Treaty-Making Power. -- [Jay's Treaty.]

House of Representatives, March 23, 1796.

Mr. MURRAY said, in construing our Constitution, in ascertaining the metes and bounds of its various grants of power, nothing, at the present day, is left for expedience or sophistry to new-model or to mistake. The explicitness of the instrument itself; the contemporaneous opinions, still fresh from the recency of its adoption; the journals of that Convention which formed it, still existing, though not public, -- all tend to put this question, in particular, beyond the reach of mistake. Many who are now present were in the Convention; and on this question, he learned a vote was actually taken.

That the paper upon the table, issued by the President's proclamation, as a treaty, was a treaty in the eye of the Constitution, and the law of nations; that as a treaty, it is the supreme law of the land, agreeably to the Constitution; that, if it is a treaty, nothing that we can rightfully do, or refuse to do, will add or diminish its validity, under the Constitution and law of nations.

March 24, 1796.

Mr. GALLATIN said, the only contemporaneous opinions which could have any weight in favor of the omnipotence of the treaty-making power, were those of gentlemen who had advocated the adoption of the Constitution; and recourse had been had to the debates of the state conventions in order to show that such gentlemen had conceded that doctrine. The debates of Virginia had first been partially quoted for that purpose; yet when the whole was read and examined, it had clearly appeared that, on the contrary, the general sense of the advocates of the Constitution there was similar to that now contended for by the supporters of the motion. The debates of the North Carolina Convention had also been partially quoted; and it was not a little remarkable that, whilst gentlemen from that state had declared, on that floor, during the present debate, that they were members of the Convention which ratified and adopted the Constitution, that they had voted for it, and that their own and the general impression of that Convention was, that the treaty-making power was limited by the other parts of the Constitution, in the manner now mentioned, -- it was not a little remarkable, that, in opposition to those declarations, a gentleman from Rhode Island had quoted partial extracts of the debates of a Convention in North Carolina which rejected the Constitution.

{436} A gentleman from New York (Mr. Williams) had read to them an amendment proposed in the Convention of that state, by which it was required that a treaty should not abrogate a law of the United States; from whence he inferred that that Convention understood the treaty-making powers would have that effect, unless the amendment was introduced.

The gentleman, however, forgot to inform the committee that the amendment did not obtain; and, therefore, that the inference was the reverse of what he stated. Leaving, however, to other gentlemen, to make further remarks on the debates of the Conventions of their respective states, he would conclude what he had to say on that ground, by adverting to the debates of the Pennsylvania Convention.

The only part of those debates which had been printed contained the speeches of the advocates of the Constitution; and although the subject was but slightly touched, yet what was said on the subject by the ablest advocate of the Constitution in Pennsylvania, by the man who had been most efficient to enforce its adoption in that state, would be found to be in point. He then read the following extracts from Judge Wilson's speech, (page 468, Debates of the Pennsylvania Convention:) "There is no doubt but, under this Constitution, treaties will become the supreme law of the land; nor is there doubt but the Senate and President possess the power of making them."

Mr. Wilson then proceeds to show the propriety of that provision, and how unfit the legislature were to conduct the negotiations; and then expresses himself in the following words: "It well deserves to be remarked that, though the House of Representatives possess no active part in making treaties, yet their legislative authority will be found to have strong restraining influence upon both President and Senate. In England, if the king and his ministers find themselves, during their negotiation, to be embarrassed because an existing law is not repealed, or a new law enacted, they give notice to the legislature of their situation, and inform them that it will be necessary, before the treaty can operate, that some law be repealed, or some be made. And will not the same thing take place here?"

April 15, 1796.

Mr. MADISON. The proposition immediately before the committee was, that the treaty with Great Britain ought to be carried into effect by such provisions as depended on the House of Representatives. This was the point immediately in question.

If the propositions for carrying the treaty into effect be agreed to, it must be from one of three considerations: either that the legislature is bound by a constitutional necessity to pass the requisite laws, without examining the merits of the treaty; or that, on such examination, the treaty is deemed in itself a good one; or that there are good extraneous reasons for putting it into force, although it be in itself a bad treaty.

The first consideration being excluded by the decision of the house that they have a right to judge of the expediency or inexpediency of passing laws relative to treaties, the question first to be examined must relate to the merits of the treaty.

He mentioned the permission to aliens to hold lands in perpetuity, as a very extraordinary feature in this part of the treaty. He would not inquire how far this might be authorized by constitutional principles; but he would continue to say, that no example of such a stipulation was to be {437} found in any treaty that ever was made, either where territory was ceded, or where it was acknowledged by one nation or another. Although it was common and right, in such regulation, in favor of the property of the inhabitants, yet he believed that, in every case that ever had happened, the owners of landed property were universally required to swear allegiance to the new sovereign, or to dispose of their landed property within a reasonable time. With respect to the great points in the law of nations, comprehended in the stipulations of the treaty, the same want of real reciprocity, and the same sacrifice of the interests of the United States, were conspicuous.

It is well known to have been a great and favorite object with the United States, "that free ships make free goods." They had established the principle in their other treaties. They had witnessed, with anxiety, the general efforts, and the successful advances, towards incorporating this principle into the law of nations -- a principle friendly to all neutral nations, and particularly interesting to the United States. He knew that, at a former period, it had been conceded, on the part of the United States, that the law of nations stood as the present treaty regulates it. But it did not follow, that more than acquiescence in that doctrine was proper. There was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. The former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded.

Mr. LYMAN. I have no doubt of its constitutionality, notwithstanding all the arguments which I have either seen or heard. Many arguments might be adduced in support of this opinion; but I will dispense with all but one, and that I consider as conclusive; and that is this: The stipulations in this treaty are nearly all of such nature as not to respect objects of legislation. They respect objects which lie beyond the bounds of our sovereignty; and beyond these limits our laws cannot extend, as rules to regulate the conduct of subjects of foreign powers; and although some of these stipulations respect objects which are within the reach of our sovereignty, yet it is in such manner as to be not only pertinent, but perhaps absolutely necessary in forming the treaty. This conclusion, I think, is the natural and necessary result of a fair construction of the principles of the Constitution, and especially of that paragraph which vests the power of making treaties in the supreme executive, with the advice of the Senate.

In acts of the smallest importance, we see, daily; that, after they have undergone any possible chance of fair and impartial discussion in this house, they are transmitted to another, who equally proceed to correct and amend them; and even this not being deemed sufficient to secure, as it were, against all possibility of danger; they are sent to the President, who has ten days to consider, and who may return them with his objections. These we are bound respectfully to inscribe on our Journals, and if we disagree in opinion with the President, the majority of two thirds of both branches is requisite to give validity to the law. Do we not discover in all this infinite Caution a wish rather not to act at all, by the difference of the branches among each other, than to act imprudently or precipitately and can we imagine that a Constitution thus guarded with respect to laws of little consequence, hath left without check the immense power of making treaties -- embracing, as in the instrument before us, all our greatest interests, whether they be of territory, of agriculture, commerce, navigation, {438} or manufactures, and this for an indefinite length of time? No. By one of the guards of that Constitution, relative to appropriations of money, this treaty hath, in the last stage of its progress, come before us.

"We have resolved," according to our best judgment of the Constitution, and, as we have seen above, according to the meaning of it, that we have a right to judge of the expediency or inexpediency of carrying it into effect. This will depend on its merits; and this is the discussion that is now before us.

Our duty requires of us, before we vote 90,000 dollars of the people's money, -- the sum required to carry this treaty into effect, -- to pause, and require as to the why and wherefore. But is it merely the sum of 90,000 dollars that is in question? If it was, we ought to proceed slowly and cautiously to vote away the money of our constituents. But it is in truth a Sum indefinite, for British debts, the amount of which we know not; and we are to grant this in the moment our treasury is empty; when we are called upon to pay five millions to the bank, and when no gentleman hath resources to suggest, but those of borrowing, at a time when borrowing is unusually difficult and expensive. But is it merely a question of money? No. It is the regulation of our commerce; the adjustment of our limits; the restraint, in many respects, of our own faculties of obtaining good or avoiding bad terms with other nations. In short, it is all our greatest and most interesting concerns that are more or less involved in this question.

I must confess, Mr. Chairman, that the first point of view in which this treaty struck me with surprise, was the attitude Great Britain assumes in it of dictating laws and usages of reception and conduct different towards us, in every different part of her empire, while the surface of our country is entirely laid open to her in one general and advantageous point of admission. In Europe, we are told, we may freely enter her ports. In the West Indies we were to sail in canoes of seventy tens burden. In the East Indies we are not to settle or reside without leave of the local government. In the seaports of Canada and Nova Scotia we are not to be admitted at all: -- while all our rivers and countries are opened without the least reserve; yet surely our all was as dear to us as the all of any other nation, and ought not to have been parted with but on equivalent terms.