H. OF R. Commerce with Great Britain. JANUARY, 1816. enough to meet the extreme case put by the hon- observance of it-containing nothing that interorable gentleman, when it should really and ab- fered with the municipal laws of the country-no solutely occur. And whenever Ministers, who regulation that might not be carried into immewere appointed to negotiate a treaty with a for-diate effect without legislative interference-ineign Power, would cede a State, or part of a State, volving no call whatsoever for money, and yet or any territory whatever, and that sanctioned tenaciously held up as an object of legislation, by the President and two-thirds of the Senate, he and made the subject of a bill which did little hoped to God there would always be found a re- more than re-echo it. He was as much aware deeming spirit in this House, to check at once a as the gentlemen who supported the measure, that course so enormous and unconstitutional. Mr. the treaty-making power could not, by a treaty, R. admitted, that there are, and may be treaties lawfully make war or impose taxes or encroach which this House may be bound to register, if upon those powers which the Constitution had you please to call it, and adopt as the supreme deposited in Congress; but it was no less true that law of the land; and those, in his opinion, are the Constitution declares in unequivocal terms exclusively treaties of peace, that do not require that the President may make treaties, and that no any act of legislation to carry the same into ef- restriction or limitation whatsoever, to his power fect. But, he insisted, that all treaties of com- in that respect, is specified in that instrument, merce and alliance, or those which required this which is sufficiently declaratory of the extent of House to appropriate the money of their constit- the power, inasmuch as it says that treaties made uents, did, and ought to have the sanction of Con- in the form and with the authorities already mengress before they could be viewed as complete, tioned shall be the law of the land. Some of those or "the supreme law of the land." And it was honorable gentlemen, by way of smoothing the on this ground, Mr. R. said, he was opposed in passage of the bill through the House, had argued toto to the doctrines advanced by the gentleman that it was so far at least unobjectionable, that it from South Carolina, (Mr. CALHOUN,) in favor could do no hurt, that if it did no good it could of the treaty-making power. But, said the do no harm; but Mr. H. reminded the House of gentleman, with some degree of triumph, the the eminence on which it stood; that it was comPresident of the United States has already con- posed of the assembled representatives of the nasidered the commercial treaty as complete, because tion, sent there to deliberate and to resolve upon he has published the same to the world as the law its most important concerns, and he therefore deof the land, and has merely transmitted a copy precated, as it would be a dereliction of the high of it to this House without any documents to act character of such an august assembly, their upon. Sir, said Mr. R., this Message is the strong-gravely deliberating upon nothing. He respected est evidence that can be adduced in favor of the the dignity of the body too much to give his asposition I have taken. The President of the Uni- sent to their entertaining a measure, for no better ted States knew well what he was about, and the reason, than because it was harmless. Besides, course he has taken speaks volumes on the sub- that act which now appeared so harmless, might, ject. What does the Message say, Mr. Speaker? ultimately, turn out to be very mischievous, as a It announces to us that the treaty has been duly precedent; and this violation of the Constitution, ratified, and recommends to this House to pass such in a thing no matter how trifling, might, herelaws as may be required to carry the same into after, be made the ground of a more daring eneffect. Sir, this is a treaty regulating commerce croachment. On this point, he warned the House between this country and Great Britain. The to be cautious, to guard, not only the main body, Constitution has confided the regulation of for- but the out-posts; and to reflect in due time, that eign commerce to the Congress of the United some twenty or thirty years to come, this preStates. It is a municipal law, over which this cedent might be brought forward, to the incalHouse has a right to act. I shall therefore, sir,culable injury, perhaps the ruin of the Constituvote for the bill on your table, although I do not deem it of much importance as to the validity of the treaty now under consideration, or that its passage is absolutely necessary on the present occasion, but for the purpose of recording my vote in support of the great Constitutional authority of this House. tion. be Gentlemen had said, that, on a commercial subject, no treaty could be obligatory, because the Constitution had assigned to Congress the regulation of commerce. Where then, said he, will gentlemen stop? To Congress, say they, is delegated the exclusive jurisdiction over everything. Mr. HARDIN appealed to the plain common According to their construction, therefore, the sense and intelligence of the House, whether the treaty-making power was impotent, a nullity, it bill upon which they were lavishing so much of could do nothing; it could not make peace, their time and exertions, was not entirely super-cause peace repeals war, the right of making fluous and nugatory. Here was a treaty, a con- which is delegated to Congress: and it could not tract fairly, and with full deliberation, concluded form alliances, for the same reason. But gentlebetween the lawful sovereignties of this country men, he observed, seemed not to recollect the old and Great Britain, ratified as the Constitutional logical maxim, that he who proves too much, law of the country directed, by the President, proves nothing. The President, say they, cannot with the advice of two-thirds of the Senate, and repeal the excise!-no; but the President can by the President proclaimed to the people as the make a peace without the concurrence of that law of the land, with an injunction for the due House, and fortunate it was, that he could do so. JANUARY, 1816. Commerce with Great Britain. H. OF R. Clayton, Cooper, Culpeper, Davenport, Forney, Gas- WEDNESDAY, January 10. We now, said Mr. H., feel the happy effects of that power, and conceive that a treaty of peace has been accomplished without any encroachments, or pretended encroachments on our Congressional acts. The power to treat generally, he said, was vested in the President by the Constitution but to the law of nations it was left, to determine the limitations of that power. If it be true, said Mr. H., that by the terms of the Constitution of the United States, this treaty is already the law of the land, then is the treaty guarantied by that Constitution; and yet gentlemen insist that it is not valid, and that this House ought to be consulted. By the Constitution we are forbidden to be heard in the subject, yet they will have it otherwise, and by this species of indirec-mont, praying that woollen goods (superfine broad tion, this left-handed course, bring the treaty under our legislative cognizance. Sir, I say we cannot do indirectly that which we are forbidden to do directly. Treaties might be made, no doubt, he said, for the execution of which it might be necessary to call upon the House to make laws; offensive and defensive treaties for instance, which could not otherwise be carried into effect; but when, as in the present case, the treaty was complete, and capable of executing itself, nothing of the kind was necessary. Mr. LANGDON presented a petition of Jones, Guernsey, & Co., and Billy Todd & Co., manufacturers of woollen cloths, in the State of Ver cloths excepted) may be prohibited from being imported into the United States from foreign countries, or that additional duties may be imposed upon their importation. Mr. PINKNEY presented a petition of the cotton manufacturers in the city of Baltimore, praying that the importation of all cotton goods from places beyond the Cape of Good Hope, and those of European manufacture, interfering with those manufactured within the United States, may be prohibited, or that additional duties may be laid on the importation of said articles.-Referred to the Committee of Commerce and Manufactures. Mr. PINKNEY presented a petition of sundry inhabitants of the State of Maryland, who were severally wounded while in the military service of the United States, during the late war with Great Britain, praying for pensions, or such other relief as Congress may think proper to grant.Referred to the Committee on Pensions and Revolutionary Claims. As to the instances which had been adduced of Congress being called upon to enact laws for earrying treaties into effect, he believed that there was not one of them similar to this. The case of Jay's Treaty was not. The Federalists supported that on two grounds: one that it was a good treaty; the other that, whether good or bad, it would not be consistent with the honor of the country to reject it; but it never was brought forward as this is, a re-echo of itself in the shape of a bill. And as to the cases taken from the pro- Mr. MCKEE, from a select committee, reported ceedings of the British records, the organization a bill authorizing the President of the United of that Government was in all respects so differ-States to renew the lease of John Bate to the ent from that of ours, that it was impossible to argue fairly or conclusively from the one, to the other. The question was taken on ordering the bill to a third reading, about three o'clock, and decided in the affirmative-yeas 86, nays 69, as follows: YEAS Messrs. Alexander, Archer, Baker, Barbour, Bassett, Bateman, Birdseye, Blount, Brooks, Bryan, Burnside, Burwell, Caldwell, Cannon, Clendennin, Clopton, Comstock, Condict, Conner, Crawford, Creighton, Cuthbert, Darlington, Desha, Forsyth, Gholson, Glasgow, Griffin, Hahn, Hall, Hammond, Hawes, Heister, Henderson, Hungerford, Ingham, Irwin of Pennsylvania, Jackson, Johnson of Virginia, Johnson of Kentucky, Kerr, King of Massachusetts, Lowndes, Lumpkin, Lyle, Maclay, Mayrant, McCoy, McLean of Kentucky, McLean of Ohio, Middleton, Murfree, Newton, Parris, Pickens, Piper, Pleasants, Powell, Randolph, Reynolds, Roane, Robertson, Root, Ross, Savage, Schenck, Sharpe, Sheffey, Smith of Virginia, Southard, Taul, Taylor of New York, Taylor of South Carolina, Telfair, Townsend, Tucker, Wallace, Wendover, Whiteside, Wilde, Wilkin, Williams, Willoughby, Thomas Wilson, William Wilson, and Yancey. NAYS-Messrs. Atherton, Baer, Baylies, Betts, Boss, Bradbury, Breckenridge, Brown, Cady, Calhoun, Champion, Chipman, Cilley, Clark of Kentucky, 14th CoN. 1st SESS.-18 saline near the Wabash river, for a term not exceeding seven years; which was read twice, and committed to a Committee of the Whole. Mr. PLEASANTS, from the Committee on Naval Affairs. reported a resolution requesting the President of the United States to present medals to Captain Charles Stewart and the officers of the frigate Constitution; which was read twice, and committed to a Committee of the Whole on the resolution requesting the President of the United States to present a gold medal to Captain James Biddle and the officers of the Hornet. that the Senate have passed a bill, "concerning A message from the Senate informed the House the convention to regulate the commerce between the territories of the United States and His Britannic Majesty," in which they ask the concurrence of this House. COMMERCE WITH GREAT BRITAIN. The engrossed bill to regulate the commerce of the United States, according to the Convention of Commerce concluded with Great Britain on the 3d day of July last, was read the third time, and the question was stated "Shall the bill pass ?" | Mr. EASTON said, he had intended yesterday to deliver his sentiments in relation to the subjectmatter of the bill upon which the vote of the House was about to pass; not having then been so fortunate as to gain the floor, he now had risen to advocate its passage, and, for that purpose, begged the indulgence of the House; he asked not only the indulgence but the attention of the House to the arguments he was about to urge upon the occasion. He considered the passage of the bill very important, as it regarded the powers, under the Constitution, delegated to Congress; the powers delegated to the President and Senate; the powers delegated to the courts of justice; and highly important as it regarded the rights and liberties of the people of this nation. He apprehended very injurious consequences might, at some future period, result to the nation by a contrary course. The convention being reciprocal and beneficial, it was the avowed intention and desire of all parties to carry it into effect. It had been said, by gentlemen on both sides of the House, that the convention was, of itself, the supreme law of the land, while a majority had inclined to the opinion that legislative provisions are necessary to give it force and efficiency, though some doubted as to the expediency of legislating at all upon the subject. I am of opinion, said Mr. E., that it is not a treaty until it shall have been sanctioned by the Congress of the United States, by a legislative act, to carry it into effect. The precedent about to be established, on the present occasion, was, of all others, the most favorable to the security, or pernicious in the extreme to the future liberties of the American people. What are the powers, by the Constitution, delegated to Congress? And what are those delegated to the treaty-making power? In adverting to the Constitution, it will be found that "all legislative powers are vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." "The Congress shall have power to regulate commerce with foreign nations." Surely, then, this power is not granted to any other authority. It cannot be given to two separate, distinct, and independent authorities. If it is given to Congress, it is not given to the treaty-making power, to the exclusion of Congress; it may be given to both to act in concert; it is not given to the one, to act to the exclusion of the other. This is a Government of laws; it is not a Government by compacts, by conventions, or by treaties concluded independent of the powers of Congress, in violation of the Constitution, and beyond the control of the supreme authority of the land, the sovereignty of this nation. What is the present convention? It is "a convention to regulate commerce between the territories of the United States and his Britannic Majesty;" it is then an agreement, upon the face of it, "to regulate commerce with a foreign nation." The President "has power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." It is not ordained, in this clause of the Constitution, that such trea JANUARY, 1816. ties are made "under the authority" of the United States, nor that a treaty thus made, shall "be the supreme law of the land." It would be, indeed, extraordinary, if the destinies and liberties of this nation were to rest upon the will of the treaty-forming power; I say treaty-forming power, because it is but another expression to convey a correct idea. A power composed (as the case might happen) of the Executive and thirteen Senators, a less number by far than a majority of that honorable body; a power specially given to one authority, under the Constitution, cannot be construed to be given to another; such a construction would introduce into the Government an irregularity and an inconsistency fatal to its harmony, and destructive in its consequences. The President has a qualified negative upon the laws of Congress; the Senate are a part of Congress. Is not the regulation of commerce trusted to the proper authority? Is it not in safe hands? Will you, can you, treat the authority given to Congress by the Constitution, "to regulate commerce," as a dead letter? If this construction prevails, is the treaty made without the concurrence of the President and Senate? Shall it be binding without the assent of Congress? If that assent is given, it is a treaty made under the authority of the United States. If it is withheld, it is a treaty made under the authority of the President and Senate, and not a treaty made under the authority of the United States. I should regret, and who are they that would not regret, to see the authority and destinies of this nation placed in the hands of an Executive and a Senate. If the treaty-making power possess the authority to make commercial and other regulations, they may go on regulating until they will have regulated this branch of the Government (the House of Representatives) out of its whole weight of influence upon the councils of the nation; their authority will become a mere carte blanche, to be filled up as the treaty-making power may think proper to dictate or direct. Congress may regulate commerce in one manner; the President and Senate, at their pleasure, change that regulation. It is a correct principle, that subsequent laws, inconsistent with former laws, repeal such former laws, and is a rule which cannot be controverted. It is principle as sound and potent as the eternal principles of justice. But the question to be decided is, when does a treaty become a law, when has it efficacy as such, and when shall it be binding as the supreme authority of the nation? Two separate and distinct legislative authorities, independent of each other, possessing equal power, cannot, in one and the same Government, exist together. That is, if the Executive and Senate alone can legislate, it is perfectly idle to vest the legislative authority in Congress. "A house divided against itself cannot stand." Congress divided against itself must fall. Congress have power, or they have not power, to legislate. If they do possess the whole powers of legislation JANUARY, 1816. Commerce with Great Britain. granted under the Constitution, of which there cannot be a question, it follows, as a certain and incontrovertible conclusion, that the President and Senate alone, forming only two branches of the legislative authority of this Government, acting in their Executive capacities, as necessarily they must do in negotiating treaties, do not possess authority to legislate independent of the House of Representatives, the immediate representatives of the people the people have not granted such power. H. OF R. home; to an honorable and beneficial treaty, the assent of Congress and of this honorable House is as easily obtained as that of the Senate; in ordinary legislation committees report bills, they go to different readings, according to the rules prescribed by the different branches of the Legislature, are rejected, or finally, with the approbation of the President, pass into laws, and become binding on the nation. The President has no legislative authority, strictly so speaking, and yet no bill can become a law without his assent, but by the consent of two-thirds of both Houses of Congress. It would be admitted, he presumed, that ours is the best Constitution and Government "here below;" that it is the best to be found among the There is no expression in the Constitution that nations of the earth. It may emphatically be authorizes the Senate to ratify a treaty; the phrase styled a Constitution of checks and balances; the used by the Constitution is, to make treaties. The Senate, in its legislative capacity, is a check upon question is, when shall a treaty be said to be the House of Representatives; the President upon made? Ministers and Envoys Extraordinary are the Congress. There must be a concurrence, ac-appointed and commissioned to agree upon the cording to the provisions of the Constitution, to terms of a treaty; they meet the foreign embassy form a law, and laws must be made before they in convention; they conclude a treaty. The concan be executed. On the Executive and treaty-vention with Great Britain was concluded on the making capacity of the President and Senate, the House of Representatives, with the Constitution in their hand, hold a check; a treaty cannot be come the supreme law of the land, which is inconsistent with the Constitution, or the powers delegated to Congress by the Constitution. third day of July, one thousand eight hundred and fifteen; it was then moulded. It was not then made, although in common parlance it is said to have been made. It was like dough unbaked. It will not be bread till it is baked. The treaty is forwarded to the President; if he disap"The President shall nominate, and, by and proves of it, he returns it to those who framed it; with the advice of the Senate, shall appoint Am-if he likes it, he submits it to the Senate; if they bassadors, other public Ministers and Consuls." Suppose they should appoint "swarms of officers," needless and unnecessary. The appointments are complete, the officers are made; they hold the seals of office under the authority of the Constitution; they are officers to all intents and purposes, they are commissioned under the authority of the United States, their appointments do not infringe any right or trespass upon any authority delegated to Congress, and yet, in my humble opinion, Congress would not be bound in honor, or otherwise, to sanction such a procedure by originating an appropriation bill for the outfits and expenditures of such officers. Congress are not bound, nor is the nation bound, nor are the courts of justice bound, to consider a treaty as the law of the land, until that law has been made under the authority only competent to make laws for the people of this nation, to wit: the Congress of the United States. approve of it, it is ratified; it is then said to be made. But it is not yet completed under the authority of the United States; it is only a treaty sub modo; it is not a treaty in effect. It does not become the property of the nation till it shall have received the sanction of the national consent, through the organs of the national will. The Constitution does not declare that a treaty made, by and with the advice and consent of the Senate, shall be the supreme law of the land. It does not say that a treaty so concluded, so ratified, so made, or whatsoever you may please to term it, is made under the authority of the United States. It cannot be a treaty till it shall have received the sanction of the national authority under the Constitution; when it shall have received that sanction, it is then, and not till then, a treaty made under the Constitution and under the laws of the United States, and such a treaty made under their authority, to which the judicial It has been contended that the treaty repeals power shall extend. They are treaties only made the discriminating duties, and it being concern- under the authority of the United States, which ing affairs wholly international, that the legisla- are declared to be the supreme law of the land by tive acts of this Government operate wholly in- the Constitution, and which the judges in every ternally, and cannot reach or affect the domestic State are bound to obey. For example: It might or internal regulations of the foreign nation; be said that a piece of parchment in printed form that the convention therefore is a compact, and of a commission, filled out with the name of the its subject-matter a contract to which the legis-incumbent, and sign manual of the Executive lative authority of this country cannot extend. I subscribed to it, is a commission; and yet it is admit, said Mr. E., that all treaties when completed and carried into effect by the supreme authority of a State or Kingdom, are compacts, and form a part of the law of nations, but this nation is not bound by a contract to which it has not given its assent; the Senate do not go abroad, nor do they negotiate the terms of a treaty at not a commission under the authority of the United States until the proper seal shall be thereto set and affixed in due form of law. Sir, the present convention is a commercial regulation, which interferes with the powers expressly delegated to the legislative authority, and therefore must receive the legislative sanction, the confirmation of Congress, before it can be JANUARY, 1816. the authority of the United States. The great objects in going to war are the protection of the national rights, and to secure an honorable peace. Such a peace would be acquiesced in by common consent; and the power to make peace is not a dangerous power; it is suited to the trust of the Executive alone, who would have authority, being the Commander-in-Chief of the whole military, to carry it into effect. But it is perfectly idle to talk of authority to do this, that, or the other thing, under our Constitution and form of Government, without power to carry 'that authority into effect. The power to act under the Constitution, is evidence of a right to act, and to act with effect. The Constitution should be construed to harmonize all its parts, and the construction which he had given would produce such harmony. It is unnecessary, and would be improper in Congress to legislate upon the treaty, to give it a construction that belongs to another authority, to the courts of judicature; any construction Congress might give it would not be binding upon the courts; yet every member who legislates upon a treaty must, in making up his opinion, whether to carry it into effect or not, give it his own construction, in order to form such opinion correctly. I perceive, sir, said Mr. E., by a bill now on the table, that the Senate propose to declare by act of Congress," that so much of any act or acts as is contrary to the provisions of the convention shall In the sixth article of the Constitution it is be deemed and taken to be of no force or effect." declared, that the "Constitution, and the laws of If the treaty is a law, and, as such, binding upon the United States, which shall be made in purthe nation, the passage of such a bill is wholly'suance thereof, and all treaties which shall be unnecessary, upon the principle that subsequent made under the authority of the United States, laws repeal former laws in all cases where they are shall be the supreme law of the land, and the inconsistent with each other. And why are two-judges in every State shall be bound thereby." thirds of the Senate required to make a treaty? It would appear to me that as this House have not the power to negotiate a treaty, it would be scarcely proper that it should be called upon to discuss one, that two-thirds of the Senate present would not deem beneficial and honorable to the country. If a contrary construction shall prevail, and it shall be determined that a treaty made and approved by the President and Senate is of itself the supreme law of the land, then indeed can they legislate, and then indeed can they regulate commerce; and the supreme authority will be placed in the hands of the Executive, the Senate, and the courts of justice, who may also legislate without the aid, and beyond the control of Congress, make contracts, and carry into effect treaties, however odious they may be to the people, or to their immediate Representatives. This may be, I do not say it will be, the effect of this monstrous treaty-making power. What is the authority of the United States ? The Constitution and will of the people expressed through their Representatives in the Congress of the United States; the legislative authority of the nation is that authority without which no law or treaty can become the supreme law of the land. An individual officer, a judge, a marshal, or a justice of the peace, may act under the authority of the United States, so long as he keeps himself within the pale of the Constitutional limits, and the laws of the United States enjoining the duties to be by him performed. The Constitution is the paramount law, but without the aid of Congress it becomes inoperative. A person may possess the faculty to play upon an organ, but if he has not that instrument he does not possess either the power or the means to play upon it. The President, by the Constitution, shall be Commander-in-Chief of the Army and Navy, when called into the service of the United States; but he cannot command, if there shall not be any Army or Navy called into the service of the United States. Congress may declare war; no authority is expressly given by the Constitution to make peace. If any treaty would be binding, made independent of the legislative authority, he was inclined to The judicial power shall extend to all cases believe it would be a treaty of peace, and yet this in law and equity, arising under the Constituwould only form one exception; it would be ation, the laws of the United States, and the treatreaty not against the provisions of any article of ties which shall be made under their authority." the Constitution, as the power is not delegated to If the words "under their authority" had been any other branch of the Government; it becomes omitted, their powers would not have been conthe exclusive province of the treaty-making pow-strued to extend to foreign treaties. Hence the er, and does not require a law to give it validity, judicial power cannot carry into effect a treaty or to carry it into effect; it is a treaty made under not made under the authority of the Constitution |