JANUARY, 1816.

Commerce with Great Britain.

material to be remembered, which body is in like manner responsible to the people at periods not very remote; above all, as the laws and Constitution are here perfectly distinct, and the latter is alike superior to laws and treaties, the treaty power cannot change the form of Government, or encroach on the liberties of the country, without encroaching on that instrument, which, so long as the people are free, will be watched with vigilance.

H. OF R.

or French empire? Certainly it would. For what are the laws of a despotic monarchy but the breath of the sovereign, call him what you will? And was that an analogy on which to found a construction of our Constitution, on which the gentleman had bestowed so high but not undeserved an eulogium? No; it was because a treaty made by a despotic Power will repeal the law of the land there, that a treaty made by Presidential authority will not repeal the law of the land here. To come to the gentleman's experimentem crucis, and try the strength of his argument, that a treaty is paramount to the law of the land. Suppose the Treaty of Peace had contained a provision for ceding away a part or the whole of South Carolina, as an equivalent for Jamaica, for territory in India, or for Ireland. Would the gentleman consider such a stipulation, although in the nature of a contract, as amounting to a law of the land? But, perhaps, he said, he should be told that that which is paramount to the law of the land, is not paramount to the Constitution, and that the Constitution prohibits the cession of a State or part of a State to a foreign Power. It was unquestionably true, whatever might be his opinion, that such is not the universal opinion; although it might perhaps be proved by the event, that as the United States had heretofore acquired territory by treaty, we have also parted with territory by treaty-as in the instance of Moose Island, and it may be, in the instance of the new boundary line to be run between us and Canada, that it may be so run as to take off part of the territory which was a part of the United States—yes, a part of the good old thirteen United States.

Mr. RANDOLPH said, when he took his seat yesterday, or rather before he was qualified to take his seat, he had considered the bill then and now under discussion as one of perhaps as trivial a nature as ever engaged the attention of this House, or of any legislative body. But, of this bill, it might be said, vires acquirit eundo; and of this perhaps he was about to afford the House some proof, by adding his little rill to swell the torrent of debate to which this bill had given rise. Certainly-and he knew with what suspicions such declarations were generally received, but he spoke it bona fide-he had no intention to utter one word on the subject until he heard doctrines against which he felt himself bound to enter his solemn protest. He might say of this bill, as of some disease, the danger was in the mode of treatment, in the doctor, and not in the disease. He hoped the gentleman from South Carolina would pardon him when he had heard doctrines from him this day, against which he felt it his solemn and bounden duty to enter his protest. There was nothing in this, he knew, to alarm the gentleman, for it was the protest of a feeble isolated individual, but of an individual who would discharge his duty off this floor and on this floor, with the same zeal and perseverance But, the gentleman had said something of the as if he commanded a majority of the House at effect of a contract of an individual on an oath his beck. If he understood the gentleman, Mr. previously taken. What analogy, Mr. R. asked, R. said, he had declared that a treaty, being of the was there between the absurd and preposterous nature of a compact, touching the interests of conduct of an individual who attempts to tie himother nations than our own, it therefore follow-self up by an oath from imprudence, from the ed, that the treaty-making power, so long as it confined itself to its own sphere, that of contract; so long as it received equivalents for what it gave, whether real or nominal, according to the gentleman's doctrine no matter-they are not to be crippled up, not to be examined; that inasmuch as the interest of two nations instead of one, were concerned in all treaties; therefore the treaty-making power is paramount to the legislative power-did he or did he not understand the gentleman? It was impossible to misunderstand him; for, Mr. R. said, he had stated his positions with a precision and clearness which left no room for doubt-yes, that treaties, being paramount, of course repealed the law of the land, so far as the law of the land came into collision with any article of a treaty which was confined to the legitimate objects of a treaty, viz: to contracts with another nation. But the honorable gentleman from South Carolina had, with peculiar infelicity of illustration, drawn examples from despotic Governments. Would a treaty made by a Sultan of Constantinople or an Emperor of France go to repeal a law of the Turkish

gambling-table, from the bottle, from squandering his estate, &c., and the acts of Government, especially as those acts are affected by the acts of two branches of the Government farthest removed from the people, who do not speak their sense as much as we do? Mr. R. here expressed a doubt whether, from having been out of the habit of speaking and having overstrained his voice, he had been able to make himself understood. He then adverted to the observation of the gentleman from South Carolina, that the President and Senate have an unquestionable right to put an end to the calamities of war by making a Treaty of Peace, over which this House could have no control. Mr. R. agreed with that gentleman, that the exercise of the power to put an end to the calamities of war, was the most important ever granted by a free people, except the exercise of the power to declare war. He agreed also with the gentleman, after Congress had declared war, the President and Senate might by treaty restore the state of peace; but he could not agree with the gentleman, that a treaty, although it should confine itself to what the gen

H. or R.

Commerce with Great Britain.

JANUARY, 1816.

tleman called a contract, was paramount to law, tive or judicial, provided the precedents are taken and competent to repeal existing laws. Suppose from good Constitutional times-for he would that the Treaty of Peace had been a treaty of al-never take precedents under any administration liance, and had stipulated that the United States should levy an army of an hundred thousand men, and that they should be sent to the Continent to aid the British, Prussian, and Austrian arms on the plains of Waterloo-would this House have been bound to raise the men? Would Congress have been bound to provide the means of maintaining them? Certainly not.

doctrine which the gentleman had uttered on this floor-a doctrine which there was a time when it would have been called highly federal doctrine; and certainly not the less objectionable to Mr. R. on that account, either at that time or this-the doctrine that, so long as they could find another power to contract with, the President and Senate might exercise a power paramount to all law, though not to the Constitution. This was too dangerous a power to be given to the President and Senate under such a sweeping clause. If this bill had passed through this House sub silentio, if it had been carried or rejected, he should never have thought much of it; for it would never have assumed to him that aspect, which it had done since this morning-since the gentleman had asserted, that so long as they confined themselves to the legitimate sphere of contract, the President and Senate might exercise a power superior to all law whatever.

during times of great turbulence or excitement, when the best of us are under temptations, to which most of us yield, of carrying our passions and prejudices into public life. With all due submission to the gentleman from South Carolina, and to this House, Mr. R. said he did declare that the President and Senate did not and never had possessed the power, by any contract with a In the declaration of war, it had been argued, foreign Power, of repealing any law of the land, by the gentleman from South Carolina, that the or enacting any law in its stead. This he said, House had acted in a judicial capacity. In a was his opinion of this great Constitutional quesjudicial capacity! exclaimed Mr. R. He had tion; he had expressed it in this hasty way, unheard it, he said, in and out of this House, ques-der the excitement of the abhorrence he hoped tioned whether this House acted judiciously in the gentleman would pardon him; it had nothing declaring war, but he never heard it before sug-personal in it-of the abhorrence he felt at the gested whether or not they had acted judicially on that occasion. He had never before heard it doubted, whether the Congress in passing any act, acted judicially or legislatively. [Mr. CALHOUN here made a brief explanation and statement of the extent of his position.] Mr. R. expressed his obligation to the gentleman for having stated his argument exactly as he had at first understood it. He would put it to this House, to the nation, to every man, woman, and child in the nation. Suppose the Treaty of London had been unsuspended by the truce of Amiens, would the declaration of war with Great Britain have put an end to that treaty? It would;-and would that act have been a judicial act, when the consent of the President and Senate was necessary to our acting at all? Did the gentleman mean to say, continued Mr. R., that when the Treaty with France was repealed by an act making war, during Mr. Adams's administration, it was repealed by a judicial act? Was it possible? Mr. R. said, he was happy to find, however, Was there a man wide awake who could ad- that the gentleman had, in a degree, dissipated vance such an opinion? This House, he said, the horrid phantom which had so much alarmed acted judicially when it decided on the qualifi- not his imagination but his judgment. The gencations of a member; the Senate when it tried tleman had admitted, that there was a certain inan impeachment. But how could that be a ju- fluence-a certain Constitutional check on the dicial act which reads-Be it enacted by the Sen-President and Senate of the United States-for ate and House of Representatives, &c. Go to the Secretary of State's office, said Mr. R., if the rolls be still in existence, and see in what that act differs from any other-the title is as plain, the parchment as smooth. This act, which repealed an existing treaty, which treaty could not be revived after peace, unless renewed and again ratified, differs in no respect of form or solemnity from the simplest law ever made for the relief of a petitioner before this House. It does not differ from any other legislative act; and you have no judicial power, as far as my recollection now supplies me, beyond the right to try the title to a member's seat, and the right to expel a refractory and disorderly member.

example, impeachment as regarded the President, and public opinion as regarded the Senate-and that the spirit of the Constitution would at all times meliorate the power which, in the gentleman's opinion, the President and Senate possessed of violating every law of the land. Mr. R.granted that this was the case, and that the first reflection on it had caused Mr. R. himself to depreciate this bill below its actual importance-for he really had thought the House was making a great deal out of nothing, swelling a molehill into a mountain-until he heard the debate, when he became convinced, in so far as the power of the House of Representatives was important in the Constitution of the United States, so far as it behooves Mr. R. said he did not mean to enter into the the House of Representatives to hold the power comparison between the constitution of Great which had been conferred on them, for the naBritain and that of the United States, considering tion's good, by the nation; that, so far, this was it irrelevant. Mr. R. agreed that our Constitu- a question of importance. That the time should tion was to be found in the charter, and in the ever come when the President of the United practice under the Constitution, whether legisla- | States should dare to negotiate a treaty which

JANUARY, 1816.

Commerce with Great Britain.

H. OF R.

on the House too long; he could not, however, repress the expression of his horror at the doctrines which had been advanced-doctrines, if they prevailed, subversive not only of the Constitution of the United States, but of all free government whatever.

would meet with the decided reprobation of the people of the country and their Representatives, was another question; that the time should ever come when the House of Representatives would ever have the incivility to refuse to pass laws to carry into effect such a treaty, is also another question. I do not believe, said he, (addressing Mr. KING, of Massachusetts, spoke as follows: the Speaker,) that either of these periods will Mr. Speaker, as the vote which I shall give happen in my life time, or in yours; because I upon this bill, will differ from those which will believe, sir-I hope I am not mistaken-that the be given by those friends with whom I bave the good sense of the people of the United States, if pleasure generally to act, I owe it to them and to it please God to permit us to remain in peace myself to explain, as briefly as possible, the reathat their good sense will, in spite of all the efforts sons of that vote, leaving the general argument to swell up great standing armies, mighty navies, to others more able and willing to discuss it. heavy taxes, and to advance the glory (as it is When this subject was first started in the House; called) of the Government under which I live, in when this bill was first introduced, and it was obthe blood and misery of the people-that they will served by many gentlemen that no bill was neput an end, as they have once before put an end cessary, that the convention was already the law to such projects, the same in kind but differing in of the land, without much reflection I inclined to degree differing indeed, because infinitely below that opinion; concluding that what was already what I have seen for some time past agitated. the law of the land, could not, by any act of ours, And whether the House of Representatives de- be more the law of the land. But, sir, when, in clare with the honorable gentlemen on the other the course of debate, I heard my honorable friend side of the House, that we have the power, or from North Carolina (Mr. GASTON) speak of the with my friend from North Carolina, that we moral obligation which this House was under to have not the power or the right to pass this bill appropriate money to carry any treaty stipulation during your life-time and mine, the Constitution into effect, which might require the aid of Conwill not be violated. This bill, Mr. R. repeated, gress, and of the awful responsibility we should was not of much importance in its matter, but in incur, were we to refuse to make such appropriathe manner of its discussion. By way of pinning tion, he appeared to acknowledge a case where a the honorable gentleman down, said he, let me treaty was not complete without legislative aid, conclude the few crude remarks I have to make, and that the House might incur the responsibility by this question; suppose that a part of the con- of refusing such aid; my first impression I theretract by the late treaty had been, that each party fore thought wrong, and with the treaty, the bilk should burn, sink, or dismantle an equal number and the Constitution, before me, I was determined of ships-of-the-line, frigates, and so on-that pro- to investigate the subject attentively on its mervision would require no appropriation ;-or, sup-its, with such light, however dim, as the Supreme pose the treaty had contained a stipulation to de- bestower of every good gift had seen fit to imstroy all our fleet, provided Great Britain would part to me. Of the opinion out of doors and of destroy an equal number of hers-this would have the times, I know nothing; to confess to you the required no appropriation; it would have been truth, sir, I was afraid to recur to opinions of other within the legitimate sphere of contracts; it would times, lest they should have been produced by have been a bargain; it would have even had re- an excitement unfavorable to correct conclusions ciprocity; it would have kept the word of promise in politics. The result of my investigation on to the ear, but broke it to the hope. But then, this subject is: that whenever a treaty or consaid Mr. R., comes in the power of impeachment-vention does, by any of its provisions, encroach the great remedy; I have no idea of it-it has upon any of the enumerated powers vested by the been tried and found wanting, in the case of a Constitution in the Congress of the United States, member of the other House, and in the case of a or any of the laws by them enacted in execution high judicial officer. The power of impeachment, of those powers, such treaty or convention, after he said, appeared to him to be not the daily bread, being ratified, must be laid before Congress, and but the extreme medicine of the Constitution. such provisions cannot be carried into effect withHe had no faith in it-he had no faith in a course out an act of Congress. For instance, whenever of mercury, to restore health and vigor to that a treaty affected duties on imports, enlarging or constitution which was broken down by disease- diminishing them, as the present one did to dinor did he believe, if such a stipulation as he had minish; whenever a treaty went to regulate comrepresented had been found in a treaty, that a merce with foreign nations, as that expressly did majority of this House could have been found to with one, as the power to lay duties and the vote for an impeachment. Impeachment, Mr. power to regulate commerce are expressly given R. said, extends to loss of office, to disqualifica-to Congress, such provisions of such treaty must tion; that may be a terrible punishment to the receive the sanction of Congress before they can young and aspiring; but to those who are retiring be considered as obligatory and as part of the from the political theatre, amidst the plaudits of municipal law of this country. And this cona great part of the nation over which they preside, struction is strengthened by a part of the general such a punishment had no terrors. Mr. R. con- power given to Congress, following the enumercluded by saying, he believed he had trespassedated powers, "to make all laws which shall be

H. OF R.

necessary and proper, for carrying into execu- of the House for a moment to the few remarks 'tion the foregoing powers, and all other powers which the discussion had suggested to his mind, vested by the Constitution in the Government and which had not been noticed by those who ' of the United States, or in any department or had preceded him in the debate. Crude and in'office thereof." In other words, for carrying digested as these remarks may appear, he could into execution the treaty-making power (that be- venture to engage they would have at least the ing among the other powers) in all cases where merit of brevity. Mr. M. said, he was opposed it has been exercised on subjects, placed by the to the passage of the bill; not because he felt the Constitution within the control of the legislative least disposition to impede the execution of the department. This construction is further strength-treaty, lame and imbecile as it is, to which it reened by the concession of honorable gentlemen, lates, but because he foresaw the danger of emin one case, that where appropriations of money barrassing the other branches of the Government are necessary for carrying the provisions of any by this interference, and because he believed, as treaty into effect, there legislative provision is well from the structure of the Government, as necessary. Now, sir, to concede that the sanc- from the express provisions of the Constitution, tion of Congress is necessary in one case of enu- we could not interpose our authority in the way merated and specified power, is to concede it in contemplated by this bill, without attempting an all such cases. Nor, sir, can any serious incon- unwarrantable exercise of power not delegated to venience arise from this construction. As to ne- this House by the Constitution. It would be not gotiations with foreign Powers, our Ministers will merely an act of useless legislation, but of downalways know the peculiar structure of our Gov-right usurpation. Gentlemen had indulged themernment; nor can foreign Ministers, who may selves at great length in search of arguments to ever be sent to treat with us, be ignorant thereof. prove the inexpediency of vesting the absolute Besides, the distinction, as to the several kinds of and uncontrolled power of making treaties, in the treaties, is well known; some, respecting solely President and Senate, and had taxed their imour external relations, or the intercourse between aginations for proof of the mischiefs which might our Government and that of a foreign Power, result from the exercise of this power. Sir, we will execute themselves, or are perfect without are not at liberty to go into that inquiry. The any legislative aid; and it can instantly be deter- question is not, where ought this important premined, from the nature of the provisions, when rogative of sovereignty to be lodged? But, where legislative aid is necessary. Further, sir, your is it deposited by the Constitution? We are not Government has well understood this distinction. sitting as a convention to make such a distribuSome treaties they, by their proclamations, mere- tion of powers as we think best calculated to se⚫ly ratify and confirm, where legislative aid is ne- cure the preservation of liberty, but we are called cessary, as in the present case; others, they not upon to exercise those powers already vested in only ratify and confirm, but enjoin an observance us by the instrument which we have solemnly thereof upon all our citizens, as will be seen by sworn to support. turning to the ratification, by Mr. Jefferson, of The practice of other Governments is equally several treaties published in the seventh volume irrelevant to the present inquiry, and especially United States laws. The fear that the President of those Governments whose forms of proceeding, and Senate (they must both, or two-thirds of the and the distributions of whose powers, bear but a latter, concur) will agree with the House in pass-remote analogy to our own. Ours is a federative ing an improper law on the subject of a treaty which they had before ratified, cannot be well founded. There is much more reason to fear that they may be induced to ratify a treaty requiring legislative provision, which the House ought to refuse. Should a case of that kind occur, while I have the honor to be one of the Representatives of the people, I shall have no hesitation, with my brethren, to interpose ourselves between the Executive and the people, in the defence of their rights, or the freedom of our country. Far, then, from shrinking from what my honorable friend is pleased to call an awful responsibility, I should think it a sacred duty to meet the crisis, resist the encroachment, and leave the consequences with God. I never will consent that the House of Representatives of the people shall become a mere Parliament of Paris, to register the edicts of the President. I shall vote for the bill.

Mr. MILLS said, nothing had been further from his intention than to take a part in the present debate. But although he had bestowed but little attention to the subject, he begged the indulgence

Government, composed of distinct and separate sovereignties, and clothed with no powers, excepting those which are expressly delegated by the Constitution, or which necessarily result from them. It is an anomaly among existing Governments, and from the manner in which it was formed, Mr. M. said, he thought it might easily be shown, that it was never the intention of the convention to vest the House of Representatives with any participation in the treaty-making power.

Thirteen independent States, each possessing all the attributes of sovereignty-the power of making treaties among the rest-varying in size, in population, in wealth, and in strength, of dif ferent habits, interests, and pursuits, assemble to form a Constitution for their mutual protection and defence. The wise men to whom the accomplishment of this great object was intrusted had to contend with the prejudices of the people, and the jealousies of the States, to reconcile interests at variance with each other, and so to combine and shape them as not to sacrifice those of one section of country to the supposed advan

JANUARY, 1816.

Commerce with Great Britain.

tage of others. It was, of course, a system of compromise and conciliation-each surrendering something for the good of all.

H. OF R.

treaties." The treaty with Great Britain, now under consideration, has been made and ratified precisely in the form thus prescribed. The inIt was, therefore, for the purpose of protecting ference is, therefore, irresistible: It is the supreme the interests and guarding the rights of the States law of the land; and no power on earth can renthat the Constitution requires the assent of two- der it more obligatory. It is a compact entered thirds of the members of the Senate to the rati-into between two sovereign independent nations, fication of a treaty. It is not because the Senate acting under their respective lawful authorities; are a co-ordinate branch of the Legislature that it is perfect and complete in all its parts, has rethey are called upon to advise the President upon ceived the sanction of each party, and is prothis subject, but because they represent the sov-claimed to the world by your President, acting ereignty of the States; and in requiring the as- under the same instrument by which we hold our sent of two-thirds of the Senate, it was believed seats, not as an inchoate and incomplete act, rethat no treaty would ever be ratified unless it was quiring any further ceremony to render it valid, for the interest of two-thirds of the States. But, but as made and concluded, and already binding said Mr. M., adopt the doctrine contended for by each party to its respective stipulations. the gentlemen on the other side-admit this The inconsistencies arising out of the construcHouse to a participation of this power, and what tion of the Constitution, contended for by the adwould be the consequence? Why, sir, it would vocates of this bill, Mr. M. said, were numerous be in the power of four States only, out of the and palpable. He would instance but one or two: eighteen, now composing the Union, to defeat the By the bill, the House undertake to put a conratification of a treaty which had received the struction upon the treaty. We pass the bill and - sanction of the President and two-thirds of the send it to the Senate. That body, upon the Senate. Yes, sir, although the Senate, represent- ground that our construction is not correct, reing the respective States, might have given their fuse, by a majority of one, to pass a bill for carunanimous advice to the President, it would still rying into effect a treaty to which two-thirds be in the power of the Representatives of Mas- have already given their deliberate consentsachusetts, New York, Pennsylvania, and Vir- what would be the result? Would the treaty ginia, to prevent its being carried into effect. cease to operate, and lose its binding efficacy? Where, sir, are the rights of the respective States, Again, suppose the bill passes both the Senate so sedulously guarded by the Constitution; where and House, and your President refuses his sanc is the security of the small States; or, where the tion on the very ground that you are trenching interests of the commercial ones, if a treaty made upon his legitimate authority, and assuming a for the protection of those great objects is liable power not delegated to Congress. Where is then to be defeated by a combination of this sort? your treaty; and how stand your relations with The supposition is monstrous. No, sir. the House Great Britain? A doctrine so replete with abof Representatives have no more right to inter-surdity cannot be correct. Let us not, sir, emfere than they would have if the Constitution ploy our time in the vain effort to legislate where had required the advice of two-thirds of the Gov- we have no power and can produce no effect. Let ernors of the respective States to the confirma- each department of the Government confine itself tion of a treaty. It is the assent of the States, to the sphere in which the Constitution has placed and not of the people numerically, which was in-it. Employment enough may be found in the tended to be secured.

rightful exercise of authority, while nothing but Mr. M. said, the remarks he had already made disorder and confusion will result from its abuse. were founded principally upon the structure of Mr. M. said, it would be easy to show that the our Government, and what must have been the practice of our Government under the Constiintention of its founders. But from an examina-tution, had been conformable to the principles tion of the Constitution itself, and a comparison for which he contended; but as the hour of adof its various parts, he had been astonished that journment had arrived, and he had already tresany difference of opinion should exist upon this passed upon the patience of the House longer than subject. He should not, however, detain the he intended, he would detain them no further. House with a labored argument upon this part of the case, inasmuch as the reasoning of the honorable gentleman from Pennsylvania, (Mr. HopKINSON,) and those who had preceded him upon the same side, must have produced a conviction upon the minds of all over whom he could hope to have any influence, and must be, in his apprehension, conclusive upon all who take the Constitution for their guide. That instrument declares, that "all treaties made or to be made under the authority of the United States shall be the supreme law of the land." It expressly vests in the "President, by and with the advice and consent of the Senate, provided two-thirds of the members present concur, the power to make

Mr. REYNOLDS said he rose with some diffidence to express his opinion on the great question now before the House, particularly after the great display made by the gentlemen from South Carolina, (Mr. CALHOUN,) and from Virginia, (Mr. RANDOLPH,) who had just sat down. But whenever a great Constitutional question is involved, Mr. R. said, he would always take the liberty to deliver his sentiments while he had the honor of a seat in this House. He did not mean, however, to enter into the general discussion, which the question now assumed by the eloquence of the honorable gentleman from Virginia, (Mr. RANDOLPH,) at this late hour, but merely to state the grounds on which his opinion rested. Mr. R. said it was time