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JANUARY, 1816.

Commerce with Great Britain.

H. OF R.

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When we speak of concurrent powers, we mean position, that a subsequent law can repeal a when both can do the same thing; but he con- treaty; and to this proposition, he understood tended, that when the two powers under discus- that ihe member from North Carolina (Mr. Gassion were confined to their proper sphere, not Ton) assented. Strictly speaking, he denied the only the law could not do what could be done by fact. He knew that a law might assume the aptreaty, but the reverse was true; that is, they pearance of repealing a treaty; but he insisted it nerer are por can be concurrent powers. It is was only in appearance, and ihat, in point of fact, only when we reason on this subject that we mis- it was not a repeal. Whenever a law was protake; in all other cases the common sense of the posed, declaring a treaty void, he considered that House and country decide correctly. It is pro- the House acted not as a legislative body, but posed to establish some regulation of commerce; judicially. He would illustrate his ideas? If we immediately inquire, does it depend on our the House is a moral body, that is, if it is gov. will; can we make the desired regulation with erned by reason and virtue, which it must always out the concurrence of any foreign Power. If so, be presumed to be, the only question that ever it belongs to Congress, and any one would feel it could occupy ils attention whenever a treaty is to be absurd to attempt to effect it by treaty. On to be declared void, is whether, under all of the the contrary, does it require the consent of a for- circumstances of the case, the treaty is not aleign Power; is it proposed to grant a favor, to ready destroyed. by being violated by the nation repeal discriminating duties on both sides? It is with whom it is made, or by the existence of equally felt to belong to the treaty power; and some other circumstance, if other there can be. he would be thought iosane who would propose The House determines this question. Is the counto abolish the discriminating duties in any case, try any longer bound by the treaty ? Has it not by an act of the American Congress. It is cal- ceased to exist? The nation passes in judgment culated, he felt, almost to insult the good sense of on its own contract; and this, from the necessity the House, to dwell on a point appareoily so clear. of the case, as it admits no superior power to What then would be inser from what had been which it can refer for decision. If any other conadvanced? That, according to the argument of sideration moves the House to repeal a treaty, it gentlemen, treaties, produciog a state of things can be considered only in the light of a violation inconsistent with the provisions of an existing of a contract acknowledged to be binding on the law, annul such provisions. But as he did not country. A nation may, it is true, violate its agree with them in the view which they took, he contract; they may even do this under the form would here present his own for consideration of law; but he was not considering what might Why thep has a treaty the force which be attri- be done, but what might be rightfully done. It buted to it? Because it is an act in its own na- is not a question of power, but of right. Why ture paramount to laws made by the common are not these positions, in themselves so clear, legislative powers of the country. It is in fact a universally assented to ? Gentlemen are alarmed law and something more, a law established by at imaginary consequences. They argue pot as contract between independent nations. To an- if seeking for the meaning of the Constitution, alogise it to private life, law has the same rela- but as if deliberating on the subject of making tions to treaty, as the resolution taken by an in-one; not as members of the Legislature, and actdividual to his contract. An individual may ing under a Constitution already established, but make the most deliberate promise-he may swear as that of a convention about to frame one. For it in the most solemn form that he would not his part, be bad always regarded the Constitution sell his house or any other property he may have; as a work of great wisdom, and, being the instru. yet, if he would afterwards sell, the sale would ment uoder which we existed as a body, it was be valid in law; he would not be admitted in a our duty to bow to its enactments, whatever they court of justice to plead his oath against his con- may be, with submission. We ought scarcely to tract. Take a case of Government in its simple indulge a wish that its provisions should be differform, where it was purely despotic, that is, all ent from what they in fact are. The consepower lodged in the hands of a single individual. quences, however, which appear to work with so Would not his treaties repeal inconsistent ediets? much terror on the minds of the gentlemen, he

Let us now ascend from the instances cited, to considered to be without any just foundation. illustrate the nature of the two powers, to the The treaty-making power has many and powerprinciple on which the paramount character of a ful limits; and it will be found, when he came to treaty rests. A treaty always affects the inter discuss what those limits are, that it cannot deests of two; a law, only thai of a siogle nation. stroy the Constitution, our personal liberty, inIt is an established principle of politics and mo- volve us without the assent of this House in war, rality, that the interest of ite many is paramount or grant away our money. The limits he proto that of the few. In fact, it is a principle so posed to this power are not the same, it is true, radical, that without it no system of moraliiy, no but they appeared to bim much more' rational rational scheme of Government, could exist. It and powerful than those which were supposed to is for this reason that contracts, or that treaties, present effectual guards to its abuse. Lei us now which are only the contracts of independent na: consider wbat they are? The grant of the power

ons, or, to express both in two words, that plighted to make treaties is couched in the most general: faith has in all ages and pations been considered terms. The words of the Constitution are, that so solemn. But it is said, in opposition to this the President shall have power, by and with the

H. OF R.

Commerce with Great Britain.

JANUARY, 1816.

advice and consent of the Senate, to make trea- clause from inhibiting that odious traffic, yet his ties, provided two-thirds of the Senators present colleague would admit that it was intended to be concur. Io a subsequent part of the Constitu- a general prohibition on the Government of the tion, treaties are declared to be the supreme law Union. He perceived his colleague indicated of the land. Whatever limits are imposed on his dissent. It will be necessary to be more exthose general terms ought to be the result of the plicit. Here Mr. C. read that part of the Consound construction of the instrument. There stitution, and showed that the word "Congress" appeared to him but two restrictions on its exer- might be left out, in conformity to other parts of cise; the one derived from the nature of our the Constitution, without injury to the sense of Government, and the other from that of the power the clause; and he insisted ihal the plain meanitself. Most certainly all grants of power under ing of the parties to the Constitution, was, that the Constitution must be controlled by that instru- the trade should continue till 1808, and that a ment; for, having their existence from it, they prohibition by treaty would be equally against must of necessity assume that form which the ihe spirit of the instrument. Besides these ConConstitution has imposed. This is acknowledged stitutional limits, the treaty power, like all powto be true of the legislative power, and it is doubt-ers, has others derived from its object and naiure. less equally so of the power to make treaties. It has for its object contracts with foreign paThe limits of the former are exactly marked; it tions, as the powers of Congress have for their was necessary to prevent collision with similar object whatever can be done in relation to the co-existing State powers. This country is divi-powers delegated_to it without the consent of ded into many distinct sovereignties. Exact enu- foreign nations. Each in its proper sphere opermeration here is necessary to prevent the most ates with general influence; but when they bedangerous consequences. The enumeration of came erratic, then they were portentous and danlegislative powers in the Constitution has rela- gerous. A irealy never can legitimately do that tion then, not to the treaty-power, but to the pow. which can be done by law; and the converse is ers of the State. In our relation to the rest of also true. Suppose the discriminating duties rethe world the case is reversed. Here the States pealed on both sides by law, yet what is effected disappear. Divided within, we present the exte. by this treaty would not even then be done; the rior of undivided sovereignty. The wisdom of plighted faith would be wanting. Either side the Constitution appears conspicuous, When might repeal its law without breach of contract. enumeration was needed, there we find the powers It appeared to him that gentlemen are too much enumerated and exacıly defined; when not, we influenced on the subject by the example of do not find what would be vain and pernicious. Great Britain. Instead of looking to the nature Whatever, then, concerns our foreign relations; of our Government, they have been swayed in whalever requires the consent of another nation, their opinion by the practice of that Goverament belongs to the treaty power; can only be regulated to which we are but too much in the habit of by it, and it is competent to regulate all such looking for precedents. Much anxiety has resubjects; provided, and here are its true limits, cently been evinced to be independent of English such regulations are not inconsistent with the broadcloths and muslins. He hoped it indicated Constitution. If so they are void. No treaty the approach of a period when we should also can alter the fabric of our Government, nor can throw off the thraldom of thought. The truth it do that which the Constitution has expressly is, but little analogy exists between this and any forbad to be done; nor can it do that differently other Government. It is the pride of ours to be which is directed to be done in a given mode, founded in reason and equity; all others have and all other modes prohibited. For instance, the originated more or less in fraud, violence, or acciConstitution of the United States says, no money dent. The right to make treaties in England "shall be drawn out of the Treasury but by an can only be determined by the practice of that appropriation made by law.” Of course no sub. Government, as she has no written Constitution. sidy can be granted without an act of law, and a Her practice may be wise in regard to her Govtreaty of alliance could not involve the country ernment, when it would be very imprudent here. in war without the consent of this House. With Admitling the fact to be, then, that ihe Kiog rethis limitation it is easy to explain the case put fers all commercial treaties affecting the municiby my colleague, who said thai, according to one pal regulations of the country to Parliament, for limitation, a treaty might have prohibited ibe its sanction, the ground would be very feeble to introduction of a certain description of persons prove that to be the intention of our Constitution. before the year 1808, notwithstanding the clause Strong difference exists between the forms of the in the Constitution to the contrary. Mr. C. said two Governments. The King is hereditary, he that he would speak plaioly on this point; it was alone, without the participation of either House the intention of the Constitution that the slave of Parliament, negotiates and makes treaties; trade should be tolerated till the time mentioned. they have no Constitution emanating from the It covered him with confusion to name it here. people, alike superior to the Legislature and the He felt ashamed of such a tolerance, and took a King. Not so here. The President is elected large part of the disgrace, as he represented a for a short period; he is amenable to the public part of the Union by whose influence it might be opinion; he is liable to be impeached for corrupsupposed to have been introduced. Though Con tion; he cannot make treaties without the congress alone is prohibited by the words of th currence of two-thirds of the Senate, a fact very

JANUARY, 1816.
Commerce with Great Britain.

H. of R. materiał to be remembered, which body is in like or French empire ? Certainly it would. For mapper responsible to the people at periods not what are the laws of a despotic monarchy but very remote; above all, as the laws and Consti. the breath of the sovereign, call hin what you tution are here perfecily distinct, and the latter will? And was that an analogy on which to found is alike superior to laws and treaties, the treaty a construction of our Constitution, on which the power cannot change the form of Government, gentleman had bestowed so high' but not undeor encroach on the liberties of the country, with served an eulogium ? No; it was because a out encroaching on that instrument, which, so treaty made by a despotic Power will repeal the long as the people are free, will be watched with law of the land there, that a treaty made by Presvigilance.

idential authority will not repeal the law of the Mr. RANDOLPH said, when be took his seat yes- land here. To come to the gentleman's experiterday, or rather before he was qualified to iake mentem crucis, and try the strength of his arguhis seat, he had considered the bill then and nowment, that a treaty is paramount to the law of under discussion as one of perhaps as trivial a na- the land. Suppose the Treaty of Peace had conture as ever engaged the attention of this House, tained a provision for ceding away a part or the or of any legislative body. But, of this bill, it whole of South Carolina, as an equivalent for might be said, vires acquirit eundo; and of this Jamaica, for territory in India, or for Ireland. perhaps he was about to afford the House some Would the gentleman consider such a stipulation, proof, by adding his little rill to swell the torrent although in the nature of a contract, as amounting of debate to which this bill had given rise. Certo a law of the land? But, perhaps, he said, he taioly-and he koew with what suspicions such should be told that that which is paramount to declarations were generally received, but he spoke the law of the land, is not paramount to the Conit bona fide he had no intention to utter one stitution, and that the Constitution prohibits the word on the subject until he heard doctrines cession of a State or part of a State to a foreign against which he felt himself bound to enter his Power. It was unquestionably true, whatever solemn protest. He might say of this bill, as of might be his opinion, that such is not ihe universome disease, the danger was in the mode of sal opinion ; although it might perhaps be proved treatment, in the doctor, and not in the disease. by the event, that as the United States had hereHe hoped the gentleman from South Carolina tofore acquired territory by treaty, we have also would pardon him when he had heard doctrines parted with territory by treaty—as in the infrom him this day, against which he felt it his stance of Moose Island, and it may be, in the insolemn and bounden duty to enter his protest. stance of the new boundary line to be run beThere was nothing in this, he koew, to alarm tween us and Canada, that it may be so run as the gentleman, for it was the protest of a feeble to take off part of the territory which was a part isolated individual, but of an individual who of the United States-yes, a part of the good old would discharge his duty off this floor and on thirteen United States. 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 oaih 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 pature of a compact, touching the ioterests of conduct of an individual who attempis 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 gambling-table, from the bottle, from squandering confined itself to its own sphere, that of contract; his estate, &c., and the acts of Government, espeso long as it received equivalents for what is cially as those acts are affected by the acts of gave, whether real or pominal, according to the two branches of the Government' farthest regentleman's doctrine no matier--they are not moved from the people, who do not speak their to be crippled up, not to be examined; that in- sense as much as we do? Mr. R. here expressed asmuch as the interest of two nations iostead a doubt whether, from having been out of the of one, were concerned in all treaties; therefore habit of speaking and having overstrained his the treaty-making power is paramount to the voice, he had been able to make himself underlegislative power—did he or did he not under- stood. He then adverted to the observation of the stand the gentleman? It was impossible to mis- gentleman from South Carolina, that the Presiunderstand him; for, Mr. R. said, he had stated dent and Senate have an unquestionable right his positions with a precision and clearness which to put an end to the calamities of war by makleft no room for doubt-yes, that treaties, being ing a Treaty of Peace, over_which this House paramount, of course repealed the law of the could bave no control. Mr. R. agreed with that land, so far as the law of the land came into col- gentleman, that the exercise of the power to put lision with any article of a treaty which was an end to the calamities of war, was the most confined to the legitimate objects of a treaty, viz: important ever granted by a free people, except to contracts with another nation. But the hon- the exercise of the power to declare war. He orable gentleman from South Carolina bad, with agreed also with the gentleman, after Congress peculiar infelicity of illustration, drawn examples bad declared war, the President and Senate might from despotic Governments. Would a treaty by treaty restore the state of peace; but he could made by a Sultan of Constantinople or an Emot agree with the gentleman, that a treaty, alpéror of France go to repeal a law of the Turkish I though it should confine itself to what the gen

H. OF 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 during times of great turbulence or excitement, should levy an army of an hundred thousand when the best of us are under temptations, to men, and that they should be sent to the Conti- which most of us yield, of carrying our passions není to aid the British, Prussian, and Austrian and prejudices into public life. With all due arms on the plains of Waterloo--would this submission to the gentleman from South CaroHouse have been bound to raise the men ? Would lina, and to this House, Mr. R. said he did declare Congress have been bound to provide the means that the President and Senate did not and never of maintaining them? Certainly not.

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 be 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 doctrine which the gentleman had uttered on this on that occasion. He had never before heard floor-a doctrine which there was a time when it doubted, whether the Congress in passing any it would have been called highly federal doctrine; act, acted judicially or legislatively. [Mr. Cal and certainly not the less objectionable to Mr. R. Houn here made a brief explanation and state on that account, either at that time or this the ment of the extent of his position.] Mr. R. ex doctrine that, so long as they could fiod another pressed his obligation to the gentleman for hav- power to contract with, the President and Senate ing stated his argument exactly as he had at first Inight exercise a power paramount to all law, understood it. He would pui it to this House, though not to the Constitution. This was too to the nation, to every man, woman, and child dangerous a power to be given to the President in the nation. Suppose the Treaty of London and Senate under such a sweeping clause. If had been unsuspended by the truce of Amiens, this bill had passed through this House sub silentio, would the declaration of war with Great Britain if it had been carried or rejected, he should never have put an end to that treaty? It would ;-and have thought much of it; for it would never have would that act have been a judicial act, when assumed to him that aspect, which it bad done the consent of the President and Senate was ne- since this morning-since the gentleman had ascessary to our acting at all ? Did the gentleman serted, that so long as they confined themselves. mean to say, continued Mr. R., that when the to the legitimate sphere of contract, the PresiTreaty with France was repealed by an act mak-dent and Senate might exercise a power superior ing war, during Mr. Adams's administration, it to all law whatever. 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 bad, 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, fc. Go to the example, impeachment as regarded the President, Secretary of State's office, said Mr. R., if the and public opinion as regarded the Senate—and rolls be still in existence, and see in what that that the spirit of the Constitution would at all act differs from any other—the title is as plain, times meliorate the power which, in the gedilethe parchment as smooth. This act, which re- man's opinion, the President and Senate possessed pealed an existing treaty, which treaty could not of violating every law of the land. Mr. R. granted be revived after peace, unless renewed and again that this was the case, and that the first reflection ratified, differs in no respect of form or solemnity on it had caused Mr. R. himself to depreciate this from the simplest law ever made for the relief of bill below its actual importance-för he really a petitioner before this House. It does not differ had thought the House was making a great deal from any other legislative act; and you have no out of nothing, swelling a molehill into a mounjudicial power, as far as my recollection now sup- tain-until he heard the debate, when he became plies me, beyond the right to try the title to a convinced, in so far as the power of the House member's seat, and the right to expel a refractory of Representatives was important in the Constiand disorderly member.

tution 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, ibis 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.

would meet with the decided reprobation of the on the House too long; he could not, however, people of the country and their Representatives, repress the expression of his horror at the docwas another question; that the time should ever trides which had been advanced-doctrines, if come when the House of Representatives would they prevailed, subversive not only of the Constiever have the incivility to refuse to pass laws to cution of the United States, but of all free govcarry into effect such a treaty, is also another eroment whatever. 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 seose of the people of the United States, if pleasure generally to act, I owe it to them and to it please God 10 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 io 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 beard 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 pioning tion, he appeared to acknowledge a case where a the honorable gentleman down, said be, 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 bill should burn, sink, or dismantle an equal number and the Coostitution, betore 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 io de- bestower of every good gift had seen fit io imstroy all our feet, provided Great Britain would part to me. Of the opinion out of doors and of destroy an equal number of bers--this would have ihe times, I know nothing; to confess to you the required po appropriation ; it would have been truth, sir, I was afraid to recur to opinions of other wiihin 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 correci 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 il-he bad 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 be had minish; whenever a treaty went to regulate comrepresented had been found in a treaty, that a merce with foreigo 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 punishmeot 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 couatry. And this cona great part of the nation over which they preside, struction is strengthened by a part of the general such a puoishment had no terrors. Mr. R. con power given to Congress, following the enumercluded by saying, he believed he had trespassed lated powers, " to make all laws which shall be

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