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House Debates on Implementing Jay’s Treaty 1796 - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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House Debates on Implementing Jay’s Treaty 1796
On 2 March 1796, with the Republicans in Congress determined to deny the appropriations necessary to carry the treaty into effect, Edward Livingston of New York moved to ask the president to deliver the instructions, correspondence, and other documents related to the treaty. The long debate occasioned by Federalist complaints that the House had no discretionary power over whether a treaty would go into effect was one of the most important constitutional arguments of the decade, climaxed by Washington’s refusal of the House request.
Mr. Smith (of South Carolina) said that he had listened attentively to the reasons advanced in favor of this resolution and that he had heard nothing to convince him of its propriety. The President and Senate have, by the Constitution, the power of making treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do everything in their power to carry them into full execution. He recognized but one exception to this rule, and that was when the instrument was clearly unconstitutional. …
They have no right to investigate the merits of the Treaty; it is the law of the land, and they are bound to carry it into effect unless they intended to resist the constituted authorities. …
He was surprised that gentlemen who displayed such zeal for the Constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the executive and legislative departments. The Constitution had assigned to the executive the business of negotiation with foreign powers; this House can claim no right by the Constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the executive; for a concession would be a surrender of the powers specially delegated to him and a violation of his trust. …
Mr. Gallatin would state his opinion that the House had a right to ask for the papers proposed to be called for, because their cooperation and sanction was necessary to carry the treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that cooperation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the treaty itself, and therefore had a right to ask for every information which could assist them in deciding that question. …
A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the Constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the federal government, but which have been exclusively and specially granted to a particular branch of government, say to the legislative department, such a treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the legislature have a right to demand the documents relative to the negotiation of the treaty, because that treaty operates on objects specially delegated to the legislature. He turned to the Constitution. It says that the President shall have the power to make treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the Constitution, where it is said that the Constitution and the laws made in pursuance thereof, and all treaties, are the supreme law of the land; and thence, they insist that treaties made by the President and Senate are the supreme law of the land, and that the power of making treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the Constitution.
That general power of making treaties, undefined as it is by the clause which grants it, may either be expressly limited by some other positive clauses of the Constitution, or it may be checked by some powers vested in other branches of the government, which, although not diminishing, may control the treaty-making power. Mr. G. was of opinion that both positions would be supported by the Constitution; that the specific legislative powers delegated to Congress were limitations of the undefined power of making treaties vested in the President and Senate, and that the general power of granting money, also vested in Congress, would at all events be used, if necessary, as a check upon, and as controlling the exercise of, the powers claimed by the President and Senate. …
To what, he asked, would a contrary doctrine lead? If the power of making treaties is to reside in the President and Senate unlimitedly: in other words, if, in the exercise of this power, the President and Senate are to be restrained by no other branch of the government, the President and Senate may absorb all legislative power—the executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the treaty-making power is unlimited and undefined, it may extend to every object of legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the Constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by treaties.
To the construction he had given to this part of the Constitution, no such formidable objections could be raised. He did not claim for the House a power of making treaties, but a check upon the treaty-making power—a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power.
Since this is the striking difference between the doctrine held by the friends and by the opposers of the present motion, why, added Mr. G., with some warmth, are the first endeavored to be stigmatized as rebellious, disorganizers, as traitors against the Constitution? Do they claim a dangerous active power? No, they only claim the right of checking the exercise of a general power when clashing with the special powers expressly vested in Congress by the Constitution.
He should not say that the treaty is unconstitutional, but he would say that it was not the supreme law of the land until it received the sanction of the legislature. He turned to the Constitution. That instrument declares that the Constitution, and laws made in pursuance thereof, and treaties made under the authority of the United States, shall be the supreme law of the land. The words are, “under the authority of the United States,” not signed and ratified by the President: so that a treaty clashing in any of its provisions with the express powers of Congress, until it has so far obtained the sanction of Congress, is not a treaty made under the authority of the United States. …
But if, as it was said, the powers specifically delegated to the House are not to operate as a limitation of the general powers granted to the President and Senate; if these powers are contended to be as unlimited as they are undefined, then the necessity of a check must strike as doubly necessary. The power of granting money should be exercised as a check on the treaty-making power. The more limited the treaty-making power is contended to be, the more dangerous it is, and the more should the House consider the power of originating grants of money exclusively vested in them as a precious deposit.
He maintained, that the treaty with Great Britain, or any other in similar circumstances, was not, until the necessary appropriations were made, and until the existing laws that stood in its way were repealed, and the requisite laws enacted, the supreme law of the land. Existing laws declare that goods shall not be imported by land into the United States, except in certain districts; the third article of the treaty allows a general importation; the laws declare that foreign vessels trading with us shall pay an additional ten per cent upon the duties paid by our own vessels, the same article again interferes here; in other particulars, also, but these are sufficient to illustrate. Now, if the doctrine of gentlemen be sanctioned, and the House have no discretion left to use on the treaty, but are bound thereby, specific and explicit clauses in the Constitution notwithstanding, the power of granting money becomes nugatory, and a treaty, made by the Executive, may repeal a law. If a treaty can repeal a law, then the act of the President and Senate can repeal the act of the three branches; and although all legislative powers be vested in Congress by the Constitution, yet Congress are controlled by two of its branches; those clauses of the Constitution vesting the legislative powers in Congress are annihilated, and the President and Senate, by substituting a foreign nation for the House of Representatives, assume, in fact, an unlimited legislative power; since, under color of making treaties, they may repeal laws and may enact laws.
If this doctrine is sanctioned; if it is allowed that treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution, declare that they give up all control, all right to the exercise of discretion, it is tantamount to saying that they abandon their share in legislation, and that they consent the whole power should be concentered in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House and their right to judge of the expediency of carrying the treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground and the treaty carried into effect, if reconcilable to the interests of the United States. …
Mr. Madison said that the direct proposition before the House had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of treaties, that he should confine his present observations to the latter.
On some points there could be no difference of opinion; and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people; that the Constitution, as the expression of their will, is the guide and the rule to the government; that the distribution of powers made by the Constitution ought to be sacredly observed by the respective departments; that the House of Representatives ought to be equally careful to avoid encroachments on the authority given to other departments and to guard their own authority against encroachments from the other departments: These principles are as evident as they are vital and essential to our political system.
The true question, therefore, before the Committee, was not whether the will of the people expressed in the Constitution was to be obeyed; but how that will was to be understood; in what manner it had actually divided the powers delegated to the government; and what construction would best reconcile the several parts of the instrument with each other and be most consistent with its general spirit and object.
On comparing the several passages in the Constitution which had been already cited to the Committee, it appeared that if taken literally and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, etc., etc., are first specifically vested in Congress. The power of making treaties, which may relate to the same subjects, is afterwards vested in the President and two thirds of the Senate. And it is declared in another place that the Constitution and the laws of the U. States made in pursuance thereof, and treaties made or to be made under the authority of the U. States shall be the supreme law of the land: and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
The term supreme, as applied to treaties, evidently meant a supremacy over the state constitutions and laws, and not over the Constitution and laws of the U. States. And it was observable that the judicial authority and the existing laws alone of the states fell within the supremacy expressly enjoined. The injunction was not extended to the legislative authority of the states or to laws requisite to be passed by the states for giving effect to treaties; and it might be a problem worthy of the consideration, though not needing the decision of the Committee, in what manner the requisite provisions were to be obtained from the states.
It was to be regretted, he observed, that on a question of such magnitude as the present there should be any apparent inconsistency or inexplicitness in the Constitution that could leave room for different constructions. As the case however had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory. …
It was an important, and appeared to him to be a decisive, view of the subject that, if the treaty-power alone could perform any one act for which the authority of Congress is required by the Constitution, it may perform every act for which the authority of that part of the government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, borrow, and appropriate money, etc. If by treaty, therefore, as paramount to the legislative power, the President and Senate can regulate trade; they can also declare war; they can raise armies to carry on war; and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the Constitution and must share the same fate. …
The Constitution of the U. States is a Constitution of limitations and checks. The powers given up by the people for the purposes of government had been divided into two great classes. One of these formed the state governments, and the other the federal government. The powers of the government had been further divided into three great departments; and the legislative department again subdivided into two independent branches. Around each of these portions of power were seen, also, exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the Constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the treaty-making power, rather than towards one that would make it omnipotent.
He came next to the … construction which left with the President and Senate the power of making treaties, but required at the same time the legislative sanction and cooperation in those cases where the Constitution had given express and specific powers to the legislature. It was to be presumed that in all such cases, the legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the treaty and to the circumstance of the existence of the treaty. Still, however, this House in its legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all treaties into effect, it would no longer exercise a legislative power: it would be the mere instrument of the will of another department and would have no will of its own. Where the Constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must of course do the act, because the Constitution, which is paramount over all the departments, has expressly taken away the legislative discretion of Congress. The case is essentially different where the act of one department of government interferes with a power expressly vested in another and nowhere expressly taken away. Here the latter power must be exercised according to its nature; and if it be a legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of legislative power.
It was said yesterday that a treaty was paramount to all other acts of government, because all power resided in the people, and the President and Senate, in making a treaty, being the constitutional organs of the people for that purpose, a treaty when made was the act of the people. The argument was as strong the other way. Congress are as much the organs of the people, in making laws, as the President and Senate can be in making treaties; and laws, when made, are as much the acts of the people as any acts whatever can be. …
No construction, he said, might be perfectly free from difficulties. That which he had espoused was subject to the least; as it gave signification to every part of the Constitution, was most consistent with its general spirit, and was most likely in practice to promote the great object of it, the public good. The construction which made the treaty power in a manner omnipotent he thought utterly inadmissible in a Constitution marked throughout with limitations and checks. …
Mr. Sedgwick said 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 controlling 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 that warning enforced deserved more attention than on the present occasion. …
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 the several 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 controlling 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 was not now to be inquired whether the power of treating was wisely deposited, although he was inclined to believe it could not be entrusted 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. …
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 the 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 powers and honors? 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 derived 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 enlightened American citizens; but their legislators, men to whom the real characters of the candidates would be known. They did not possess their seats in consequence of influence obtained by cajoling and deceit, practiced in obscure corners, where the means of detection were difficult if not impracticable; but they were selected from the most conspicuous theaters, where their characters could be viewed under every aspect and by those most capable of distinguishing the true from the false. 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 the treating power might not be as safely entrusted in such hands exclusively as with the participation and under the control of the more numerous branch of the legislature, elected in small districts, assailed by party and faction, and exposed to foreign influence and intrigue? Whatever merits this, as an original question, might possess, the people had decided their will. To the President and Senate they had given powers to make treaties; they had given no such powers to the House.
The original question (the call for papers) had now resolved itself into another, which alone had become the subject of discussion, to wit: whether a treaty made by the President and Senate was, although it embraced objects specifically delegated to Congress by the Constitution, a compact completely binding on the nation and Congress, so as to repeal any law which stood in its way, so as to oblige Congress (without leaving them any discretion except that of breaking a binding compact) to pass any law the enacting of which was necessary to fulfill a condition of the treaty, so as forever afterwards to restrain the legislative discretion of Congress upon the subjects regulated by the treaty; or, in other words, whether, when the President and Senate had, by treaty, agreed with another nation that a certain act should be done on our part, the doing of which was vested in and depended solely on the will of Congress, Congress lost the freedom of their will, the discretion of acting or refusing to act, and were bound to do the act thus agreed on by the treaty?
An assertion repeatedly made by the opposers of the motion that their doctrine rested on the letter of the Constitution, whilst that of those who contended for the powers of the House was grounded only on construction and implication, had not the least foundation. The clauses which vest certain specific legislative powers in Congress are positive, and, indeed, far better defined than that which gives the power of making treaties to the President and Senate; nor does the clause which declares laws and treaties the supreme law of the land decide in favor of either and say which shall be paramount. And yet some gentlemen had argued as if they meant to attend exclusively to one part of the Constitution, without noticing the other; the consequence was that many of their arguments applied with equal force in support of the opposite doctrine. Thus, when they said that there was no part of the Constitution which declared that the legislature had power to make a treaty; that, had it been intended to except legislative objects out of the general treaty-making power, an express proviso for that purpose should have been added to the clause which gives the power of making treaties; and that Congress, when making laws, were bound to obey the will of the people, as expressed by their agents the President and Senate; it might, with equal strength of argument, be replied that there was no part of the Constitution which declared that the President and Senate had power to make laws; that if it had been intended to except out of and to limit the legislative powers of Congress by the treaty-making power, an express proviso for that purpose should have been added to the clause which gives the legislative powers; and that the President and Senate, when making treaties, were bound to obey the will of the people as expressed by their agents, Congress. …
On 24 March, the resolution calling for the papers passed by a margin of 62 to 37.
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. …
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 become 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 the 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.
Mr. Blount brought forward the following resolutions:
“Resolved, That, it being declared by the second section of the second article of the Constitution, lsquo;that the President shall have power, by and with the advice of the Senate, to make treaties, provided two-thirds of the Senate present concur,’ the House of Representatives do not claim any agency in making treaties; but, that when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.
“Resolved, That it is not necessary to the propriety of any application from this House to the Executive, for any information desired by them, and which may relate to any Constitutional functions of the House, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application.”
Mr. Madison rose and spoke as follows: … When the bill for establishing a national bank was under consideration, he had opposed it as not warranted by the Constitution, and incidentally remarked that his impression might be stronger as he remembered that in the convention, a motion was made and negatived for giving Congress a power to grant charters of incorporation. This slight reference to the convention, he said, was animadverted on by several in the course of the debate, and particularly by a gentleman from Massachusetts, who had himself been a member of the convention, and whose remarks were not unworthy the attention of the committee. Here Mr. M. read a paragraph in Mr. Gerry’s speech, from the Gazette of the United States, p. 814, protesting in strong terms against arguments drawn from that source.
Mr. M. said he did not believe a single instance could be cited in which the sense of the convention had been required or admitted as material in any constitutional question. In the case of the bank, the committee had seen how a glance at that authority had been treated in this House. When the question on the suability of the states was depending on the supreme court, he asked whether it had ever been understood that the members of the bench who had been members of the convention were called on for the meaning of the convention of that very important point, although no constitutional question would be presumed more susceptible of elucidation from that source.
He then adverted to that part of the message which contained an extract from the journal of the convention, showing that a proposition “that no treaty should be binding on the United States, which was not ratified by law,” was explicitly rejected. … What did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it that, as he understood their doctrine, they must have voted as the convention did: For they do not contend that no treaty shall be operative without a law to sanction it; on the contrary they admit that some treaties will operate without this sanction; and that it is no further applicable in any case than where legislative objects are embraced by treaties. The term ratify also deserved some attention, for although of loose signification in general, it had a technical meaning different from the agency claimed by the House on the subject of treaties.
But, after all, whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in the expounding the Constitution. As the instrument came from them, it was nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking throughout the several state conventions. If we were to look, therefore, for the meaning of the instrument, beyond the face of the instrument, we must look for it not in the general convention which proposed, but in the state conventions which accepted and ratified the constitution. To these also the message had referred, and it would be proper to follow it.
The debates of the conventions in three states, Pennsylvania, Virginia, and N. Carolina, had been before introduced into the discussion of this subject, and were he believed the only publications of the sort which contained any lights with respect to it. He would not fatigue the committee with a repetition of the passages then read to them. He would only appeal to the committee to decide whether it did not appear from a candid and collected view of the debates in those conventions, and particularly in that of Virginia, that the treaty-making power was a limited power; and that the powers in our Constitution, on this subject, bore an analogy to the powers on the same subject in the government of G. Britain.
The amendments proposed by the several conventions were better authority and would be found on a general view to favor the sense of the Constitution which had prevailed in this House. … He would not undertake to say that the particular amendment referred to in the message by which two states required that “no commercial treaty should be ratified without the consent of two thirds of the whole number of Senators; and that no territorial rights &c. should be ceded without the consent of three fourths of the members of both houses” was digested with an accurate attention to the whole subject. On the other hand it was no proof that those particular conventions in annexing these guards to the treaty power understood it as different from that espoused by the majority of the House. They might consider Congress as having the power contended for over treaties stipulating on legislative subjects and still very consistently wish for the amendment they proposed. …
But said Mr. M. it will be proper to attend to other amendments proposed by the ratifying conventions, which may throw light on their opinions and intentions on the subject in question. He then read from the Declaration of Rights proposed by Virginia to be prefixed to the Constitution, the 7th article as follows:
“That all power of suspending laws, or the execution of laws by any authority without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised.”
The convention of North Carolina, as he showed, had laid down the same principle in the same words. And it was to be observed that in both conventions, the article was under the head of a Declaration of Rights, “asserting and securing from encroachment the essential and inalienable rights of the people” according to the language of the Virginia convention; and “asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people” as expressed by the convention of North Carolina. It must follow that these two conventions considered it as a fundamental and inviolable and universal principle in free governments that no power could supercede a law without the consent of the Representatives of the people in the legislature.
In the Maryland convention also, it was among the amendments proposed, though he believed not decided on, “that no power of suspending laws, or the execution of laws, unless derived from the Legislature, ought to be exercised or allowed.”
The convention of North Carolina had further explained themselves on this point by their 23rd amendment proposed to the Constitution, in the following words, “That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States.” …
It was with great reluctance, he said, that he should touch on the third topic, the alledged interest of the smaller states in the present question. He was the more unwilling to enter into this delicate part of the discussion as he happened to be from a state which was in one of the extremes in point of size. He should limit himself therefore to two observations. The first was, that if the spirit of amity and mutual concession from which the Constitution resulted was to be consulted on expounding it, that construction ought to be favored which would preserve the mutual control between the Senate and the House of Representatives, rather than that which gave powers to the Senate not controllable by and paramount over those of the House of Representatives, whilst the House of Representatives could in no instance exercise their powers without the participation and control of the Senate. The second observation was that whatever jealousy might have unhappily prevailed between the smaller and larger states, as they had most weight in one or other branch of the government, it was a fact, for which he appealed to the journals of the old Congress from its birth to its dissolution, and to those of the Congress under the present government, that in no instance would it appear from the yeas and nays that a question had been decided by a division of the votes according to the size of the states. He considered this truth as worthy of the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the states.
A fourth argument in the message was drawn from the manner by which the treaty power had been understood in both parties in the negotiations with foreign powers. “In all the treaties made we have declared and they have believed, &c.” By we he remarked, was to be understood the executive alone who had made the declaration, and in no respect, the House of Representatives. It was certainly to be regretted as had often been expressed that different branches of the government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the executive could in this case be no more an authority overruling the judgment of the House than the judgment of the House could be an authority overruling that of the executive. It was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our Constitution. But no principle was better established in the law of nations, as well as in common reason, than that one nation is not to be the interpreter of the constitution of another. Each nation must adjust the forms and operation of its own government: and all others are bound to understand them accordingly. It had before been remarked, and it would be proper to repeat here, that of all nations Great Britain would be least likely to object to this principle, because the construction given to our government was particularly exemplified in her own.
In the fifth and last place, he had to take notice of the suggestion that every House of Representatives had concurred in the construction of the treaty power now maintained by the executive; from which it followed that the House could not now consistently act under a different construction. On this point it might be sufficient to remark that this was the first instance in which a foreign treaty had been made since the establishment of the Constitution; and that this was the first time the treaty-making power had come under formal and accurate discussion. Precedents, therefore, would readily be seen to lose much of their weight. But whether the precedents found in the proceedings preparatory to the Algerine treaty or in the provisions relative to the Indian treaties were inconsistent with the right which had been contended for in behalf of the House, he should leave to be decided by the committee. A view of these precedents had been pretty fully presented to them by a gentleman from New York (Mr. Livingston) with all the observations which the subject seemed to require.
On the whole, it appeared that the rights of the House on two great constitutional points had been denied by a high authority in the message before the committee. This message was entered on the journals of the House. If nothing was entered in opposition thereto, it would be inferred that the reasons in the message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper therefore that the questions brought fairly before the committee in the propositions of the gentleman (Mr. Blount) from North Carolina should be examined and formally decided. If the reasoning of the message should be deemed satisfactory, it would be the duty of this branch of the government to reject the propositions, and thus accede to the doctrines asserted by the executive: If on the other hand this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent terms, as are proposed, to enter their opinions on record. In either way, the meaning of the Constitution would be established as far as depends on a vote of the House of Representatives.
Although the resolution reaffirming the House’s right to call for the papers passed by a margin of 57 to 35, Washington continued to withhold them. Debate then turned to the merits of the treaty. Little could be added that had not been hackneyed in the press, but the proceedings concluded with one of the most famous speeches of the decade, rendered all the more effective because the speaker, pale and garbed in black, rose from his sickbed to give it. Anticipating its delivery, many senators were in the gallery; and, according to John Adams, there were many tears. On the following morning, 29 April, Frederick Muhlenberg of Pennsylvania, who was in the chair of the committee of the whole, cast a tie-breaking vote for carrying the treaty into effect.
Mr. Fisher-Ames rose and addressed the Chair as follows:
Mr. Chairman: I entertain the hope, perhaps a rash one, that my strength will hold me out to speak a few minutes. …
It would be strange that a subject which has roused in turn all the passions of the country should be discussed without the interference of any of our own. We are men and, therefore, not exempt from those passions; as citizens and representatives, we feel the interest that must excite them. The hazard of great interests cannot fail to agitate strong passions; we are not disinterested, it is impossible we should be dispassionate. The warmth of such feelings may becloud the judgment and, for a time, pervert the understanding; but the public sensibility and our own has sharpened the spirit of inquiry and given an animation to the debate. The public attention has been quickened to mark the progress of the discussion, and its judgment, often hasty and erroneous on first impressions, has become solid and enlightened at last. Our result will, I hope, on that account, be the safer and more mature, as well as more accordant with that of the nation. The only constant agents in political affairs are the passions of men—shall we complain of our nature? Shall we say that man ought to have been made otherwise? It is right already, because He from whom we derive our nature ordained it so, and because thus made and thus acting, the cause of truth and the public good is the more surely promoted.
But an attempt has been made to produce an influence of a nature more stubborn and more unfriendly to truth. It is very unfairly pretended that the constitutional right of this House is at stake, and to be asserted and preserved only by a vote in the negative. We hear it said that this is a struggle for liberty, a manly resistance against the design to nullify this assembly and to make it a cipher in the government. That the President and Senate, the numerous meetings in the cities, and the influence of the general alarm of the country are the agents and instruments of a scheme of coercion and terror, to force the treaty down our throats, though we loathe it, and in spite of the clearest convictions of duty and conscience.
It is necessary to pause here and inquire whether suggestions of this kind be not unfair in their very texture and fabric, and pernicious in all their influences? They oppose an obstacle in the path of inquiry, not simply discouraging, but absolutely insurmountable. They will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. They are higher than a Chinese wall in truth’s way, and built of materials that are indestructible. While this remains, it is in vain to argue; it is in vain to say to this mountain, be thou cast into the sea. …
The self-love of an individual is not warmer in its sense or more constant in its action than what is called in French l’esprit de corps, or the self-love of an assembly; that jealous affection which a body of men is always found to bear towards its own prerogatives and power. I will not condemn this passion. … [T]his very spirit is a guardian instinct that watches over the life of this assembly. It cherishes the principle of self-preservation; and without its existence, and its existence with all the strength we see it possess, the privileges of the representatives of the people, and immediately the liberties of the people, would not be guarded, as they are, with a vigilance that never sleeps and an unrelaxing constancy and courage.
If the consequences most unfairly attributed to the vote in the affirmative were not chimerical and worse, for they are deceptive, I should think it a reproach to be found even moderate in my zeal to assert the constitutional powers of this assembly; and whenever they shall be in real danger, the present occasion affords proof that there will be no want of advocates and champions. …
… This, incredible and extravagant as it may seem, is asserted. … [T]he President and Senate are to make national bargains, and this House has nothing to do in making them. But bad bargains do not bind this House and, of inevitable consequence, do not bind the nation. When a national bargain, called a treaty, is made, its binding force does not depend upon the making, but upon our opinion that it is good. As our opinion on the matter can be known and declared only by ourselves, when sitting in our legislative capacity, the treaty, though ratified and, as we choose to term it, made, is hung up in suspense till our sense is ascertained. We condemn the bargain and it falls, though, as we say, our faith does not. We approve a bargain as expedient and it stands firm and binds the nation. Yet, even in this latter case, its force is plainly not derived from the ratification by the treaty-making power, but from our approbation. Who will trace these inferences and pretend that we may have no share, according to the argument, in the treaty-making power? These opinions, nevertheless, have been advocated with infinite zeal and perseverance. Is it possible that any man can be hardy enough to avow them and their ridiculous consequences? …
If we choose to observe it with good faith, our course is obvious. Whatever is stipulated to be done by the nation must be complied with. Our agency, if it should be requisite, cannot be properly refused. And I do not see why it is not as obligatory a rule of conduct for the legislature as for the courts of law. …
Shall we break the treaty?
The treaty is bad, fatally bad, is the cry. It sacrifices the interest, the honor, the independence of the United States, and the faith of our engagements to France. If we listen to the clamor of party intemperance, the evils are of a number not to be counted and of a nature not to be borne, even in idea. The language of passion and exaggeration may silence that of sober reason in other places, it has not done it here. The question here is whether the treaty be really so very fatal as to oblige the nation to break its faith? I admit that such a treaty ought not to be executed. I admit that self-preservation is the first law of society as well as of individuals. It would, perhaps, be deemed an abuse of terms to call that a treaty which violates such a principle. …
But I lay down two rules which ought to guide us in this case. The treaty must appear to be bad, not merely in the petty details, but in its character, principle, and mass. And, in the next place, this ought to be ascertained by the decided and general concurrence of the enlightened public. …
[But] what do those mean who say that our honor was forfeited by treating at all, and especially by such a treaty? Justice, the laws and practice of nations, a just regard for peace as a duty to mankind and known wish of our citizens, as well as that self-respect which required it of the nation to act with dignity and moderation—all these forbid an appeal to arms before we had tried the effect of negotiation. The honor of the United States was saved, not forfeited, by treating. The treaty itself, by its stipulations for the posts, for indemnity, and for a due observance of our neutral rights, has justly raised the character of the nation. Never did the name of America appear in Europe with more luster than upon the event of ratifying this instrument. The fact is of a nature to overcome all contradiction. …
I proceed to the second proposition which I have stated as indispensably requisite to a refusal of the performance of the treaty. Will the state of public opinion justify the deed? …
Who, I would inquire, is hardy enough to pretend that the public voice demands the violation of the treaty? The evidence of the sense of the great mass of the nation is often equivocal. But when was it ever manifested with more energy and precision than at the present moment? The voice of the people is raised against the measure of refusing the appropriations. … Is the treaty ruinous to our commerce? What has blinded the eyes of the merchants and traders? Surely they are not enemies to trade or ignorant of their own interests. Their sense is not so liable to be mistaken as that of a nation, and they are almost unanimous… .
The consequences of refusing to make provision for the treaty are not all to be foreseen. By rejecting, vast interests are committed to the sport of the winds, chance becomes the arbiter of events, and it is forbidden to human foresight to count their number or measure their extent. Before we resolve to leap into this abyss, so dark and so profound, it becomes us to pause and reflect upon such of the dangers as are obvious and inevitable… .
… Five millions of dollars, and probably more, on the score of spoliations committed on our commerce, depend upon the treaty. The treaty offers the only prospect of indemnity. … Will you interpose and frustrate that hope, leaving to many families nothing but beggary and despair? …
The refusal of the posts (inevitable if we reject the treaty) is a measure too decisive in its nature to be neutral in its consequences. From great causes we are to look for great effects. A plain and obvious one will be, the price of the Western lands will fall. Settlers will not choose to fix their habitation on a field of battle… .
On this theme, my emotions are unutterable. If I could find words for them—if my powers bore any proportion to my zeal—I would swell my voice to such a note of remonstrance it should reach every log house beyond the mountains. I would say to the inhabitants, Wake from your false security! Your cruel dangers—your more cruel apprehensions—are soon to be renewed; the wounds, yet unhealed, are to be torn open again. In the daytime, your path through the woods will be ambushed; the darkness of midnight will glitter with the blaze of your dwellings. You are a father: the blood of your sons shall fatten your corn-field! You are a mother: the war whoop shall wake the sleep of the cradle! …
By rejecting the posts, we light the savage fires—we bind the victims. This day we undertake to render account to the widows and orphans whom our decision will make; to the wretches that will be roasted at the stake; to our country; and I do not deem it too serious to say, to conscience and to God… .
… The voice of humanity issues from the shade of their wilderness. It exclaims that, while one hand is held up to reject this treaty, the other grasps a tomahawk. It summons our imagination to the scenes that will open. It is no great effort of the imagination to conceive that events so near are already begun. I can fancy that I listen to the yells of savage vengeance and the shrieks of torture. Already they seem to sigh in the west wind; already they mingle with every echo from the mountains… .
Look again at this state of things. On the seacoast, vast losses uncompensated. On the frontier, Indian war, actual encroachment on our territory. Everywhere discontent; resentments ten-fold more fierce because they will be impotent and humbled; national discord and abasement… .
I rose to speak under impressions that I would have resisted if I could. Those who see me will believe that the reduced state of my health has unfitted me, almost equally, for much exertion of body or mind. … Sinking, as I really am, under a sense of weakness, I imagined the very desire of speaking was extinguished by the persuasion that I had nothing to say. Yet, when I come to the moment of deciding the vote, I start back with dread from the edge of the pit into which we are plunging. In my view, even the minutes I have spent in expostulation have their value, because they protract the crisis and the short period in which alone we may resolve to escape it.
I have thus been led by my feelings to speak more at length than I had intended; yet I have, perhaps, as little personal interest in the event as anyone here. There is, I believe, no member who will not think his chance to be a witness of the consequences greater than mine. If, however, the vote should pass to reject and a spirit should rise, as it will, with the public disorders, to make confusion worse confounded, even I, slender and almost broken as my hold upon life is, may outlive the government and Constitution of my country.