to make treaties they had an authority to the extent he supposed, with all its consequences and effects. If treaties so formed did in fact become the supreme law, then being compacts they bound the public saith and could not be violated without national disgrace and perso­nal dishonour. They might require legislative provision, to carry them into effect; but this neither implied nor authorized the exercise of discretion, as to refused. The constitution he had, frequent occasions of saying, pre­scribed a government of departments. Each was intended to be furnished with the means of self preservation and de­fence. For this purpose it was declared, that the President [Page 111] would receive, a compensation to be ascertained by law. Laws were to be made by the legislature, of which this House was one branch. To support the constitution each depart­ment must be enabled to perform the functions assigned to it. To enable the executive to do its duties, the compensation must be provided. It was then necessary to the support of the constitution, that the compensation should be made. We had sworn to support the constitution. The people by their constitution had solemnly engaged that whoever was the president, should receive a compensation. We had been deputed to discharge the duties and engagements which our constituents had assumed. Under these cir­cumstances no man of common honesty could declare that we were at liberty to refuse all provision.

The gentleman from Virginia (Mr. Madison) had attempted to take a distinction between the duties we had imposed on us by the constitution and such as were enjoined by law. He could perceive no such foundation for a distinction. After the salary of the President was ascertained by law, it could not be paid without an appropriation; would any one say he was at liberty to withhold it? No man he presumed would wish to risk his reputation by such an assertion. For such conduct instead of supporting would tend to subvert, and would if persisted in, annihilate the constitution. This was un­doubtedly one of the most important of the public con­tracts; the truth was, in fact, that we were bound to perform all the public engagements. The truth was, that our national association was a compact of virtue. To support the constitution it was necessary to preserve pub­lic faith—to promote the public happiness it was essential to hold sacred and to perform the public engagements. In this were included all engagements whether expressed in the form of constitution, of laws, or of treaties, in any way, indeed, in which the people had agreed that their will and their duties might be expressed.

Mr. SEDGWICK concluded by observing that he had in­tended to have presented the subject in several other im­portant aspects, but he had already trespassed on the pa­tience of the committee. He would, as the time of ad­journment [Page 112] was passed, suspend for the present any further observations; and he hoped that all the grounds which he had left unoccupied, could be taken by other gentle­men, so as to supercede the necessity of troubling the com­mittee with any further observations on this subject.