Chapter LXXVI: Introduction (75)

There was another point of view in which that House had a check on Treaties. Granting that a Treaty is completely made, the subject of appropriation must come before them. Gentlemen had been understood to say, that no discretion could be exercised in appropriating the necessary money for carrying a Treaty into effect. But he was of a different opinion; he believed, that though they had nothing to do with the making of Treaties, yet when they were called upon to appropriate, they must exercise their discretion. It was true, that in general when Treaties were made, it would be the duty of that House to carry them into effect, in the same way as they found it their duty to carry into effect existing laws; but he said, there were justifiable grounds of refusing to appropriate money to carry into effect both laws and Treaties.

Mr. C. referred to the case of appropriations for the army. Suppose, said he, an army was raised for four years; at the end of two years a fresh appropriation is requisite to support it; but the Legislature has a discretion in doing this, or where was the use of the constitutional regulation of confining appropriations to two years? He considered, that there was some analogy between such cases of appropriation, and those requisite for Treaties. When a Treaty is made, the nation is bound by it, and its organ has an obligation upon it to carry it into effect. It might, in general, be said that there was an absolute obligation; but still there were particular cases in which that obligation did not hold. It appeared to him that a Treaty might possibly be of so ruinous a nature, as to justify the refusing to carry it into effect. Nay, he would say, that if half the lies and calumnies which had been spread throughout the

Union with respect to the late Treaty with Great Britain were true; if the negotiator had been bribed; if he had given up the rights of his country; if their liberty and independence had been sacrificed; if the PRESIDENT and Senate had been bribed by British gold; if he had any idea of that kind, he would not agree to carry the Treaty into effect; nor should he conceive the national faith bound by such an instrument; no matter what grounds were taken to justify the refusal, whether constitutional or revolutionary.

If these principles were just, he said, it would be allowed that that House had a discretionary power with respect to appropriating to carry a Treaty into effect, though it had nothing to do with making it. No cause, he said, had been shown for calling for papers. Why, then, call for them? Gentlemen talked about impeachment? They might impeach without papers. But did they want to bring forward an impeachment? No such thing; it was only to cover the real drift of the motion that this was mentioned.

Did any gentleman think there was sufficient evil in the late Treaty with Great Britain to authorize them in refusing to carry it into effect? It appeared to him, that that House had a right to call for any papers which might throw light on their deliberations. But they must also consider, that there was a discretion to be used by the Executive in giving up papers in his hands. When there are papers in his hands which that House had real occasion for, it was important that they should be brought forward; but, he said, as long as a proper confidence subsisted between the two branches of the Government, if that House asked for papers which the PRESIDENT thought it improper to send them, he would decline doing it. But it is not contended, that the papers which are the object of the present resolution will be of any real use to the House. The gentleman who brought forward the motion had read them through, and the most that he said on the subject was, that the negotiator had not complied with some of the first instructions which were given to him. Another ground of calling for the papers, which was to him a pleasing ground, was that of publicity; for he fully agreed with the gentleman from Georgia, that the more public Governmental proceedings could with propriety be made, the better; but that House had not the right to direct the PRESIDENT on that head; they ought rather to leave it to him to publish the papers, or not, as he pleased; for, if they considered the PRESIDENT as attentive at all times to the duties of his office, it would be arrogancy in that House to attempt to influence him in that particular.

But the main point in dispute was the force and effect of the Treaty-making power. What were the powers and privileges of the House on the subject? In pursuing this inquiry, he was pleased with the remark of the gentleman from Georgia, that in examining into the meaning of the words and phrases, they must take the meaning that was generally given to them, and if they could find out the true import of the phrase _make_ Treaties, it would remove all doubts on the subject. He hoped, for this purpose, that gentleman would have examined the proceedings of his own country; but, instead of doing this, they find him referring to the practices of Great Britain.

The PRESIDENT and Senate, Mr. C. observed, were expressly authorized to make Treaties. To what should they compare Treaties? Might they not say that they were betwixt nations what bargains were betwixt individuals? And, after he had employed an agent to make a contract, with full discretion, and he had in pursuance of his authority made it, was it not binding? Though in public as well as in private contracts he acknowledged there might be circumstances which would justify a non-compliance with the terms of the bargain; yet, in case all the circumstances had been fair, the contract must be complied with.

It appeared to him not unimportant to consider whether, when Treaties were made, they were not the laws of the land. A power to make, carried in his mind a power to complete. But if this were doubtful, where should they look for information? He expected the gentleman from Georgia--knowing him to be well acquainted with the proceedings of Government for a long time--would have referred them to the old Confederation. It would certainly have been more natural to have referred them to the old Congress than to the Parliament of Great Britain. If they looked into the powers of the old Congress they would find that they had the power to enter into Treaties and alliances, which he apprehended to be the same power as that placed in the PRESIDENT and Senate in the present Government; and it was natural to conclude that a Treaty made by the present power was equally binding with those made under the old government; for it will be recollected that the general power was delegated to the General Government; and if they had the same powers, he could not see that there should be any difference in the exercise of them. If it had been intended otherwise, the convention at the forming of the constitution, would have added a proviso that no Treaty should be made by the PRESIDENT and Senate which included commercial regulations.

It appeared to him that a subject of such recent date as their constitution could not receive much elucidation from the opinions held concerning it in the conventions, at or about the time of passing it. He confessed he found little aid to assist his mind to form a judgment on the matter from any other source than the constitution itself; indeed he thought the light was there so clear that nothing more was wanted. There were four members, he said, in that House who were members of the convention who formed the constitution. The sentiments of two of those gentlemen he was not acquainted with; but two of them had spoken on this subject. If those gentlemen had come forward and declared that such a power as the Treaty power was contended to be was not intended to be placed in the hands of the PRESIDENT and Senate, but that that House was meant to have certain powers with respect to Treaties, he would not say but that such a declaration would have shook his faith on the subject; for, though he should still have been guided by the instrument itself, yet authority so respectable would have its weight on his mind. But what did the gentlemen who have delivered their sentiments say? The gentleman from Georgia (Mr. BALDWIN) mentioned the necessity of inquiring into the true meaning of the phrase, "make Treaties;" and, instead of telling them what had been the practice in the old government, he went over the water to Great Britain. What did they get from the gentleman from Virginia, (Mr. MADISON?) He produced five sets of doubts and one problem upon the construction of the constitution. This had the same effect on his mind as if they had declared that the meaning of the constitution was well understood, in the convention which formed it, to vest the Treaty-making power completely in the PRESIDENT and Senate. It was certainly matter of great importance where the different powers of Government were placed, and caused considerable debates in the convention. Some thought the Treaty-making power should be placed in the Legislature, but that was greatly objected to; it was urged by others that the powers should be in the PRESIDENT and a majority of the Senate; it was again proposed that two-thirds of the whole number of the Senators should consent to a Treaty--but finally passed as it is found in the constitution. He was far from accusing those gentlemen with impropriety of conduct on the occasion. If they think it would be better for the interests of the people that that House should have a share in the making of certain Treaties, and believe the constitution will bear that construction, it was not for him to impeach the purity of their motives or propriety of their conduct; but it would require strong arguments to convince his mind that the constitution placed any such power in that House, contrary to the unanimous understanding of the members of the convention who formed it.

The arguments which had been urged for placing certain powers in that House with respect to Treaties were drawn from the practice of Great Britain, and from the danger of the Treaty power being vested wholly in the PRESIDENT and Senate. He did not think that the Government of Great Britain had been introduced for any other purpose than illustration, though other use had been made of it out of doors. With respect to the principles of that government, let them inquire into its sovereign power; for it was a just position that Treaties must be made by the sovereign power of a nation. Where should they find that power in Great Britain? The King and Parliament were allowed to be omnipotent. Parliament have altered the continuation of their existence from three to seven years. Where must they look in the United States for the sovereign power? They must go to the people at large; for in them it lay alone. Their constitution limited the powers of every branch of government, and it was therefore improper to apply foreign ideas to their constitution. But if a Treaty was made by the agents of a sovereign power, authorized for the purpose, the end was answered: in the United States, the sovereign power can act only by its agents.

The Legislature of Great Britain, he said, it was true, consisted of three branches, and that was almost the only feature in that Government resembling that of the United States. In Great Britain, their Executive is an hereditary Monarch, whereas the PRESIDENT OF THE UNITED STATES is elected every four years. Their House of Lords consisted of bishops and an hereditary nobility--the bishops appointed by the Crown, and the nobility were increased at the King's pleasure; whilst the Senate of the United States is elected every six years. Gentlemen say the Senators are not elected by the people, but they are chosen by the Legislatures of the different States, who are elected by the people. The House of Commons in Britain, which is the only representation of the people their Government contains, is elected by a very small part of the people; and the Crown has such an influence in it as to be able to carry most questions at its pleasure. How could it then bear a comparison with that House, who were chosen by the whole people every two years? The absurdity might be admitted, in that Government, that the King had the power to make Treaties, and that the sanction of the Legislature was still necessary to give them legal validity, because the influence of the Crown was so great in both Houses as to carry any measure it pleased through them. But it would not do in this country. The comparison, therefore, betwixt the two Governments fails, and no arguments can be drawn from it.

The other argument respecting the danger of the power being placed solely in the Executive arose from the comparison with Great Britain. If the powers of the PRESIDENT and Senate of this country could with any tolerable degree of justice be compared to those of the King and House of Lords in Great Britain, as little taste as he had for revolutions, he would not say but he should be induced to join gentlemen, either by fraud or force, to overturn the constitution. He looked on the representation in the Senate to be as complete as in that House. Gentlemen were very fond of calling that House the popular branch of government. He agreed that a criticism on words was in general trifling. That gentlemen from Virginia might assert this, he allowed, as they had nineteen members out of the hundred and five in that House, and in the Senate only a fifteenth part of the body; but gentlemen did not mean, when they spoke on that subject, to have reference to particular States, but to the whole. The Senators and Representatives were regularly apportioned for the whole Union; and, though on different principles, were as completely represented in the one House as in the other.

Mr. C. concluded with saying, that he had no doubt the powers vested by the constitution were well vested; and if the constitution was fairly considered, little doubt could remain on the subject. But if the House passed the resolution now before the committee, he should not consider the question as decided; but if the construction was still insisted upon, he was happy the constitution was not wholly in their hands--that there were joined with them in the guardianship of it, the PRESIDENT, the Senate, and the people of the United States.

Mr. HILLHOUSE said, it was with diffidence he rose to speak on a subject which had been so copiously and ably handled by gentlemen who had preceded him. It had been his intention to have given a silent vote on the resolution on the table, but the turn which the debates had taken--involving an important constitutional question, relative to the powers vested in the different branches of Government--seemed to create a necessity of expressing his sentiments, lest by his vote he might seem to subscribe to certain doctrines in the latitude in which they had been laid down. And as he should differ in some respects from most of the gentlemen that had spoken, he asked the indulgence of the committee whilst he made a few remarks on a subject which he conceived to be of vast importance, as a wrong decision might give a direction to their government which might be of serious consequence.

On the one hand, he did not think that Treaties could not, under any circumstances, be the subject of Legislative consideration or discussion, and that they were not to look into them. It appeared to him, that they not only had the right, but that it was their indispensable duty to look into every Treaty, when called upon to aid in its operation; to see whether it had the constitutional forms; whether it related to objects within the province of the Treaty-making power, a power which is not unlimited. The objects upon which it can operate are understood and well defined, and if the Treaty-making power were to embrace other objects, their doings would have no more binding force than if the Legislature were to assume and exercise judicial powers under the name of legislation. It might be proper, also, to examine the merits of a Treaty, so far as to see whether it be of such a ruinous nature as, according to the law of nations, it would be null, and whether they would be justified in withholding Legislative provision to carry it into effect. He also considered Treaties as subject to Legislative control, so that their operation, so far as related to the people of the United States, might be suspended or annulled whenever, in the opinion of the Legislature, there was sufficient cause. And further, that the clause in the constitution which provides that no money shall be drawn from the Treasury, but "in consequence of appropriations made by law," as vesting in the different branches of Government a check adequate to every purpose of security.

On the other hand, he did not consider the House of Representatives as having a constitutional right to interfere in making Treaties, or that a Treaty needed any concurrence of that House, or Legislative sanction, to make it the law of the land. He had always supposed that Treaties were exactly on the footing of laws in their operation on antecedent laws, suspending and repealing such as were repugnant. Treaties may sometimes require Legislative aid to carry them into effect; so may laws, and they were constantly in the habit of making laws to carry into effect laws heretofore made.

After these preliminary observations, Mr. H. proceeded to inquire, not what ought to be, but what was the Constitution of the United States? We were not, he said, in Convention, but in the discharge of Legislative functions under the constitution; and to understand the extent of the powers intended to be granted in the second article, section two, by these words, "the PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur," we must advert to the general definition of the Treaty-making power--what objects it may embrace, and how far it can interfere with Legislative power. A Treaty is a compact entered into by two independent nations, for mutual advantage or defence. Nothing can, therefore, come within the Treaty-making power but what has a relation to both nations, and in which they have a mutual interest. The object of this power is to secure to our citizens advantages in foreign countries which are without or beyond our Legislative jurisdiction, to enable the Treaty-making power to obtain which, it must necessarily be authorized to give some consideration or equivalent therefor. If the United States authorize an agent to make a bargain or purchase, the power of binding the United States for a reasonable consideration is necessarily given. Whenever the Treaty-making power departs from these rules, it is without its jurisdiction, and such a Treaty would be of no validity. Under this view of the subject, if we look into our code of laws, we shall find few of them that can be affected, to any great degree, by the Treaty-making power. All laws regulating our own internal police, so far as the citizens of the United States alone are concerned, are wholly beyond its reach; no foreign nation having any interest or concern in that business, every attempt to interfere would be a mere nullity, as much as if two individuals were to enter into a contract to regulate the conduct or actions of a third person, who was no party to such contract. He could, he said, illustrate his idea more readily by adverting to a law, mentioned as being affected by the present Treaty, which was the revenue law; which provides that certain duties shall be paid on goods imported into the United States, and on goods coming in foreign bottoms ten per cent. advance on the amount of such duties. This is a law no Treaty can repeal, admitting the repealing power in its fullest latitude, because no foreign nation can have any interest or concern in the duties payable by our own citizens into our own Treasury. All that a Treaty could do, would be to suspend or arrest its operation, so far as the citizens or subjects of the nations with whom we treated, were or might be affected by it. The only operation which the British Treaty has upon that law is, that in consideration of our being freely admitted to the fur trade and the trade into Canada, which opens to the enterprise of our citizens a vast source of wealth and advantage, we only give in return to the subjects of the King of Great Britain the privilege of bringing, by land or inland navigation, into the United States, goods for which they pay no more duties than our citizens pay on goods imported in American bottoms. British subjects have always been permitted to reside and trade in the United States, and peltry is to be duty free in the territories of each. According to this definition of the Treaty-making power, and as far as he could judge, he said, it was correct; it cannot have that unlimited extension which has been ascribed to it. It cannot be that monster which has been described as about to swallow up all the Legislative powers of Congress; nor can there be any danger of the PRESIDENT and Senate having it in their power, by forming Treaties with an Indian tribe or a foreign nation, to legislate over the United States. The Treaty-making power cannot affect the Legislative power of Congress but in a very small and limited degree. Because a Treaty or an Executive act may, in some instances, arrest the operation or progress of a law, it is no argument against the existence of the power. In article first, section eighth, of the constitution, a specific power is granted to Congress to provide for the punishment of the counterfeiters of the securities or coins of the United States. In another article, the PRESIDENT is authorized generally to grant reprieves or pardons for offences against the United States, excepting in cases of impeachment. Can any one seriously contend that the PRESIDENT has not the power of granting a pardon to a counterfeiter of securities or coins, because it would suspend and defeat the operation of a law, on a subject, specially delegated to Congress? If this doctrine be true, that all Legislative power may be exercised by the Treaty-making power, Congress, under the old Confederation, had unlimited Legislative power over the States. The old Confederation vested in Congress an unlimited power to make Treaties, excepting only that the States were to be at liberty to impose like duties on foreigners as on their own people, and that the exportation or importation of goods was not to be prohibited. Was it ever imagined that, by this general power, Congress had a right, by forming a Treaty with a foreign power, to legislate over the States to any extent? Suppose Congress, instead of taking so much pains to persuade the States to consent to their laying the five per cent. impost, and in obtaining which they were finally defeated by the refusal of one State, after every possible exertion, had undertaken to have it done by Treaty? Would not the measures have been reprobated with one voice, and the Treaty considered as a nullity?

In the first place, in Art. I., organizing a Legislative body, and delegating to them, not all, but a part only of the Legislative power of the States, in these words: "All Legislative powers herein granted shall be vested in a Congress;" and among the specified powers, the right of regulating commerce with foreign nations. How were they to regulate commerce? Not by the exercise of the Treaty-making power. This article of the constitution has not the least relation to that kind of power: it was Legislative power only that was meant: it vested Congress with the whole power, as far as the object could be accomplished by a Legislative act; but this power would embrace but a small part of the objects which come within the term of regulating commerce with foreign nations; it could extend no further than the bounds of our own jurisdiction. There is not a single expression that looks like authorizing them to act in any other than their Legislative character.

The constitution then proceeds, in the second Article, to the establishment of an Executive power, to be vested in a PRESIDENT, and in the second section, says: "The PRESIDENT shall have power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." The most general terms are used, and such as under the old Confederation had been understood to embrace every kind of Treaty, commercial as well as others, and had been exercised in the most ample and unlimited manner, and the Treaties thus formed had been declared and adjudged to have the force and operation of a law, and that they repealed all laws that were opposed to them; and these Treaties were then in full force and operation, and were the supreme law of the land. It cannot be presumed that the framers of our constitution were ignorant of the laws of the land, or that they had not well attended to and examined Treaties, which, by the constitution, they were again about to declare to be the supreme law of the land under the new Government. Now, if it really was intended that the Treaty-making power should not be as broad, and have the same extension and operation as had been exercised under the old Confederation, or that there was to be a distinction between commercial Treaties and others, or that Treaties generally should not so operate as to repeal pre-existing laws, or that the concurrence of the House of Representatives, or sanction of Congress, should, under any circumstances, be necessary to give validity or force to a Treaty, how can we account for the total silence of the constitution on this subject, and that there should not be a single sentence in the whole instrument that even looks that way? If any limitation was intended, the convention certainly knew that it was necessary it should be inserted. When we examine the constitution, and see with what accuracy and care it is drawn up, how wonderfully every part of it is guarded, that there is not a single word but appears to have been carefully examined, and when we call to mind the members of that convention, and find them to have been the ablest and most accurate men of our country, we cannot presume that we should have been left to the sad alternative, for the purpose of explaining so important an article of our constitution, which might have been so easily made definite, to be obliged to resort to the British House of Commons for precedents, and those too which were derived from the most turbulent periods of the Government of that nation; when, it is a possible case, that the change of a Ministry, or the rage of party, might have been more immediately the object of pursuit than the true interest of the nation; more especially as the practice of our own Government, and the legal opinion of our own country, were directly opposed to such a construction. But if all this might be supposed not to have had sufficient weight to have induced the convention to have introduced such a limitation, or some intimation that such limitation was intended, they must have supposed it necessary when they handed out with the constitution, which were declared by the ratification thereof to be the supreme law of the land, Treaties of every description, commercial as well as others. To me, the language of this transaction is, we have, by one article of this constitution, granted the Treaty-making power, in general terms, to the PRESIDENT and Senate.

MARCH 24.--[The question was taken on Mr. LIVINGSTON's
resolution, which is in the following words:]

"_Resolved_, That the President of the United States be
requested to lay before this House a copy of the
instructions to the Minister of the United States, who
negotiated the Treaty with the King of Great Britain,
communicated by his Message of the first of March, together
with the correspondence and other documents relative to the
said Treaty; excepting such of said papers as any existing
negotiation may render improper to be disclosed."

The division on this resolution, in Committee of the Whole, was--for the resolution 61, against it 38--majority 23.

The resolution was then taken up in the House, and the yeas and nays being called upon it, were taken, and stood yeas 62, nays 37, as follows:

YEAS.--Theodorus Bailey, David Bard, Abraham Baldwin,
Lemuel Benton, Thomas Blount, Richard Brent, Nathan Bryan,
Dempsey Burges, Samuel J. Cabell, Gabriel Christie, Thomas
Claiborne, John Clopton, Isaac Coles, Henry Dearborn,
George Dent, Gabriel Duvall, Samuel Earle, William Findlay,
Jesse Franklin, Albert Gallatin, William B. Giles, James
Gillespie, Andrew Gregg, Christopher Greenup, William B.
Grove, Wade Hampton, George Hancock, Carter B. Harrison,
John Hathorn, Jonathan N. Havens, John Heath, James
Holland, George Jackson, Aaron Kitchell, Edward Livingston,
Matthew Locke, William Lyman, Samuel Maclay, Nathaniel
Macon, James Madison, John Milledge, Andrew Moore,
Frederick A. Muhlenberg, Anthony New, John Nicholas,
Alexander D. Orr, John Page, Josiah Parker, John Patton,
Francis Preston, John Richards, Robert Rutherford, John S.
Sherburne, Israel Smith, Samuel Smith, Thomas Sprigg, John
Swanwick, Absalom Tatom, Philip Van Cortlandt, Joseph B.
Varnum, Abraham Venable, and Richard Winn.

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

RECAPITULATION.--Yeas 62, nays 37, absent 5--104--the Speaker 1--whole number of Representatives 105.[72]

Mr. DAYTON, the Speaker, in Committee of the Whole, voted against the resolution.

MARCH 25.--The committee, (Messrs. LIVINGSTON and GALLATIN,) appointed to present the resolution agreed to yesterday to the PRESIDENT, reported, that the PRESIDENT answered, that he would take the resolution into consideration.

MARCH 30.--The following Message was received from the PRESIDENT in answer to the resolution of the House:

_Gentlemen of the House of Representatives:_

With the utmost attention I have considered your resolution
of the 24th instant, requesting me to lay before your House
a copy of the instructions to the Minister of the United
States, who negotiated the Treaty with the King of Great
Britain, together with the correspondence and other
documents relative to that Treaty, excepting such of the
said papers as any existing negotiation may render improper
to be disclosed.

In deliberating upon this subject, it was impossible for
me to lose sight of the principle which some have avowed in
its discussion, or to avoid extending my views to the
consequences which must flow from the admission of that
principle.

I trust that no part of my conduct has ever indicated a
disposition to withhold any information which the
constitution has enjoined upon the President, as a duty, to
give, or which could be required of him by either House of
Congress as a right; and, with truth, I affirm, that it has
been, as it will continue to be, while I have the honor to
preside in the Government, my constant endeavor to
harmonize with the other branches thereof, so far as the
trust delegated to me by the people of the United States,
and my sense of the obligation it imposes, to "preserve,
protect, and defend the constitution," will permit.

The nature of foreign negotiations requires caution; and
their success must often depend on secrecy; and even, when
brought to a conclusion, a full disclosure of all the
measures, demands, or eventual concessions which may have
been proposed or contemplated would be extremely impolitic;
for this might have a pernicious influence on future
negotiations; or produce immediate inconveniences, perhaps
danger and mischief, in relation to other Powers. The
necessity of such caution and secrecy was one cogent reason
for vesting the power of making Treaties in the President
with the advice and consent of the Senate; the principle on
which the body was formed confining it to a small number of
members. To admit, then, a right in the House of
Representatives to demand, and to have, as a matter of
course, all the papers respecting a negotiation with a
foreign Power, would be to establish a dangerous precedent.

It does not occur that the inspection of the papers asked
for can be relative to any purpose under the cognizance of
the House of Representatives, except that of an
impeachment; which the resolution has not expressed. I
repeat, that I have no disposition to withhold any
information which the duty of my station will permit, or
the public good shall require; to be disclosed; and, in
fact, all the papers affecting the negotiation with Great
Britain were laid before the Senate, when the Treaty itself
was communicated for their consideration and advice.

The course which the debate has taken on the resolution of
the House, leads to some observations on the mode of making
Treaties under the Constitution of the United States.

Having been a member of the General Convention, and knowing
the principles on which the constitution was formed, I have
ever entertained but one opinion on this subject, and from
the first establishment of the Government to this moment,
my conduct has exemplified that opinion, that the power of
making Treaties is exclusively vested in the President, by
and with the advice and consent of the Senate, provided
two-thirds of the Senators present concur; and that every
Treaty so made, and promulgated, thenceforward becomes the
law of the land. It is thus that the Treaty-making power
has been understood by foreign nations, and in all the
Treaties made with them, _we_ have declared, and _they_
have believed, that when ratified by the President, with
the advice and consent of the Senate, they became
obligatory. In this construction of the constitution every
House of Representatives has heretofore acquiesced, and
until the present time not a doubt or suspicion has
appeared to my knowledge that this construction was not the
true one. Nay, they have more than acquiesced; for until
now, without controverting the obligation of such Treaties,
they have made all the requisite provisions for carrying
them into effect.

There is also reason to believe that this construction
agrees with the opinions entertained by the State
Conventions, when they were deliberating on the
constitution, especially by those who objected to it,
because there was not required in Commercial Treaties the
consent of two-thirds of the whole number of the members of
the Senate, instead of two-thirds of the Senators present,
and because, in Treaties respecting territorial and certain
other rights and claims, the concurrence of three-fourths
of the whole number of the members of both Houses
respectively was not made necessary.

It is a fact, declared by the General Convention, and
universally understood, that the Constitution of the United
States was the result of a spirit of amity and mutual
concession. And it is well known that, under this
influence, the smaller States were admitted to an equal
representation in the Senate, with the larger States; and
that this branch of the Government was invested with great
powers; for, on the equal participation of those powers,
the sovereignty and political safety of the smaller States
were deemed essentially to depend.

If other proofs than these, and the plain letter of the
constitution itself, be necessary to ascertain the point
under consideration, they may be found in the Journals of
the General Convention, which I have deposited in the
office of the Department of State. In those Journals it
will appear, that a proposition was made, "that no Treaty
should be binding on the United States which was not
ratified by a law," and that the proposition was explicitly
rejected.

As, therefore, it is perfectly clear to my understanding,
that the assent of the House of Representatives is not
necessary to the validity of a Treaty; as the Treaty with
Great Britain exhibits in itself all the objects requiring
Legislative provision, and on these the papers called for
can throw no light; and as it is essential to the due
administration of the Government, that the boundaries fixed
by the constitution between the different departments
should be preserved--a just regard to the constitution and
to the duty of my office, under all the circumstances of
this case, forbid a compliance with your request.

G. WASHINGTON.[73]

UNITED STATES, _March 80, 1796_.

REFERENCE OF THE ANSWER TO A COMMITTEE OF THE WHOLE.

MARCH 31.--Mr. BLOUNT moved that the Message be referred to a Committee of the Whole on the state of the Union.

Mr. GILES was of opinion it had better be referred to a Committee of the Whole simply.

Mr. SEDGWICK saw no reason for such a reference. He wished gentlemen would point out the object of the motion.

Mr. THATCHER saw no good to be obtained by referring it. The House had requested the PRESIDENT to lay certain papers before them; the PRESIDENT answers, that he has none for them. Why a reference? The House asked a question; the PRESIDENT answered in the negative--for what purpose refer the answer? what would be gained by it?

Mr. BLOUNT observed, that the PRESIDENT's Message stands upon the journals of the House; he wished, also, that the House should state upon their journals the reasons which influenced them to make the request. Perhaps, also, he said, a consideration of the Message might lead to some further measure proper to be adopted. He was indifferent whether it was referred to a Committee of the Whole on the state of the Union, or a Committee of the Whole, simply.

Mr. NICHOLAS remarked that it was prejudging the question to say that nothing could arise out of a consideration of the Message. The present is a crisis important in the affairs of the country, independently of the Treaty. If the Message was a proper subject of discussion, it was proper to refer it to a Committee of the Whole. He did not think a reference to the Committee of the Whole on the state of the Union proper; because the Message points to a subject differing from that referred to that committee. The investigation at any rate could produce nothing wrong.

Mr. GILES said, that the member from North Carolina (Mr. BLOUNT) had explained the object he had in view by a reference. He preferred a reference to a Committee of the Whole, independently; because the Message itself would furnish matter enough for consideration by itself. He should object to its being referred to the Committee of the Whole, who are to take into consideration the British Treaty; because he never would consent to act upon that subject till the papers deemed material to the investigation were laid upon the table. He hoped the reference to a Committee of the Whole, generally, would be agreed to. It certainly would be proper for the House to state their reasons for the call. This call had given rise to a great constitutional question; the PRESIDENT had stated the reasons of his opinion; if the House were not convinced by them, (and he owned that, for one, he was not,) then it would be proper that they should present to the public their reasons for differing with him.

Mr. THATCHER argued, that the reasons of the House were contained in the speeches of members in favor of the motion; the papers had been filled with them, and a pamphlet was going to be published containing them all. If this was not sufficient, the gentlemen had better direct the pamphlet to be copied on the journals.

Mr. WILLIAMS considered this a new question, and wished for time to consider. The PRESIDENT's Message is only an answer to a request of the House. It does not call for any thing to be done, then why a reference? Such a reference would be unprecedented. Entering the reasons of the House on the journals could produce no good. The House could not call for the papers more than they had done. He reminded the House that three weeks had already been spent in agreeing to the call; if they agreed to the present motion, they would spend as much more in agreeing to the reasons. The PRESIDENT, in his Message, had mentioned the proceedings of the grand Convention; this was a new topic to him not started in debate; when the Treaty is before the House, perhaps they might wish to have the Message before them on that ground. He should vote for the reference if gentlemen could assign (what they had not yet done) a proper motive for it.

Mr. SEDGWICK urged that the reasons of the majority would make a large book. Were the Committee of the Whole to turn authors and write a dissertation on part of the constitution? The people did not send their Representatives here for any such purpose, and he hoped it would not be persisted in. If the reasons of the House were to be drafted, he ventured to predict, that they would reach the end of their political career before the discussion that must necessarily arise upon them would be brought to a close. Such a measure would be unprecedented, and lead to a great waste of time, and continually defeat the real objects of their mission. The session had been long enough already, and it must be lengthened to accomplish the necessary business of it. If the gentlemen would write books, he was confident every body would buy them; but he could not see the propriety of the present motion.

Mr. BLOUNT observed, that the PRESIDENT refers, in his Message, to the debate in the House, and insinuates that the House contend for a right not given them by the constitution. This was the first instance of any importance of a difference between the House of Representatives and the Executive respecting a great constitutional point; it was then proper to make such a disposal of the Message as to enable the House to state their reasons in support of their opinion, that the people may be rightly informed, that they may see the House is attempting no encroachment.

Mr. HEATH hoped the Message would not be passed over in silence. The PRESIDENT surely is not infallible. A very important constitutional question is involved; he hoped the reference would be agreed to.

Mr. SITGREAVES was against the motion. The House have made a demand on the PRESIDENT; the PRESIDENT refused it; this must naturally put an end to the correspondence on this subject. The difference of sentiment between the two branches is not sufficient reason for converting the journals of the House into a volume of debates. If the majority are to place their reasons, the minority cannot be denied the same indulgence; then for a rejoinder, rebutters, surrebutters, without end. From the practice of the House, in a case analogous, a rule of conduct for the present case may be drawn. When a bill is sent to the PRESIDENT, if he dislikes it, he negatives and sends it to the House with his reasons. Those reasons are put on the journals, as directed by the constitution; but it contains nothing to direct or authorize the majority to register their reasons, and thus to enter into a controversy. The return bill is put to vote, and if two-thirds of each House agree to it, it passes; if not, it falls to the ground, but no reasons are entered on the part of the House.

Mr. GALLATIN said he did not expect the motion for a reference would have met with any opposition. Some members are of opinion, that the Message should be passed over in silence; others had resolved to ground some act upon it. There exists a difference, then, on this first point. The natural course is, then, a reference to a Committee of the Whole, to determine whether the House would act further on the business.

In Committee of the Whole a discussion could be had concerning the propriety of acting further on the Message. When the House made the call for papers, they did not give their reasons in the resolution; it was but a bare request. The PRESIDENT decided he could not comply with it. If he had stopped here, perhaps there might be grounds for ending the correspondence here; but he was not satisfied with this, but has entered into his motives for refusing. Indeed, he had gone further; he had adverted to the debates had in the House. He may be mistaken as to the motives he ascribes to the House. In this delicate situation it is certainly right to notice the Message, and to explain the real motives of the House in support of the motion. If it is a novelty to reply to an answer of the PRESIDENT's, it was equally a novelty, also, in making an answer to notice a debate in support of a resolution. It is necessary to refer the Message to a Committee of the Whole, to determine how to act. He declared his mind was not made up upon this point, and therefore he wished it referred to a Committee of the Whole. Not, however, to the Committee on the state of the Union, because there exists no connection with the subject referred to that committee. Referring to a Committee of the Whole is deciding nothing, but only determining to examine; it could not decide on the propriety of acting.

Mr. COOPER said, that the further the gentlemen travelled a wrong road, the further they would get out of a true course, and the more difficult it would be to return.

Mr. HARPER observed, that this was not the first attempt to get the House to do something, to commit them to do something further. A motion is now made to refer the Message to a Committee of the Whole, and the House are told, that if the motion be carried, it is nothing, it is deciding nothing, but will only lead to an inquiry whether the House ought to act. He insisted that such a reference would in fact be determining that they would act, and then, in committee, they would determine how, and in that committee, he said they would be asked, why did the House resolve itself into a Committee of the Whole if not to act? So, when the Indian Treaty was ratified, a motion was made to request the PRESIDENT to lay it before the House. When it was laid before them, it was then contended that the House had a right to interfere in the Treaty, or why ask for it? It could not be supposed that gentlemen of any understanding could be imposed upon by such a flimsy sophistry. It was now the proper time, and the House the proper place, he contended, to settle the principle whether the House would sanction any further proceedings on the Message. What reason could be adduced for acting? It is said that the PRESIDENT has not only refused the papers, but given his reasons for the refusal, and that his reference to the debate, and the statement he made about the motives of the House, might be found incorrect; that the PRESIDENT may have attributed to the majority motives they were not willing to avow. The motives had been avowed by the gentleman who led the business from Pennsylvania.

Mr. HARPER was called to order. He concluded by declaring that he would vote against the reference.

Mr. VARNUM observed, that a great constitutional question was to be decided; two branches of the Government differed, and they had joined issue. The PRESIDENT had given the reasons of his opinion; it was right, also, that the people should know the sense of the House. Shall the House take no further measures on the subject, and receive the answer of the PRESIDENT as obligatory with regard to the question? He believed every member of the House has, as well as the PRESIDENT, the right to avow his principles, and to judge of the import of the different parts of the constitution. The House he conceived under an obligation to consider the question: if they found, upon consideration, reason to recede from their opinions, he hoped they would. He wished the subject examined with temper and candor.

Mr. KITTERA chiefly dwelt on the length of time, which, if the motion was agreed to, would be consumed in the business. He also touched on the impropriety of entering into a disquisition on the merits of this question on the journals.

Mr. CRABB.--Mr. SPEAKER, I hope the Message received from the PRESIDENT, in answer to the resolution of this House, calling for certain papers relative to the British Treaty, will be referred to a Committee of the whole House. My reasons for this wish are, because the PRESIDENT has refused the papers on constitutional principles, and has thought proper to go into a detail of the reasons which led to a formation of his opinion; therefore I apprehend it proper to make the reference, in order, that if the reasons urged by the PRESIDENT are such as to convince this House that he is right as to the constitutional question, that they may have an opportunity to acknowledge it, that it may be so known and understood abroad, inasmuch as the contrary opinion has been promulgated; and again, I wish the reference, that this House may, with respect and calm deliberation, consider the PRESIDENT's Message, and the reasons on which his refusal to send the papers is grounded, that if those reasons are not such as to convince or change the opinion of this House, they, in that case, may have an opportunity so to express themselves, and to introduce resolutions to that effect, that the opinion of this House, on this great constitutional question, after the receipt and consideration of the PRESIDENT's Message, may be fully known, clearly understood, and stamped on your journals. I think this a necessary measure, inasmuch as sundry Treaties lately negotiated are now before this House, and by a declaratory resolution, as before stated, this House may save the constitutional principle, and feel themselves at perfect liberty to pass the necessary laws to carry these Treaties into complete effect, without conveying the implication, that they think they are bound so to do, and have not a constitutional right to reject and refuse, when even they shall judge the general prosperity of the Union, and the interest of their constituents, may be promoted by that refusal.

Mr. GILES said, he had not expected the subject would have been treated with ridicule, and that members in reply should advise others to go and write pamphlets. The motives of a branch of Government must necessarily differ from the motives of individuals expressed in their speeches. A majority of the House, when their sentiments are collected, speak the sense of the House. He adverted to the practice of the House when the PRESIDENT returns a bill, which had been mentioned by the opposers of the motion, and observed, that in cases of that kind the message of the PRESIDENT was acted upon. He observed on the importance of the subject, and insisted on the propriety of the House expressing their reasons for their vote. They owe it to themselves, to the United States, to the whole world, to exhibit their reasons for what the PRESIDENT has declared to be an unconstitutional call. For this purpose, the Message should be referred to a Committee of the Whole, where a proper motion would be brought forward, and could be freely discussed. If it had been proposed to refer the Message to a select committee, to place the business into a few hands, there might have been an objection, but a reference to a Committee of the Whole he considered quite unexceptionable.

Mr. N. SMITH said the present was a most singular motion; and, after noticing the several reasons which had been given for the measure, thought none of them had any weight. He said the referring of the Message could only have one effect; it would engage three weeks more of their time; and yet, gentlemen who had been very economical with respect to time, on the late great constitutional point, by calling for the question from day to day, now proposed to consume it in the way proposed. He should, however, now show that economy on account of time, which had been so much insisted upon on a former occasion.