Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 1 (of 16) (part 8 of 10)

Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 1 (of 16) (part 8 of 10)

Mr. HARPER said he had no difficulty in declaring, that his own confidence in the PRESIDENT was undiminished, but he could not go so far as to pledge himself that that of all the people was so. He never, he said, had been in the habit of worshiping the PRESIDENT. He considered him as a man, not infallible, but as a wise, honest, and faithful public servant, and he was prepared in all places and situations to declare this opinion; but he was not ready to pronounce concerning the opinion of the people of the United States. Some time hence they may become unanimous in their confidence; but he could not say that it was not diminished. He was ready to declare for himself but not for others. If called upon to declare whether a majority, whether four-fifths of the people retained their confidence in the PRESIDENT, he could declare it as his opinion in the affirmative; but the clause as it stands includes the whole, and he declared as it stood could not command his vote. He concluded by expressing his intention, when it would be in order, to introduce a modification of the clause, so as to express the undiminished confidence of the House in the PRESIDENT.

Mr. PARKER, in coincidence with the wish of Mr. FREEMAN, agreed to confine his motion to striking out the word "undiminished."

Mr. SEDGWICK doubted whether, after a division of the question, and a question being taken on the first part, a modification of the second part would be in order.

The Chairman declared it in order.

Mr. SEDGWICK viewed the present motion as even more objectionable than the first; it went directly to a denial of undiminished confidence for the PRESIDENT on the part of the House and the public. There was a time, he said, when no man could have supposed that the period would have arrived, that in the popular branch of the GOVERNMENT, the confidence of the people and their Representatives in that man could have been questioned.

Having been on the committee that framed the answer, and maturely considered the subject in every part, he would mention some of the observations that occurred to his mind particularly in favor of the part now objected to. Lest in the course of them his sensibility on this subject should betray him into some warmth of expression, he begged leave to premise that he wished to wound the feelings of no man.

It was proper, he said, to inquire into facts on which the expression now objected to was grounded. Is the confidence of the people in the services, and patriotism, and wisdom of the Chief Magistrate diminished? His experience led him to say no; then, in the existing circumstances, is it not right for the Representatives to make the declaration to their constituents and the world? To suppose the people, who, at the present moment, enjoyed so many blessings under the PRESIDENT's administration, could feel their confidence in him impaired, would suppose a baseness of disposition unworthy of them and of the services he has rendered. Who could review the glorious conduct of our Chief during the conflict of the Revolution, his unwearied labors for the public good, his bravery, moderation, and humanity; who could observe him in his happy retirement, covered with glory, and accompanied by the blessings of his country; then forsaking his retirement, putting at hazard the mighty mass of his reputation, and be insensible of his services? Who could review the critical situation in which he preserved our peace and prosperity during a glorious administration of six years; who could review these things and not have his heart filled with gratitude and esteem? He expressed his belief, that, a late measure of the Executive was less the object of the dislike of some, than affording the opportunity for the vent of passions and feelings deep-rooted before.

As to the sense of the people of the PRESIDENT, he believed it unaltered, as to his immediate constituents, he was sure it was; and if so, it was the duty of the House to make the declaration to the world--a duty the House owed to themselves and their constituents, and the more binding from the nature of the Government the people had chosen.

Though the PRESIDENT had twice been called to the PRESIDENCY by the unanimous and unsolicited voice of his fellow-citizens; though in obedience to that voice he had made a sacrifice no other man would have made; though the only reward he has received for his services has been the approbation of his country, yet, nevertheless, licentious presses had lately teemed with infamous and scandalous abuse of him. Is this, he asked, consonant to the feelings of the House, and shall they not attempt to counteract its effects in the only constitutional manner? Shall they not declare their own and their constituents' confidence undiminished in that officer of the Government?

He has told the Legislature that he wishes to co-operate, to preserve unimpaired the blessings we enjoy. Does the House believe this? then is it wrong to express their confidence?

He believed, he said, that the efforts made to destroy the character of this first of men, instead of producing the mischief intended, would effect the contrary; and he also expressed his belief that the tide of his popularity at the present moment flowed with unusual strength.

It has been intimated, he observed, that sanctioning the vote of confidence, contemplated in the clause of the Address under consideration, would implicate an approbation of a late measure of the Executive, and would preclude the possibility of a free opinion when that measure might come under the consideration of the House. He declared, upon his honor, that he had no intention that the vote now contemplated should have that effect. He did not conceive, that the vote of undiminished confidence, which he now pressed, involved an approbation of all the measures of the Executive; it did not exclude the idea of fallibility; for what man is infallible? It is only implied, according to his conception, an approbation of the general tenor of the conduct of the Executive. When the House express their confidence in a public officer, they cannot mean that they believe him infallible, but only that his character, grounded on his general conduct, receives their approbation.

If, when the Chief Magistrate is attacked in the manner the PRESIDENT has been attacked, he is left to be overwhelmed with unmerited abuse; what man with talents to be useful, a reputation to be injured, or feelings to be wounded--what man will hazard all to serve an ungrateful country? It will render the station of Chief Magistrate sought only by mercenaries. If confidence is denied to the Executive, it will only create vacancies in the high offices of Government to be filled by those harpies who prey upon the vitals of the State.

Another consideration, he said, should have an influence on this occasion. The fame of the Chief Magistrate's character has filled the whole world; the Americans are particularly distinguished as a people for their uniform attachment towards him. If, at this time of day, they indirectly declare their want of confidence in that man, they will justify the malignant predictions which have been uttered against our system of Government.

These considerations, he said, had weighed on his mind. If the motion for striking out prevailed, he declared it would distress him beyond any circumstance that had occurred to him during his public life, especially at this period, and under the present circumstances of affairs. He should consider the prevalence of this motion as tantamount to a declaration, that the House and their constituents did not feel their confidence in the PRESIDENT unimpaired.

Mr. LIVINGSTON lamented the situation which the drafted Address reduced the House to; but he could not give his assent to it as it stood; he should vote for striking out the word "undiminished," if a question on it should be urged. He did not conceive himself called to a seat in the House to express opinions, much less the opinions of others, but to make laws. He felt so much the delicacy of the situation which the wording of the Address had placed the House in, that he wished the dilemma of a vote might be avoided. The gentleman last up also lamented the situation, and justly observed, that striking out the word was tantamount to a declaration that the confidence reposed in the PRESIDENT was diminished. But he begged to remind him that it was the framers of the Address, and he was one of them, that involved the House in this disagreeable situation.

He declared himself so young in the parliamentary proceedings, as not exactly to know how to avoid a question on the present motion. He declared he was not prepared to say what the opinion of his constituents concerning the PRESIDENT was. The confidence of many of them he knew was shaken; that of others was increased.

He moved, if in order, that the committee should rise, and the Address be recommitted.

This was carried, and Messrs. FREEMAN and BALDWIN added to the committee.

Adjourned.

WEDNESDAY, December 16.

THOMAS CLAIBORNE, from Virginia, appeared, produced his credentials, was qualified, and took his seat.

Address to the President.

Mr. MADISON, from the committee to whom had been recommitted the draft of the Address in answer to the PRESIDENT's Speech, brought in a report. The clause now added consisted of a modification of the clause objected to yesterday. On motion, the House went into a Committee of the Whole, Mr. MUHLENBERG in the chair. The amendment was unanimously agreed to. Mr. GILES then moved an amendment in the third line of the last paragraph. It was thus: for "the several interesting subjects which you recommended to our consideration will receive every degree of it," read of attention. The committee then rose, and the House agreed to the report.

It was then moved and agreed to, that the SPEAKER, attended by the House, do present the address, as amended, to the PRESIDENT, and that a committee should be appointed to wait on the PRESIDENT, to know where and when he will be ready to receive the Address of the House.

The same gentlemen, viz: Mr. MADISON, Mr. SEDGWICK, and Mr. SITGREAVES, who had been first appointed to draft the Address, were named for waiting on the PRESIDENT.

The committee that had been appointed to wait on the PRESIDENT, returned with notice that he would be ready to receive their Address, at his own house to-morrow at 12 o'clock.

The House then adjourned.

THURSDAY, December 17.

WADE HAMPTON, from South Carolina, and JOHN HATHORN, from New York, appeared, produced their credentials, were qualified, and took their seats.

Address to the President.

At twelve o'clock, the SPEAKER, attended by the House, waited upon the PRESIDENT OF THE UNITED STATES, and delivered to him the following Address, in answer to his Speech to both Houses at the opening of the session:

SIR: As the Representatives of the people of the United States, we cannot but participate in the strongest sensibility to every blessing which they enjoy, and cheerfully join with you in profound gratitude to the Author of all Good for the numerous and extraordinary blessings which He has conferred on our favored country.

A final and formal termination of the distressing war which has ravaged our North-western frontier, will be an event which must afford satisfaction proportioned to the anxiety with which it has long been sought; and in the adjustment of the terms, we perceive the true policy of making them satisfactory to the Indians as well as to the United States, as the best basis of a durable tranquillity. The disposition of such of the Southern tribes as had also heretofore annoyed our frontier, is another prospect in our situation so important to the interest and happiness of the United States, that it is much to be lamented that any clouds should be thrown over it, more especially by excesses on the part of our own citizens.

While our population is advancing with a celerity which exceeds the most sanguine calculations--while every part of the United States displays indications of rapid and various improvement--while we are in the enjoyment of protection and security, by mild and wholesome laws, administered by Governments founded on the genuine principles of rational liberty, a secure foundation will be laid for accelerating, maturing, and establishing the prosperity of our country, if by treaty and amicable negotiation, all those causes of external discord which heretofore menaced our tranquillity shall be extinguished, on terms compatible with our national rights and honor, with our constitution and great commercial interests.

Among the various circumstances in our internal situation, none can be viewed with more satisfaction and exultation, than that the late scene of disorder and insurrection has been completely restored to the enjoyment of order and repose. Such a triumph of reason and of law is worthy of the free Government under which it happened, and was justly to be hoped from the enlightened and patriotic spirit which pervades and actuates the people of the United States.

In contemplating that spectacle of national happiness which our country exhibits, and of which you, sir, have been pleased to make an interesting summary, permit us to acknowledge and declare the very great share which your zealous and faithful services have contributed to it, and to express the affectionate attachment which we feel for your character.

The several interesting subjects which you recommend to our consideration, will receive every degree of attention which is due to them. And whilst we feel the obligation of temperance and mutual indulgence in all our discussions, we trust and pray that the result to the happiness and welfare of our country may correspond with the pure affection we bear to it.

To the foregoing Address, the PRESIDENT was pleased to make the following reply:

GENTLEMEN: Coming as you do from all parts of the United States, I receive great satisfaction from the concurrence of your testimony in the justness of the interesting summary of our national happiness, which, as the result of my inquiries, I presented to your view. The sentiments we have mutually expressed of profound gratitude to the source of these numerous blessings--the Author of all Good--are pledges of our obligations to unite our sincere and zealous endeavors, as the instruments of Divine Providence, to preserve and perpetuate them.

Accept, gentlemen, my thanks for your declaration, that to my agency you ascribe the enjoyment of a great share of these benefits. So far as my services contribute to the happiness of my country, the acknowledgment of my fellow-citizens, and their affectionate attachment, will ever prove an abundant reward. G. WASHINGTON.

TUESDAY, December 22.

NATHANIEL SMITH, from Connecticut, appeared, was qualified, and took his seat in the House.

THURSDAY, December 24.

CHRISTOPHER GREENUP, from Kentucky, appeared, was qualified, and took his seat.

MONDAY, December 28.

ANDREW GREGG, from Pennsylvania, appeared, produced his credentials, was qualified, and took his seat.

Robert Randall--Case of Bribery.

Mr. SMITH, of South Carolina, requested the attention of the House, for a moment, to a subject of a very delicate nature. He understood that a memorial was, this morning, to be presented from some individuals, applying for a grant of a large tract of Western territory, and as the House had referred all such applications to the committee for bringing in the Land Office Bill, of which he was Chairman; and, as it was probable that the memorial, about to be presented, would be disposed of in the same manner, he conceived it a duty incumbent upon him to disclose to the House, at this time, some circumstances which had come to his knowledge. Mr. SMITH then said that, on Tuesday evening last, a person of the name of Randall called on him, requesting an hour of confidential conversation. In the interview which took place, Randall made a communication to the following effect: He intended to present a memorial, on the Monday following, to Congress, for a grant of all the Western lands lying between Lakes Michigan, Erie, and Huron, to the amount of about twenty millions of acres. He, and his associates, some of whom were Canada merchants, who had great influence over the Indians, proposed to form a company, and to undertake the extinction of the Indian title, provided Congress would cede to them the fee-simple of the land. The property would be divided into forty shares, twenty-four of which should be reserved for such members of Congress as might favor the scheme, and might be inclined to come into it, after the adjournment of Congress, on the same terms as the original associates. Randall himself had the disposal of twelve shares, for members from the Southern States, and a colleague of his, a like number for those of the Eastern States. A certain number of shares were to be the property of those Canada merchants, who had an unbounded influence over the Indians occupying those lands, and who would, if this plan succeeded, pacify those Indians, who were the most hostile to the United States; that Gen. Wayne's treaty was a mere delusion, and that, without the co-operation of those influential persons, the United States would never have peace in that quarter. Mr. SMITH said that he communicated this overture, the next morning, to Mr. MURRAY, one of the members from Maryland, requesting his advice how to proceed on so delicate an occasion; that Mr. MURRAY recommended a disclosure to Mr. HENRY, of the Senate, and that, on a consultation with those gentlemen, it was resolved that it was Mr. SMITH's duty to make an immediate communication of the matter to the PRESIDENT, which was accordingly done.

Mr. MURRAY rose next. He had received an application of the same nature, but having already heard of the proposal, "I was," said he, "in a state of preparation, and my virtue had not such a shock to encounter, as that of the gentleman last up." Mr. M. corroborated what Mr. SMITH had said as to the communication of this affair to himself. He added, that he had advised Mr. SMITH to give Randall another meeting, for the purpose of developing his schemes and expectations more fully. Mr. M. said that Mr. SMITH informed him on Wednesday morning; next day, in the morning, he informed Mr. HENRY, of the Senate. Mr. SMITH, on that day, informed the PRESIDENT. On that day (Thursday,) Mr. RANDALL was introduced to him, and asked an interview at his lodging; he gave him an appointment, at five in the afternoon. Mr. HENRY and he were together when Randall came in. Randall talked about the policy of extinguishing the Indian title to the Peninsula formed by Lakes Erie, Huron, and Michigan, containing about eighteen or twenty millions of acres of very good land; and talked in terms that he might have employed from a pulpit. He did not make any corrupt overtures, till Mr. M. had carried him into his own apartment. There Randall opened his proposals, as had been before mentioned by Mr. SMITH, observing that if Congress would sell this land to him and his company, they intended to divide it into forty or forty-one shares. Twenty-four shares were to be appropriated to such members of Congress as chose to support the memorial, which would be presented on Monday. The members were to have their shares upon the same terms on which his company should obtain the land. The Company would give five hundred thousand, or perhaps a million of dollars: but on Mr. M.'s apparent acquiescence in his views, he said that the shares would be given to the members who advocated the measure, if they pleased to accept them, after they returned to their homes. Mr. M. started a difficulty about the embarrassment of land speculations, for which he, personally, had no genius; and then Randall instantly turned out the cat, and told him that if he did not choose the share of land, he should have cash in hand for his share. Mr. SMITH and Mr. MURRAY had resolved to disclose this to the House, lest some innocent member might offer a memorial and become liable to suspicion. Randall had hinted that larger proportions would be assigned to the more active members, and lesser ones for the small fish.

The SPEAKER then rose, and expressed a wish that some gentleman would move for an order to apprehend Randall. Upon this, Mr. SMITH again rose, and said that a warrant to this effect had yesterday been issued by the PRESIDENT, and to support which Mr. S. had made oath before a magistrate to the particulars above mentioned. He hoped that by this time the person was taken.

Mr. GILES next rose, and observed that an application from the same Mr. Randall had been made to himself. Besides a repetition of some particulars already stated, he told Mr. G. that he had already secured thirty or forty members of this House, but he wanted to secure three other members, if Mr. G. recollected right. He added, that he had already secured a majority of the Senate. When this proposal was first made, which Mr. G. thought was about ten days ago, a member from New-York (Mr. LIVINGSTON) was present. Randall had even gone so far as to say, that a written agreement was drawn out, and subscribed by a number of Eastern members, and he wished Mr. G. to extend another obligation of the same kind for the Southern members; the purport of which paper was understood to be, that the members who voted in support of the disposal of the lands, were to be secured in a stipulated share of them, without having their names mentioned in the deed. Mr. G. was solicitous to learn the names of the members who had already entered into the negotiation, but Randall assured him, that, from motives of delicacy, he durst not communicate any of the names. Mr. G. then desired a sight of the agreement, that he might be able to comprehend its meaning, before he should attempt to draw any similar paper. The man called a second time, and, as Mr. G. conceived, about four days ago, but had never produced the deed or any draft of it. Mr. G. had already communicated the proposal to several members, and, in particular, to the SPEAKER.

The SPEAKER (Mr. DAYTON) mentioned, that Mr. GILES had, some time ago, informed him of the proposal. He replied, that if an opportunity offered, he would take care to select a committee consisting of members sure to detect the guilty, if any such could exist; adding that he expected the House to believe that he would not have used such words, but on so extraordinary an occasion.

Mr. CHRISTIE said, that he was the person who had introduced Randall to Mr. SMITH and Mr. MURRAY. He had long known him, as a respectable man. Randall had mentioned to Mr. C. in general, that it was a landed speculation, and hinted that he, Mr. C., might accept of a share. In reply, Mr. C. had assured him that he could not possibly have a concern in any such transaction. Randall had not, to Mr. C., insinuated that any undue advantage would accrue to members supporting the intended purchase.

Mr. BUCK, a member from Vermont, mentioned that a person of the name of Whitney, who appears to have been an associate with Randall, had called upon him in the country with a proposal of this kind.

Mr. MADISON said, that the person referred to had also called upon him, and told him of his having waited upon many members, and, among the rest, upon the SPEAKER. Mr. MADISON said, that the conversation was rather short, owing, perhaps, to the coldness with which the advances of Mr. Randall were received. Mr. MADISON had already learned, through his friend from Virginia (Mr. GILES,) the state in which the business was. He did not wish to alarm the person by too much abruptness, and, at the same time, he did not wish to give himself any unnecessary trouble about it, as he understood that it would be properly managed without his interference.

TUESDAY, December 29.

Case of Randall and Whitney.

A return was made by Mr. JOSEPH WHEATON, Sergeant-at-Arms to the House of Representatives. Mr. WHEATON stated that, agreeably to the order from the SPEAKER, he had taken into custody the bodies of Robert Randall and Charles Whitney, and kept them at the disposal of the House.

Mr. W. SMITH moved, that a Committee of Privileges, consisting of seven members, should be appointed, and instructed to consider and report with respect to the proper mode of proceeding in this case as to Robert Randall, and that the said committee shall have leave to sit immediately.

It was likewise moved that the name of Charles Whitney should be comprehended in the resolution, because he also was taken into custody. The resolution, as amended, was agreed to. Mr. BALDWIN, Mr. W. SMITH, Mr. MURRAY, Mr. COIT, Mr. GILES, Mr. LIVINGSTON, and Mr. GOODHUE, were named for a committee.

Randall was now brought in, by Mr. WHEATON, Sergeant-at-Arms, and the City Marshal. That part of the journals which refers to his conduct was read to him.

The SPEAKER then interrogated the prisoner, whether these charges were true or false? Randall replied that he was not prepared to answer. He hoped that time would be given him. The SPEAKER asked what time he wanted? He could not positively tell; perhaps till the day after to-morrow.

Mr. W. SMITH was disposed to give him the time required.

Mr. BLOUNT said, that he felt for his own dignity as a member of the House, and for the dignity of the House. To suffer the prisoner to go away from the bar till he had said guilty, or not guilty, when thirty or forty members are positively charged with such conduct, and we suffer the culprit to withdraw, without obliging him to explain, will excite public suspicion that guilt is here.

Randall was then ordered to withdraw, till the discussion should be over.

Mr. RUTHERFORD was for making him say yes or no, directly, as to the guilt. If he wants to have time for pleading any thing in mitigation of his punishment, that is a quite different affair. But the honor of the House was concerned in making him give an immediate answer to the queries now put.

Mr. HILLHOUSE was for bringing Randall forward directly. He ought not to be allowed time to think of an answer.

Mr. HARPER felt as much as any man for the dignity of the House, but this would not induce him to proceed in a hurry. Mr. H. enlarged on the danger of indulging passion on this subject. It would be wrong to force the prisoner to answer unprepared. What if he refuses to answer at all? Confession amounts, in this case, to conviction. He was for granting indulgence.

Mr. VENABLE felt as much as any man for the dignity of the House. At the same time, he felt himself above suspicion, and the House above it. He would not wish to trample on the rights of an individual. He saw no danger that could arise to the House from a short delay. He referred to what Mr. HARPER had said about the hardship of making any man convict himself.

Mr. CLAIBORNE was also against hurrying the prisoner. He recommended that coolness and moderation should distinguish the proceedings of the House.

The question was then put, whether the prisoner should be obliged to answer immediately. Ayes 42, noes 48.

It was then moved, by Mr. W. SMITH, that he should be allowed till twelve o'clock, to-morrow.

Mr. BLOUNT proposed the yeas and nays on the latter question. A member observed that they should rather have been put on the one immediately preceding. The motion was supported only by four or five members. A fifth part of the House are requisite for calling the yeas and nays.

Mr. BLOUNT then laid on the table a long resolution. It was, in substance, that before Randall was recommitted, he should be interrogated as to who were the thirty or forty members that had been gained to the scheme.

Mr. HARPER thought it extraordinary to bring a culprit before the House for contempt of it, and then encourage him to criminate members. He should ever protest against persons being brought to the bar for that purpose. He therefore moved to strike out from the resolution proposed by Mr. BLOUNT, the words: "And if you did, who are the members whom you considered as so secured; and what were your reasons for thinking them so secured?" This was the last clause of an interrogatory which Mr. BLOUNT proposed putting to Randall.

Mr. BLOUNT declared that he had never meant bringing an accuser to the bar, or propounding a question that should bring forth an accusation.

Mr. HARPER replied.

Mr. BLOUNT then modified his resolution, by striking out the exceptionable words; to which Mr. HARPER then agreed.

Mr. MURRAY called upon gentlemen by their sensibility to personal dignity, and the character of the House, to arrest the motion. Its tendency certainly was to place the honor of the House, or of a very great part of it, in the power of a man of whose profligacy of principle there could now be no doubt. Will you, he observed, permit, nay, invite him, whom you arraign at the bar of this House, to be a public accuser? Will you adopt a charge against him, which is in its nature an imputation that however lightly and wickedly made, will implicate perhaps innocent men? These men, to rescue their own reputations, will be obliged to risk their characters, on the weight of their veracity, by denying this man's charge in the face of a world but too prone to suspect. By this motion, Randall's assertion to the gentleman from Virginia, (Mr. GILES,) the only member who has mentioned it, is to be alleged against Randall as an offence. That Randall said to the gentleman that there were thirty or forty members secured, he had no doubt; but he believed the fact to be that Randall was both deceived himself and attempted to deceive the gentleman. Why, said Mr. M., the fellow told me that those thirty members were secured. Mr. M. had not thought proper to state that circumstance, because he did not so much consider it as a fact material to the detection of Randall's guilt, as it was one which, if mentioned, might possibly afford to malice an opportunity of affixing a stigma to any thirty or forty names at which personal enmity might point. No public good could result from such a disclosure; for the assertion of such a man as Randall could not, among men of honor, be deemed a sufficient ground of suspicion; and yet the malice of the world, or the rancor of personal enemies, might attach suspicion and infamy to almost the whole House, from the indefiniteness of the charge. When Randall informed him, on Thursday night, that there were thirty members who would support his measures, he had felt in the very conduct which he then was himself pursuing to detect Randall, to arrest his scheme, a principle of candor towards others, which taught him that other gentlemen to whom Randall had communicated his scheme confidentially, were probably determined as honestly as himself to crush the infamous plot against the honor of the House. He knew that he who would be wicked enough to attempt seduction, might be weak enough to use this intelligence artfully, for the purpose of leading him the more readily to accept terms of infamy; because the object was painted as easily attainable, and that Randall might wish to diminish all qualms, by exhibiting a pretended group of accomplices whose company would at least diminish the appearance of singularity. I entertained, said Mr. M., no suspicion of any man--I knew Randall to be a corrupt man from his offers to myself--I therefore placed all his intelligence to the score of flimsy art: I knew that such a man was not to be fully believed, where his interest was to magnify his success. I drew favorable auspices with respect to the corps to which I belong, from another piece of intelligence of his, which was, that he communicated to some members, one of whom he had named, and whom I knew to be a man of honor, in what he called the general way. This general way was a display of the sounder part of his scheme merely, and not the corrupt; consisting in developing the advantages which would result to the Union in the disposal of their lands, provided the harmony of the Indians could be secured. In this view of his plan he gave the subject an attitude far from unimposing; and I conceived that, as in proportion to the numbers engaged confidentially he must know that the hazard of detection increased, he would not communicate the corrupt view as long as he found the more honest part of the policy might appear to strike any gentleman as a measure useful to his country; I therefore did not believe Randall, in the sense he evidently intended; therefore, sir, I did not feel myself at liberty to mention the assertion which I conceived to be unavailing as a circumstance necessary to the example I wished to make, but which, if communicated, I thought might cast a stain, by the mystery that enveloped it, upon a body whose character ought to be held sacred to the confidence of the country. My duty was to bring Randall's attempt to corrupt unequivocally into light, not by repeating all the arts which he excited to corrupt; nor by exhibiting them in a way that might wound the feelings of men of honor, who, if charged even personally by Randall, would have no refuge from odium but in their characters and counter-assertion: this, though always conclusive with those who personally know them, is not a protection to minds of sensibility against the stings of calumny. The voice of fame is not composed from the voice of men of honor.

Mr. HILLHOUSE was convinced that there was not a gentleman in the House, whose character rested on so slender a foundation, as to be affected by any thing that this man could say. He felt no anxiety for the reputation of the House, for he knew that it was not in the smallest danger. The resolution went merely to make Randall confess that he had said so and so. It implied nothing to affect members. A man covered with infamy making such charges could not expect credit, or obtain it from any body. Mr. HILLHOUSE was, for these reasons, in favor of the resolution for interrogating Randall.

The resolution was now read, as follows:

"Resolved, That it be made a charge against the said Robert Randall, that he declared to a member of this House, that a number consisting of not less than thirty members of this House had engaged to support his memorial."

Randall was then brought to the bar. The resolution was read to him, and he was informed that he must answer it to-morrow, at 12 o'clock.

A motion for adjourning was then made. Ayes, 26; so it was lost.

It was next moved and agreed, that Whitney should be brought to the bar. The SPEAKER then said, Is this the prisoner? Answered, Yes. What is your name? Charles Whitney. What is your usual place of residence? Vermont. What are you? I was bred to the farming business. Do you know one Robert Randall? Yes. The Clerk will read to you the charge that has occasioned your being brought here. The charge, as stated in the journal of the House, was then read to the prisoner. He was next interrogated by the SPEAKER, as follows: Are you guilty, or not guilty? Not guilty. Are you ready to speak in your defence? I am ready to tell every thing. Are you prepared to do so just now? Yes. Whitney then stated that he was connected with Randall in a plan for the purchase of eighteen or twenty millions of acres of land, lying between the Lakes Erie, Huron, and Michigan. He had come to town on the design of presenting a petition to Congress, but had no knowledge of any improper kind of applications. Randall had several times called upon him at his lodgings, at the Green Tree, in North Fourth street. He considered the scheme to be of probable advantage, and a handsome thing to the United States as well as to the prisoner himself, who repeatedly observed that he would not have engaged in it, but with a view partly to his own interest. He had wished to engage influential characters in the business. He was then asked what associates he had. He answered, Colonel Pepune and Mr. Jones, of the State of Massachusetts; and Mr. Ebenezer Allen, of Vermont. He also, upon a query from the SPEAKER, mentioned the name of another person, which was not distinctly heard. He was asked if the partners meant to divide the land into forty shares. He answered forty-one; but this was only in speculation. They had only a rough idea of the extent of the land, which was inhabited by the Wyandots, and was of a very good soil. The land was to be divided among the proprietors. The prisoner knew, in general, from Randall, that he called on Mr. SMITH, and other members; but was not privy to, nor suspected any unbecoming overtures. He was then asked the names of the associates at Detroit. He mentioned Mr. Erskine, Mr. Robertson, Mr. Innes, Mr. Pattison, and Mr. Erskine, junior. He said that some of them were Indian traders, to a considerable extent. He had called at Mr. BUCK's, of Vermont, (a member of the House,) as he was riding by his house. He knew him to be a gentleman of character whose name would add credit to the business. He had told him that there were several other persons intending to be concerned, and that, if it was consistent with his situation as a member of Congress, he would be glad to have him engaged, but at the same time carefully noticed that this proposal was conditionally made, and only if it was proper. He was asked what Mr. Erskine was. He is called Judge Erskine, but whether he is now a judge, or only was one in some other part of the country, at a former period, the prisoner cannot tell. You say that you came to Philadelphia about a month ago. Why were you so long in presenting your petition? He had a bad cold, and had been sick, and wanted to make a personal explanation to the members before bringing the affair before the House. Have you got any new associates in this city? None. Mr. LIVINGSTON then proposed a question, Whether any of the shares had been left unappropriated by your associates and you? Answer: It was at his own option to dispose of shares as he pleased. He was asked if he could produce any written agreement between himself and his associates. He believed that he could, and that it would do him no harm to do so. It was at the Green Tree. But, as a matter of candor, he requested time to consider whether the production of it could hurt him or not. This ended the examination.

Mr. W. SMITH then made a motion, consisting of three points, that Whitney should be ordered to re-appear at the bar, at twelve o'clock, to-morrow; that he should be ordered to produce the bond; and that, till to-morrow, he should be remanded to the custody of the City Marshal. It was likewise recommended that, till to-morrow, the two prisoners be kept in separate apartments.

Mr. GOODHUE requested that Whitney might be ordered to withdraw; which was done. He then related that the prisoner had made an application to him at different times. Mr. GOODHUE told him that he knew very little of the Western country; he had always lived on the sea-coast, and land jobbing was quite out of his line. Whitney did not make any corrupt proposals to him. He believed that it was because he was very averse to wasting time in speaking at all on the matter.

Mr. SEDGWICK said that, as no direct charge of corruption had been made against Whitney, he apprehended it would be improper to detain him as a prisoner. It might be considered as a wanton act of arbitrary power.

Mr. BUCK then rose, and said that he had not yesterday told the whole of what passed between him and Whitney. Mr. BUCK had received offers plain enough to be understood. He might either have land, or money in lieu of it.

Mr. SEDGWICK said, that he had now no opposition to the resolutions; which were carried.

WEDNESDAY, December 30.

JOHN PAGE, from Virginia, appeared, was qualified, and took his seat.

Case of Randall and Whitney.

Mr. W. SMITH moved an amendment of the journal to this effect, that the said Charles Whitney had made overtures to Mr. BUCK, to this purpose, that he should have a share in the lands to be purchased, or in money.

Mr. NICHOLAS objected to the motion. The reading of the journal was called for. It was read.

Mr. SEDGWICK said, that the original charge against the man was complete and full. He thought the amendment unnecessary.

A petition was then presented from Randall requesting that he might be indulged with a reasonable time to make his defence, and with counsel.

Mr. W. SMITH was very ready to allow the prisoner counsel for his defence, but, in so doing, he wished it to be understood, not as a matter of right but of favor. He was apprehensive that gentlemen in proceeding from one step to another, would at last reason away the privileges of the House altogether. His friend from Massachusetts (Mr. SEDGWICK) had quoted the clause of the constitution which gave a right to have counsel in all trials for crimes; but it did not apply to this case, any more than the clause which immediately followed it, declaring that all trials for crimes should be by a jury of the vicinage, and after presentment by a grand jury. The present inquiry was of a special and peculiar nature, resulting from the rights and privileges which belonged to every Legislative institution, and without which such institution could not exist. As every jurisdiction had certain powers necessary for its preservation, so the Legislature possessed certain privileges incident to its nature, and essential for its very existence. This is called in England the parliamentary law; and as from that law are derived the usages and proceedings of the several State Legislatures, so will the proceedings of this House be generally guided by the long-established usages of the State Legislatures. There would be a manifest absurdity in conforming the proceedings in this case to the ordinary proceedings at law in jury trials, for the House, instead of being able to protect itself, would be altogether dependent on the other branches of the Government, and in every case of aggression be obliged to send the offenders to the civil magistrate. If there was any weight in such reasoning as had been heard, then the House would have to tread back all the unconstitutional steps they had been taking, and to discharge, without delay, both the prisoners; for the arrest by the Sergeant-at-Arms, under the SPEAKER's warrant, was only justifiable on the ground he had mentioned, namely, the inherent and indispensable power of self-preservation. That the House possessed power to arrest had not been denied; but the power of commitment was incident to that of arrest, and if it possessed both these high powers, it must of consequence possess the necessary incident of trial or inquiry, in regulating which the House was only to be governed by its own wisdom and discretion. On this occasion Mr. S. said he felt, as he trusted every member did, a proper respect for the rights of individuals brought to the bar, as well as for those of the House, and he hoped that their conduct would be marked with discretion and temper; but, willing as he was to grant the prayer of the petitioner, he could not suffer the argument which had been relied on, to pass unanswered. This was the first instance, since the organization of this Government, in which it had been found necessary to resort to this high prerogative; it was right, therefore, that the principles on which it was founded should be well understood, and that the privileges of the House should stand unimpaired.

Mr. SEDGWICK moved that the prayer of the petition should be granted, and that Randall be allowed till to-morrow, to be heard at the bar.

The petition was again read.

Mr. CHRISTIE had known Randall for many years, and had never heard of any thing against him before. He had lately been at Detroit, and Mr. C. believed that he had been injured by keeping bad company. He was not the first man in the country who had been corrupted by British influence and British company. He moved that Randall should be allowed till to-morrow at twelve o'clock. This was negatived.

The SPEAKER then said, that, if agreeable to the House, he would send for Randall, and inquire what time he wanted. This was done; Randall came in, and asked till Saturday, but as the House does not sit on Saturday, Friday was appointed.

The bond or agreement between the intended purchasers of the land was then read. It was dated at Detroit, the 26th of September last. Allen, Whitney, and Randall, were to have the disposal of 36 shares out of 41.

THURSDAY, December 31.

RICHARD WINN, from South Carolina, appeared, was qualified, and took his seat.

Case of Randall and Whitney.

Mr. BALDWIN, the chairman of the Committee of Privileges, reported, in part, on the subject of the further proceedings to be had in the case of R. Randall and C. Whitney, in substance as follows:

1. That a further hearing of R. Randall should be held at the bar; that the information given by members against the said Randall be reduced to writing, signed by the informants respectively, and entered at large on the journals; that the said information should be read to the prisoner, and he be asked by the SPEAKER what he had to say in his defence. If the prisoner should desire to produce any parole evidence to exculpate himself, the same shall be heard at the bar, and the Judge of the District of Pennsylvania be requested to attend to administer an oath or affirmation to the witnesses on the part of the prisoner; that the SPEAKER shall put all questions to the witnesses. When any debate should arise, that the prisoner and his counsel be directed to withdraw; and, when he has concluded his defence and withdrawn, that the sense of the House be taken on the guilt or innocence of the prisoners, respectively.

Mr. MADISON was of opinion that no citizen can be punished without the solemnity of an oath to the fact. Of consequence, it is needful to the information of members, if the punishment of a fellow-citizen is implicated. Perhaps it may be urged that members, having taken an oath to support the constitution, this supersedes the necessity of an oath in the present case.

Mr. GALLATIN thought it reasonable that members should be liable to be questioned upon oath. That there was no precedent for it, had little weight. There are many absurdities in the law of nations which gentlemen would not wish to introduce here.

Mr. SWIFT was against the members being subject to this regulation. The case was quite novel to him. But this was, at first view, his way of thinking. Suppose that some person in the gallery were to commit an insult on the House, before the whole members, would it be necessary that they should all swear to the offence before proceeding to punish it? This Mr. S. regarded as a parallel case.

Mr. THATCHER made a distinction when an offence had been committed in presence of the whole House, and when committed out of their view. In the former case, there could not be any use for evidence being sworn, because the whole House had the testimony of their senses. It was different when the circumstances occurred in another place; and Mr. T. was convinced that the charge ought to be sworn to. The passage under amendment was in these words: "That it should be reduced to writing;" and the dispute was about adding the words, "and sworn to." Mr. T., though for examining the members on oath as to the charge against Randall, was opposed to the amendment as useless, because the members must, in his opinion, be sworn when Randall is brought to the bar. The mere declaration of a prosecutor, not under oath, and of a defendant in the same situation, is equally exceptionable. A phrase had been repeatedly used which Mr. T. did not understand. It was said that a member was entitled "to stand up in his place" and give information so and so. With the meaning of this expression Mr. T. was unacquainted, nor did he know any law which authorized the imprisonment of a fellow-citizen on a mere charge unsupported by oath. He did not see the use of the amendment, but he was clearly satisfied that members ought to be examined and sworn touching their accusations, as well as any other persons.

Mr. NICHOLAS was not, in this instance, for departing from the principles of common law. Instead of supporting the dignity of the House, about which so much has been spoken, he was afraid that, by arrogating too much on the side of privilege, they might lessen their dignity. He declared, upon his honor, that he thought the gentlemen concerned should, for their own sakes, insist on being cross-examined by the prisoner and his counsel. To be cross-examined implies no reflection on a witness. The imperfection of human nature requires such a precaution, and were Mr. N. a party, he would insist on being cross-examined. The proposed amendment would narrow the business too much. It would be better to lay it aside, and let the members be, as above proposed, subject to cross-examination from the prisoner.

Mr. MADISON said, that when Randall came to the bar he would possibly save all this trouble, by confessing his guilt, and casting himself on the mercy of the House. He mentioned an anecdote of a judge who had been publicly insulted. He informed his brethren of the bench, and, on his complaint, the offender was apprehended. When he was brought before the court the oath was administered to the judge. Mr. M. related this story to show the propriety of every accusation being sworn to, whatever may be the rank or situation of the accuser.

MONDAY, January 4.

Presentation of the Flag of France.

The SPEAKER informed the House, that a Message was ready to be delivered to the House, of a nature calculated to give the most pleasing satisfaction to every American breast. He suggested to the House, and the citizens in the galleries, the propriety of not suffering the fervor of enthusiasm to infringe on the dignity of the Representative Councils of the United States. He recommended that a respectful silence should be observed, as most compatible with the true dignity of the House, and the honor of the magnanimous Republic that was the subject of the Message.

The PRESIDENT's Secretary was then introduced, with an American officer bearing the Standard of the French Republic,[62] sent by the Committee of Public Safety, Organ of the National Convention, as a token of friendship to the United States. The Secretary presented a Message in writing from the PRESIDENT, with sundry papers accompanying it, to the SPEAKER, by whom they were read as follows:

_Gentlemen of the Senate, and of the House of Representatives:_

A letter from the Minister Plenipotentiary of the French Republic, received on the 22d of the last month, covered an Address, dated the 21st of October, 1794, from the Committee of Public Safety to the Representatives of the United States in Congress; and also informed me that he was instructed by the committee to present to the United States the Colors of France. I therefore proposed to receive them last Friday, the first day of the new year, a day of general joy and congratulation. On that day the Minister of the French Republic delivered the Colors, with an Address, to which I returned an answer. By the latter, the House will see that I have informed the Minister that the Colors will be deposited with the archives of the United States. But it seemed to me proper previously to exhibit to the two Houses of Congress these evidences of the continued friendship of the French Republic, together with the sentiments expressed by me on the occasion in behalf of the United States. They are herewith communicated.

G. WASHINGTON.

UNITED STATES, January 4, 1796.

[TRANSLATION.]

The Representatives of the French People, composing the Committee of Public Safety of the National Convention, charged by the laws of the 7th Fructidor, with the direction of Foreign Relations, to the Representatives of the United States of America in Congress assembled:

Citizens Representatives: The connections which nature, reciprocal events, and a happy concurrence of circumstances, have formed between two free nations, cannot but be indissoluble. You have strengthened those sacred ties by the declarations, which the Minister Plenipotentiary of the United States has made, in your name, to the National Convention, and to the French people. They have been received with rapture by a nation who know how to appreciate every testimony which the United States have given to them of their affection. The Colors of both nations, united in the centre of the National Convention, will be an everlasting evidence of the part which the United States have taken in the success of the French Republic.

You were the first defenders of the rights of man in another hemisphere. Strengthened by your example, and endowed with an invincible energy, the French people have vanquished that tyranny, which, during so many centuries of ignorance, superstition, and baseness, had enchained a generous nation.

Soon did the people of the United States perceive that every victory of ours strengthened their independence and happiness. They were deeply affected at our momentary misfortunes, occasioned by treasons purchased by English gold. They have celebrated with rapture the successes of our brave armies.

None of these sympathetic emotions have escaped the sensibility of the French nation. They have all served to cement the most intimate and solid union that has ever existed between two nations.

The citizen ADET, who will reside near your Government in quality of Minister Plenipotentiary of the French Republic, is specially instructed to tighten these bands of fraternity and mutual benevolence. We hope that he may fulfil this principal object of his mission, by a conduct worthy of the confidence of both nations, and of the reputation which his patriotism and virtues have acquired him.

An analogy of political principles; the natural relations of commerce and industry; the efforts and immense sacrifices of both nations in the defence of liberty and equality; the blood which they have spilled together; their avowed hatred for despots; the moderation of their political views; the disinterestedness of their councils; and especially, the success of the vows which they have made in presence of the Supreme Being, to be free or die; all combine to render indestructible the connections which they have formed.

Doubt it not, citizens, we shall finally destroy the combination of tyrants. You, by the picture of prosperity, which, in your vast countries, has succeeded to a bloody struggle of eight years; we, by the enthusiasm which glows in the breast of every Frenchman. Astonished nations, too long the dupes of perfidious Kings, Nobles, and Priests, will eventually recover their rights, and the human race will owe to the American and French nations their regeneration and a lasting peace.

Paris, 30th Vindemaire, 3d year of the French Republic, one and indivisible.

The Members of the Committee of Public Safety.

J. S. B. DELMAS, MERLIN (of Douai) &c.

OCTOBER 21, 1794.

* * * * *

[TRANSLATION.]

Mr. President: I come to acquit myself of a duty very dear to my heart; I come to deposit in your hands and in the midst of a people justly renowned for their courage and their love of liberty, the symbol of the triumphs and of the enfranchisement of my nation.

When she broke her chains; when she proclaimed the imprescriptible rights of man; when, in a terrible war, she sealed with her blood the covenant she had made with Liberty, her own happiness was not alone the object of her glorious efforts; her views extended also to all free people. She saw their interests blended with her own, and doubly rejoiced in her victories, which, in assuring to her the enjoyment of her rights, became to them new guarantees of their independence.

These sentiments which animated the French nation from the dawn of their revolution, have acquired new strength since the foundation of the Republic. France, at that time, by the form of its Government, assimilated to, or rather identified with, free people, saw in them only friends and brothers. Long accustomed to regard the American people as her most faithful allies, she has sought to draw closer the ties already formed in the fields of America, under the auspices of victory, over the ruins of tyranny.

The National Convention, the organ of the will of the French nation, have more than once expressed their sentiments to the American people; but above all, these burst forth on that august day, when the Minister of the United States presented to the National Representation the Colors of his country. Desiring never to lose recollections as dear to Frenchmen as they must be to Americans, the Convention ordered that these Colors should be placed in the hall of their sittings. They had experienced sensations too agreeable not to cause them to be partaken of by their allies, and decreed that, to them, the National Colors should be presented.

Mr. President, I do not doubt their expectations will be fulfilled; and I am convinced that every citizen will receive, with a pleasing emotion, this flag, elsewhere the terror of the enemies of liberty, here the certain pledge of faithful friendship; especially when they recollect that it guides to combat, men who have shared their toils, and who were prepared for liberty by aiding them to acquire their own.

P. A. ADET.

* * * * *

The Answer of the President of the United States to the Address of the Minister Plenipotentiary of the French Republic, on his presenting the Colors of France to the United States:

Born, sir, in a land of liberty; having early learned its value; having engaged in a perilous conflict to defend it; having, in a word, devoted the best years of my life to secure its permanent establishment in my own country; my anxious recollections, my sympathetic feelings, and my best wishes, are irresistibly excited, whensoever, in any country, I see an oppressed nation unfurl the banner of freedom. But, above all, the events of the French Revolution have produced the deepest solicitude, as well as the highest admiration. To call your nation brave, were to pronounce but common praise. Wonderful people! Ages to come will read with astonishment the history of your brilliant exploits! I rejoice that the period of your toils and of your immense sacrifices is approaching. I rejoice that the interesting revolutionary movements of so many years have issued in the formation of a constitution designed to give permanency to the great object for which you have contended. I rejoice that liberty, which you have so long embraced with enthusiasm; liberty, of which you have been the invincible defenders, now finds an asylum in the bosom of a regularly organized Government; a Government, which being formed to secure the happiness of the French people, corresponds with the ardent wishes of my heart, while it gratifies the pride of every citizen of the United States by its resemblance to their own. On these glorious events, accept, sir, my sincere congratulations.

In delivering to you these sentiments, I express not my own feelings only, but those of my fellow-citizens, in relation to the commencement, the progress, and the issue of the French Revolution; and they will cordially join with me in purest wishes to the Supreme Being, that the citizens of our sister Republic, our magnanimous allies, may soon enjoy in peace, that liberty which they have purchased at so great a price, and all the happiness which liberty can bestow.

I receive, sir, with lively sensibility, the symbol of the triumphs and of the enfranchisement of your nation--the Colors of France--which you have now presented to the United States. The transaction will be announced to Congress, and the Colors will be deposited with those archives of the United States, which are at once the evidences and the memorials of their freedom and independence. May these be perpetual, and may the friendship of the two Republics be commensurate with their existence.

GEORGE WASHINGTON.

UNITED STATES, January 1, 1796.

When the reading of the Message and papers had been concluded--

Mr. GILES informed the House that, having been aware that the flag would be presented to the House this day, considering it as an additional testimony of the affection of France, and it having been the practice on analogous occasions for the House to express their sentiments independent of the other branch, he had prepared a resolution expressive of what he conceived would be their sense on the occasion. It was nearly in the words following:

"Resolved, That the PRESIDENT OF THE UNITED STATES be requested to make known to the Representatives of the French people, that this House has received, with the most lively sensibility, the communication of the Committee of Public Safety, of the 21st of October, 1794, accompanied with the Colors of the French Republic, and to assure them that the presentation of the Colors of France to the Congress of the United States is deemed a most honorable testimony of the existing sympathy and affections of the two Republics, founded upon their solid and reciprocal interests; that the House rejoices in the opportunity of congratulating the French Republic on the brilliant and glorious achievements accomplished under it during the present afflictive war, and that they hope those achievements will be attended with a perfect attainment of their object, the permanent establishment of the liberty and happiness of that great and magnanimous people."

Mr. PARKER moved an amendment as follows: "That this House has received with the most sincere and lively sensibility," &c. The amendment was for inserting the two words in italics, to which the House consented. The Message was then voted unanimously, and a thousand copies of the communications and resolution were ordered to be printed. A committee of two members was appointed to wait on the PRESIDENT, and inform him of the resolution agreed to by the House.

Case of Randall and Whitney.

Pursuant to the proceedings of the House on Friday last, Mr. SMITH, of South Carolina, Mr. MURRAY, of Maryland, Mr. GILES, of Virginia, and Mr. BUCK, of Vermont, delivered in at the Clerk's table their several informations in writing, subscribed with their names, respectively, in the cases of Robert Randall and Charles Whitney; which are as follow:

Mr. MURRAY declares, that, on Wednesday last, the twenty-third instant, Mr. Smith, member of Congress, of South Carolina, informed him that a man of the name of Randall, of Maryland, had, the evening before, attempted to bribe him in Western lands, on condition of his supporting an application which Randall told him he should soon make to Congress; the object of which application was, a grant from Congress of from eighteen to twenty millions of acres of land, between Erie, Huron, and Michigan. That Mr. Smith was extremely solicitous that some other gentleman should immediately be informed of the infamous proposal, and that he said he would mention it to Mr. Henry, of the Senate, and advise with him upon proper measures for the detecting of the full extent of the scheme, and crushing it: That he had no opportunity of talking to Mr. Henry on that day; but early on the morning of the twenty-fourth instant, communicated the intelligence to Mr. Henry, who recommended that Mr. Smith should immediately inform the President: that on the said day, Mr. Randall, of Maryland, was introduced to him, the informant, and requested a confidential interview at his, the informant's lodgings, which the informant readily promised him, to be at five, for the purpose of developing his scheme. That Randall came at or near five, that day last named, to wit: on Thursday, and communicated to Mr. Henry and himself, in general terms, the outline of a plan by which he, Randall, and his Canada friends, would extinguish the Indian title to all the lands between Lakes Erie, Huron, and Michigan, as marked on a map which Randall then showed, containing from eighteen to twenty millions of acres. That he, the informant, then asked Randall into his apartment, where they were alone. That Randall expatiated at first upon the public utility of his scheme, which was that Congress should grant to him and his company all the lands aforesaid mentioned, for five hundred thousand, or, at most one million of dollars; and that he would undertake, in four months, that the harmony of the Indians should be secured to the Union: or, if Congress thought proper, that the Indian tribes now on said land should be removed to the British side, or down Lake Michigan, reserving to some aged chiefs a few miles square; that his company and himself had determined to divide the lands aforesaid into forty (or forty-one) shares. That of these shares twenty-four were to be reserved for the disposal of himself and his partner, now in town, for such members of Congress as assisted them, by their abilities and votes, in obtaining the grant aforesaid. That of these twenty-four shares, his partner had twelve under his management for the Eastern members of Congress, and that he, Randall, had the other twelve shares under his management for the Southern members of Congress. That these shares were to be so divided as to accomplish the object by securing a majority of Congress. That the informant started an objection to land speculation as troublesome, and that he, Randall, said, if you (meaning the informant) do not choose to accept your share of the land, you shall have cash in hand for your share. That the informant appointed Randall to meet him in the lobby of the House, on Monday, the twenty-eighth instant. That Randall told him a memorial was to be handed in upon this subject on said Monday; but refused to inform the informant what member was to present it. That Randall told him, that he, Randall, mentioned his plan to some members in the general way only--meaning thereby, as he understood him, a view of the sounder part of the plan, as being conducive to public utility. That, in the early part of the confidential and secret conversation, Randall said, that the members of Congress who would behave handsomely, should come into their shares on the same terms upon which the company obtained the grant; but soon after, made proposals more openly seductive and corrupt; closing them with the offer of cash in hand as aforesaid. That the informant, on that evening, when Randall went away, told Mr. Henry of the whole of Randall's offers as aforesaid; then called on the Secretary of State, and communicated the same to him; and the next morning, early, informed the President of the transaction.

W. V. MURRAY.

DECEMBER 29, 1795.

[Mr. William Smith, of S. Carolina, Mr. William B. Giles, of Virginia, Mr. Buck, of Vermont, and afterwards, Mr. Sedgwick, of Massachusetts, severally gave in statements corroborating that of Mr. Vans Murray.]

It was then moved that Robert Randall should be brought to the bar of the House. He was brought in accordingly. Seats were placed for the Judge of the District of Pennsylvania, and the two counsellors for Randall, Mr. Lewis and Mr. Tilghman, jr. The informations given in by Mr. W. SMITH, Mr. MURRAY, and Mr. GILES, were read over, and the SPEAKER asked the prisoner, what he had to say in his defence? I am not guilty. You declare yourself not guilty? Yes. Have you any proof to cite that you are not guilty? No. Are you ready to answer?

Mr. Lewis[63] then rose. He observed, that these declarations had been made in the absence of the prisoner, who, as he conceived, was entitled to have been present. His request was, that the informants might now be placed in a situation to be examined by the prisoner and his counsel, and that the information may now be given in the prisoner's hearing. The prisoner and his counsel were ordered to withdraw.

Mr. JEREMIAH SMITH made the following motion:

"That the prisoner be informed, that if he has any questions to propose to the informants, or other members of the House, he is at liberty to put them, (in the mode already prescribed,) and that they be sworn to answer such questions as shall be asked, and that the informants be sworn to the declarations just read."

The words in parenthesis were an amendment suggested by Mr. GILES. The resolution and amendment were adopted by the House, and the prisoner with his counsel were again brought to the bar. The resolution above stated was read to Randall.

Mr. W. SMITH, Mr. MURRAY, and Mr. GILES, were then sworn, standing up in their places: the oath being administered by the Judge.

Mr. Tilghman[63] then observed on the delicate situation in which the counsel stood, with which they were strongly impressed. The high character of the gentlemen who stood forth in support of the accusation, gentlemen whom Mr. T. had known personally for many years, with the odious nature of the crime charged on the prisoner, embarrassed them considerably; as they had, however, been permitted by the House to appear in this business, they were bound in duty to do every thing consistent with a fair and honorable defence. If Mr. T. were to declare his own opinion of the conduct of the prisoner, it would be thus, that his behavior was highly improper and indelicate; but Mr. Randall denied having made any offer either of lands or money, as in fact he had none to give. The disposal of the lands depended entirely on the subsequent vote of Congress.

Mr. Lewis spoke a few words. The prisoner's defence was, that he denied any proposal of a corrupt nature. The members who favored the sale of the lands, were only to have their shares on the same terms, and on paying an equal share of the expenses, as the other partners.

Mr. W. SMITH was then examined upon that part of his information where he says, that those members who should be concerned with Randall, were to have shares of the lands. Mr. SMITH was asked whether the offer was that they were to be granted at an inferior rate? In reply, he understood it was to be on the same terms as other partners were to have them. Mr. GOODHUE proposed a query, whether the offer made by Mr. Randall was in order that Mr. SMITH might use his influence to forward the scheme in Congress? Mr. SMITH replied, that he certainly understood it so. The prisoner had all along referred to members of Congress, though he did not expressly name them. His phrase was, "for persons who would favor the scheme."

Mr. Tilghman then, through the SPEAKER, asked Mr. MURRAY whether he understood he was to pay for his share of land as the other associates or not?

Mr. MURRAY.--I understood him as is explained in the declaration. At first I understood, that the members who should assist in getting the thing through, might then retire to their homes, and when the scheme was in activity they might come in on the same terms as the original associates. But afterwards, I understood from Randall that I might have a share if I would accept of it, and this I understood from the whole tenor of the latter part of his conversation. The shares set apart were to be for acceptance as donations. I so understood him.

Mr. Tilghman.--Did he expressly say, that they were intended as donations, or did Mr. MURRAY collect this to be the man's meaning from a variety of circumstances?

Mr. MURRAY.--He did not say, if you will do so and so, I will give you so and so; his proposal, though more delicate, was as unequivocal as a direct offer. I so understood him.

Mr. HARPER asked Mr. MURRAY, whether Randall did not tell him, that if he did not like land, he should have money, and whether the money was not to be more than the value of the share of land?

Mr. MURRAY said, that from this part, and indeed the general tenor of the conversation, he did infer, that a donation was intended, and when he objected to land, the prisoner then said, if he did not choose to accept of a share in land, he might have cash in hand.

Mr. Lewis, counsel for the prisoner, asked Mr. MURRAY, whether he did not state to Randall his aversion to dealing in land, and whether Randall did not say that this need not be an objection, since the share might be sold, and then that he would have cash instead of land?

Mr. MURRAY.--I did not so understand it.

Mr. HARPER wished Mr. MURRAY to relate, as nearly as possible, the words of the prisoner in this important part of the conversation.

Mr. MURRAY said, that immediately after it took place, and he had communicated it to his friends, he took notes of it. It stood in this manner: "I stated objections to land speculations as troublesome: Randall then said, if I did not choose land, I might have cash in hand."

Mr. Tilghman asked, whether Mr. MURRAY did not, to get the man's whole secret from him, go beyond his views to draw him on?

Mr. MURRAY said, he affected to think well of the more sound part of the plan.

Mr. Tilghman asked what Mr. MURRAY expressed to Randall when it was proposed to him to engage in the land scheme?

Mr. MURRAY.--A strong repugnance to land speculations.

Mr. Lewis.--Then it was, he said, that if it was not convenient for Mr. MURRAY to be concerned in a share in land, he might have it in money?

Mr. MURRAY.--Yes.

Mr. S. SMITH was next sworn. There was here a motion made for adjourning.

Mr. Lewis stated that Mr. Tilghman and himself had never seen the prisoner until yesterday in the evening. They had been in Court until late on Saturday evening. They went yesterday to prison, and back again this morning. They had received a long written state of the case from Mr. Randall, but, from absolute want of time, they had not been able to read one third part of it. The motion to adjourn was negatived.

Mr. S. SMITH was then proceeding with his evidence, when Mr. SEDGWICK rose. He considered it as unfair to examine Mr. SMITH in order to prove the information given by other gentlemen. It was totally inapplicable. The offences were as distinct as any two things could be.

Mr. BLOUNT moved to put this question, whether any conversation passed between Mr. S. SMITH and Randall, which had an appearance of intending to corrupt the integrity of members of this House.

Mr. SEDGWICK objected, that this was deviating from the original specific motion. Mr. GILES was of an opposite opinion. Mr. MADISON thought the motion proper, in the strictest sense. The charge was general; and the answer to the question might be of a nature to corroborate that general charge. After a few words from some other members, the motion was carried.

Mr. SMITH, of Maryland, then on oath stated in substance as follows:

That on the 9th or 10th, Randall, whom he had known in Maryland, called on him and asked half an hour's conversation with him. He said he had a plan in view, that would be to the advantage of the United States, and turn to his own private emolument.

Randall informed Mr. S., that he was last year at New York, that he thence went to Detroit to explore the country on Lakes Erie, &c., that he contracted an acquaintance with certain influential characters with whom he had formed an association to procure the lands in question. He mentioned the outlines of the plan and dwelt on the public advantages that would arise from it. He indirectly insinuated that gentlemen in Congress who chose to be interested in the plan might have a portion of the land in contemplation. He asked Mr. S. to fix a day when he should enter more particularly into a detail of the business. Mr. S. fixed Saturday following, and then retired into the room where his fellow-lodger was, and told him that some great land-business was on foot and that he believed he might make his fortune. On Sunday Randall came with a map on which he explained the position of the land and expatiated on the richness of the soil. He detailed the particulars of the project which Mr. S. related as has been heretofore stated with some little variations. He enlarged upon the public advantages to the United States if the purchase was allowed. He said, he would be glad if Mr. S. would embark in the undertaking, and give the plan his countenance; but, that, if he did not choose to so do, it could be accomplished without his assistance, as a decided majority of both Houses were agreed to support it. Mr. S. asked him, whether in the Senate? he said, yes. He asked him for names; he objected to mentioning any. Randall explained, that members who were most active were to have larger shares, and such as only gave their assent, smaller; Mr. S. understood that he might have one of the larger. No money was offered as a temptation to engage, but he fully understood that every gentleman was to pay his full proportion of the price. He stated to Mr. S., that it would save the United States much in men and money to have the scheme accomplished, and added, that if Congress desired it, he could remove the Miami Indians to the other side of the lakes. Mr. S. asked him what he proposed should be offered for the lands. He said, that would remain in the breasts of the gentlemen in Congress. Mr. S. asked whether one dollar an acre could be afforded, he objected to that as by far too much. Mr. S. mentioned twenty-five cents, that was too much. Mr. S. then suggested that he supposed two and a half cents were contemplated. Randall answered, that if Congress fixed this price it would be well so. He offered no direct bribe to Mr. S., but proposed to take such members into the scheme at first cost as chose to embark in it. Mr. S. asked him who was to offer his memorial. He mentioned a gentleman of great weight in the House.

Mr. SMITH, of South Carolina, asked the date of this conversation.

Mr. SMITH, of Maryland, answered, on the Sunday following the 10th, which must have been the 13th.

Mr. Lewis, through the SPEAKER, asked Mr. S., of Maryland, whether Randall had not said, that he had actually a majority in favor of his scheme; or, that he expected to get a majority?

Mr. SMITH, of Maryland, understood that he had a majority, and on this ground, he said to Mr. S. that his co-operation was not absolutely necessary.

The prisoner was remanded, and the House adjourned.

TUESDAY, January 5.

Case of Robert Randall.

After disposing of the morning business--

Robert Randall was then brought to the bar, attended by his two counsel; the Judge of the District of Pennsylvania likewise took his seat, as yesterday, at the Clerk's table. The SPEAKER then addressed the prisoner as follows: "Robert Randall, this is the day and hour, to which your farther examination was postponed; you are now at liberty to proceed with your defence."

Mr. GILES then moved that Mr. CHRISTIE should be sworn. This was done. The member then stated that he had been at Philadelphia, about the month of October last. He met with Mr. Randall, who made up to him, and observed that he had this summer been in Canada. He had missed the object for which he went; but he had met with another which he thought would prove advantageous. He at first advised Mr. Randall to apply to the Secretary of State. Mr. Randolph had just then resigned his office; and no other person was appointed in his stead. Mr. C. then advised him to lay the affair before the PRESIDENT. When he came back to town at the sitting down of Congress, Randall came again to him, and said that by good advice he had altered his plan. He complained that Mr. C. was the only member who had not been ready to assist him. A considerable majority of the House of Representatives were secured to the scheme. Mr. C. said, that he never would advise Congress to sell their lands under a dollar per acre; and as Mr. Randall wanted the lands so much cheaper, he must in the course of his duty oppose the plan. Mr. C. inquired who were his advisers. He answered, that Mr. Whitney had told him that Mr. SEDGWICK recommended this way of proceeding, and was to draw up a memorial to be laid before the House upon the subject.

Mr. SEDGWICK finding his name thus unexpectedly introduced, wished to be allowed to give oath in order that he should tell all he knew.

The oath was administered to Mr. SEDGWICK, who gave information to the following effect: He had never in his life seen Randall, till he was produced at the bar. Whitney he had seen two or three times. The Mr. Jones mentioned by Whitney, in his declaration lives within about thirty-four miles of Mr. SEDGWICK's house. Whitney, with Mr. Jones, came, a considerable time ago, to him one morning, while he was at breakfast. They asked his opinion; which was, that Government would not sell any lands, till the Indian claim was first extinguished. Mr. Jones endeavored to convince Mr. SEDGWICK of the benefits which would result to the United States from this sale. Mr. SEDGWICK accompanied them to the door of his house, where Mr. Jones asked him whether there would be any thing improper in a member of the Legislature being concerned in such a purchase? Mr. SEDGWICK said, that this would depend entirely on the mode of application. If it was to the Land Office, there would be nothing wrong in it; if to Congress, then it would be a man making a bargain with himself. Whitney, since Mr. SEDGWICK came to town, had called two or three times on him. He got his servant for more than once to deny him, as he was busy. Once, however, he did see him; the first question of Mr. SEDGWICK was, from what State did he come? He said he resided in Vermont. He then spoke of the matter in a general way; and Mr. SEDGWICK, whose object it was to shake him off, advised his calling on Mr. BUCK, a member from that State, as it would be more proper to call on him. Mr. SEDGWICK believed that he was more teazed with applications of this private kind than any member in the House. During the conference with Whitney, he did not remember that Randall's name was ever introduced. Mr. SEDGWICK heard, with astonishment, the name of Colonel Pepune mentioned. He lived opposite to Mr. SEDGWICK's house, in the town of Stockbridge. He rode down from that place to New York, along with Mr. SEDGWICK, and never spoke one word of the matter to him.

Randall had, among other stories, told Mr. SAMUEL SMITH that Mr. WM. SMITH should bring forward this land business, in the House. He positively said so to Mr. S. SMITH on the 13th of December, and it would be proved that he had never exchanged a word with Mr. W. SMITH, nor ever seen him till the 22d of that month, viz: about nine days after. This is the substance of a short explanation which took place between some of the members, after Mr. SEDGWICK had ended his declaration. Mr. W. SMITH then asked Randall, whether it was not true, that he spoke to Mr. SAMUEL SMITH before he spoke to himself? Mr. Tilghman, in reply, said that he was authorized to answer in the affirmative. This puts to rest the story related by Randall to the member from Baltimore.

WEDNESDAY, January 6.

Case of Robert Randall.

Mr. SEDGWICK laid before the House some additions to his evidence, delivered yesterday. He gave in a written copy of the whole, and wished that it might be added to the declaration already made. The paper was read, and, on motion, ordered to be inserted in the journals. Mr. SEDGWICK said he had yesterday mentioned Col. Pepune being in Philadelphia, but he had not seen him. He has since done so. The Colonel lodges at the sign of the Drover, in Third street, and is ready, when called upon by the House, to tell every circumstance which he knows about the transaction of Randall or Whitney.

Mr. W. SMITH submitted, whether it would be proper to proceed any farther in the case of Randall, till some hearing had been given to Whitney.

It was then moved by a member that the case of Randall should be postponed. After some conversation as to the point of order, the motion was negatived.

Mr. HARPER then read two resolutions. Of the first, the following is the substance:

"Resolved, That any attempt to influence the conduct of this House, or its members, on subjects appertaining to their Legislative functions, by motives other than the public advantage, is a high contempt of this House, and a breach of its privileges."

The second resolution was, in substance, that Randall having committed such an offence, was guilty of such a contempt, &c.

Mr. HARPER thought it proper, before deciding as to Randall, to lay down certain principles, and decide whether the offence was in itself criminal or not, before determining the conduct of the prisoner.

Mr. KITCHELL thought these resolutions unnecessary. The only thing before the House was to call on the prisoner, and pronounce him either innocent or guilty.

Mr. HARPER, in defence of his resolutions, said, that one misfortune attending privileges was, that they could not be exactly defined; but, as far as they could be ascertained, it was the business of the House to do so. If this offence is a breach of privilege, we are entitled to declare it such, that the people of the United States may be informed that it is so.

Mr. W. SMITH could not conceive how any member would vote against this first resolution. If we refuse to say that the act itself is a crime, how can we condemn Randall as criminal? We are, in every sense of the word, bound to vote for the proposition. We have declared the attempt of Randall to be a high offence and contempt. If any member thinks it not so, then, to be sure, he will vote against it. Mr. SMITH said that Legislative bodies had frequently, while a prisoner was on trial before them, laid down rules to guide them, previous to their pronouncing sentence. A former member had suggested that it was better to make the resolution a preamble to the sentence, and introduce it with a whereas. As it stands at present, it is agreeable to what had been done already.

Mr. NICHOLAS hoped that members were not to be bound by any thing yet done. At the first embarking of the House in this affair, he had felt doubts. His scruples had gradually augmented, and he was now of opinion that Randall should not have been meddled with at all, in the present way. The right of privilege had been given up, unless in cases of absolute necessity. He did not think that any resolution had yet passed the House, upon due consideration, whether they had a right to proceed or not. Mr. NICHOLAS recommended lenity, rather than a parade of integrity, where there was no ground of suspicion--a parade which would not have been made if there had been any real danger.

Mr. WILLIAMS thought the resolutions altogether unnecessary. The principle is already entered on the journals. All that the House have to do is to declare Randall guilty or not.

Mr. HILLHOUSE agreed with Mr. WILLIAMS, but he was astonished at the doctrine held up by the gentleman from Virginia. We had been told yesterday, at the bar, that the offence is not punishable by the common law. We are not to do so by privilege. The consequence is, that an attempt to corrupt members cannot be punished at all. It would not be proper to tell this to the public. Any body may then come here and bid for votes.

Mr. HILLHOUSE thought that the counsel yesterday had fairly given up the point, for they admitted that improper violence without doors was a breach of privilege. Mr. H. argued that this was as great a violence as could be. He was for inflicting a punishment.

Mr. LIVINGSTON thought the wording of the first clause too broad. Any member spoken to without doors might come into the House and complain of a breach of privilege on trifling grounds.

Mr. GILES would not at present enter into the question whether there had been a breach of privilege or not. From any thing yet seen, he was doubtful. He was against the preamble. Privilege was of an insinuating nature. Mr. LIVINGSTON had taken up a thought which occurred to Mr. GILES. Any man meeting on the street a member of this House, may say to him, "Sir, by voting for such a thing in the House, you will destroy your popularity in your district." This argument was not on motives of public good, and a member might by this resolution be warranted to come into the House and complain of it as a breach of privilege. He wished for the previous question, which was taken, and by a great majority the resolution was negatived.

Mr. LIVINGSTON then read two resolutions. Their tenor was, that it appears to this House that Robert Randall has been guilty of a contempt and a breach of the privileges of this House, by attempting to corrupt the integrity of its members, in the manner laid to his charge, and that Randall should be called up to the bar, reprimanded by the SPEAKER, and recommitted to custody, till further orders from this House.

On the first resolution the yeas and nays were called for--yeas 78, nays 17.

After some conversation, the second resolution was likewise agreed to.

Randall was then brought to the bar, and in a few words reprimanded by the SPEAKER. To call his offence indiscretion, impropriety, or indelicacy, was too mild a name. His conduct was crime. His apparent ignorance of the nature and extent of his guilt had induced the House to be more indulgent than they otherwise would have been. The SPEAKER informed him that he was recommitted to custody till further orders from the House.

THURSDAY, January 7.

Case of Charles Whitney.

Mr. WHITNEY was now brought in. The SPEAKER addressed him as follows: "Charles Whitney, the information lodged against you on the journals of the House will now be read to you by the Clerk." This was accordingly done.

Mr. WHITNEY was next asked at what time he would be ready to proceed with his defence? He replied that he thought he could be ready to go on just now, if he had counsel. If he could get them to-morrow, he should be glad to go on then, in order to get the thing over. If counsel could not be got, he would request a delay till Monday. He was sure Mr. BUCK had mistaken his meaning. He was told that he would be called on again to-morrow, and if he had not been able to obtain counsel then, there was a probability of his being allowed a delay till Monday.

Mr. BOURNE stated the hardship of obliging the prisoner to fee counsel; no probability existing of any thing farther being brought against him. There was but little in the charge, admitting it to be true. Mr. B. made a distinction of the conversation having passed in Vermont, not in Philadelphia. It was before Mr. BUCK came to Congress at all.

Mr. GILES had yesterday expressed but little satisfaction at the mode of conducting this business, nor had his satisfaction been since augmented by further reflection. He read a motion, which was seconded, for dismissing Whitney immediately. Admitting all which stood charged, Mr. GILES did not consider it as containing any breach of privilege.

Mr. W. SMITH regarded this resolution as premature; he wished to have the regular forms of trial gone through, as in the other case. When the trial was finished, the House could then decide on the guilt or innocence of the prisoner. He thought that Mr. BUCK ought to be sworn. When the offer was made in Vermont, he was looked upon as a member of Congress, and the temptation which had been held out to him was a contempt of the House. There was not yet a sufficient explanation to justify his discharge.

Mr. HILLHOUSE supposed corruption to be equally criminal in Vermont as in Philadelphia. It would commit the dignity of the House to say that we have kept a man in jail for a week, and then have dismissed him without a trial. It implies that we never had any right to arrest him. Mr. H. had not formed his ultimate opinion on the subject. He wished the trial to be gone through, and then, if the prisoner proved innocent, dismiss him. He had made application to a member in this town, besides Mr. BUCK in Vermont. [Mr. GOODHUE, on whom Mr. Whitney called, after he came to Philadelphia.]

Mr. BUCK objected to the immediate dismission of Whitney. It struck him as an impropriety to dismiss the prisoner by an unqualified resolution. It would be better to state, as a reason, that the attempt to corrupt the integrity of a member had happened in Vermont, before the sitting down of Congress. Then let the question come forward and be tried.

Mr. SEDGWICK had, more than was usual with him, avoided speaking on this question. He early entertained an idea that an application to a member of Congress, before it sat, was not a breach of privilege. It was an unfortunate circumstance when the same persons were to be both judges and parties. People were apt to get into a passion when one came to them and said, "I consider you as rascals, and I want to purchase a portion of your rascality."

Mr. MADISON said, it appeared to him that the House could have no privileges, unless what arises from the necessity of the case. He differed from the opinion formed by the House, but he wished them to act in conformity to their own principle. The object at present before the House is, to keep its members free from corruption. Whether a proposal is made in town or country, if we dismiss names and circumstances, and look only to the substance of the thing, there is no distinction between the two cases.

Mr. PAGE said, that if the motion for dismissing had come on a week ago, he would have voted for it. He wished to get rid of the matter as fast as possible. He alluded, though not in direct terms, to the idea of Mr. Lewis, that it would have been better to have kicked some people down stairs, than to have made them objects of prosecution.

Mr. HARPER considered it as a material distinction between a member being attacked and beaten, for example, in Philadelphia, during his attendance on Congress, and the same accident occurring during the recess, in a distant part of the country. It was admitted that the doctrine of privilege violated the rights of the people, and could be justified only upon the plea of necessity: it being so liable to misapprehension and misconstruction, he wished to see as little of it as possible. He gave his hearty concurrence to the resolution of Mr. GILES. He had been desirous of seeing such a thing brought forward. He adverted to the delicate situation of the House, at once accusers, judges, and witnesses.

Mr. GALLATIN spoke a few words in favor of the motion.

Mr. ISAAC SMITH was persuaded that the House possesses privileges, and has a right to exert them. They are pointed out by the constitution. Mr. S. wished to dismiss the prisoner. It had been said that dismissing him without a trial, after having apprehended and confined him, would be casting a reflection on the House. No such thing! There existed probable grounds of suspicion. We have waited full time, and no proof has come forward. Then let him go, and the sooner that we do it the better.

When Mr. ISAAC SMITH sat down, Mr. GILES rose to offer a resolution, in place of his former one:

"Resolved, That it appears to this House that the information lodged against Charles Whitney does not amount to a breach of the privileges of this House, and that he therefore be discharged from custody."

Mr. FREEMAN voted yesterday in a minority for dismissing Randall. He would this day vote for discharging Whitney. As to the dignity of the House, even an outrage upon it could be as well punished by a Justice of the Peace as by ourselves. He stated the extreme difficulty of adopting, in practice, the doctrine laid down, that an improper offer made to a member when in the country, was to be punished as a breach of privilege. A member, suppose from Georgia, comes here, and tells a story of somebody in that State who has made him an unsuitable proposal: the Sergeant-at-Arms is instantly despatched a thousand miles to bring this person to the bar for contempt of the House. What kind of a business would this be?

Mr. HARTLEY thought the resolution last offered by Mr. GILES had too much narrowed the ground of dismissing Whitney. He had been taken up as an associate with Randall. The charge had not been properly supported by evidence. Dismiss him, and let the want of proof be your reason for it. Mr. H. cordially agreed with the substance of the resolution, but he objected to the wording of it.

Mr. KITCHELL pointed out the wide distinction between the cases of Randall and Whitney. It had been said that the latter must be criminal, for he was an associate with Randall. Mr. K. saw no such thing. There was no criminality in the bond. Keep a man in jail week after week upon idle suspicion! Injustice, Whitney ought to have been tried at first, when he declared himself ready for trial. Mr. K. was for discharging him this day.

Mr. HARPER now moved an amendment to the resolution before the House: it was in these words:

"Inasmuch as the proposals made by the said Whitney took place before the member to whom they were addressed had taken his seat in the House."

Mr. GILES.--If the amendment succeeded, he would vote against the whole proposition. This was a renewal of the attempt to define privilege. It was not practicable. Every case of the kind must stand upon its own merits. Mr. G. would vote against the amendment.

Mr. MACON read a resolution, that Charles Whitney be discharged from the custody of the Sergeant-at-Arms. This was, in fact, reducing the second resolution offered by Mr. GILES back into his first one.

Mr. SEDGWICK thought it an awkward thing to attempt giving any reasons. If gentlemen are willing to agree to discharge Mr. Whitney, they ought to discharge him. They assign different reasons for the same proceedings, and will not consent to it, but each in his own particular mode.

Mr. HARPER was astonished to hear so many invincible objections to telling the motives why we agree in a measure. It had been complained that privilege was undefined; that it was an assuming, creeping monster. An attempt had been made to define it, in part, and this also had been objected to.

Mr. MACON said, that he would vote to discharge Whitney, for a particular reason alleged by Mr. GILES.

Now, replied Mr. GILES, if the gentleman is to vote for the dismission because that is my reason, I desire him to vote against the dismission. My reason for discharging Whitney is totally different. I argue, that all which we have entered on the journals, admitting it proved, does not amount to any breach of our privileges. That is my motive for dismissing the prisoner.

An amendment was proposed to strike out of the resolution of Mr. GILES the following words: "That it appears to this House, that the information lodged against Charles Whitney, does not amount to a breach of the privileges of this House; and." The amendment was agreed to--ayes 43, noes 41.

It was then moved to alter the remainder of the resolution, by striking out the word "he," and inserting "Charles Whitney." The amendment was adopted; and the resolution so amended, stood thus:

Resolved, That Charles Whitney be discharged from the custody of the Sergeant-at-Arms.

This, also, was agreed to.

FRIDAY, January 8.

JEREMIAH CRABB, from Maryland, appeared, was qualified, and took his seat.

Indian Trading Houses.

The House went into Committee of the Whole, Mr. MUHLENBERG in the chair, on the bill to establish trading houses for the Indian tribes.

Mr. DAYTON objected to the bill, so far as it empowers those who are to sell the goods to the Indians, to procure or purchase the goods. He considered the uniting these powers in the same persons as highly exceptionable and liable to great abuse. He moved to strike out the words "procure or."

Mr. PARKER said that the objection was misapplied, for subsequent clauses placed the business under the special direction of the PRESIDENT OF THE UNITED STATES. He should not, however, object to striking out the words. His view in rising was merely to justify the committee who reported the bill, as they had supposed that sufficient guards were provided.

Mr. GILES did not think the reason given for retaining the words sufficient. The PRESIDENT cannot be supposed to have such cognizance of every part of this business as will enable him to secure the public, or Indians, from imposition. He was for increasing the checks against abuse.

The motion for striking out was agreed to.

In the third section, Mr. SEDGWICK objected to the words "laying aside all view of gain by the trade." They might operate disadvantageously to the people of the United States, if Government should enter into this trade on a principle that would preclude all private adventures in the same line by citizens. The words were expunged.

Mr. PARKER presented a substitute. It relates to compensation of agents and clerks to be employed. The sum of ---- dollars was to be appropriated. The substitute was adopted by the committee.

In the seventh section, Mr. SEDGWICK moved an amendment, providing for the forfeiture of licenses in case of contravening the provisions of the law. This motion was withdrawn in order to introduce the provision elsewhere.

Mr. MILLEDGE moved to strike out the whole of this seventh section. It appeared to him to involve provisions which would be proper in another law, but in this bill blended two different subjects.

Mr. SEDGWICK considered the provisions in this section referring to certain rules for regulating the public trade with the Indians, as proper, since similar rules would be made in regulating the trade of individuals with Indians. On this ground he was for retaining the section.

It was moved to modify the section by confining the provisions to "the agents or clerks," specially employed by the United States. This amendment was agreed to.

On the motion of Mr. SEDGWICK, the last clause of the seventh section, relative to the oath or affirmation, was expunged.

The committee then rose; the Chairman reported the bill with the amendments, which were taken up, and agreed to by the House, with one verbal amendment.

Mr. SWIFT expressed his disapprobation of the bill. He thought the object unattainable to any important extent. He disapproved of public bodies being concerned in trade. It is always managed better by individuals. Great loss and dilapidation are the consequence; nor is it possible to guard against frauds and abuses. The public have no money to spare. It is the opinion of the Committee of Ways and Means, that additional taxes will be necessary for the public service. We must not tax our constituents for the sake of trading with the Indians. He hoped not. Mr. S. concluded by a motion for striking out the first section.

Mr. PARKER supported the principle of the bill; he wished a fair experiment to be made. The plan is founded on humanity and benevolence. It has been recommended by the PRESIDENT from year to year. Mr. P., on this subject, had been in sentiment with him. It was well-known he had never lightly advocated a disbursement of public money; on this occasion, it would be a saving of public money. It will cost much less to conciliate the good opinion of the Indians than to pay men for destroying them.

Mr. HILLHOUSE was in favor of an experiment. Much had been anticipated from the plan; a beginning had been made, and he thought it best to try it for such a length of time as would afford a fair experiment of what could be done.

Mr. SWANWICK said he was in favor of the principles of the bill, were it merely as a change from our usual system of Indian affairs. We have hitherto pursued war at an expense of a million and a half of dollars nearly annually; let us now try the fruits of commerce, that beneficent power which cements and civilizes so many nations; barbarous till they became acquainted with its influence. To encourage us, indeed, a fact has come to our knowledge on the investigation of the case of Randall. Gentlemen will remember his assertions to them, and the deed read in the House, in which so much was stated of the influence of the Canada traders over the Indians: well, let us try to balance or countervail this influence; but it has been observed, our private citizens will do this sufficiently in the way of their private trade. In general I am friendly to let commerce take its own level without Governmental interference; but the little influence our traders have yet obtained, shows plainly enough defective capital or a defective extent of trade; both are to be apprehended. So many objects of speculation offer in this country, that individuals may not pay sufficient attention to this branch, in which they have so powerful a British interest to contend with. Government, alone, can do this in the infancy of the commerce. Let the experiment be made; we can lose little by it; we may gain a great deal. It has been observed, that this act has been rejected in three different sessions of Congress already; and this is argued as a proof of its want of merit; but this has been the fate in England of the navigation act; it was hundreds of years struggling to get into existence, but was not the less acceptable when at last it succeeded. Perhaps we may find this bill, on experience, none the worse for the difficulties, which, as an untried step, it has hitherto had to encounter: it is recommended by general reasoning; let us try it; we can only repeal it if we find it does not answer the sanguine expectations entertained of it.

Mr. MACON[64] was opposed to the bill. He thought the circumstance of the business having been so long in agitation, was a reason why it should be longer considered. The reason for delay was certainly not weakened by that. The business was highly improper for Government to embark in.

Mr. MURRAY had but one idea to suggest, as it was unnecessary to go over the general policy, which had been amply stated by other gentlemen. There appeared to him two objects; first, the securing the Indian friendship by a supply of their wants; second, the supplanting the British traders in their influence over the tribes whose hostilities might embarrass us. To the last object, therefore, the meditated mode of supply by public agency was peculiarly well adapted. The Indians are now supplied by a great company long established, very wealthy, and possessing this influence, in which we must supplant them. We are to consider whether, if private individuals are left to be the only competitors with the Canada company, this influence and this trade will be transferred agreeably to sound policy. He thought they would not. Small capitalists, and adventurers young in this trade, would certainly prove unequal to a competition with so well established and rich a company as the Canada company. It was no uncommon thing for great companies, when they were apprehensive of what they would call interlopers, to crush all competition by making a voluntary sacrifice of a few thousand pounds sterling. By underselling, on a large scale, for a time, and even a certain loss, they secured themselves in future from competition. This great company can afford to pay this price for the perpetuity of this trade and influence. In order to meet the capital of this company, we must not trust to individual small capitalists. By a sum appropriated by Government to the object, however large the capital in competition in Canada, the Government will be able to beat down the trade of this company and place it in American hands; and in a few years after the competition has ceased, the Government may then withdraw its agency, and leave it to private capitals, to which the field will then have been rendered easy.

The motion of Mr. SWIFT was negatived; and the bill was ordered to be engrossed for a third reading.

WEDNESDAY, January 19.

Appropriations for 1796.

The House went into Committee of the Whole on the bill making appropriations for the support of Government in the year 1796.

Mr. WILLIAMS, agreeably to notice given on a former day, moved to strike out all that gross sum appropriated for the officers of the Mint.[65]

Mr. W. SMITH said that a great proportion of the sum was for salaries established by law. They must be paid, till the law is repealed. If the gentleman means to suspend the whole appropriation bill till an inquiry is gone through with respect to the Mint, the bill may be delayed for two months, and the consequence be the greatest embarrassment in Government.

Mr. JEREMIAH SMITH had never been much in favor of the Mint, nor had experience increased his good opinion of it. But passing this appropriation bill would not prevent a full investigation of this subject hereafter. He was for deferring any proceeding about the Mint till the select committee made their report. He opposed the motion.

Mr. SEDGWICK thought that the course which the gentleman is pursuing had never been adopted before. It is incorrect to discuss the merits of the Mint in passing this bill. We might as well take up the salary of the Chief Justice, or any other article in the bill, as the Mint. We never should have done, at this rate. We are now only to vote for the bill, as agreeable to the laws already made. Mr. SEDGWICK said that if the gentleman from New York (Mr. WILLIAMS) would bring forward any proposition for the regulation, or even the abolition of the establishment of the Mint, if it could be proved productive of public benefit, he, with every other gentleman, would give him their aid to effect the object; but that now, he conceived, it could not regularly be brought forward. He thought an appropriation bill should be conformed exactly to the state of the public engagements, and that where establishments had been formed and salaries provided, the amount of them should be the principle of calculating the amount of appropriations; and that the House ought not, by withholding appropriations, to break in upon and destroy establishments formed by the whole Legislature. That these observations had hitherto been sanctioned by the practice on this subject. He observed, that if the House was to investigate, in the discussion of an appropriation bill, the amount of salaries and the legal establishments of Government, the public service would be dangerously destroyed. He remarked, that it was to be observed that no appropriation was made, for any purpose, since the commencement of the year.

Mr. GALLATIN felt alarmed at the principle advanced by Mr. SEDGWICK, for, if admitted, it might be applied in future on some other and important occasion. The motion made by the member from New York ought not, perhaps, to be adopted; but there was certainly a discretionary power in the House to appropriate or not to appropriate for any object whatever, whether that object was authorized by law or not. It was a power which, however inexpedient on the present occasion, was vested in this House for the purpose of checking the other branches of Government whenever necessary. That such a right was reserved by this body, appeared from their making only yearly appropriations for the support of the Civil List and of the Military Establishment. Had they meant to give up the right, they would have such appropriations permanent. There was one instance in which this House had thought it proper to abandon the right. In order to strengthen public credit, they had consented that the payment of interest on the debt should not depend on their sole will, and they had rendered the appropriation for that object not a yearly, but a permanent one. Whenever that was not the case, and the right had been reserved, it was contradictory to suppose that the House were bound to do a certain act, at the same time that they were exercising the discretionary power of voting upon it.

Mr. SEDGWICK said that he certainly had no intention to have given occasion to the observations which had been made; but, as the general principle which he had laid down had been denied, and as it had some relation, either intimate or remote, to the subject before the committee, he would take the liberty to repeat the principle, and say a few words in support of it.

The principle, then, which he had assumed, was, that when legal establishments were made, it was the duty of the Legislature to make appropriations conformably to the public engagements; and that neither branch had a right to withhold its assent. He observed that the whole Legislature, and not a part, were competent to form contracts, and to establish and alter compensations and salaries. The Legislature, and not either branch of it, had the power of expressing the public will, and pledging the public faith; that when a salary is ascertained, the public faith is pledged that it shall be paid, according to the stipulation; and that, therefore, the public credit is involved in making the necessary appropriations, without which it could not be paid. He asked, if, in such a case, it was competent to the House rightfully to withhold the means necessary for the performance of the public engagement?

He said he had always supposed that the power of the House, in the case of appropriations, did not give a power to yield or withhold assent on such a subject. He believed, in every such instance, the exercise of discretion was restrained. To illustrate his ideas, he could mention a similar instance. The constitution had declared that the PRESIDENT should receive a stated compensation for his services, to be ascertained by law, which could neither be diminished nor enlarged during the term for which he should have been elected. Here was a duty imposed on the Legislature, with the performance of which they could not, they had no power to dispense. Yet, after the compensation was stated, no payment could be made in consequence of appropriating. He asked, if, in this case, when the public will was expressed, the engagement and the national faith pledged, the Legislature could of right withhold the necessary appropriation? The same observations might, he said, be applied to every instance where public contracts were formed. The public faith was pledged, the necessary appropriation must be made to prevent a violation of it; and if withheld, such violation might justly be charged on the Legislature.

Mr. NICHOLAS was for the resolution. It had been urged that the House were to pass the appropriation bill as a matter of course. He thought otherwise. The House, in enacting a law, were entitled to consider all its consequences.

Mr. GILES adverted to a fact stated by Mr. WILLIAMS, viz: that the cents are issued from the Mint at a cheaper rate than the price of the copper itself; so that, if a person chooses to melt down a pound weight of cents into a lump of copper, and takes this lump back again to the Mint, he will receive more money for it than what it was worth in cents. Thus the whole expense of workmanship is cast away. Mr. GILES described the ridiculous and wasteful effects to be looked for from such a way of coining money.

The amendment of Mr. WILLIAMS was agreed to by a very large majority.

Mr. NICHOLAS moved to strike out some of the subsequent clauses, for payments to mechanics, for stationery, &c.

Mr. ISAAC SMITH wanted to know if it was meant to stop the whole operations of the Mint.

Mr. PAGE objected to dispersing the workmen, who could not easily be collected again; at least it would require an immense expense to re-assemble them. It has been stated, in the course of this discussion, that every cent coined in the Mint has cost the public TEN; but if the workmen are to be dispersed, and if at any future time assembled again, the cents may come to cost A HUNDRED CENTS apiece. Mr. P. recited various reasons for hoping that the business of the Mint will in future be conducted with more expedition, economy, and success. He stated the immense benefit arising to the country from the plenty of copper money, and especially to the poorer classes of people. A Mint was of more consequence than gentlemen seemed to think it was. He said that private mints were reported to be setting up. He wished to refer the amendment of his colleague from Virginia to the third reading of the bill. By that time the House would be better informed.

Mr. NICHOLAS did not wish to abolish, but merely to suspend the operations of the Mint till nearer the end of the session. This amendment was negatived.

The committee rose, the Chairman reported, and the House took up the bill as reported.

The House adhered to the amendment of the Committee of the Whole.

Mr. LIVINGSTON next moved that the whole appropriation for the Mint should be struck out.

Mr. MURRAY said, that had the gentleman from New York moved for delay, for the purpose of introducing a motion to repeal the law which rendered this appropriation necessary, he would not have troubled the House with a single remark; but his motion to strike out an appropriation for the purpose of bringing the policy of the law itself into discussion, contained a principle in his mind so repugnant to the great Legislative duties of the House that he would oppose it. The object of the appropriation is not a temporary one, but a part of the machinery of our Government, under the express authority of the constitution by law. The doctrine now contended for by the gentlemen from New York and Pennsylvania (Mr. LIVINGSTON and Mr. GALLATIN) was that this House have a discretionary power of appropriating or not. To this doctrine, taken in the extent which he conceived they contended for, he could not give his support. On the contrary, he thought that in all cases where an appropriation flowed from a law to make good a contract, or to erect a permanent organ in the Government, and from any law whose object was permanent, the true doctrine was, that it was the duty of the House to vote an appropriation. A law is the will of a nation. The same powers only that formed it can repeal it. If it be a constitutional act, no power can lawfully obstruct its operation or its existence. But attending to the doctrine maintained to-day, it would follow, that though this House had not the power of repealing a law made by all the branches of Government, it may obstruct its operations and render it a dead letter; though it cannot repeal, it may do what shall amount to a repeal, which is the assumption of a power almost equal to that of exclusive legislation. He thought he saw in this an evil of great extent, and an anarchy of theoretic principles. It appeared to him that though we originate money bills, we had no right to refuse an appropriation to existing laws that either secured a debt or any contract, or that related to objects permanent by the law that created or acknowledged them, as long as the law itself remained unrepealed. We had but a share of Legislative power. Where a law relative to such objects as he had alluded to existed, from which an appropriation followed, till the law ceased by repeal or by other constitutional means, it was obligatory upon us as well as upon our constituents, and the only powers we could exercise of a discretionary sort resolved themselves either into this mode of making good the appropriation, or of voting for its repeal. The other branches would then judge of the propriety of our proceeding; but till they who assisted in its enacting, judged with us the necessity of doing it away, a duty resulted that we should give it the energy intended by its enaction.

Mr. DAYTON conceived the question brought under discussion of too delicate a nature to be decided at the present time. He, however, expressed it as his opinion that the power of making appropriations was intended and ought to be a check on establishments.

Mr. NICHOLAS conceived the House bound to weigh the merits of every law when an appropriation was to be passed to carry it into effect, and no appropriations should obtain the sanction of the House, unless they were convinced of the propriety of the law.

Mr. GILES said he did not expect to hear a doctrine so novel broached in the House as that advanced by the member from Massachusetts, (Mr. SEDGWICK.) He had declared that he conceived the House could exercise no discretionary power when about to pass an appropriation bill.

Mr. SEDGWICK rose to explain. The principle he advocated was, that when a law was made pledging the public faith, the House had no discretion to withhold, or not, an appropriation; at least as long as common honesty was more than a name.

Mr. GILES said that if this doctrine was admitted in its full latitude, the House would become a mere office for the registering of edicts. He contended that the House had a right, by withholding appropriations, to put an end to an institution without the concurrence of the Senate. He would not say that the present was a case that called for the exercise of that right, but they had in all cases of this nature a right to exercise their discretion.

Mr. MURRAY considered the laws of the land as depending upon two other branches of the Government besides this House, and conceived it highly improper in the House to attempt to obstruct them by withholding necessary appropriations. What would be the effect of a contrary doctrine? It must contain the seeds of governmental anarchy. While a law remained in force it was the duty of the House to do what was needful to carry it into operation. He made some allusion to the British House of Commons, who, by privilege, contend for the right of withholding supplies to be a check on the patronage of the Crown. But such a principle, he contended, could not apply here; our Government could not proceed if it were admitted. As long as a law exists, it is the duty of the House to make the needful appropriations. The whole wisdom of the Government is not in this House. The same power is required to repeal laws as to make them. It is true the constitution has given to the House the more immediate command of the purse-strings; but they were under an obligation to open them when necessity required. There is a constitutional way of repealing laws; but the House has no right to obstruct their operation while in force. A member from Pennsylvania, (Mr. GALLATIN,) he observed, appeared on a former occasion to coincide with his opinions on this subject; for he argued that the House was bound to pass such an appropriation, as a law existed giving the salary to the officer which it was meant to provide for.

Mr. GALLATIN said, in answer, that his observation had simply been, that the Committee of Ways and Means, and not the House, conceived itself bound to report an appropriation for an item established by law; but he never doubted the power of the House to pass, or not, an appropriation. In such cases the line of duty must remain to be drawn by opinion. With what degree of consistency can the House be called on for a vote if, as some members contend, they cannot have an opinion? Why are they called upon to say, yea or nay, if they are obliged to say yea?

Mr. MURRAY conceded that a member might say yea or nay, but his duty must in cases of this nature clearly point to one of the two; for he could not mistake the black and white marks in the court of conscience. He has the physical power to say yea or nay; but if he does his duty he must say yea. The contrary principle would go to this, that the House had a right to refuse an appropriation to pay a just debt.

Mr. GALLATIN observed, in reply, that each member will be the sole judge whether it was or was not his duty to say yea, or the contrary. The constitution, he said, declared that no money should be drawn from the Treasury but by appropriations made by law: this did not look as if the voting of appropriations was intended to be merely a matter of form. In the second place, the constitution declares, that no appropriation for the support of an armed force shall be made for more than two years. Thus, though a Military Establishment may be formed by enlistments for three or more years, yet the constitution provides that the question shall be submitted to the House every two years; and this surely is not as a matter of form; but in order, at such short periods, by voting on an appropriation bill, to determine whether such an establishment should exist longer or not. He conceived the power which he advocated as residing in the House of great consequence, and to be used on important occasions only.

Mr. NICHOLAS, who had risen at the same time with Mr. GALLATIN, and had given way to him, observed, that when he first rose, he was going to read the clause of the constitution which the member last up had referred to. As to the black and white marks the member from Maryland spoke of, they were differently placed in different persons; in matters of opinion men will differ; but the constitution is a guide not to be departed from. The power of appropriation was vested by that instrument chiefly in the House, and no power on earth would prevent his exercising his discretion when that power was to be put in activity.

Mr. GILES observed, that the member from Maryland had got into the doctrine of checks, and seemed to think that if the House exercised its constitutional check it would produce governmental anarchy.

Mr. MURRAY explained. He had alluded to the mode of getting rid of an establishment by refusing appropriations to carry it into effect. The constitutional mode of procuring the repeal of the law should always be had recourse to; but he insisted that the House could not, as they were bound by their duty, obstruct a law in force by refusing an appropriation.

Mr. GILES conceived that the checks provided by the constitution might be used by each of the powers of government to their full extent, limited in every particular case only by their own discretion. If the harmony of the branches was to be made an argument to prevent the exercise of checks, what, he asked, became of the checks provided by the constitution? Each branch of the government (if he understood what was meant by constitutional checks) was to exercise its own opinions and use its discretions within constitutional limits, without a reference to the opinions of other branches. He next adverted to the powers of appropriation, which he contended were in a greater degree vested in the immediate representatives of the people, to be a wholesome check. In case of an army establishment, for example, suppose the PRESIDENT or Senate were to refuse their assent to the repeal of a law establishing it? Will it be said that the clause of the constitution empowering the House to make a biennial appropriation for the object, does not vest in them a discretionary power in such instances of overturning the establishment by its own will? for it cannot be kept up without an appropriation. Is the House to be told that, for the sake of harmony, they must give up their own powers and opinions? He maintained that, in cases of appropriations, they had a discretionary power, to be exercised, as in all cases, discretionarily. Was one branch to be judges of discretion for another? No; each should judge for itself.

Mr. MURRAY said, it was known to every one that an appropriation for the support of a military establishment could not be made for a longer term than two years; but that case was widely different from the present. It was known that, by the constitution, a military appropriation cannot exist more than two years; but the doctrine he supported was in cases of debt or obligation under a law; and, in such cases, he still contended that, though the House had the physical power to refuse an appropriation to satisfy a claim thus founded, they had not the right.

Here the debate was interrupted by a motion for adjournment; which was carried, and the House adjourned.

WEDNESDAY, January 20.

Appropriations for 1796.

The amendments from the committee being thus gone through, the bill was ordered to be engrossed for a third reading.[66]

SATURDAY, January 30.

Stenographer to the House.

The House then went into a Committee of the Whole on the report from the stenographical committee. The report was read.

Mr. SWANWICK: then rose for the sake of asking information. He inquired whether the House were to sanction and authorize the reports of the proposed stenographer? He had very considerable apprehensions about the propriety of entering into the subject in any mode.

Mr. W. SMITH replied, that the gentleman engaged by the committee had undertaken to have his reports ready for Mr. Brown, printer of the Philadelphia Gazette, in the morning of the succeeding day.

Mr. SWANWICK rose again. He observed, that to give universal satisfaction was impracticable. So many gentlemen were to be satisfied, that it never could be accomplished. He observed that one of the principal causes of complaint against reporters was of a nature that did not admit a remedy. Gentlemen rose, in the ardor of discussion, and suffered many remarks to escape from them, which, neither in thought nor expression, were perfectly correct. If the reporter, as was his duty, took them down, and stated them exactly, gentlemen were irritated by seeing themselves exhibited in this shape, and then blame was cast on the reporter. Every degree of praise was due to the editor of a Philadelphia daily newspaper, whom Mr. S. named, and who had not only done every thing in his power to obtain the debates of the House at full length, but had frequently advertised, that if errors were committed by his reporter, they should, on application, be instantly rectified. More than this it was impossible to desire, for no mode of conduct could be more liberal or candid. But Mr. S. did not see the propriety of blending the House of Representatives and the editor of a newspaper in this business. The stenographer is to be called an officer of the House, while he receives eleven hundred dollars from the printer of a Philadelphia newspaper. He is thus also the officer of the printer, as well as ours. If we give the gentleman the proposed salary, we are to depend on him alone, whereas at present we have different reporters, and two or three of them frequently and mutually both corroborate and correct each other. What has escaped one reporter, or what he has misunderstood, is often observed by his competitor. The error is amended, or the defect supplied. Mr. S. farther observed, that as far as he had read or heard of, such an institution as the one now proposed, was never known under any Government, or in any country, that had hitherto existed. [It was observed, in some part of the debate, that an attempt of this kind was once made by the National Assembly of France.] Mr. S. expressed himself warmly against Government making any composition of the nature now proposed with a printer, and against any attempt for giving one newspaper an advantage over another, by any preference as to the copy. If Mr. S. wanted any person to be sure of dismission and disgrace, he could not name any other situation where that dismission and disgrace were so absolutely certain, as to a person accepting the proposed office of stenographer. If he did his duty, gentlemen would frequently not like to see their speeches exactly as delivered. If he altered them, his utility was at an end. It would therefore be much better to let the gentleman stay at his own business.

Mr. GILES objected particularly to the opposition made in this late stage of the business. He admitted that it was a delicate step, but he complained in strong terms of the inaccuracy of the reports now given. He observed that the object was not merely to find a stenographer who would satisfy the members of that House, but who would also give satisfactory information to the public at large.

Mr. SHERBURNE agreed with the gentleman last up, that the object of the resolution could not be merely to give satisfaction to members, but information to the public; though if it was important that the public should be informed of what was said in that House, the proposed resolution would be inadequate to its objects. But he conceived it more important for the public to be informed of what was done, and that, he observed, was not always to be inferred from what was said; as (the mind being always open to conviction) it had not been unusual in a former--he would not say the present--House, for gentlemen to argue one way, and vote another. As therefore, no certain inferences of the conduct of members would be drawn from their speeches, and as the public were more interested in their actions than their sayings, (a knowledge of which the present resolution was not, in his opinion, calculated to promote,) it would not meet his concurrence. But, Mr. S. further observed, that if the speech was to be considered as the infallible inditium of the subsequent conduct, as the avowed object of the resolution was to diffuse, through the various parts of the States a knowledge of that conduct, he should oppose it from a conviction that the means were not competent to the end. The resolution proposed a publication of the debates in a daily Philadelphia paper. These debates would necessarily be so voluminous as to engross the greater part of such a publication. Except in Philadelphia, New York, and one or two other large cities, there were no daily papers; in all other places, they were not published oftener than once, or, at most, twice, a week. The daily papers, in comparison with others, were few. If, therefore, a daily paper was engrossed by a detail of the debates, when would the public arrive at a knowledge of them through the more common medium of a weekly paper? The inhabitants of this, and a few other large towns, might be gratified, perhaps benefited, by a speedy perusal of them; but when would the citizens of more distant parts of the Union, through their usual weekly channels, be indulged with the like opportunities? The difference would be as one to six; and what the inhabitants of Philadelphia might become acquainted with in one year, the people of New England and Georgia would not be informed of in six years, unless they relinquished their own weekly publications for a Philadelphia paper.

Mr. SEDGWICK said, that he would candidly confess that the House had put itself in a delicate situation on this subject; yet if, on the whole, gentlemen be of opinion that the measure was improper, it ought not, by reason of any antecedent conduct, to be now further pursued to the public detriment. It was also but just to say, that if the measure was proper, a more competent and more impartial agent than the one proposed could not be obtained. He said that the printers had much merit from their endeavors to communicate to the public the debates of the House, yet it must be allowed that their endeavors had been too unsuccessful; that, in consequence, much injury had been done, not only to the characters of gentlemen as men of talents, but also in some instances, to the motives which had produced public measures. These were evils to which a remedy should be applied, if it did not involve those which would be more injurious. It ought to be remembered that the man appointed would be an officer of the House, responsible to it for his fidelity and accuracy. The debates would then be published under authority of the House, and it of consequence was responsible for his precise execution of the trust. It was impossible to conceive that at some times, with the best intention, he should not mistake, and of course misrepresent. The member in such a situation, would feel the injury, but redress would be obtained only by the interposition of the House. This would afford ground for numerous appeals, and endless litigation; and, in the end, might be ruinous to many valuable and respectable characters. It was of importance that no constraint should exist which would prevent gentlemen from expressing freely and without fear their own feelings and opinions and those of their constituents. How far the fear of misrepresentation, and the difficulty of correcting it, under such a system, would produce such an effect, gentlemen he hoped would consider before they assented to this proposition.

There was one other consideration, which had great weight on the mind. Whatever opinion we might entertain on the subject at present, all would remember the powerful influence of party and faction, and their intimate connection with free governments. From hence it might be easy to conceive, that hereafter this might be rendered the most powerful engine of an unprincipled majority, to overawe and to prostrate and destroy a virtuous minority. For no character was so established as to withstand for any length of time constant misrepresentation supported by the authority of the House of Representatives.

Mr. HARPER rose in reply to Mr. SEDGWICK, who, immediately after he began speaking, observed that the gentleman had mistaken his meaning. Mr. H. said that he perfectly understood the member, and proceeded to recommend the object of the report. He gave credit to the present reporters for diligence and good intention, but thought them far inferior to what might be done. Great attainments had been made, he admitted, but more might be done. He thought it of the highest consequence that the speeches of members should be correctly published and disseminated among the people. As to the sum now proposed, a London newspaper would give, he had no doubt, five thousand dollars a year for such a reporter. He questioned not that Woodfall would receive ten thousand pounds a year from the printer for his reports. It had been objected that daily papers alone could hold such debates; but weekly and semi-weekly papers could select the most interesting passages of them from the daily papers. Mr. H. recommended either that this report or a similar one should be adopted, or that the business of reporting should at once be put to an end. He spoke of atrocious mistakes. The debates, as now published, held up the House to the scorn of the world. He would rather have the doors shut up altogether. He would, if the present resolution was rejected, make a motion to that effect. He was sorry to learn that the debates had been collected into a book, entitled "The Political Register," of which he doubted not that immense numbers would be sent to Europe, and this book he reprobated in the strongest terms.

Mr. SEDGWICK observed, if gentlemen were misrepresented, in one of the newspapers, where debates were reported, the editor of that paper had advertised that he was ready to publish any corrections which might be offered. This notice had been long and frequently given, and gentlemen had it in their power to do themselves justice.

The first resolution in the report was then read, and the question going to be put, when

Mr. BALDWIN said, that the more the House advanced into this affair, the greater was the number of difficulties which occurred. The resolutions had the less weight with him because they were hurried through at the close of last session. The institution was unprecedented in any other Government. He knew that members might be misrepresented, but this scheme would not cure the evil. He repeatedly declared, that on all great questions, where talents found an object worth exertion, the debates in that House were very well represented. He had seen many speeches, sketched by printers in this city, that he would not wish to see better done. He did not know of any recent or particular complaints about inaccuracy. We have now been in session for seven or eight weeks, and there has not occurred much interesting matter, to make any remarkable debate out of He said that the debates, if taken at full length, would far exceed the limits of any newspaper. As to the expense of printing, that of the laws of this session would cost twenty thousand dollars, and he conjectured that to print the speeches, would require a hundred thousand dollars; and even after they were printed, it would be necessary to pay people for being at the trouble to read them, for otherwise nobody would go through a perusal of every word spoken in the House.

Mr. NICHOLAS said, that the reports at present published were full of notorious falsehoods, and the characters of members with their constituents would have been sunk, if it had not been known that this kind of things deserved no credit. He was in favor of the report. He complained that even when pieces were sent to the printers, they were embodied in the sketch, by Which means the reporter got the full credit of them, which had pernicious consequences. One of his objections to the present mode of reporting was, that the speeches of members were often much improved. He mentioned an instance from his own experience. A speech was once made for him by a person who reports in this House, and who has a very good style of writing. The style, said Mr. N., was above mine. There was not a sentiment in it which I would have disavowed. It was a better speech than mine; but, in an entire column, there was nothing that I said. As for sending corrections to the printers, Mr. N. was above it.

Mr. HILLHOUSE was against the report. The loss of four thousand dollars would be a much greater harm to the public than any injury arising from inaccurate reports. He did not see that the characters of members with their constituents depended on these publications.

Mr. SWANWICK.--The gentleman from Virginia last up has suggested that the House have somehow committed themselves to appoint a stenographer, by their previous resolution on this subject; but that resolution goes only to the committee receiving proposals. It therefore remains with this House whether to accept them or not when made. As to the gentleman who is the subject of the resolution, if I have more strenuously than usual opposed the motion, it is from a desire to keep him from quitting the lucrative situation he is said to find himself in, to embark on the stormy sea he is contemplating. To be the organ of the members of this House to their constituents is indeed a very delicate task; one for which, considering the danger he might be in of an Orpheus's fate--that of being torn to pieces--the salary is but a poor compensation. He is to do justice to the eloquence of some members; he is to clothe in an elegant dress the uncouth, yet well-meaning expressions of others; but what will he do with the silent members, who never speak at all? What will their constituents think of them? Indeed, sir, if he has the idea I have formed of his danger, he will not undertake it at all. Faction and party have been mentioned: happy stenographer, if he can keep clear of these! If he fall into their power, insensibly he will represent one side in clouds and darkness, the other as ornamented with the brightest beams of light. How will he please both? Misrepresentation is complained of: alas, sir, how quick is error--how slow is the progress of truth in almost all things! Our stenographer must indeed be a wonder-working man, if he can revert this tide, and make every where light and correct reasoning prevail. The best mode of informing our constituents is, by the yeas and nays on our acts; this truly shows, as a gentleman from new Hampshire has observed, our doings, which are much more interesting to them than our abstract reasonings; these our constituents will easily form to themselves ideas of, when they know our votes; as the celebrated Dr. Johnson is said to have written speeches for members of Parliament whose general political sentiments he knew; by knowing these he applied arguments pretty accurately, as he supposed them to bear on every question offered. But, it has been observed, if we do not agree to have an official stenographer, a motion will be made to clear the House of those who now take down debates. These persons are tolerated only on the principle that our galleries are open. Woodfall, a celebrated printer, took down debates from memory: could we prevent this being done here? Or should we drive all printers from us who take notes, for the inaccuracies of some? I hope not. The liberty of the press has great title to respect. How can we agree by a miscellaneous union, the most strange, to commute with Mr. Brown, the printer, the salary of four thousand dollars, so as to possess him first of the proof-sheets, without supposing other printers will become rivals of this business, and complain if they are thwarted in an equal pursuit of their own livelihood? The best way is, to leave this business, like others, to regulate itself. Mr. Brown, by his labor in this way, has already widely extended the circulation of his paper--evident in his present overture--and, by the by, this is no mean proof of correctness on the whole in his success; he or others will still go on to improve the business, if left to themselves. If he or they fall into errors, they are their own. Members may correct them, or write their own speeches out, if they please. But what has the House to do with this; or why should it become the censor and promulgator of the speeches of its own members? Our time is wasted often, already, by too many long discussions on unimportant objects; but what would it be if we were to be every morning saluted with motions to correct the performances of the stenographers of the preceding day? All the advantage of the motion is to obtain more accuracy; but, it is said, the House means not to pledge itself for this accuracy: if so, why employ an officer under its authority for this purpose? On the whole, sir, we shall in vain seek to escape abuse and misrepresentation; these are by far too much in vogue. All the consolation left is, what I usually apply in such cases--that is, the consciousness of not deserving them.

Mr. GILBERT was against the report. He thought the publication of the laws and the yeas and nays, a sufficient means to communicate the proceedings of the House.

Mr. WM. LYMAN said that the debates in one of the newspapers (he either named or plainly alluded to the Philadelphia Gazette) had, for the two last sessions, been altogether exceptionable. He was sorry to learn, that these debates had been collected by a person who comes here, so that they would now, perhaps, descend to posterity. If they were as incorrect in the volume (the Political Register) as they were in the newspaper, they were a libel on that House, and would disgrace it with the world. If this resolution was rejected, it would be advisable to send all the printers to the gallery.

Mr. KITCHELL was entirely against the object of the report.

Mr. GILES said, that he might have taken up wrong impressions, but he thought the matter worth trying. It was a thing of experiment, by which he believed that the printer would make money. He acknowledged that, for some time past, several of the reports had been pretty correct. It is better to let them go out as they are, than to stop them altogether. He would not wish to press the motion, if it was to meet with opposition from several gentlemen who had this day spoken against it. He moved that the committee should rise, and the further consideration of the report be deferred till Monday.

Mr. W. SMITH said, it was admitted on all sides, that it was highly important for the people to receive the most accurate information of the proceedings of the House, and that the debates were, in general, extremely misrepresented. Was it not, then, the duty of the House to remedy this evil, and to adopt such measures as would transmit to the people in every part of the United States the most accurate information of the conduct of their Representatives? The House had now an opportunity of obtaining the services of a gentleman peculiarly distinguished for the rare talent of reporting with accuracy public debates; the compensation which would be adequate to such useful and laborious service, was beyond the ability of any printer; the House ought therefore to contribute towards it; the sum required was a trifle, when compared with the advantages; it was no object. The only question, then, was, whether the stenographer ought to be an officer of the House; in that capacity he certainly would be more easily restrained from the commission of any wilful misrepresentation. Mr. S. did not feel the force of the objections against the report. It had been said that, although the members were now misrepresented, yet, they had it in their power to publish corrections; but these corrections were often overlooked, while the misrepresentation was operating very injuriously to the character of the member; this was generally the case in places remote from the seat of Government; the mangled account of a debate was republished in a distant paper, and the correction, if it reached the distant printer, was generally disregarded. Among the opponents to this report, Mr. S. said he was surprised to find the gentleman who represented this city, (Mr. SWANWICK,) who, more than any other member, should have withdrawn his opposition to the measure proposed; that gentleman's constituents had it in their power, at any time, to hear the debates of Congress; they were on the spot; ought he not, then, in candor, to assist in facilitating to the remote citizens the means of obtaining the best knowledge of the proceedings, and the most correct statement of the discussions of the House? Ought they, from their remoteness, to be kept in the dark, or to be furnished with such light as would only mislead? Had they not a claim on the House to adopt such means as would enable the citizens in every State to judge of the propriety of public measures? The member from this city had another exclusive advantage; if misrepresented, he could correct the error, and the correction would be read; that was not the case with the members from the remoter States, whose reputation might be injured by misrepresentation, without a similar advantage: the member from this city was in the midst of his constituents; he had daily opportunities of setting right any misstatement by personal explanation.

Mr. SMITH said, he did not agree with some gentlemen, that it was sufficient for the people to know what laws were passed, without knowing the previous discussions; he thought, on the contrary, the favorable or unfavorable impression of a law on the public mind, would depend, in a great degree, on the reasons assigned for and against it in debate, and the people ought to know those reasons. When a law passes, imposing a tax, would not the people be reconciled if they saw, from the discussions of the House, that such tax was unavoidable, and that the particular mode of taxation was the best which could be devised? And ought this information to depend entirely on the caprice or convenience of the reporters, who attended when it pleased them, and who published just as much of the debate as they found leisure or patience to accomplish? Mr. S. said he was convinced that the errors which had excited so much complaint, were not the effect of design, but merely of inadequacy to the task. Very few were competent to such a business, which required peculiar skill in stenography, very laborious application, and a clear comprehension of the subject-matter of debate. It could not be expected that persons thus qualified would devote their whole time to this business, without an ample reward. The report was objected to because there was novelty in the plan; it was true the House of Commons of England had no such officer, but their practice was not a fit precedent for us on this occasion, for they admitted no person to write down, in the House, their proceedings; their debates were taken from memory. This House, on the contrary, had, from its first institution, facilitated, by every accommodation, the reporting their proceedings. The thing was not altogether, however, without precedent. During the existence of the National Assembly of France, there were officers of the House who composed a daily work called the Logography, which was an exact account of the debates of that body. It had been asked, what control the House were to have over this officer? He answered that the stenographer would be liable to be censured or displaced, if he should be guilty of wilful misrepresentation. It would be always easy to discriminate between a casual inadvertence and a criminal misstatement; the officer's character and talents, his responsibility to the House, and his oath to report with impartiality, would be a sufficient pledge of his accuracy. Mr. S. seriously believed that the character of the House had suffered from the erroneous statements which had gone abroad. He wished to guard against this evil in future; he was willing, for himself, that every syllable he uttered within those walls should be carried to every part of the Union, but he deprecated misrepresentation. He was anxious that the truth should be known in relation to every act of the Government; for he was as satisfied that the affection and confidence of the people in this Government would increase with the promulgation of truth, as that whatever it had lost of that affection and confidence, was owing altogether to the propagation of detraction and calumny. It was under these impressions that he had originally brought forward the proposition and that he now recommended the report, and having heard no reasons to change his sentiments of the expediency of the measure, he should persist in supporting it.

The motion by Mr. GILES was agreed to. The committee rose, and, a few minutes after, the House adjourned to Monday.

MONDAY, February 1.

Indian Trading Houses.

The engrossed bill for establishing trading houses for the Indian tribes was taken into consideration. The first blank was for the gross sum to be appropriated for the general objects of the bill. It was moved to fill this blank with $150,000.

Mr. WILLIAMS spoke in favor of the bill.

Mr. PARKER supported the general provision of the bill, and urged the necessity of an immediate attention to the subject. He calculated on a surplus in the appropriation for the War Department to provide for this object.

Mr. HARPER moved that the bill should be recommitted. He then entered into a general consideration of the principles of the bill, which he reprobated altogether. Alluding to the general objects of commerce, he said that public bodies never manage these matters without loss. He adverted to the repairs of roads, construction of canals, &c.; all these objects prosper under private individual direction, but when entered into by public bodies nothing is ever brought to perfection, and the public money is lost. He applied these ideas to the plan of the bill. Persons at fifteen hundred or two thousand miles distance, are to be intrusted with public property to a large amount. It is not in human wisdom to guard against frauds and impositions; no check or control can be devised which will be found adequate to repressing private rapacity. Mr. H., therefore, wished the bill recommitted, for the purpose of an entire new modification. If the motion should obtain, he should then move a resolution providing for a loan to individuals for the purpose.

Mr. SWANWICK supported the general principle of the bill, and reprobated the idea of loans to individuals; he considered such a plan as one of the worst kind of sinking funds. The plan is an experiment; it is not, perhaps, possible to predict what will be the result; but the object is worth the trial and worthy the attention of the Legislature. He considered the objections against the plan of the bill as applying with greater force against the proposed substitute.

Mr. S. SMITH said, when the gentleman from South Carolina made his motion for a recommitment, he had supposed he would have accompanied the motion with some reasons; but since he had heard what he offered as reasons, he found himself confirmed in his opinion of the inexpediency of his motion. Mr. S. said, the only reason for the commitment was, that the principle of the bill might be changed, by individuals being substituted for the Government, that is, by loaning the money to private persons for the purposes of the trade. He was entirely opposed to this principle. Public debtors are the worst kind of citizens. These persons, after having expended or lost the money, will be coming forward with their petitions to be released from their bonds. He did not wish to increase the business of the Committee of Claims.

Mr. SWIFT enlarged on the idea suggested by Mr. HARPER. He thought it infinitely preferable to leave the business to the enterprise and resources of individuals.

Mr. HARPER rose in reply to Mr. SMITH. He entered into a further consideration and defence of the plan he had proposed as a substitute.

Mr. DEARBORN objected to Mr. HARPER's idea; he saw no sufficient reason to support the preference that gentleman gave to a loan to individuals. He was in favor of the general principle of the bill; he thought it economical to appropriate money for the object of cultivating good understanding and harmony with the Indians, but should vote for the bill only on the condition of a reduction of the Military Establishment.

Mr. GILES entered more largely into a consideration of the principle of the bill. He had no opinion of governmental bargains--he believed they always turned out losing bargains.[67] The clause which provides that the original stock shall not be diminished, he conceived, would operate against the general object of the bill, if adhered to; but this he did not contemplate; he supposed that it would terminate in an annual provision. Mr. G. alluded to the PRESIDENT's Speech, a clause of which had been recited; he did not consider that, or a former recommendation of this matter, as binding on the House. If the PRESIDENT's Speech is considered as the political Bible of the Government, the case is different; but he presumed no person was disposed to assert this. He considered the House as perfectly free to adopt or reject the proposition. With respect to the effects of the measure, gentlemen had differed in their predictions. Predictions which were the nearest to the effects produced, may be considered as the result of the greater political sagacity. He would venture to predict that the whole sum proposed to be appropriated would be sunk in three years. With respect to the fund contemplated from the surplus of the War Department appropriation, he considered it as altogether illusory; there is no such surplus, none had heretofore been found, and he presumed none ever would. For though the number of troops voted had never been raised, yet the whole of the money appropriated was always expended.

Some further remarks were made by several members, and then the motion for recommitting the bill being put, was lost--52 to 34.

Mr. SWIFT then renewed his motion for a postponement. This, after a few remarks from that gentleman, and a short reply from Mr. GILBERT, in support of the bill, was negatived.

The motion for filling the blank with $150,000, was then put and agreed to, fifty-six members rising in the affirmative.

On reading the section in which the blank for the penalty is included, Mr. VENABLE moved for a partial recommitment of the bill, for the purpose of new-modifying the section. This motion gave rise to a variety of observations, in the course of which the motion was extended to a general commitment. This motion being put, was lost.

The motion then was, to recommit the second, fourth, and sixth sections. The second section was recommitted. The fourth section provides that the capital stock of the United States embarked in this business shall not be diminished. Mr. VENABLE's object was to have the section so modified as to blend the interest of the individual who is to conduct the business with that of the public. Mr. S. SMITH said the motion went to destroy the bill, for no person would engage in the business on such a plan. The motion for committing the fourth section was lost. The sixth section assigns the sum of $150,000 to be appropriated for the general objects of the bill. The motion to recommit this section was negatived.

The House then resolved itself into a Committee of the Whole on the second section, Mr. MUHLENBERG in the chair.

Mr. VENABLE moved that the section should be altered to read, that the agent should give bonds to the amount in value of the goods committed to his charge.

Mr. J. SMITH supposed that the sum should be sufficient to cover the amount of the goods which may at any time be found in the hands of the agents; from ten to fifteen or twenty thousand dollars, he supposed, might be sufficient for this purpose.

Mr. DEARBORN suggested the idea of leaving this part of the business to the PRESIDENT OF THE UNITED STATES. He moved to amend the clause accordingly.

Mr. VENABLE's motion was lost. Mr. DEARBORN's motion was agreed to.

The committee then rose, and the Chairman reported the amendment, which was adopted by the House. It was then ordered that the bill be again engrossed and read the third time to-day.

[The bill was subsequently read a third time and passed--58 members rising in the affirmative.]

TUESDAY, February 2.

The following Message was received from the PRESIDENT OF THE UNITED STATES:

_Gentlemen of the Senate, and of the House of Representatives:_

I transmit herewith the copy of a letter, dated the 19th of December last, from Governor Blount to the Secretary of War, stating the avowed and daring designs of certain persons to take possession of lands belonging to the Cherokees, and which the United States have, by treaty, solemnly guaranteed to that nation. The injustice of such intrusions, and the mischievous consequences which must necessarily result therefrom, demand that effectual provision be made to prevent them.

G. WASHINGTON.

UNITED STATES, February 2, 1796.

The said Message and letter were read, and ordered to be referred to the Committee of the whole House, to whom is committed the bill to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

WEDNESDAY, February 3.

LEMUEL BENTON, from South Carolina, appeared, was qualified, and took his seat.

MONDAY, February 8.

Compensation of Members.

The House resolved itself into a Committee of the Whole, on the bill for allowing a compensation to the members of both Houses, which proposes an annual salary of one thousand dollars to each member, instead of six dollars per day.

Mr. GILES moved that the word "annually" be expunged from the bill. He thought the present mode of compensating the members of the Legislature a good one, and could not conceive why an alteration should be made. Such a mode of payment as was now proposed ought to be sanctioned only upon the maturest deliberation.

Mr. GOODHUE explained the reasons which induced the committee to propose an annual instead of a daily payment to members, which was, that members might be induced to greater despatch in business, and to do away an idea which had gone abroad amongst many people, that, being paid by the day, the members of that House protracted their session to an unreasonable length.

Mr. GILES thought there ought to be no pecuniary inducement to members to push forward business in too rapid a manner, or to shorten their sessions. An annual salary would doubtless have this effect, and business, in consequence, would most certainly be neglected. It would be an evil of the greatest importance; it would be a constant temptation to members to neglect their duty; it would tend to embarrass all their deliberations. Indeed, it was a perfectly new mode of requiting Representatives, and would be supposed to be introduced for the purpose of advancing their pay--an idea which he did not wish to prevail, as he thought the present allowance sufficient. He therefore hoped the principle would not be agreed to.

Mr. SWANWICK was against the bill, and said, that to pay members in the way proposed would be to offer them a bounty to neglect the business of the Legislature.

Mr. HILLHOUSE was in favor of the bill. He said, that the constitution had provided that Congress should meet once a year, and that more time was spent during their sitting than was taken up by the Circuits of the Judges. Yet the Judges had a salary allowed them, and it was not found to have any bad effect. Complaints are now made out of doors that their sessions are protracted for the sake of the daily allowance paid to them. Persons who said this, said he, do not know that we are all the time deeply engaged in business, which is much lengthened by clashing interests of different States. A yearly salary would do away this idea, without making any real difference in the amount paid by the Treasury for their services. If he thought the mode of payment would cause members to neglect their duty, as has been observed, he too would be against the adoption of it; but surely it cannot be supposed that members would not sit as long as business should require them. He observed, they had now been in session two months, and but very little important business had been done. He thought the mode proposed would tend to remedy this evil: it was an experiment at least worth trying.

Mr. FINDLAY did not object to the bill merely as a novelty, but because it offered no advantage. Many persons, no doubt, would think one thousand dollars a year too much; but he believed it best for members to do their duty, without regarding the misapprehensions and prejudices of they know not whom. He did not think the pay of members influenced their sittings. The greatest difficulty, towards the close of the session, was to keep members together. If, indeed, members would attend better at the beginning of a session, and take up less time in speaking, sessions might be shorter; but there must, however, be full liberty given to every member to express his sentiments in his own way. No law can regulate people's conceptions. He thought it best that the members should be paid by the day. He should never boast of passing laws in a short time, but of passing good laws.

Mr. NICHOLAS was in favor of the present mode of compensating members, as the period of their sessions was uncertain, and wherever salaries were paid, they were for certain business. Give members one thousand dollars, and he did not doubt but some of them would wish to return home sooner than if they had been paid in proportion to the time spent in business. Water, though insensibly, wears away stones; and such an influence, he feared, would have a tendency to undermine the integrity of members. It was better to be slow than too hasty in business. He hoped this bill would not pass as an experiment, for the effect must be corruption; and when once this enemy of all governments is suffered to take root, it is difficult to eradicate it. Indeed, this bill would be supposed by many as a cover to advance the pay of members. If there were any such view, he wished members to propose the measure openly. He thought the present pay too much, and if the people thought it influenced the length of their sittings, they were of the same opinion.

Mr. WILLIAMS was against the bill, though he believed it to be brought in by the committee from the best of motives. It was their opinion it would shorten the sessions, and, if carried into effect, it might do so. If our wages were lowered, the measure would shorten our sessions. Every penny beyond expenses is too much: a medium salary was desirable. If the pay of members was increased, officers of Government will do the same. At present, it was true, all the necessaries of life were at a high price; but when the war in Europe ceases, the case will be different. Whenever we adjourn our sessions, (said he,) much business is necessarily left unfinished; and if members were paid by the year instead of by the day, all those whose business was not completed would be ready to say that members were hastened away to enjoy their salary at home.

Mr. SEDGWICK did not think the business before the House important. He was inclined, however, to favor the bill, not that he would grant a larger amount in that way than the amount of the present allowance per day. The argument of novelty, he said, would not apply: we are in the business of experiment. He would observe a fact well known, that every member in the House was deprived of the opportunity of pursuing his occupations at home, and of the emoluments arising therefrom, by his attendance to public business. He did not believe a yearly allowance would shorten the sessions, but it would remove the charge brought against members of protracting the sessions for the sake of their pay. Whether it is necessary to increase or diminish the present pay is not the question.

Mr. LIVINGSTON expected stronger motives for the bill than he had heard. It is acknowledged a perfect novelty. This, though by no means decisive, is an objection against the measure, and there is nothing else to recommend it. It has, indeed, been said, it will shorten our sessions; but would this be a benefit? If to continue in session be an evil, why are we here? If it could have been proved that expense would have been saved by the measure, that would have been a real advantage; but this has not been hinted at. It has, indeed, been said, it will remove from our constituents a suspicion that we are living here too long. It has been said, that an idea has gone abroad that we receive six dollars a day through the year. Few, he believed, were so ill informed; but this bill, if passed, will cause much more discontent than the present pay occasions. Deliberation in a Legislative body is necessary. The dearest interests of the people, he said, were committed to their charge, and he trusted they would watch over them, and never suffer them to be injured; and then, it was his opinion their constituents would not think much of their pay.

Mr. BALDWIN said, that it was a disagreeable business to be employed in discussing the subject of paying themselves for their services: it would be a desirable thing to supersede the necessity of doing so. The committee doubtless thought one thousand per annum would be an improvement upon the present mode of paying members, but he could not think so. He thought it best that the allowance should be paid in the old way.

Mr. GILBERT was willing to try the experiment of the bill proposed. He did not believe that either the present daily allowance lengthened, or that an annual salary would shorten, the sessions. He thought to say the contrary was a base insinuation.

Mr. BOURNE never heard it was the wish of their constituents that their payment should be annual instead of per day. He had heard it complained that their pay was too high; but now, since the price of living is so much advanced, he believed the people were satisfied. He saw no advantages from the proposed change. It cannot be thought that the pay is an inducement to members to prolong their sessions: he had not heard such a complaint. He was in favor of striking out the word "annually," and for recommitting the bill.

Mr. MADISON observed, that the present bill proposed no alteration with respect to the amount of money to be drawn from the Treasury, and it can make but little difference to members. What had been mentioned as the advantages of this bill, in his opinion, would operate against it. A novelty, he said, always called for hesitation.

Mr. SWANWICK thought, if they enacted good laws--laws that should encourage agriculture and commerce--their constituents would not trouble themselves about their salary.

Mr. GILES rose to remark upon an expression which fell from Mr. GILBERT, viz: that, to say members were likely to be influenced by the proposed salary, was a vile insinuation. He declared that it was a recommendation of the bill in the committee, that it would tend to shorten their sessions.

Mr. GILBERT explained, and justified the expression.

The motion for striking out the word "annually" was called for, and passed.[68]

TUESDAY, February 9.

FISHER AMES, of Massachusetts, appeared, was qualified, and took his seat.

THURSDAY, February 11.

Post Roads from Maine to Georgia.

Mr. MADISON moved that the resolution laid upon the table some days ago be taken up, relative to the survey of the post roads between the province of Maine and Georgia; which, being read, he observed that two good effects would arise from carrying this resolution into effect; the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements upon them.

Mr. BALDWIN was glad to see this business brought forward; the sooner it could be carried into effect, the better. In many parts of the country, he said, there were no improved roads, nothing better than the original Indian track. Bridges and other improvements are always made with reluctance whilst roads remain in this state, because it is known as the country increases in population and wealth, better and shorter roads will be made. All expense of this sort, indeed, is lost. It was properly the business of the General Government, he said, to undertake the improvement of the roads, for the different States are incompetent to the business, their different designs clashing with each other. It is enough for them to make good roads to the different seaports; the cross roads should be left to the government of the whole. The expense, he thought, would not be very great. Let a surveyor point out the shortest and best track, and the money will soon be raised. There was nothing in this country, he said, of which we ought to be more ashamed than our public roads.

Mr. BOURNE thought very valuable effects would arise from the carrying of this resolution into effect. The present roads may be much shortened. The Eastern States had made great improvements in their roads, and he trusted the best effects would arise from having regular mails from one end of the Union to the other.

Mr. WILLIAMS did not think it right for the revenues of the Post Office to be applied to this end. He acknowledged the propriety of extending the post roads to every part of the Union; he thought the House had better wait for the report of the committee to which business relative to the Post Office had been referred, which was preparing to be laid before the House.

Mr. MADISON explained the nature and object of the resolution. He said it was the commencement of an extensive work. He wished not to extend it at present. The expense of the survey would be great. The Post Officer, he believed, would have no objection to the intended regulation.

After some observations from Mr. THATCHER, on the obtaining of the shortest distance from one place to another, and the comparing old with new roads, so as to come at the shortest and best, the resolution was agreed to, as follows:

Resolved, That a committee be appointed to report a bill authorizing the PRESIDENT OF THE UNITED STATES to cause to be examined, and, where necessary, to be surveyed, the general route most proper for the transportation of the mail between ----, in Maine, and ----, in the State of Georgia, and to cause to be laid before Congress the result of such examination and survey, with an estimate of the expense of rendering such route fit, in all its parts, to be the established route of the post; the expense of such examination and survey to be defrayed out of the surplus revenues of the Post Office.[69]

Ordered, That Mr. MADISON, Mr. THATCHER, Mr. BALDWIN, Mr. HENDERSON, and Mr. SHERBURNE, be appointed a committee pursuant to the said resolution.

MONDAY, February 22.

Washington's Birth-Day.

Mr. W. SMITH moved that the House adjourn for half an hour.

This motion occasioned a good deal of conversation upon its propriety. In favor of it, it was said, that it had been a practice ever since the commencement of the Government, for that House to make a short adjournment on that day in order to pay their compliments to the PRESIDENT, and that several members were absent, from an idea that the House would adjourn at 12 o'clock as usual. On the other hand, it was objected that it was the business of the members of that House first to do their duty, and then attend to the paying of compliments; that just at that time the house of the PRESIDENT was filled with militia and others; and that, therefore, it would be better, upon the whole, to wait upon the PRESIDENT after the business of the day was finished.

Mr. GALLATIN moved that the words "half an hour" be struck out.

The sense of the House was first taken on the amendment, which was lost, without a division. The motion was then put and negatived, being 38 for it, and 50 against it.

FRIDAY, February 26.

Compensation to Members.

Mr. GILES moved that the bill for allowing compensation to the members of the Senate and House of Representatives, and certain officers of both Houses, be taken up, which being agreed to, the House resolved itself into a Committee of the Whole; and the bill being read,

Mr. SWIFT wished to strike out the words making the Speaker a greater allowance than other members.

Mr. GILES thought a larger allowance ought to be made to the Speaker than to other members, as his duty was double that of any other member; but if gentlemen wished to do away the incidental expenses of the office, he had no objection.

Mr. SWIFT consented to vary his motion according to the ideas of the member from Virginia. If the Speaker had more duty to perform than other members, he should be willing to make him a greater allowance, but he doubted it.

Mr. W. SMITH hoped no alteration would be made in the allowance heretofore made; he saw no reason for it.

Mr. GOODHUE said, he voted against the additional pay allowed the Speaker when the act first passed, as he saw no necessity for the Speaker to give dinners to the members of that House; but though he objected to this, he was willing to allow him recompense for his additional services. He hoped, however, the gentleman who now so ably filled the office, would not consider any thing said on this subject as alluding personally to him.

Mr. SEDGWICK was willing to give the money to the Speaker which had heretofore been paid him, and for the same purpose, although he and his colleague were both against the measure when it originally passed.

Mr. DAYTON wished the business might be discussed without reference to him personally. Indeed he believed he should not be materially affected by any regulations which might be agreed to, as, if he might judge by his present feelings, his health would not permit him to remain in the chair after this session.

Mr. GILES was confident that no one meant to hurt the feelings of the gentleman who now filled the chair. The member from Massachusetts had said, when the measure passed, he was against it, but now he was in favor of it. He could see no ground for this change of sentiment. Mr. G. said, he was against the money being paid for incidental expenses, but not against making the Speaker ample allowance for his services.

Mr. KITCHELL was also for striking out the words, but for making ample compensation to the Speaker.

Mr. BOURNE did not suppose that the incidental expenses of the Speaker were confined to the dinners which he gave them; he was put to more expense in receiving company than other members. He did not think six dollars a day too much for this.

Mr. MADISON said, it was customary in all the State Governments to make the Speaker a greater allowance than other members: his services were far greater; they were uninterrupted. Besides, it was necessary to do so to invite men of talents to accept of the office; and every one knew the advantages arising from having a man of talents as Speaker. Without inquiring whether the compensation was too large or too small, he doubted whether it was constitutional to make any alteration in it which might affect the present Speaker. To support his opinions he read a clause of the constitution.

Mr. HILLHOUSE was of opinion that nothing in the constitution extended to the present question. He hoped they should agree to strike out the words alluded to, as the sooner the practice of feasting was abolished, the better. If members wished to form social acquaintances, it was far preferable to visit each other at their lodgings. He said, this was the first time the law had come under review since it had passed, and it was proper to have the matter settled. He wished to allow a reasonable sum for the services of the Speaker, but no more. He did not think there was any weight in the observation, that a large compensation was necessary to induce men of talents to accept of the chair--he thought the honor was a sufficient inducement.

Mr. WILLIAMS said there was no office appertaining to the Speaker which included expense; the words ought therefore to be struck out.

Mr. PAGE was in favor of striking out the words, as he did not understand their meaning, but in favor of keeping the allowance of the Speaker the same as usual. The Speaker, he said, ought to be placed in an independent situation, by a handsome salary. His duties were fourfold to those of any other member. Indeed, said he, nothing but a sense of duty could induce a man to undertake such an office.

Mr. GILES said, if it was agreed to strike out the words for the incidental expenses of his office, he should move to introduce in their place, "on account of extra services annexed to his office."

Mr. JEREMIAH SMITH liked the words proposed better than those in the bill, but did not think it of the importance it was made.

The motion for striking out was put and carried.

Mr. GILES then proposed his motion.

Mr. HILLHOUSE was against the introduction of these words.

Mr. VARNUM hoped the motion would prevail. The services of the Speaker are extraordinary and laborious. The State Legislatures, he said, always allowed their Speaker double the pay of other members.

Mr. MURRAY hoped the words would not obtain. He considered the Speakership of that House as a very elevated situation. In certain contingencies he believed he was the Chief Executive of the United States. He thought the calculation of pay too mechanical. The dignity of the office was sufficient, without extraordinary compensation; the duties of it were well known.

The question was put, and negatived.

Mr. GILES moved to fill up the blank for the daily allowance of members of the Senate with six dollars.

Mr. PAGE proposed seven; when, after a few observations from Mr. WILLIAMS in favor of six, the sense of the House was taken, which was in favor of six dollars--only twenty-one members rising in favor of seven.

The allowance of the Speaker again coming into consideration, Mr. SWIFT wished an inquiry might be made into the duties of the office. It was his opinion that many members upon committees performed greater services than he; and if the Speaker had an extra allowance, they ought to have an extra allowance also. Some gentlemen thought, on the score of dignity, a high salary ought to be paid. He thought differently. Can it be supposed it would be necessary, said he, to give any member of this House double pay to accept of the office? No such thing. Being now discharged from any obligation to treat members, he could not agree to allow him the usual sum. He should not object to two or three dollars a day extra, but no more.

Mr. GILES thought the duty of the Speaker three times as arduous as that of any other member of the House.

Mr. CRABB voted for striking out the words, but he was not for diminishing the salary of the Speaker.

The motion for the usual allowance was put and carried, and the other blanks of the bill were filled up with the same sums as heretofore allowed to the different officers. The committee rose; the bill then went through the House, and was ordered to be engrossed and read a third time on Monday.

MONDAY, March 7.

The Treaty with Great Britain.

[The debate on the subject of the Treaty with Great Britain, and of the constitutional powers of the House with respect to treaties, having occupied the time of the House nearly every day for a month, (commencing the 7th of March and ending on the 7th of April,) it is deemed preferable, and as being more acceptable to the reader, to present the whole in one body consecutively, rather than to spread it in detached parts intermixed with other subjects, through the general proceedings of each day. This debate, as here given, possesses a character for authenticity and correctness which does not belong to the newspaper reports of the day, it having undergone the careful revision of the Speakers themselves. The debate which took place on making the provision for carrying the Treaty into effect, will be found subsequently, in the proceedings of each day as the subject came up before the House.][70]

On the second of March, Mr. LIVINGSTON, after stating that the late British Treaty must give rise in the House to some very important and constitutional questions, to throw light upon which every information would be required, laid the following resolution upon the table.

"Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the Minister of the United States, who negotiated the Treaty with the King of Great Britain, communicated by his Message of the first of March, together with the correspondence and other documents relative to the said Treaty."

MARCH 7.--Mr. LIVINGSTON said he wished to modify the resolution he had laid on the table, requesting the PRESIDENT to lay before the House sundry documents respecting the Treaty. It was calculated to meet the suggestions of gentlemen to whose opinions he paid the highest respect, and was founded in the reflection that the negotiations on the twelfth article were probably unfinished; and therefore, he said, a disclosure of papers relative to that or any other pending negotiation, might embarrass the Executive. He wished, therefore, to add, at the end of his former motion, the following words: "Excepting such of said papers as any existing negotiation may render improper to be disclosed."

The motion of Mr. LIVINGSTON was then taken up.

Mr. TRACY requested gentlemen in favor of the resolution to give their reasons why the application for papers was to be made.

Mr. LIVINGSTON said, he had no wish to conceal his intentions. The motives that impelled him to make the motion, were not such as to make him wish to conceal them, or such as he ought to blush at when discovered. The gentleman from Connecticut wished to know why he had brought this resolution before the House? He did it for the sake of information. That gentleman wished to know to what point this information was to apply? Possibly to all the points he had enumerated. It was impossible, however, to say to which or how many of these points without a recurrence to those very papers. He could not determine now, he said, that an impeachment would be deemed advisable; yet, when the papers are obtained, they may make such a step advisable. It was impossible to declare an impeachment advisable, without having the necessary lights as to the conduct of officers. The House were, on every occasion, the guardians of their country's rights. They are, by the constitution, the accusing organ of the officers employed. The information called for they ought to possess, as it would tend to elucidate the conduct of the officers. His principal reason, however, for proposing the measure, was a firm conviction that the House were vested with a discretionary power of carrying the Treaty into effect, or refusing it their sanction.

Mr. MURRAY said, that he was against the resolution for two reasons, which then struck his mind forcibly. The first was the want of a declared object within the acknowledged cognizance of the House; the other was because he believed it was designed as the groundwork of a very dangerous doctrine, that the House had a right to adjudge, to adopt, or to reject Treaties generally. Had the gentlemen stated the object for which they called for the papers to be an impeachment, or any inquiry into fraud, as a circumstance attending the making of the Treaty, the subject would be presented under an aspect very different from that which it has assumed. He considered a Treaty, constitutionally made, to be the supreme law of the land. The Treaty in view has been negotiated and ratified, he thought, agreeably to the constitution. It has been issued, by the PRESIDENT's proclamation, as an act obligatory upon the United States. If the House mean to go into the merits of that instrument, and the information be called for with that view, he should feel himself bound by the constitution to give it every opposition.

Mr. BALDWIN thought the resolution so unexceptionable that he had expected it would have been agreed to without debate. The PRESIDENT has sent the House the Treaty; petitions have come forward on the subject; the House must act in the business. It is yet unaccompanied with any documents to throw light upon it. No person concerned in the negotiation has a seat on the floor of the House; so that no oral information can be expected. Implicit faith was not to be reposed, he imagined, in public officers. It would be unfair to take up the subject naked and unexplained.

Mr. GALLATIN said, he should not now enter into the merits of the question, but merely state that pertain powers are delegated by the constitution to Congress. They possess the authority of regulating trade. The Treaty-making power delegated to the Executive may be considered as clashing with that. The question may arise, whether a Treaty made by the PRESIDENT and Senate, containing regulations touching objects delegated to Congress, can be considered binding, without Congress passing laws to carry it into effect. A difference of opinion may exist as to the proper construction of the several articles of the constitution, so as to reconcile those apparently contradictory provisions. But all those questions would occur in future discussions. What is now wanted is information on the subject, to elucidate the different views which may be taken of the Treaty. It must do good to obtain it, and could do no harm to ask for it. If it would be improper to communicate any part of the information on the subject, the PRESIDENT will say so. He had hoped, he said, that the resolution would have passed without objection. He concluded by observing, that the House were the grand inquest of the nation, and that they had the right to call for papers on which to ground an impeachment; but he believed, that if this was intended, it would be proper that the resolution should be predicated upon a declaration of that intention. At present, he did not contemplate the exercise of that right.

Mr. MADISON admitted that every proposition, however distantly related to a question on the Treaty, drew from the importance of that subject considerable importance to itself. In a discussion of this subject, he felt strongly the obligation of proceeding with the utmost respect to the decorum and dignity of the House, with a proper delicacy to the other departments of Government, and, at the same time, with fidelity and responsibility for our constituents. The proposition now before the House, he conceived, might be considered as closely connected with this important question. It was to be decided whether the general power of making Treaties supersedes the powers of the House of Representatives, particularly specified in the constitution, so as to take to the Executive all deliberative will, and leave the House only an Executive and ministerial instrumental agency?

Mr. SMITH (of South Carolina) said, that he had listened attentively to the reasons advanced in favor of this resolution, and that he had heard nothing to convince him of its propriety. The PRESIDENT and Senate have, by the constitution, the power of making Treaties, and the House have no agency in them, except to make laws necessary to carry them into operation; he considered the House as bound, in common with their fellow-citizens, to do every thing in their power to carry them into full execution. He recognized but one exception to this rule, and that was, when the instrument was clearly unconstitutional. In this case, he remarked, it had not been said that the Treaty was unconstitutional. When the resolution was first brought forward, it had indeed been observed, that the discussion might involve certain constitutional points, and, therefore, the papers called for by the resolution were necessary; but it was obvious, the question of constitutionality should be determined from the face of the instrument, and that a knowledge of the preparatory steps which led to its adoption, could throw no light upon it; that ground was therefore abandoned even by the friends of the resolution, and others were resorted to.

He was surprised that gentlemen who displayed such zeal for the constitution should support a proposition, the tendency of which went indirectly to break down the constitutional limits between the Executive and Legislative Departments. The constitution had assigned to the Executive the business of negotiation with foreign powers; this House can claim no right by the constitution to interfere in such negotiations; every movement of the kind must be considered as an attempt to usurp powers not delegated, and will be resisted by the Executive; for a concession would be a surrender of the powers specially delegated to him, and a violation of his trust. The proposition calls upon the PRESIDENT to lay before the House the instructions given to Mr. Jay, and the correspondence between him and Lord Grenville; and for what purpose? Is this House to negotiate the Treaty over again? Has the constitution made this House a diplomatic body, invested with the powers of negotiation? Is not this House excluded? for, if the maxim that "the expression of one is the exclusion of another," applies to this case, the assignment of the Treaty-making power to the PRESIDENT and Senate, is a manifest exclusion of this House. This call, then, on the PRESIDENT, is an attempt to obtain indirectly what the constitution has expressly assigned to others.

After Mr. S. had sat down, it was moved by Mr. GILES, to take the resolution up in Committee of the Whole for the purpose of more ample discussion.

This motion was agreed to; sixty-one members rising in the affirmative.

The House immediately resolved itself into a Committee of the Whole, on the resolution.

Mr. NICHOLAS remarked, that the member from Connecticut, first up, when inquiring for the reason of a call for papers, had suggested two. The one, relating to the merits of the instrument; the other, an inquiry into the conduct of officers concerned. On the latter ground, gentlemen conceded that the House had a right to require the papers, and yet seemed willing to adhere to that, on which they conceived a call could not be, with propriety, grounded, as the one that influenced the conduct of the friends to the resolution. All gentlemen admitted, that the House had the superintendence over the officers of Government, as the grand inquest of the nation; but persisted that the resolution calling for papers, if intended for the purpose of exercising that authority, must be predicated on an expression of the intention.

He took a view of the prominent features of the arguments of the members up before him. It had been said that, if the power of the PRESIDENT and Senate, as to Treaties, was complete, then the House had no right to claim a participation; this could not be denied; but the question was, whether the Executive had that right unqualifiedly, in all cases. In the present case, he contended, the House had a voice. To elucidate: Suppose that, in the constitution of the United States, which has been so guarded about the expenditure of money, a clause had been inserted, positively declaring that the House have a control over the money matters stipulated in a Treaty; would not this constitute a qualification of the powers of the PRESIDENT and Senate with respect to Treaties? The constitution, on this head, he contended, though less explicit than his supposed case would make it, was not the less positive, if tested by all the fair rules of construction; and if compared with the practice of the government from which we had borrowed, with many other matters, this part of our constitution. In England, the country alluded to, their House of Parliament had exercised a control over the moneyed articles of Treaties; and he contended, the House of Representatives had an equal authority here, as chief guardians of the purse-strings. It was unnecessary, at this time, he said, to touch on the other parts of the Treaty which clashed with the constitutional powers of the House.

He again adverted to the power of control that the House of Commons have over Treaties; and contended, that that provision of the British constitution had been accurately copied in our own with this deviation only, that the Senate have the power of making amendments to money bills here, which the House of Lords there have not. He could show, from the best authority, the acknowledgment of the British Crown officers themselves, that the Parliament has a right to discuss and decide on Treaties which involved moneyed stipulations.

The same power, he argued, resided in the House here; for shall it be said, that we have borrowed only the form from Great Britain, and not touched the substance? Shall it be said, that the House have a discretion as to appropriations, and yet they must make them as directed by a Treaty? If the House have no discretion to use in the business, they are the most unfit body to regulate money-matters; for complete regularity in so large a body must be one of the least of their valuable properties. But, with the power of appropriating money, the House have certainly the right to judge of the propriety of the appropriation. The constitution explains itself fully on this head. He instanced the specific power in the constitution, with respect to appropriations for the army, to explain from that instrument its meaning in other parts.

The constitution says, that no appropriations for the support of armies shall be for more than two years; this is, no doubt, that the House may periodically have before them the question of the propriety of supporting an armed force, with all its consequences, and that they may, by refusing or granting an appropriation, determine on its existence. The power thus cautiously lodged must have been for some purpose, and that he had suggested could alone explain this clause of the constitution. This will show what was expected of this House in appropriating money; that they should judge of the usefulness of the expenditure. In the case of the army, the constitution does not say that we may disband an army by withholding money; but for the purpose of investing us with the same power, only requires that the appropriation should recur every two years; taking it for granted, that in this as well as in every other Legislative act, we will duly weigh every consequence.

Having thus explained from the constitution itself the true meaning of this power of appropriation, he proceeded to elucidate it by a reference to the practice of the Government. He found an instance in the permanent appropriations made for the payment of the public debt. If the House in this and analogous cases, could exercise no discretion as to appropriations, why this permanent provision, in preference to an annual appropriation? The permanency of the provision took its rise from the idea, that the House possessed a discretionary power as to appropriations. Thus, he had shown that the practice of the Government, the provisions of the constitution, and the example of the British, from whom we had exactly copied the control over money transactions, all proved a discretion in the House as to appropriations. This must be considered as a sufficient answer to the gentleman from South Carolina, when he said, that the PRESIDENT and Senate possessed the Treaty-making power; for they possessed it with qualification, in matters of money; and unless the House chose to grant that money, it was so far no Treaty.

It was said, that if the Treaty was not the law of the land, the PRESIDENT should be impeached for declaring it as such. Parts of the Treaty the PRESIDENT and Senate had, no doubt, a right to make without any control of the House--those parts he might be considered as proclaiming; he proclaims it, limited as his authority, and under the qualifications provided by the constitution. It was said, that no instance of such a call as that now contemplated could be produced. No; nor of such a Treaty, he answered.

Mr. SWANWICK expressed his sense of the importance of the subject before the House, and the pleasure which he experienced at observing the calmness and temper with which the discussion had been carried on. He had not conceived, however, that the decision of the present question involved the sense of the House as to the merits of the Treaty; the object of the resolution was only to obtain that knowledge necessary for an enlightened decision; it had been observed, that the Treaty had been censured by assemblages of people with precipitancy, and without proper information. They did this on the best information that could by them be obtained. But if the House should go into a Committee of the Whole, to take into consideration the Treaty, without obtaining all the information in their power, they would be justly to blame.

He adverted to the constitution; according to that instrument, the Legislative power is completely vested in Congress. By the 8th section of the 1st article, not only a certain specification of powers are granted to Congress, to lay and collect taxes, regulate commerce, &c., but the very extensive further power, not only to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, but, also, all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. If, then, Congress have the power to pass laws to carry into execution all powers vested by the constitution in the Government of the United States, or in any department or officer thereof, how is it possible that there can be any authority out of the purview of this general and extensive Legislative control? Is the Treaty-making power not a power vested by the constitution in the Government of the United States, or in a department or officer thereof? If it is, is the conclusion not obvious, that Congress have power to pass laws for carrying these powers into effect? But in the power to pass laws, discretion is necessarily implied; of course, this House must judge when it is to act; whether it will, or will not, carry into effect the object in question. It is a power, it is true, of great delicacy and responsibility, but it is not less a power constitutionally given.

The member from South Carolina construed this part of the constitution in a different way, and insisted that, as the PRESIDENT and Senate had the power of making Treaties, the House were divested of the right of exercising their judgment upon the subject. If this doctrine prevails, to what a situation would the Representatives of a free people be reduced? The constitution especially gives them the power of originating money bills; but to what purpose would this power be granted, if another authority may make a contract, compelling the House to raise money? Suppose that authority were in this way to grant millions upon millions, must the House, at all events, be compelled to provide for their payment? In this case the House become mere automatons, mere mandarine members, like those who nod on a chimney-piece, as directed by a power foreign to themselves.

Great stress is laid upon the constitution declaring Treaties laws of the land. This article has often been quoted partially, but not at large. It is in these words: "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Had the clause stopped here, there might have been some plea for the gentlemen's doctrine; but, unfortunately for them, the article goes on to say: "And the Judges in every State shall be bound thereby, any thing in the constitution or laws of any State, to the contrary notwithstanding." Hence, it is obvious that the supremacy of the law is over the constitution and laws of the separate States, which was necessary to prevent these interfering with those. But it does not affect the powers of this House, as a component part of the General Legislature, and authority of the United States. It is also worth while to notice the gradation in the article.

First. This constitution.

Secondly. The laws which shall be made in pursuance thereof, clothed with the highest sanction of the nation, the consent of the three branches.

Thirdly. Treaties. How absurd the doctrine, then, that these last, third in order, can repeal the second: at that rate, all power whatever would remain vested in two branches only of the Government; the third, with all its powers of originating bills for raising revenue, would be dwindled into a mere board of assessors.

The gentleman from Vermont said, yesterday, that if the PRESIDENT and Senate were to make a Treaty, and that House were to refuse to make due appropriations for carrying it into effect, it would become a nullity, and no foreign nation would in future treat with such an uncertain Government. Mr. S. observed, that that gentleman would probably be surprised, when he was told, that the British House of Commons possesses the same power which he reprobates in the Legislative Assembly of the United States. This, Mr. S. proved, by reading the King's Speech to both Houses of Parliament, in which he informs them of this Treaty, and promises to lay it before them when ratified, in order that they might judge of the propriety of making provision to carry it into effect. What, judge of the propriety of passing laws to carry into effect a Treaty ratified! And shall it be said, exclaimed he, that the Representative Assembly of the United States does not possess a privilege enjoyed by an English House of Commons! He hoped not.

Mr. HARPER said, that it had not been his intention to trouble the committee, in this stage of the debate at least; nor should he now depart from his resolution on that head, had he not observed that the discussion was turning more and more on points, which it appeared to him unnecessary to decide. He did not conceive that the powers of the House respecting Treaties were necessary to be considered; the question appeared capable of a satisfactory decision on different grounds.

When the motion was first proposed, he thought it innocent at least, and was in doubt whether it might not be proper, because he was in doubt how far these papers might be necessary for enabling the House to exercise that discretion on the subject of Treaties, which he admitted it to possess; but on a more accurate and extensive view of the subject, and after carefully attending to the discussion which had already taken place, he was thoroughly persuaded that these papers were no way necessary, and, that being unnecessary, to call for them was an improper and unconstitutional interference with the Executive department. Could it be made to appear that these papers are necessary for directing or informing the House on any of those Legislative questions respecting the Treaty which came within its powers, he should propose to change the milk-and-water style of the present resolution. The House, in that case, would have a right to the papers; and he had no idea of requesting as a favor what should be demanded as a right. He would demand them, and insist on the demand. But, being persuaded that no discretion hitherto contended for, even by the supporters of the resolution themselves, made these papers necessary to the House, to call for them would be an unconstitutional intermeddling with the proper business of the Executive.

It had been said, that this motion was of little consequence; that it was only a request which might be refused, and that the privileges of that House were narrow indeed, if it could not request information from the Executive department. But it would be observed, he said, that requests from bodies like that, carry the force of demands, and imply a right to receive. Legislative bodies often make the most formidable expressions of their will in the shape of requests. It would be further observed, that an honorable member from Pennsylvania, (Mr. GALLATIN,) after declaring that this indeed was only a request which might be refused, had added, that in case it were refused, it would then be proper to consider how far we ought to make the demand, and insist on receiving these papers as a matter of right. After this avowal of the system, after this notice that the present request is no more than a preliminary measure, a preparatory step, and in case of a refusal, is to be followed up by a demand, could it be wondered that they who think the measure improper, should oppose it in the threshold?

Mr. GALLATIN conceived that, whether the House had a discretionary power with respect to Treaties, or whether they were absolutely bound by those instruments, and were obliged to pass laws to carry them fully into effect, still there was no impropriety in calling for the papers. Under the first view of the subject, if the House has a discretionary power, then no doubt could exist that the information called for is proper; and, under the second, if bound to pass laws, they must have a complete knowledge of the subject, to learn what laws ought to be passed. This latter view of the subject, even, must introduce a discussion of the Treaty, to know whether any law ought to be repealed, or to see what laws ought to be passed. If any article in the instrument should be found of doubtful import, the House would most naturally search for an explanation, in the documents which related to the steps which led to the Treaty. If one article of the Treaty only be doubtful, the House would not know how to legislate without the doubt being removed, and its explanation could certainly be found nowhere with so much propriety as in the correspondence between the negotiating parties.

Gentlemen had gone into an examination of an important constitutional question upon this motion. He hoped this would have been avoided in the present stage of the business; but as they had come forward on that ground, he had no objection to follow them in it, and to rest the decision of the constitutional powers of Congress on the fate of the present question. He would, therefore, state his opinion, that the House had a right to ask for the papers proposed to be called for, because their co-operation and sanction was necessary to carry the Treaty into full effect, to render it a binding instrument, and to make it, properly speaking, a law of the land; because they had a full discretion either to give or to refuse that co-operation; because they must be guided, in the exercise of that discretion, by the merits and expediency of the Treaty itself, and therefore had a right to ask for every information which could assist them in deciding that question.

One argument repeatedly used by every gentleman opposed to the present motion was, "That the Treaty was unconstitutional or not; if not, the House had no agency in the business, but must carry it into full effect; and if unconstitutional, the question could only be decided from the face of the instrument, and no papers could throw light upon the question." He wished gentlemen had defined what they understood by a constitutional Treaty; for, if the scope of their arguments was referred to, it would not be found possible to make an unconstitutional treaty. He would say what he conceived constituted the unconstitutionality of a treaty. A treaty is unconstitutional if it provides for doing such things, the doing of which is forbidden by the constitution; but if a treaty embraces objects within the sphere of the general powers delegated to the Federal Government, but which have been exclusively and specially granted to a particular branch of Government, say to the Legislative department, such a Treaty, though not unconstitutional, does not become the law of the land until it has obtained the sanction of that branch. In this case, and to this end, the Legislature have a right to demand the documents relative to the negotiation of the Treaty, because that Treaty operates on objects specially delegated to the Legislature. He turned to the constitution. It says that the PRESIDENT shall have the power to make Treaties, by and with the advice and consent of two-thirds of the Senate. It does not say what Treaties. If the clause be taken by itself, then it grants an authority altogether undefined. But the gentlemen quote another clause of the constitution, where it is said that the constitution, and the laws made in pursuance thereof, and all Treaties, are the supreme law of the land; and thence, they insist that Treaties made by the PRESIDENT and Senate are the supreme law of the land, and that the power of making Treaties is undefined and unlimited. He proceeded to controvert this opinion, and contended that it was limited by other parts of the constitution.

The power of making Treaties is contended to be undefined, then it might extend to all subjects which may properly become the subjects of national compacts. But, he contended, if any other specific powers were given to a different branch of the Government, they must limit the general powers; and, to make the compact valid, it was necessary that, as far as those powers clashed with the general, that the branch holding the specific should concur and give its sanction. If still it is insisted that Treaties are the supreme law of the land, the constitution and laws are also; and it may be asked, which shall have the preference? Shall a Treaty repeal a law or a law a Treaty? Neither can a law repeal a Treaty, because a Treaty is made with the concurrence of another party--a foreign nation--that has no participation in framing the law: nor can a Treaty made by the PRESIDENT and Senate repeal a law, for the same reason, because the House of Representatives have a participation in making the law. It is a sound maxim in Government, that it requires the same power to repeal a law that enacted it. If so, then it follows that laws and Treaties are not of the same nature; that both operate as the law of the land, but under certain limitations; both are subject to the control of the constitution; they are made not only by different powers, but those powers are distributed, under different modifications, among the several branches of the Government. Thus no law could be made by the Legislature giving themselves power to execute it; and no Treaty, by the Executive, embracing objects specifically assigned to the Legislature without their assent.

To what, he asked, would a contrary doctrine lead? If the power of making Treaties is to reside in the PRESIDENT and Senate unlimitedly: in other words, if, in the exercise of this power, the PRESIDENT and Senate are to be restrained by no other branch of the Government, the PRESIDENT and Senate may absorb all Legislative power--the Executive has, then, nothing to do but to substitute a foreign nation for the House of Representatives, and they may legislate to any extent. If the Treaty-making power is unlimited and undefined, it may extend to every object of legislation. Under it money may be borrowed, as well as commerce regulated; and why not money appropriated? For, arguing as the gentlemen do, they might say the constitution says that no money shall be drawn from the Treasury but in consequence of appropriations made by law. But Treaties, whatever provision they may contain, are law; appropriations, therefore, may be made by Treaties. Then it would have been the shortest way to have carried the late Treaty into effect by the instrument itself, by adding to it another article, appropriating the necessary sums. By what provision of the constitution is the Treaty-making power, agreeably to the construction of the gentlemen, limited? Is it limited by the provisions with respect to appropriations? Not more so than by the other specific powers granted to the Legislature. Is it limited by any law past? If not, it must embrace every thing, and all the objects of legislation. If not limited by existing laws, or if it repeals the laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the Legislative power in fact resides in the PRESIDENT and Senate, and they can, by employing an Indian tribe, pass any law under the color of Treaty. Unless it is allowed that either the power of the House over the purse-strings is a check, or the existing laws cannot be repealed by a Treaty, or that the special powers granted to Congress limit the general power of Treaty-making, there are no bounds to it, it must absorb all others, repeal all laws in contravention to it, and act without control.

To the construction he had given to this part of the constitution, no such formidable objections could be raised. He did not claim for the House a power of making Treaties, but a check upon the Treaty-making power--a mere negative power; whilst those who are in favor of a different construction advocate a positive and unlimited power.

He read a quotation from Blackstone, page 257, vol. i., to show that the power of Treaty-making in England is as extensively vested in the King, as it can possibly be said to be here in our Executive.

The following is the passage alluded to:

"II. It is also the King's prerogative to make Treaties, leagues, and alliances with foreign States and Princes. For it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power, and then it is binding upon the whole community; and, in England, the sovereign power, quo ad hoc, is vested in the person of the King. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul."

After such a latitude as this clause gives, it would be supposed that there could be no check reserved upon this power; yet it will be found that Parliament have a participation in it. And the apparent inconsistency is easily reconciled, by observing that the power given generally to the Executive of making contracts with other nations, does not imply that of making Legislative regulations, but that when the contract happens to embrace Legislative objects, the assistance of the Legislature becomes necessary to give it effect.

He proceeded to show the operation of this limitation of the Treaty-making power in England by the practice of Parliament. It was always considered as discretionary with Parliament to grant money to carry Treaties into effect or not, and to repeal or not to repeal laws that interfere with them. In citing instances of the exercise of this power, he should not go further back than their Revolution.

He then read several extracts from Anderson's History of Commerce, vol. iii. pages 269, '70, '71, '72. They are so much in point that we transcribe the most material passages:

"But we could not omit our animadversions on the eighth and ninth articles, as they were so extraordinary in themselves, and as they occasioned so great a stir and uneasiness at that time, as to have brought the whole Treaty of Commerce to miscarry then and ever since.

"ART. IX. That within the space of two months after a law shall be made in Great Britain, whereby it shall be sufficiently provided that not more customs or duties be paid for goods and merchandise brought from France into Great Britain than what are payable for goods and merchandise of the like nature, imported into Great Britain from any other country in Europe; and that all laws made in Great Britain since the year 1664 for prohibiting the importation of any goods or merchandise coming from France, which were not prohibited before that time, be repealed, the general tariff in France, on the 18th of September, in the said year 1664, shall take place there again, and the duties payable in France by the subjects of Great Britain for goods imported and exported, shall be paid according to the tenor of the tariff above mentioned.

"When the said two articles came to be known by the merchants of Great Britain, they were received with the utmost surprise and indignation, and the clamor was loud and universal.

"That the complying with those two articles would effectually ruin the commerce we carried on to Portugal--the very best branch of all our European commerce. That the said eight articles did, in general terms, put France on an equal footing with Portugal or any other of our best allies, in point of commerce."

"This is, in brief, the sum of this mercantile controversy, which when brought into Parliament, it was so apparent that our trade to France had ever been a ruinous one, and that if, in consequence of accepting the said eighth and ninth articles, the British Parliament should consent to reduce the high duties and take off the prohibitions so prudently laid on French commodities, it would effectually ruin the very best branches of our commerce, and would thereby deprive many hundred thousand manufacturers of their subsistence; which was also supported by petitions from many parts of the kingdom: that, although a great majority of that House of Commons was in other respects closely attached to the ministry, the bill for agreeing to the purport of the said two articles was rejected by a majority of nine voices, after the most eminent merchants had been heard at the bar of that House, to the great joy of the whole trading part of the nation, and of all other impartial people."

Thus it must be clearly seen, that the consent of Parliament was not only deemed necessary to the completion of the Treaty, but that that consent was refused, and that in consequence the Treaty fell to the ground, and was not revived for a period of near eighty years, and all notwithstanding the plenitude of the Treaty-making power, said by the best English authority, Blackstone, to be vested in the King; which was, however, he repeated, necessarily checked by the special powers vested in Parliament; for none but they could grant money, or repeal the laws clashing with the provisions of Treaties.

He cited another instance of the exercise of this controlling power in Parliament of even a later date, viz: in the year 1739, in the case of a Treaty between Spain and Great Britain, which was sanctioned by a very small majority indeed in Parliament. He cited a third example from Anderson, vol. vi., page 828, in the case of the Treaty of Commerce between France and Great Britain, to show that the practice of the Parliament's interfering in Treaties is not obsolete.

The following is an article of the said Treaty, which Mr. GALLATIN read:

"XIV. The advantages granted by the present Treaty to the subjects of His Britannic Majesty shall take effect, as far as relates to the kingdom of Great Britain, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by the Treaty.

"And the advantages by all these articles, except the tariff, shall take effect with regard to the kingdom of Ireland, as soon as laws shall be passed there, for securing to the subjects of His Most Christian Majesty the reciprocal enjoyment of the advantages which are granted to them by this Treaty: and, in like manner, the advantages granted by the tariff shall take effect in what relates to the said kingdom, as soon as laws shall be passed there for giving effect to the said tariff."

Upon this principle, founded on almost immemorial practice in Great Britain, did the Minister of that kingdom, when introducing the late Treaty with Prussia into Parliament, tell the House that they will have to consider the Treaty and make provision for carrying it into effect. On the same principle, when the debate took place on that instrument, it was moved to strike out the sum proposed to be voted, which would have defeated it, and afterwards to strike out the appropriation clause, which would have rendered the bill a mere vote of credit, and would also have caused the Treaty to fall to the ground. On the same principle, the King of Great Britain, when he mentioned the American Treaty, promised to lay it before them in proper season, that they might judge of the propriety of enacting the necessary provisions to carry it into effect.

It remains to be examined, said Mr. G., whether we are to be in a worse situation than Great Britain; whether the House of Representatives of the United States, the substantial and immediate Representatives of the American people, shall be ranked below the British House of Commons; whether the Legislative power shall be swallowed up by the Treaty-making authority, as contended for here, though never claimed even in Great Britain?

In Great Britain, he remarked, the Treaty-making power is as undefined as in America. The constitution here, declares that the PRESIDENT and Senate shall make Treaties; there, custom says as loudly, that the King shall make them. In Great Britain, however, the power is limited, by immemorial custom, by the exercise of the Legislative authority by a branch distinct from the regal; in the same manner is it limited here, not however merely by custom and tradition, but by the words of the constitution, which gives specifically the Legislative power to Congress; and he hoped this authority would be exercised by the House with as much spirit and independence as any where.

If this doctrine is sanctioned, if it is allowed, that Treaties may regulate appropriations and repeal existing laws, and the House, by rejecting the present resolution declare, that they give up all control, all right to the exercise of discretion, it is tantamount to saying, that they abandon their share in legislation, and that they consent the whole power should be concentred in the other branches. He did not believe such a doctrine could be countenanced by the House. If gentlemen should insist upon maintaining this doctrine, should deny the free agency of the House, and their right to judge of the expediency of carrying the Treaty into effect, the friends to the independence of the House will be driven to the necessity to reject the Treaty, whether good or bad, to assert the contested right. If the gentlemen abandoned this ground, then the policy of the measure could be weighed on fair ground, and the Treaty carried into affect, if reconcilable to the interests of the United States.

MARCH 10.--In Committee of the Whole, on Mr. LIVINGSTON's resolution, Mr. HARTLEY delivered his sentiments as follows:

As I was not present when this subject was first introduced, it cannot be expected that I should take any great share in the debate; but some observations I have heard, chiefly from the gentleman last up yesterday from Pennsylvania, have induced me to show a few grounds for my vote.

That gentleman has strongly combined this resolution with the Treaty, and wishes that every one who holds that there should be a co-operation of this House respecting that instrument, should vote for the resolution. I think differently.

The gentlemen who contend for the mighty power of the Executive and Senate, as well as those who argue for the great authority of this House, perhaps are on extremes; but the Treaty ought not now to be so largely under consideration. I am willing, if it is thought proper, to take it up at an early day, and, after a full hearing, will vote as I hold right.

The gentleman I referred to, from Pennsylvania, argued most strenuously that the laws and customs of Great Britain and the Constitution of the United States were analogous--nay, that the powers were precisely the same.

The gentlemen who hold this doctrine have made researches, and have quoted several authorities; but why have not those ingenious gentlemen discovered a single instance where the British House of Commons have had the instructions given by the Executive to the negotiating Minister laid before them. If there was such a power, no doubt that body would at some period have exercised it; for no men on earth have extended the power of privileges which they had further than the members of the House of Commons of Britain.

As those gentlemen who contend for the likeness--indeed, sameness of the Treaty-making powers of both countries--can show no precedent, it may be fairly contended, that no such right exists as is contemplated by the resolution.

Treaties are made under the Executive in almost all countries, and when the Ministers have gone through their part of the business, the Treaty is commonly laid before the nation. If any national act is further necessary, it would pass in conformity to the principles of good faith; if any thing is necessary (consistent with the constitution) on the part of the House, it will be the discussion of another day.

Mr. GRISWOLD said, that the resolution on the table appeared at first view to be perfectly innocent, and, he might add, of very little importance. It amounted to no more than a request to the PRESIDENT to furnish the House with papers relating to the negotiation with Great Britain, which he might either satisfy or reject. But the discussion which had taken place in the committee, had given the subject a very serious aspect, and involved a question of the first importance; and although some gentlemen had thought that the committee had prematurely involved itself in the examination of the question, he could not see how the discussion could have been avoided. For gentlemen would not say that any resolution--more particularly a resolution calling on the PRESIDENT for documents belonging to the Executive Department--was to pass the House without a conclusive reason, much less without any reason for its passing. On this principle gentlemen had been called on at an early period for the reasons on which they grounded the resolution. They had attempted to assign reasons, but those reasons had been generally abandoned; and it could not at that time be seriously contended that the objects of general information or publicity, which had been first mentioned, could justify the House in calling on the PRESIDENT for papers relating to the British Treaty, or that those papers were necessary to enable the House to judge of the constitutionality of the Treaty. The friends of the resolution, aware of this, had at last come forward and assigned a new and a very important reason. It had been now said, that the House of Representatives have a right to judge over the heads of the PRESIDENT and Senate on the subject of Treaties; that no Treaty can become a law until sanctioned by the House; and, in fine, that the House of Representatives is a constitutional part of the Treaty-making power.

If these facts and the principles which grow out of them are true, he could not say that the resolution was improper; and although he did not know to what part of the Treaty the papers would particularly apply, yet, if the House were to take this extensive view of the Treaty, and ultimately to sanction or reject it, it would seem that the papers relating to the negotiation ought to be laid before them. But if these facts are not true, and the House is not a constitutional part of the Treaty-making power, and the Treaty is already a law without its sanction, then the reason falls to the ground, and the resolution ought to be rejected.

This inquiry into the powers of the House of Representatives must be confined, and the question arising out of it must be decided by a fair construction of the constitution. The powers of each branch of the Government are there limited and defined, and an accurate understanding of that instrument would enable gentlemen to decide the question.

In comparing these questions with the constitution, gentlemen were not, however, to inquire whether that constitution was a good or a bad one; whether too much power had been given to this or to that branch of the Government. The question will only be, what powers has the constitution given, and to what departments have the same been distributed?

To render the subject as clear and distinct as possible, he thought it would not be improper to take an abstract view of those two powers in all governments having foreign relations which are immediately connected with the inquiry, viz: the Legislative and the Treaty-making power. And if gentlemen can clearly fix in their minds the limits of each, they will become better enabled to see their operation, and to decide on the powers of the House in the exercise of them.

The Legislative power in all governments is extremely broad; it occupies the most extensive ground; it extends to every object which relates to the internal concerns of the nation; it regulates the life, the liberty, and the property of every individual living within its jurisdiction; it can control commerce within its jurisdiction; govern the conduct of the nation towards aliens, in whatever capacity they may appear; and, in short, as certain English writers have said of the British Government, its power is almost omnipotent. Thus broad and extensive are the general powers of legislation, subject, however, to such particular restrictions as are prescribed by forms of government, or which occasionally arise from the nature of government itself, and limit the objects of its operation.

It is easy to see, that in the exercise of these Legislative powers, it will frequently happen that laws are enacted, which, in their operation, will embarrass the intercourse of two nations. Such are always the effect of retaliating laws, and aliens within the limits of a foreign jurisdiction are frequently, by those regulations, subjected to great and unreasonable embarrassments.

The Treaty-making power operates in a very different manner; its power is limited and confined to the forming of Treaties with foreign nations; its objects are to facilitate the intercourse between nations; to remove by contract, those impediments which embarrass that intercourse, and to place the same on a fair and just foundation. In the exercise of this power, it will unavoidably happen that the laws of the Legislature are sometimes infracted. The Legislature, for certain causes,--perhaps to compel a foreign nation to form a treaty on terms of reciprocity,--may prohibit all intercourse, or embarrass that intercourse with regulations so burdensome as to produce the same effect; the foreign nation finally becomes willing to treat, and to establish an intercourse on equitable terms. If, in this case, the Treaty power cannot touch the laws of the Legislature, the object which gave rise to those very laws can never be attained; no Treaty can be formed, because it will oppose existing laws; those laws cannot be repealed, because the object for which they were enacted has not been attained. Such a construction of the Treaty power would defeat every object for which that power was established; and instead of possessing an authority to remove embarrassments in a foreign intercourse, it cannot touch them; and, although expressly created for the attainment of a single object, it can never attain it.

From these considerations, he contended that, in the exercise of that power which related to the intercourse with foreign nations, the Treaty-making was paramount to the Legislative power; and that the positive institutions of the Legislature must give place to compact.

On this construction, a perfect harmony is introduced into the departments of Government. Both the Legislative and the Treaty power are necessary, on many occasions, to accomplish the same objects. The Legislative power to establish regulations, or declare war, for the purpose of compelling a nation to agree to a reasonable compact; and the Treaty power, when that nation is compelled to agree to such reasonable compact, to remove by Treaty those very regulations, and the war itself, on fair and equitable terms.

Mr. MADISON said, that the direct proposition before the House, had been so absorbed by the incidental question which had grown out of it, concerning the constitutional authority of Congress in the case of Treaties, that he should confine his present observations to the latter.

The true question, therefore, before the committee, was, not whether the will of the people expressed in the constitution was to be obeyed, but how that will was to be understood; in what manner it had actually divided the powers delegated to the Government; and what construction would best reconcile the several parts of the instrument with each other, and be most consistent with its general spirit and object.

On comparing the several passages in the constitution, which had been already cited to the committee, it appeared, that if taken literally, and without limit, they must necessarily clash with each other. Certain powers to regulate commerce, to declare war, to raise armies, to borrow money, &c., are first specially vested in Congress. The power of making Treaties, which may relate to the same subjects, is afterwards vested in the PRESIDENT and two-thirds of the Senate; and it is declared in another place, that the constitution and the Laws of the United States, made in pursuance thereof, and Treaties made, or to be made under the authority of the United States, shall be the supreme law of the land. And the judges, in every State, shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.

The term supreme, as applied to Treaties, evidently meant a supremacy over the State constitutions and laws, and not over the Constitution and Laws of the United States. And it was observable, that the judicial authority, and the existing laws, alone of the States, fell within the supremacy expressly enjoined. The injunction was not extended to the Legislative authority of the States, or to laws requisite to be passed by the States for giving effect to Treaties; and it might be a problem worthy of the consideration, though not needing the decision of the committee, in what manner the requisite provisions were to be obtained from the States.

It was to be regretted, he observed, that on a question of such magnitude as the present, there should be any apparent inconsistency or inexplicitness in the constitution, that could leave room for different constructions. As the case, however, had happened, all that could be done was to examine the different constructions with accuracy and fairness, according to the rules established therefor, and to adhere to that which should be found most rational, consistent, and satisfactory.

He stated the five following, as all the constructions, worthy of notice, that had either been contended for, or were likely to occur:

I. The Treaty power, and the Congressional power, might be regarded as moving in such separate orbits, and operating on such separate objects, as to be incapable of interfering with, or touching each other.

II. As concurrent powers relating to the same objects; and operating like the power of Congress, and the power of the State Legislatures, in relation to taxes, on the same articles.

III. As each of them supreme over the other as it may be the last exercised; like the different assemblies of the people, under the Roman Government, in the form of centuries, and in the form of tribes.

IV. The Treaty power may be viewed, according to the doctrine maintained by the opponents of the proposition before the committee, as both unlimited in its objects, and completely paramount in its authority.

V. The Congressional power may be viewed as co-operative with the Treaty power, on the Legislative subjects submitted to Congress by the constitution, in the manner explained by the member from Pennsylvania (Mr. GALLATIN) and exemplified in the British Government.

The objection to the first construction is, that it would narrow too much the Treaty power, to exclude from Treaties altogether the enumerated subjects submitted to the power of Congress; some or other of this class of regulations being generally comprised in the important compacts which take place between nations.

The objection to the second is, that a concurrent exercise of the Treaty and Legislative powers, on the same objects, would be evidently impracticable. In the case of taxes laid both by Congress and by the State Legislatures on the same articles, the constitution presumed, that the concurrent authorities might be exercised with such prudence and moderation as would avoid an interference between their respective regulations. But it was manifest that such an interference would be unavoidable between the Treaty power and the power of Congress. A Treaty of Commerce, for example, would rarely be made, that would not trench on existing legal regulations, as well as be a bar to future ones.

To the third, the objection was equally fatal. That it involved the absurdity of an imperium in imperio, of two powers, both of them supreme, yet each of them liable to be superseded by the other. There was, indeed, an instance of this kind found in the government of ancient Rome, where the two authorities of the comitia curiata, or meetings by centuries, and the comitia tributa, or meetings by tribes, were each possessed of the supreme Legislative power, and could each annul the proceedings of the other. For, although the people composed the body of the meetings in both cases, yet, as they voted in one, according to wealth, and in the other, according to numbers, the organizations were so distinct as to create, in fact, two distinct authorities. But it was not necessary to dwell on this political phenomenon, which had been celebrated as a subject of curious speculation only, and not as a model for the institutions of any other country.

The fourth construction, is that which is contended for by the opponents of the proposition depending; and which gives to the Treaty power all the latitude which is not necessarily prohibited by a regard to the general form and fundamental principles of the constitution.

In order to smooth the way for this doctrine, it had been said that the power to make Treaties was laid down in the most indefinite terms; and that the power to make laws, was no limitation to it, because the two powers were essentially different in their nature. If there was ingenuity in this distinction, it was all the merit it could have; for it must be obvious that it could neither be reduced to practice, nor be reconciled to principles. Treaties and laws, whatever the nature of them may be, must, in their operation, be often the same. Regulations by Treaty, if carried into effect, are laws. If Congress pass acts relating to provisions in a Treaty, so as to become incorporated with the Treaty, they are not the less laws on that account. A Legislative act is the same whether performed by this or that body, or whether it be grounded on the consideration, that a foreign nation agrees to pass a like act, or on any other consideration.

It must be objected to this construction, therefore, that it extends the power of the PRESIDENT and Senate too far, and cramps the powers of Congress too much.

He did not admit that the term "Treaty" had the extensive and unlimited meaning which some seemed to claim for it. It was to be considered as a technical term, and its meaning was to be sought for in the use of it, particularly in governments which bore most analogy to our own. In absolute governments, where the whole power of the nation is usurped by the governments, and all the departments of power are united in the same person, the Treaty power has no bounds; because the power of the sovereign to execute it has none. In limited governments, the case is different; the Treaty power, if undefined, is not understood to be unlimited. In Great Britain, it is positively restrained on the subjects of money and dismembering the empire. Nor could the Executive there, if his recollection was right, make an alien a subject by means of a Treaty.

But the question immediately under consideration, and which the context and spirit of the constitution must decide, turned on the extent of the Treaty power in relation to the objects; specifically and expressly submitted to the Legislative power of Congress.

It was an important, and appeared to him to be a decisive, view of the subject, that if the Treaty power alone could perform any one act for which the authority of Congress is required by the constitution, it may perform every act for which the authority of that part of the Government is required. Congress have power to regulate trade, to declare war, to raise armies, to levy, to borrow, and to appropriate money, &c. If, by Treaty, therefore, as paramount to the Legislative power, the PRESIDENT and Senate can regulate trade, they can also declare war, they can raise armies to carry on war, and they can procure money to support armies. These powers, however different in their nature or importance, are on the same footing in the constitution, and must share the same fate. A member from Connecticut (Mr. GRISWOLD) had admitted that the power of war was exclusively vested in Congress; but he had not attempted, nor did it seem possible, to draw any line between that and the other enumerated powers. If any line could be drawn, it ought to be presented to the committee; and he should, for one, be ready to give it the most impartial consideration. He had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the PRESIDENT and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. They might stipulate subsidies, and even borrow money to pay them; they might furnish troops to be carried to Europe, Asia, or Africa; they might even attempt to keep up a standing army in time of peace, for the purpose of co-operating, on given contingencies, with an ally, for mutual safety or other common objects. Under this aspect the Treaty power would be tremendous indeed.

The force of this reasoning is not obviated by saying, that the PRESIDENT and Senate would only pledge the public faith, and that the agency of Congress would be necessary to carry it into operation. For, what difference does this make, if the obligation imposed be, as is alleged, a constitutional one; if Congress have no will but to obey, and if to disobey be treason and rebellion against the constituted authorities? Under a constitutional obligation with such sanctions to it, Congress, in case the PRESIDENT and Senate should enter into an alliance for war, would be nothing more than the mere heralds for proclaiming it. In fact, it had been said that they must obey the injunctions of a Treaty, as implicitly as a subordinate officer in the Executive line was bound to obey the Chief Magistrate, or as the Judges are bound to decide according to the laws.

As a further objection to the doctrine contended for, he called the attention of the committee to another very serious consequence from it. The specific powers, as vested in Congress by the constitution, are qualified by sundry exceptions, deemed of great importance to the safe exercise of them. These restrictions are contained in section 9 of the constitution, and in the articles of amendment which have been added to it. Thus, the "migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by Congress." He referred to several of the other restrictive paragraphs which followed, particularly the 5th, which says, that no tax shall be laid on exports, no preference given to ports of one State over those of another, &c. It was Congress, also, he observed, which was to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, &c. Now, if the Legislative powers, specifically vested in Congress, are to be no limitation or check to the Treaty power, it was evident that the exceptions to those powers could be no limitation or check to the Treaty power.

Returning to the powers particularly lodged in Congress, he took notice of those relating to war, and money, or the sword and the purse, as requiring a few additional observations, in order to show that the Treaty power could not be paramount over them.

It was well known that, with respect to the regulation of commerce, it had long remained under the jurisdiction of the States; and that in the establishment of the present Government the question was, whether, and how far, it should be transferred to the general jurisdiction. But with respect to the power of making war, it had, from the commencement of the Revolution, been judged and exercised as a branch of the general authority, essential to the public safety. The only question, therefore, that could arise, was whether the power should be lodged in this or that department of the Federal Government. And we find it expressly vested in the Legislative, and not in the Executive department; with a view, no doubt, to guard it against the abuses which might be apprehended, from placing the power of declaring war in those hands which would conduct it when declared; and which, therefore, in the ordinary course of things, would be most tempted to go into war. But, according to the doctrine now maintained, the United States, by means of an alliance with a foreign power, might be driven into a state of war by the PRESIDENT and Senate, contrary both to a sense of the Legislature, and to the letter and spirit of the constitution.

On the subject, also, of appropriating money, particularly to a military establishment, the provision of the constitution demanded the most severe attention. To prevent the continuance of a military force for a longer term than might be indispensable, it is expressly declared, that no appropriation for the support of armies shall be made for more than two years. So that, at the end of every two years, the question, whether a military force ought to be continued or not, must be open for consideration; and can be decided in the negative, by either the House of Representatives or the Senate's refusing to concur in the requisite appropriations. This is a most important check and security against the danger of standing armies, and against the prosecution of a war beyond its rational objects; and the efficacy of the precaution is the greater, as, at the end of every two years a re-election of the House of Representatives gives the people an opportunity of judging on the occasion for themselves. But if, as is contended, the House of Representatives have no right to deliberate on appropriations pledged by the PRESIDENT and Senate, and cannot refuse them, without a breach of the constitution and of their oaths, the case is precisely the same, and the same effects would follow, as if the appropriation were not limited to two years, but made for the whole period contemplated, at once. Where would be the check of a biennial appropriation for a military establishment raised for four years, if, at the end of two years, the appropriation was to be continued by a constitutional necessity for two years more? It is evident that no real difference can exist between an appropriation for four years at once, and two appropriations for two years each, the second of which, the two Houses would be constitutionally obliged to make.

It had been said that, in all cases, a law must either be repealed, or its execution provided for. Whatever respect might be due to this principle in general, he denied that it could be applicable to the case in question. By the provision of the constitution, limiting appropriations to two years, it was clearly intended to enable either branch of the Legislature to discontinue a military force at the end of every two years. If the law establishing it must be necessarily repealed before an appropriation could be withheld, it would be in the power of either branch to keep up an establishment by refusing to concur in repeal. The construction and reasoning, therefore, opposed to the rights of the House, would evidently defeat an essential provision of the constitution.

The constitution of the United States is a constitution of limitations and checks. The powers given up by the people for the purposes of Government, had been divided into two great classes. One of these formed the State Governments; the other, the Federal Government. The powers of the Government had been further divided into three great departments; and the Legislative department again subdivided into two independent branches. Around each of these portions of power were seen also exceptions and qualifications, as additional guards against the abuses to which power is liable. With a view to this policy of the constitution, it could not be unreasonable, if the clauses under discussion were thought doubtful, to lean towards a construction that would limit and control the Treaty-making power, rather than towards one that would make it omnipotent.

He came next to the fifth construction, which left with the PRESIDENT and Senate the power of making Treaties, but required at the same time the Legislative sanction and co-operation, in those cases where the constitution had given express and specific powers to the Legislature. It was to be presumed, that in all such cases the Legislature would exercise its authority with discretion, allowing due weight to the reasons which led to the Treaty, and to the circumstances of the existence of the Treaty. Still, however, this House, in its Legislative capacity, must exercise its reason: it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, it would no longer exercise a Legislative power; it would be the mere instrument of the will of another department, and would have no will of its own. Where the constitution contains a specific and peremptory injunction on Congress to do a particular act, Congress must, of course, do the act, because the constitution, which is paramount over all the departments, has expressly taken away the Legislative discretion of Congress. The case is essentially different where the act of one department of Government interferes with a power expressly vested in another, and nowhere expressly taken away: here the latter power must be exercised according to its nature; and if it be a Legislative power, it must be exercised with that deliberation and discretion which is essential to the nature of Legislative power.

Mr. W. SMITH (of South Carolina) said, he would not at that time go into an extensive review of the arguments of the gentleman from Virginia, (Mr. MADISON,) but would only notice some points which he had dwelt on. Before he went into a consideration of the subject, he would call the attention of the committee to the true question now before them; for though it was originally only a call for papers, it had now assumed a very important shape, and was nothing less than this, Whether that House had a concurrent power with the PRESIDENT and Senate in making Treaties? The gentleman last up had followed others in referring to the practice under the British constitution; but had concluded his remarks on that argument with allowing, that, after all, our own constitution must be our sole guide. He heartily joined in that sentiment, and was satisfied that the merits of the question should be tested by that alone. In order to show that the Treaty power was solely delegated to the PRESIDENT and Senate by the constitution, Mr. S. said, he should not confine himself to a mere recital of the words, but he should appeal to the general sense of the whole nation at the time the constitution was formed, before any Treaty was made under it, which could, by exciting passion and discontent, warp the mind from a just and natural construction of the constitution. By referring to the contemporaneous expositions of that instrument, when the subject was viewed only in relation to the abstract power, and not to a particular Treaty, we should come at the truth. He would then confidently appeal to the opinions of those who, when the constitution was promulgated, were alarmed at the Treaty power, because it was by the constitution vested in the PRESIDENT and Senate, and to its advocates, who vindicated it by proving that the power was safely deposited with these branches of the Government. The discussions which took place at the time of its adoption by the Convention of the several States, proved, beyond a doubt, that the full extent of the power was then well understood, and thought, by those who approved of the constitution, to be sufficiently guarded. He would further appeal to the amendments which had been proposed by the discontented. The Convention of Virginia had proposed an amendment, which of itself overturned all the reasonings of the gentleman. It was, "that no commercial Treaty should be valid, unless ratified by two-thirds of all the Senators." This was the only check which that State required, and was a conclusive evidence of their opinions: had that State conceived that the check which is now contended for existed in the constitution, they could not have been guilty of such an absurdity as the amendment would involve. All the possible dangers which might ensue from the unlimited nature of the Treaty power were well considered before the constitution was adopted, and Virginia required no further check than the one above recited. All, therefore, that they required had, in the present case, been done, for the Treaty was ratified by two-thirds of all the Senators.

Mr. S. said, he could refer to many further proofs derived from a similar source. He would not, however, fatigue the committee at this time with reading them. He would only recall the recollection of some gentlemen present to the protest of the Pennsylvania minority, where the same ideas and amendments were contained, and to the proceedings of a meeting at Harrisburg, which the gentleman from Pennsylvania (Mr. GALLATIN) must well remember, (having been one of the meeting,) where, after stating objections to the extensive powers delegated by the constitution, the following amendment was proposed, as necessary to limit and restrain the powers: "Provided always, that no Treaty which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular State, until such Treaty shall have been laid before and assented to by the House of Representatives in Congress." This amendment was the most satisfactory evidence that the proposers of it did then believe that, without that amendment, such Treaty would be valid and binding, although not assented to by this House, and that they had, at that day, no idea that there existed in the constitution the check which is now discovered by this ex post facto construction.

Having stated the general opinion of the public, as manifested by the friends as well as the enemies of the constitution, Mr. S. said he would proceed to show that the practice of Congress had, from the commencement of its existence, been conformable to that opinion. Several treaties had been concluded with Indian tribes under the present constitution. These Treaties embraced all the points which were now made a subject of contest--settlement of boundaries, grants of money, &c.; when ratified by the PRESIDENT and Senate, they had been proclaimed by the Executive as the law of the land; they had not even been communicated to the House; but the House, considering them as laws, had made the appropriations as matters of course, and as they did in respect to other laws. The Treaties were never discussed, but the requisite sums, as reported in the annual estimates, were included, as matters of course, in the general mass of moneys voted for the War Establishment in the item of Indian Department. It was not pretended that the constitution made any distinction between Treaties with foreign nations and Indian tribes; and the clause of the constitution which gives to Congress the power of regulating commerce with foreign nations, and on which the modern doctrine is founded, includes as well Indian tribes as foreign nations.

That this House considered a Treaty, when ratified by the PRESIDENT and Senate, as the law of the land, was further evident from a resolve of the House, of the 4th of June, 1790, in these words;

"Resolved, That all Treaties made, or which shall be made and promulged under the authority of the United States, shall from time to time be published and annexed to their code of laws, by the Secretary of State."

In consequence of this resolution, the several Secretaries of State had annexed the Treaties which had been made to the code of laws, as soon as they were ratified by the PRESIDENT and Senate, and promulged by the PRESIDENT.

Mr. S. repeated his former assertion, that there were cases where that House had not the right of withholding appropriations; if they had the power, indeed, they might stop the proceedings of Government altogether; and so, individuals had the power of resisting the laws. Gentlemen had said, that if this doctrine prevailed, the House would lose its capacity of judging. He denied it; they would still retain, in such cases, a discretion, guided by morality, good faith, and the constitution; the members were as much bound by the laws in their Legislative, as in their individual capacity; if an existing law (or Treaty, which was a law of the highest nature) prescribed a certain duty, they were bound to perform it, and their discretion could only be called in to regulate the mode and circumstances of discharging that duty; it could not be a matter of discretion whether or not they should perform that duty. Thus, unless they intended to arrest the operations of Government, their discretion could not be requisite to determine whether they should appropriate the moneys necessary for its support; but out of what fund, and when the moneys shall be paid, and other matters of detail. So, when a Treaty was concluded, and became a compact binding the nation, the discretion of the House (unless it was intended to violate our faith) could not determine whether the moneys contracted for should be paid, but the mode, the fund, and such questions of detail, would alone be considered. The distinction, which was an obvious one, between power and right, had not been attended to. The House had certainly the power to do many things which they had not the right to do; they had the power to do wrong, but they certainly had not the right to do wrong; and whether the wrong was committed by acting where they ought not to act, or refusing to act where they ought, was immaterial; both were equally reprehensible. It had been boldly said, that there was no case which could possibly come before them, where they would not be at liberty to answer aye or no: he would produce a case--by the constitution, on the application of a certain number of States, wishing for amendments, Congress must call a Convention; where is this boasted discretion, of which so much has been said? Could the House, in this case, exercise its discretion, whether or no a Convention should be called? Why not? Because the constitution says it must call a Convention: and does not the constitution say, "Treaties made by the PRESIDENT and Senate are laws, and that laws must be obeyed?" The same injunctions of the constitution are imposed in both cases; and as in the first, all this House could do, would be to regulate the time and place of holding the Convention; so, in the latter, their discretion would be limited to the mode, and fund, and other details. The gentleman had mentioned the article in the constitution respecting appropriations for military services--they were to be limited to two years; this article proved itself that appropriations might be unlimited in every other case. When a Military Establishment was instituted, it was known that an appropriation law for that purpose could not be in force more than two years; no inconvenience, then, could result. But there was no such limitation in respect to any other branch of expenditure; from custom, appropriations for the support of Government were annual; appropriations even for pensions were annual, and yet no one doubted that, as the pension was a contract, the appropriation for it was always a thing of course; no discretion could be exercised, in respect to the payment, without a breach of faith.

MARCH 11.--In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. GILES said, he expected, when the present motion was made, that it would not be opposed. The expected agency of the House respecting the Treaty, or some subjects relating to it, made him imagine that the propriety of having the papers called for could not be denied. The Treaty has been referred to a Committee of the Whole, surely in order to act on it in some shape or other. Indeed, the PRESIDENT, in his Speech, at the opening of the session, expressly says, that he will lay the subject before them. This he considered as full evidence, that the PRESIDENT conceived it must come under the notice of the House. If the papers could serve to explain any point relative to that instrument, surely the possession of them was desirable.

The right of the House to consider of the expediency of Treaties, so far as the provisions of them clash with their specific powers, had been indirectly brought in in considering the present motion. He regretted that this important constitutional question should be about to be decided indirectly; but, this being the situation of the debate, he should state his reasons why he conceived the argument on this ground ought not to be considered as of sufficient strength to cause a negative of the motion before the committee.

The question is, whether there be any provisions in the constitution by which this House can in any case check the Treaty-making power; and, of consequence, whether it can question the merits of Treaties under any circumstances?

Various considerations had been advanced to show that the House cannot question the merits of a Treaty. Some of these considerations had grown out of the subject extrinsically, others from the provisions of the constitution. Though at first he had intended to have stated simply his own opinion of the constitution on the important question now in view, yet, as gentlemen had gone fully into the question in that shape, and others had stated a variety of objections to the construction the friends of the motion contended for, he should proceed to answer them, and suffer his opinion of the meaning of the constitution to be incidental.

The gentleman from South Carolina had referred to the opinions of the Conventions of the States at the time of adopting the constitution. As to Virginia, the gentleman had stated that that State had considered the checks as provided by the constitution as inadequate, and proposed an amendment, purporting to require two-thirds of the whole number of Senators, instead of two-thirds of the number present. This was true, he believed; but how would it apply in the sense the gentleman wished? The objection of that State was, that the check in the Senate, provided in the Treaty-making power, was not sufficient, and they proposed a greater: from which he would argue that they conceived the Treaty-making power to be a subject of extreme delicacy, and that they wished additional checks consequently added. How this was to prove that the Convention of Virginia did not construe the present clauses of the constitution under debate as the friends of the present motion did, he was at a loss to determine. The gentleman who cited this instance had not quoted any part of the proceeding on the subject, or of the reasons that led to the amendment. He had merely mentioned the result to the House.

The practice of the House had been referred to yesterday by the member last up, (Mr. SMITH, of South Carolina.) He had remarked that the House had passed a general resolution directing the Clerk to place in the code of laws of the United States Treaties made under the authority of the United States. Was this, he asked, an exposition of the meaning of the constitution? He believed the resolution a very proper one, and would vote now for its adoption, if it was yet to be passed. It is certainly proper, when a Treaty is concluded under the authority of the United States, that it should be annexed to their code of laws; but this could not weigh against the exercise of discretion in the House on important Legislative subjects.

The practice of the House, with respect to appropriation laws, in the cases of Indian Treaties, had been mentioned by the member from South Carolina. In the first place, observing upon this, he would remark, that he always conceived there was a distinction between an Indian Treaty and a Treaty with a foreign nation. The English had always made a distinction when we were Colonies. The constitution establishes an express difference. He should not, however, found his objections to the inference of the gentleman upon this, but would examine it unconnected with this distinction. Provisions had been made by this House to carry Indian Treaties into effect; but why? No doubt because the House conceived it wise so to do, not because they had not a right to use their discretion in the business. Suppose, on any of those occasions, a motion had been made to strike out the sum proposed to be appropriated, would it have been said that the motion was out of order? A similar motion was made lately with respect to the Mint, and it was not considered as out of order. If, on that occasion, it had been the opinion of the House that the Mint was an improper establishment, by refusing the appropriation they could have defeated the law. It was certainly the opinion of the House that they could exercise their discretion in the business, for it was not even hinted that the motion for striking out was out of order.

On another head the gentleman appeared to plume himself much. He had asked, why, since the PRESIDENT had proclaimed a Treaty as the law of the land, which was not the law of the land, why he was not impeached? This question, the member exultingly remarked, had not been answered, because, he imagined, it could not be answered.

Suppose I should tell the gentleman, said Mr. G., that I could not now give him an answer, would it show that the House had not the authority contended for by the friends of the present motion? Why was the subject mentioned? Not with a view, I believe, to the discovery of the truth. I fear it is calculated to produce an opposite effect--to check investigation. It is too often the case that the names of persons are brought into view, not to promote the development of principles, but as having a tendency to destroy freedom of inquiry. I will go further with the gentleman, and admit for a moment (a position, however, I shall by and by controvert) that the PRESIDENT conceived that he had a right, after the exchange of ratifications, to promulgate the Treaty as the supreme law of the land; what would this amount to? Why, only that this was his opinion; but is that authority here? In any other case rather than the present, I should be inclined to pay a greater respect to opinions from that source; but now, when the question is about the division of powers between two departments, are we to be told of the opinions of one of those departments, to show that the other has no right to the exercise of power in the case. Such appeals are not calculated to convince, but to alarm.

Having examined the objections to the construction contended for by the friends of the motion, drawn from collateral sources, he should turn his attention next, he said, to the intrinsic meaning of the constitution. He would attempt to interpret the constitution from the words of it. It was a misfortune the clauses were not more clear and explicit, so far as to force the same meaning upon every mind, however they might differ in opinion in other respects. However, from the imperfection of language, it was no wonder, he observed, that on an instrument providing for so many different objects, and providing such a variety of checks, various opinions as to construction should arise; but he considered the present clauses of as plain import as any part of the instrument. The construction contended for by the opposers of the motion is, beyond denial, the most dangerous in its effects, and the least probable, as he thought, in its meaning. It is contended by them that the Treaty-making power is undefined in its nature, unlimited as to its objects, and supreme in its operation; that the Treaty-making power embraces all the Legislative powers; operates by controlling all other authorities, and that it is unchecked. When he had asserted this power, as contended by the gentlemen to be unlimited in its objects, he meant, however, that they had confined it only within the limits of the constitution; but even admitting it in that extent, is certainly a doctrine sufficiently alarming. When the gentlemen contend for its supremacy, they also admit in this point some qualifications; according to their doctrine, it is not to be supreme over the head of the constitution, but in every other respect they contend that it shall be unlimited, supreme, undefined. Gentlemen who insist that Treaties are supreme, next to the constitution, must also grant that there is no necessity for the House to trouble themselves with making laws.

The construction contended for by the friends of the resolution is derived from two sources--from the constitution, and the nature of things. The constitution says, the PRESIDENT, with the advice and consent of two-thirds of the Senators present, shall make Treaties. Perhaps, if there was no other clause, the Treaty-making power might be considered as unlimited. Another clause declares that the constitution, the laws made under it, and Treaties, shall be the supreme law of the land. Here the gentlemen, when they quote this clause, stop, as if there were no other words in it; and from all this it would appear that the people had, in fact, delegated an unchecked power. But, if we go on, it will be found that the last-mentioned clause adds that the judges in the respective States shall cause them to be executed, any thing in the constitution or laws of the individual States to the contrary notwithstanding. From the jealousy which individual States showed under the Old Confederation for the preservation of their powers, and the inconveniences which were experienced in consequence, it was found necessary, when organizing a new Government, to declare, explicitly, that their constitutions and laws must yield to the Constitution, laws and Treaties of the United States, and for this purpose this clause was introduced.

The checks on the Treaty-making power he considered as divisible into two classes; the first, consists in the necessary concurrence of the House to give efficacy to Treaties; which concurrent power they derive from the enumeration of the Legislative powers of the House. Where the Treaty-making power is exercised, it must be under the reservation, that its provisions, so far as they interfere with the specified powers delegated to Congress, must be so far submitted to the discretion of that department of the Government. The PRESIDENT and Senate, by the constitution, have the power of making Treaties, Congress the power of regulating commerce, raising armies, &c.; and these, he contended, must form so many exceptions to the general power. Gentlemen had said that the constitution was the exposition of the will of the people, and, as such, that they would obey its injunctions. There could be no difference of opinion on this ground; for his own part, he confessed if he adored any thing on earth, it is that will. But the question is, what is that will, as expressed in the constitution? That instrument, to his mind, explained this question very clearly. It enumerates certain powers which it declares specifically vested in Congress; and where is the danger to be apprehended from the doctrine laid down by the friends of the resolution? The contrary construction must produce the most pernicious consequences; agreeably to that, there would remain no check over the most unlimited power in the Government. The gentlemen contend, that the House must remain silent spectators in the business of a Treaty, and that they have no right to the exercise of an opinion in the matter; they must then abandon their constitutional right of legislation; they must abandon the constitution and cling to Treaties as supreme.

The other check over the Treaty-making power, he noticed, was the power of making appropriations, the exercise of which is specifically vested in Congress. He begged leave to call the particular attention of the committee to this part of the subject. The constitution says, that no money shall be drawn from the Treasury, but in consequence of appropriations made by law. This is no doubt intended as a check in addition to those possessed by the House. It is meant to enable the House, without the concurrence of the other branches, to check, by refusing money, any mischief in the operations carrying on in any department of the Government. But what is a law? It is a rule prescribed by competent authority. The word law in the clause of the constitution he had last noticed, was not meant in reference to the Treaty-making power; but in reference to Congress. A law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. Legislation implies deliberation. If a law is the expression of the will, must not an appropriation law be equally so? But gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. They had mentioned a part of the constitution which provides that the salaries of the Judicial Department shall be fixed; and asked, whether the House should conceive itself at liberty to use a discretion in appropriations for that department? Before he could consider this case, and that before the House, now parallel, he must beg gentlemen would point out any part of the constitution that declared the House should not exercise their discretion when called upon to make appropriations to carry into effect a Treaty. He could find nowhere, that, in this case, the right of opinion of the House is constrained.

The uniform practice of the British Government had been cited to have been, in the case of Treaties, the same as that contended for by the friends of the present motion. The greatest security for the liberties of the people established in that Government, depends on the control which their Parliament has over the purse-strings. In England, this power rests merely on custom; here, the House are expressly intrusted with it; what is custom in England, is reduced to writing in our constitution. Then, if this power is in England a ground for Parliament to judge of Treaties, it is a fair inference that it ought to be exercised here. The practice of the British Government, he observed, had often been quoted here, in support of doctrines very different from those in aid of which it is now cited; it has been deemed orthodox when it favored Executive prerogative. He confessed, he never did expect that, as early as 1796, a reference would be made to practices, under the British Government, in support of the rights of the popular branch of our Government. It was painful to be obliged to have resort to that Government on such an occasion; but the authority of that Government should not be rejected for once, because its practice could be quoted in favor of the popular branch. The ground of the practice in England, and of the right claimed here, rests upon the sound maxim, that all public money is from the pockets of the people, and that it should be expended by none but their Representatives. No maxim had been more instrumental than this, in preserving the remnants of British freedom; and thus early is the House called upon to abandon it here.

Treaties are contended to be paramount to the laws; the PRESIDENT and Senate make these Treaties, and when made and proclaimed as the supreme law, there is a predestinated necessity in the House to make the requisite provisions for carrying them into effect. The danger of this doctrine, he said, could not be better exemplified, than by a reference to the circumstances that attended the late Treaty in its progress. Three years ago, a difference took place between the different branches of Government, as to the policy that should obtain in reference to the conduct of one foreign nation. The House were unwilling to trust solely to the magnanimity of the King, and wished to make some exertions themselves for self-protection. With this view several measures were proposed, viz: commercial restrictions, non-importation, embargo, sequestration, or rather arrestation upon the ground of the status quo. One of the measures passed the House by a respectable majority, but was rejected in the Senate by the casting vote of the VICE PRESIDENT. The PRESIDENT appointed an Envoy Extraordinary, who entered into certain stipulations, which, being sanctioned by two-thirds of the Senate, it is now contended, are to operate the destruction of the powers specifically vested in the House.

If the above was a true statement, he said, and he did not see in what particular it could be contradicted, then the Executive had been exerted as a check upon the Legislative power, for the negotiation necessarily foreclosed any further Legislative proceedings. It did more than this; the Executive legislated against legislation, and overruled them on the subject in contest. He should not advert at this time, he said, to the collateral circumstances which attended this business, nor go further in detail; he wished only to remark generally on the dangerous operation of the doctrines contended for. Now, it is said, the House have nothing to do but to obey, to appropriate the necessary money, leaving all deliberation aside.

If the PRESIDENT, said Mr. GILES, can, by the assistance of a foreign power, legislate against the rights of the House to legislate, and his proceedings are to be binding on the House, it necessarily destroys their right to the exercise of discretion. If he can by Treaty declare, that commerce shall not be regulated, that property shall not be sequestrated, and that piracies shall be judged and punished as he thinks fit; if he is to exercise the unlimited Treaty-making power contended for, what security have we that he may not go further when the negotiations are renewed with Great Britain, agreeably to the stipulations of the present Treaty? What security have we that he will not agree with Great Britain, that if she will keep up an army of ten thousand men in Canada, he will do the same here? How could such a stipulation be got over by the House, when they are told that in matters of Treaty they must not pretend to exercise their will, but must obey? How will this doctrine operate upon the power of appropriation? A military establishment may be instituted for twenty years, and as their moral sense is to prevent their withholding appropriations, they can have no power over its existence.

Gentlemen had gone so far as to declare, that an attempt to examine the merits of the Treaty was rebellion, was treason against the constitution. What justifies these harsh epithets? Such assertions could only create ill-will, and could not tend to the investigation of truth. Another argument of the same nature had been used. It was said, that the attempt at exercising a control over the Treaty-making power was disorganizing the Government. He believed the contrary would be found to be the case. The doctrine advocated by the friends to the motion, only goes to claim a negative voice in the business of Treaty-making; whereas the doctrine of its opposers claims the exercise of a power, that would supersede the specific authority delegated to the Legislature in all cases whatever.

Mr. SEDGWICK said, that, after the length of time which had been consumed, and the talents which had been so ably exerted in the discussion of this subject, he should not think himself authorized to call the attention of the committee to any observations of his; but, that he considered it in principle, and in its consequences, as the most important question which had ever been debated in this House. It was no less than whether this House should, by construction and implication, extend its controlling influence to subjects which were expressly, and he thought exclusively, delegated by the people to another department of the Government. We had heretofore been warned emphatically against seizing on power by construction and implication. He had known no instance in which the caution that warning enforced, deserved more attention than on the present occasion.

It would be taken for granted, and it would be conceded on all hands, that we were to resort to the constitution, to know the extent and limits of our power, and if we found not there a clear evidence of its existence, we ought to abandon the exercise. It was certain we had not any express delegation to make or to control the public will in any of our relations with foreign nations. On the other hand, we found it declared, that the PRESIDENT should have power to make Treaties by and with the advice and consent of the Senate, provided two-thirds of the Senators present concurred. Treaties, to attain the ends for which they were designed, were, from their nature, supreme laws; but the constitution had, in another place, declared, Treaties made under the authority of the United States should be supreme laws. Gentlemen had said, that it was not declared that Treaties made by the PRESIDENT and Senate should have this effect; but those made under the authority of the United States. The question then recurred, what Treaties were made under the authority of the United States? The true answer undoubtedly was, Treaties made by those to whom the people, by their constitution, had delegated the power. The PRESIDENT, qualified as had been mentioned, had expressly, and none else had such power. If we were to rest the subject here, it would seem to follow irresistibly, and to be incapable almost of higher proof, that whenever a compact was formed by the PRESIDENT with a foreign nation, and had received the advice and consent of the Senate, if it was of such a nature as to be properly denominated a Treaty, all its stipulations would thereby, and from that moment, become "supreme laws."

The power of treating between independent nations might be classed under the following heads: 1. To compose and adjust differences, whether to terminate or to prevent war. 2. To form contracts for mutual security or defence; or to make Treaties, offensive or defensive. 3. To regulate an intercourse for mutual benefit, or to form Treaties of commerce. Without the first, war and contention could only be terminated by the destruction of one of the parties; without the second, there could be no defence, by means of union and concert, against superior force; and without the last, a profitable and beneficial intercourse could not be arranged on terms of reciprocity. Hence, then, it must be evident to every unprejudiced mind, that by a grant of power to make Treaties, authority was given to bind the nation by stipulations; to preserve peace or terminate war; to enter into alliances, offensive and defensive, and to form commercial Treaties.

This power, he held, unlimited by the constitution, and he held, too, that in its nature, to the extent he had mentioned, it was illimitable. Did a serious difference exist with a foreign nation, in determining on the nature and extent of the stipulations which might be necessary to adjust it, the cause of injury, national rights and honor, the evils of war, and all circumstances of relation between the two countries, must be taken into account. In forming alliances, the threatened pressure, your own and your enemy's relative strength, the objects of acquisition or defence, must be considered. And, in adjusting an equitable intercourse for commercial purposes, a thousand circumstances present themselves for nice calculations. A thousand circumstances of foreign relations would occur in the history of every country, under which nothing short of unlimited powers of negotiation would be adequate to a prevention of enormous, perhaps ruinous evils.

But it might be objected that a power so enormous, and comprehending such essential interests, might be abused, and thence asked, where is the remedy? To this he answered, that a national association required, for the great purpose of preservation, an unlimited confidence on many subjects. Hence, not only this, but perhaps every other national government, had delegated to it an unlimited control over the persons and property of the nation.

It might, by the express power given to it of raising armies, convert every citizen into a soldier, and, by a single assessment of a tax, it might command the use of all the property in the country.

The power to raise armies and taxes was limited in its exercise by nothing but the discretion of the Legislature, under the direction of its prudence, wisdom, and virtue. Was there no security against a wanton abuse of these enormous powers? Yes, it was to be hoped that the people, in electing the members of this House, and the States in choosing those of the other, would not select characters, who, regardless of the public good, would wantonly impose on their constituents unnecessary burdens. It would be an additional security, that the interests of the rulers were inseparably connected with those of the people; that they could impose no burdens in which themselves did not equally participate. But, should all these guards be insufficient, was there no dependence to be placed in the PRESIDENT?--the man elected by a refined process, pre-eminent in fame and virtue as in rank! Was there no security in the watchful guardianship of such a character? Responsible by every thing dear and valuable to man--his reputation, his own and his fellow-citizens' happiness--was there no well-founded reliance on all these considerations, for security against oppression? If not, we had not the requisite materials by which to administer a republican government, and the project might be abandoned. After all, however, should the unlimited powers he had mentioned (and such powers must always be unlimited) be wantonly abused, was there no remedy? Yes, in the good sense and manly independent spirit of the people. If intolerable burdens were wantonly imposed; if necessary to defeat the oppression, opposition and insurrection would not only be authorized, but become a duty. And if any man could honestly lay his hand on his heart, and in sincerity declare, that a compliance with any existing Treaty was worth more than our Government, our constitution, our Union, and the liberty protected by them; to that man he was ready to declare, that opposition had become a duty. But, in every instance of opposition, whether in defeat of a Legislative act, or of a Treaty, the right of resistance resulted not from the constitution itself, for it had declared no such right; no constitution could declare it. It existed in original principles, and never could be exercised but by resorting to them.

The gentleman from Virginia (Mr. MADISON) had stated five different constructions which possibly might be given to the constitution on this subject; three of which, (and for none of them to Mr. S.'s knowledge had any man ever contended,) the gentleman had proved to be unfounded. The fourth, that which he had given to the constitution, if admitted, and it should be abused, might produce mischievous effects. Was not this true of all the great and essential powers of government? If the controlling influence of this House was added, would the power be less? And if, under these circumstances, abused, would the injury be more tolerable? In short, was not this a kind of argument infinitely more tending to the production of prejudice than to the discovery of truth?

The gentleman has really given no decisive opinion what was the true construction. He had, however, seemed to incline to a belief that to the stipulations of a Treaty relative to any subject committed to the control of the Legislature, to give them validity, Legislative co-operation was necessary. Of consequence, if this was withheld, the operation of the Treaty would be defeated. That it was at the will, and within the discretion, of the Legislature to withhold such co-operation, and of course the House might control and defeat the solemn engagements of the PRESIDENT and Senate.

The gentleman who had suggested this opinion was well known to the committee, and throughout America. Mr. S. could not but observe that it was perfectly unaccountable to his mind, that that gentleman had yet to form an opinion to whom was delegated that power, the nature, extent, and effects of which he had so strongly and perspicuously detailed. The capacity of that gentleman's mind, long exercised on political subjects, his known caution and prudence, would authorize a request that he or his friends would explain how it was possible, if such as he states should have been the intention of those who framed the constitution, that the true meaning should not have been expressed in the instrument? That when the gentleman went from the Assembly which framed the constitution, immediately afterwards, to one of those which ratified it, he should have admitted an opposite construction? As Mr. S. would undertake, by and by, to prove that, in the Convention of Virginia, he did admit the very construction for which we now contended, he would take the liberty further to inquire, how it happened, that, if such was really the intention of the instrument, that such was the meaning of the people, no man had heard of it until the discovery was produced by the British Treaty? Strange national intention, unknown for years to every individual!

As the gentleman had been pleased to dwell on the idea of a co-operation between the powers of the Government, he would take the liberty to state, what had been ably explained by other gentlemen, that the power of making Treaties was wholly different from that of making ordinary laws; originating from different motives; producing different effects, and operating to a different extent. In all those particulars, the difference had been perfectly understood. For instance, the ordinary legal protection of property, and the punishment of its violation, could never be extended beyond your own jurisdiction; but, by Treaty, the same protection could be extended within the jurisdiction of a foreign government. You could not legislate an adjustment of disputes, nor a peace with another country; but, by Treaty, both might be effected. Your laws, in no instance, could operate except in your own jurisdiction, and on your own citizens. By Treaty, an operation was given to stipulations within the jurisdiction of both the contracting parties.

It had been said that Treaties could not operate on those subjects which were consigned to Legislative control. If this be true, said he, how impotent in this respect is the power of the Government! What, then, permit me to inquire, can the power of treating effect? I will tell you what it cannot do; it can make no alliances, because any stipulations for offensive or defensive operations, will infringe on the Legislative power of declaring war, laying taxes, or raising armies, or all of them. No Treaty of peace can probably be made, which will not either ascertain boundaries, stipulate privileges to aliens, the payment of money, or a cession of a territory, and certainly no Treaty of commerce can be made.

Was it not strange, that, to this late hour, it should have been delayed, and that now, all at once, it should have been discovered, that no power was delegated to any person to regulate our foreign relations? That, although a power was granted to the PRESIDENT and Senate to form Treaties, that yet there were such reservations and restrictions, that there remained nothing on which this power could operate? Or was it true, that this power was competent to treat with every government on earth but that of Great Britain? Might he not be permitted further to inquire, if this Treaty had been formed with any other power, with the precise stipulations it now contained, whether there ever would have existed this doubt of constitutionality.

MARCH 14.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. SAMUEL LYMAN said he rose only to make a few observations. He was against the resolution now on the table, as involving a doctrine, in his opinion, not only inconsistent with the principles of the constitution, but also inconsistent with the laws of nations. In debating the merits of this resolution, an exceedingly important abstract constitutional question had arisen, viz: How far that House had a right to exercise their Legislative discretion and judgment relative to carrying a Treaty into effect. In order to answer this question, he would raise two premises. And, first, by the constitution, the Legislative powers of that House, in co-operation with the other branches of the Legislature, extend to all objects within the reach of their sovereignty, excepting the reservations to the distinct sovereignties of the several States which compose the Union; but beyond those boundaries their powers could not extend. Secondly, there is, by the constitution, attached to the Legislature a subordinate kind of power, of a limited and ministerial, or Executive nature. At present, it did not occur to him that this subordinate power was to be exercised in its simplicity, excepting in two instances, viz: 1st, for calling a Convention under certain circumstances to amend the constitution; and, 2dly, for carrying into effect Treaties which are constitutionally made; for these two purposes, the people, who are the source of power, had stripped that House of all Legislative authority, and made them only the executors of their will; therefore, upon these premises he answered, if a Treaty was unconstitutional, they had an undoubted right to exercise a Legislative discretion and judgment relative to carrying it into operation, for they were sent there as the guardians of the rights of their fellow-citizens, and, for that purpose, are sworn to support the constitution; but if the Treaty was constitutional, they had not a right to exercise that discretion; for, without their intervention, it becomes the supreme law of the land, and virtually repeals all laws which are repugnant to it; and in that case that House is bound to obey it, and to carry it into complete execution; for, by the constitution, the power of making Treaties is vested solely and exclusively in the Executive Department. In the former case, they have a right to exercise a deliberative or Legislative power, but not in the latter case; they could there only exercise a ministerial or Executive power. So that herein, said he, lies the true distinction, and it arises from the nature and principles of the constitution.

He had not the least doubt of the constitutionality of a treaty, when the stipulations in it were of such a nature as not to respect objects of legislation, but only objects which lay beyond the bounds of their sovereignty; for beyond those limits their laws could not extend as rules to regulate the conduct of subjects of foreign Powers; and although some stipulations in a Treaty may respect objects which were within the reach of their sovereignty, yet it may be in such manner as to be strictly constitutional; for such stipulations may be not only pertinent, but absolutely necessary in forming the Treaty. This conclusion, he thought, was the natural and necessary result of a fair and liberal construction of the principles of the constitution, and especially of that paragraph which vests the power of making Treaties in the Supreme Executive, with the advice of the Senate.

Mr. L. said he was sensible he had been delivering an unpopular doctrine, but that he was deeply impressed with its truth, its reality, and its importance; and that the obligations of an oath had prevented his silence on the occasion.

Mr. BALDWIN said he had before expressed his opinion, in general terms, in favor of this question. It must have been observed that he had been for several days noting the debates, and preparing to take part in them. He had intended to have introduced the debate on Friday morning last, but a singular incident prevented him, which he felt it to be his duty to take this earliest opportunity to state to the House. Mr. B. then said: about five minutes before I expected to rise on the question, I was called out of the House by a person then unknown to me, who said his name was FRELINGHUYSEN, and whom I found to be a Senator of the United States. After a number of interviews, he observed, with great expressions of pain and regret, that he was at last obliged to the unwelcome office of delivering me that letter, which I opened and found to be a challenge directed to me from JAMES GUNN, who is also a Senator of the United States. The pretext for this transaction was, to extort from me some private letters which I had received early in the session from a number of my constituents, expressing their wish that I would endeavor to prevent any thing being done in Congress to validate the Mississippi Yazoo Land Speculation before the meeting of the State Legislature. There was no complaint of any personal indecorum or disrespect at all; whether they were actuated in their conduct solely by interest in Yazoo speculations, I will not pretend to judge. The revival of a transaction of so old a date at that particular moment, was to me surprising. Not knowing their degree of relation to this question between the two Houses, and not knowing the cast of character but of one of them, I am left only to conjecture. It was so peculiarly timed, and the professed object also of so peculiar a nature, to interrupt the channels of confidence for free communication between me and my constituents, that I have thought it my duty not to let the treatment of it depend on my own individual discretion. I consider it as in the discretion of the House. Mr. B. also observed that he felt himself under the necessity of using this as an apology for the apparent neglects of Friday, after the particular attention he had before appeared to pay to the discussion; and for his not being able to notice any of the proceedings in the debate of Friday, he had supposed he had lost the opportunity of offering his opinion, but was glad to find the question had not been taken, as he was unwilling to suffer this, or even a greater interruption, to prevent him from declaring his opinion, as he had before intended.

He said, it was remarkable that several gentlemen rose with very different expressions which had been said to contain the subject in discussion. It was certainly important to agree exactly on that point. The least variation in the point of departure would soon diverge till they were out of sight of each other, and yet each one keep a straight direction. One gentleman had stated, that the question was, whether this House should feel itself at liberty to judge over the heads of PRESIDENT and Senate on the subject of Treaties without restraint: his reasoning seemed to be built on that proposition. Another gentleman had said that the question was, whether the power of making Treaties was given by the constitution to the PRESIDENT and two-thirds of the Senate, or to the PRESIDENT and both branches of the Legislature. He might mention several others, but he called the attention of the House to the fact, to settle the point, that they might at least agree what they were talking about. The question, said he, on the table is, to request of the PRESIDENT papers respecting the Treaty: the objection is, you ought not to ask for the papers, because you have no right to touch the subject. He begged leave then to ask, with the utmost candor and respect, whether the real question now depending and brought into dispute by this motion, is not whether all questions relating to this subject are not so definitely and perfectly settled by the constitution, that there was nothing for that House to deliberate upon on the occasion, but only punctually to provide the funds to carry the Treaty into effect. If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making, in which it might ever be proper for that House to deliberate--as, for instance, offensive Treaties which might bring the country into a war--subsidies and support of foreign armies--introduction of an established religion from a foreign country, or any other of those acts which are by the constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might possibly exist any such case, in which it might ever be proper for Congress to deliberate, it would seem to be giving up the ground on which the discussion of the present question has been placed; what agency the House should take, and when, would be other questions. Whether a case would probably occur once in a hundred years that would warrant the House in touching the subject, is of no consequence to the debate. The right is denied in the largest sense. The assertion is, that the House has no right to deliberate or to look into any papers on the subject; that the people have, by the constitution, reposed the whole of their confidence on this subject elsewhere; that, to attempt to deliberate upon it, or to ask for any papers respecting it, is treason and anarchy.

If this ground were once given up, he should be infinitely less anxious what the House might do in any particular case: these would rest on their individual merits. For his own part, he was by no means disposed to carry the interference of the House to any extreme; but he could not express his abhorrence of the doctrine in the extent to which some gentlemen have carried it in this discussion. He begged leave to entreat gentlemen again candidly to review the few words in the constitution on which they rested so much, and to ask whether they appeared to be such labored expressions as they supposed--so apt and definite as to mean exactly what they contend for, and nothing else; and whether all the words may not well be satisfied without, and stand more harmoniously connected with the other parts of the constitution.

How much they intended to incorporate with this power of Treaty-making, under cover of contract with foreign nations, he had not heard any one attempt to explain; it seemed designed to stand distinguished as an indefinite, uncontrolled branch of the Government, the extent of whose powers was to be known only by its own acts. Its definition was to be, that it was indefinite--like what is said of some branches of the powers of Parliament; that no one has pretended or ought to pretend to know their extent; that they are not to be submitted to the judgment of any one but themselves; and that they never develope them but by the particular exercise of them; that they were to be left in this state, because, if they were defined, they might be eluded. However this might be found respecting a foreign constitution, it is making a monster of our own. There was not another part or lineament in it which appeared to be in the same mould or proportion.

Mr. B. then undertook to state his own view of the subject, and what he thought ought to be done. Much, he said, depended on the words "make Treaties and supreme law of the land;" as to the words supreme law of the land, he had not much doubt for what purpose solely they were introduced. The words were satisfied, and he thought most naturally, by not suffering them to disturb the balance of the Federal Constitution, for that is not the subject which the section where these words are used is speaking of; but to consider them as giving to the Treaty-making power the same paramount authority over the laws and constitutions of the several States, that they give at the same time to the Constitution and laws of the United States. The words appear to be introduced for the express purpose of making the Constitution, laws, and Treaties of the United States, paramount to the constitutions and laws of the several States, and for no other purpose; this is all that the section appears to be speaking of; it satisfies the words, is the most obvious and natural meaning, and leaves the other parts of the constitution harmonious and undisturbed. As to the words "power to make Treaties," it was more difficult to ascertain precisely what the constitution meant to give by them. It had been argued that from the nature of governmental powers, the Treaty-making power must be paramount, and from the nature of contract it must be paramount. The truth is, the Treaty-making power must be what the constitution has made it. He did not hesitate to say, that the most natural meaning to give these words, was to consider them as borrowed from former use, and to give them the meaning which they had always before given them. Gentlemen had said that nothing useful could be derived from English books and explanations on these terms. This seemed to him an unreasonable assertion. It might as well be said that they could not use an English Dictionary to ascertain the meaning of words. In many sciences, said he, there are definite and appropriate phrases as well as definite and appropriate words; and, in fact, books which are dictionaries of phrases, ascertain the meaning of phrases with as much precision as dictionaries ascertain the meaning of words. It is exceedingly useful that it should be so. When such a precise meaning is fixed to a phrase, and publicly known, it is apt to remain a long time exact, as it is frequently employed, and is very useful as a medium of certainty. Many instances of this kind might be quoted, particularly from English books on law and government. He would observe further, these appropriate phrases had been for their certainty in many instances transferred into our constitution, and their meaning must be manifestly sought in those sources as in a dictionary. One remarkable instance occurred to him, and which, from the singularity of its garb, would be very discernible in the constitution--he meant the definition of treason in the third section of the third article of the constitution. The phrase is levying war, adhering to enemies, giving them aid and comfort. These are the very words of the English books, which have been so critically judged that they are not capable of the least variation in their meaning on that tremendous subject; but this meaning is to be sought from those sources; he might mention several instances, but it was unnecessary. He thought the phrase, power to make Treaties, should be ascertained in the same manner; and the English meaning, as it would naturally be understood at the time of making the constitution, should be affixed to it; that it should be considered as giving to the PRESIDENT and two-thirds of the Senate the same kind of power as the King of England possesses on the subject of Treaties, which it is known is in several cases subject to the control of Parliament. Here it is qualified by the powers specifically given to Congress.

Mr. HOLLAND said: It is with great diffidence I rise on this important subject, to submit some considerations to this committee. As it has now become a constitutional question, not with respect to the merits of the Treaty, but with respect to the constitutional right of this House to request the Executive to furnish us with papers that related to the Treaty antecedent to its ratification.

To this it is objected that this House has no discretionary power over the Treaty, and, on that account, has nothing to do with the papers.

The question is not whether the Treaty is a good or bad Treaty, but it is whether we have a right to exercise our judgments upon it. Then, without any regard to the Treaty, we must be governed by the rational construction of the fundamental principles of government.

To illustrate which, it may be necessary to examine what has been incident to the different kinds of government, according to the histories of those nations governed by despotism, monarchs, or republics; and from the Constitution of the United States as the fundamental maxims of the Republic, draw that construction that is most rational and natural.

It will also be proper to examine which of those governments preserves the most power in the people.

First, then, of monarchy. Where has that power been placed? According to the theory of the English Government it has been lodged in the Sovereign, for it is there expressly said (nor has it been denied on this floor) that the King is the source of all power; and it is also expressly declared that the King of Great Britain has sovereign and exclusive right to make Treaties. That, when they are made, they cannot be impeded or annulled by any existing power in the kingdom. This is the theory of that Government. But what has been the practice? I answer, the contrary; for it ever has been that, when a Treaty was made, the same has been submitted to the Parliament for concurrence; and Parliament, if they thought proper, admitted and sometimes annulled them, as in the Treaty of Utrecht, and sundry instances that the history of that nation affords us. The English Government, therefore, is in practice what it is not in theory. By the construction of the constitution, as contended for, by giving uncontrollable power to twenty Senators and the PRESIDENT, our Government will be in practice what the English Government is in theory. If this doctrine had been believed, that this was the true construction of the constitution, previous and at the time of its adoption, would the people of the United States have adopted it? If they had been informed that, by this instrument, they were ceding more power to two-thirds of the Senators and PRESIDENT, than even could be practised by the King of England, with his lords spiritual and temporal, under that impression would they have ceded that power? Or, if they had been told that the House of Representatives, under this constitution, had less power than was exercised by the House of Commons in England; that they would be less able to secure their liberties in this country against the approaches of prerogative, would they have, under that belief, accepted of this constitution? I think, Mr. Chairman, I may venture to say they would not.

With respect to the more absolute government of France, where has this power been lodged? In this, as in the monarchy of England, it was, in theory, lodged in a prince; but the theory, even in that despotic government, never could be carried into practice. According to Vattel, in the Treaty made by Francis I., in the Treaty of Madrid, on account of that Treaty encroaching on the fundamentals of their government, it was set aside. How was this done? It was not done by Parliament, for they had none; but the principal people of the kingdom met together at Cogniac and annulled it. I ask again, Mr. Chairman, if the people of this country possess less power than the people of that despotic Government? Or do they possess less power to withstand the usurpations of the Executive, on the subject of Treaties, in their Representatives in Congress, than has ever been maintained in the cramped situation of the people of England by the House of Commons?

Why were these rights ever maintained and so scrupulously attended to by the people of those countries? It was because they considered them as the palladium of their remaining liberty,--they therefore, would not let them go.

Then, with respect to a Republic, the sovereign power is in the people. It therefore follows that whatever can be effected by the people in those countries can be done here--they being the source of power.

Then, with regard to the constitution, it must be construed naturally and liberally in behalf of the people. Not as giving all power that can be given, but as retaining all power and natural right that ought to be retained. It would have been extremely improper to have wantonly discarded natural privilege, or ceded more power than was essential to government; nor was any more intended to be given.

The constitution, upon the face of it, shows that this is the case--limits are prescribed to governmental power. Not so in the countries spoken of, yet the people exercise it. But it is said our constitution has not retained this privilege, and it is the law and the testimony, sacred volume, &c. The sacredness depends upon the attention to the principles that procured its adoption; when that is contravened a violence is made upon the rights of the people. If, by any construction that can be given, these rights can be preserved, it is wise to consider it as the better opinion. But it is said to be impossible that this power has been ceded, subject to no control, to the PRESIDENT and two-thirds of the Senators present; that, whatever may be the practice in other countries, it will not apply to this; that those countries have no constitution, and that we have, and must be governed by it. Unfortunate circumstance! why adopted? Was it wantonly to throw away a privilege and natural right? Certainly not, but the contrary. It was to secure natural right, and to establish a Republican form of Government.

I considered that the Executive had absolute power to make peace; as by the constitution he is declared Commander-in-chief of all the armies, his situation enabled him to be the best judge of the forces and of the force he had to contend with, and as secrecy was necessary to effecting a Treaty of Peace, that power was properly vested in him, guarded by two-thirds of the Senate. But a Treaty of Commerce presupposes an existing peace, and in those Treaties secrecy is not essential; but a competent knowledge of the produce of the respective States in all their remote situations was necessary; which would be best obtained by an association of the three branches of Government.

This is a Treaty of Commerce, and therefore has involved Legislative objects. It consequently requires Legislative sanction; a contrary construction would be a violation of the constitution and of the principles upon which it was adopted, and therefore a violation of the rights of the people.

I confess, on viewing the exception and force of the argument, that I had some doubt, that when the government became old and corrupt, that this perversion might be attempted; but had no idea that in the course of six years it would be contended for.

Mr. BRADBURY observed, that the most plausible reason that he had heard in support of the resolution under the consideration of the committee resulted from a principle advanced by a member from Pennsylvania, who spoke upon the subject last week. The principle was this; that where any articles of a Treaty were repugnant to prior existing acts of Congress, those acts must first be repealed by Congress before such Treaty can become the law of the land; and it was said some of the articles of the British Treaty were of this nature. He would not stay to examine the truth of the fact, for admitting it to be true, he altogether denied the principle; but yet he acknowledged that if it could be made out, it would afford the best reason yet given for calling for the papers. If their concurrence was necessary to give existence or legality to the Treaty, he saw not why they ought not to be favored with the papers as well as the Senate. But he asserted and would endeavor to prove, that the Treaty has already a legal existence; that it is now the law of the land; and that, therefore, no act of Congress is, or can be, necessary to make it so; and, therefore, that House could have no need of the papers, nor any right to call for them on that ground.

That the Treaty had already become the law of the land, and that no Legislative act of Congress was necessary to make it so, he argued wholly from the constitution itself, by which alone the question must at last be determined.

That instrument expressly declares, that all Treaties made under the authority of the United States shall be the supreme law of the land. He laid no stress upon the word supreme, admitting for argument's sake, that the supremacy ascribed to the constitution and laws, and Treaties made under it, meant a supremacy over the constitution and laws of individual States. All he asked to be granted him, and which he thought could not be denied, was that a Treaty made under the authority of the United States was the law of the land. If so, then all that needed to be proved was, that a Treaty made by the PRESIDENT, with the advice and consent of two-thirds of the Senate, was a Treaty made under the authority of the United States. And to prove that, he needed only to mention another clause in the constitution, which expressly declares that the PRESIDENT, with such advice and consent, shall have power to make Treaties.

He nowhere read in the constitution that any act of Congress, in any possible case, was necessary to make a Treaty, so as that without it such Treaty could not be the law of the land. He nowhere read that prior acts of Congress repugnant to a Treaty must first be repealed before a Treaty could be a law.

But, says the gentleman from Pennsylvania, the same Treaty power is given to the King by the Constitution and laws of England, that is given to the PRESIDENT by our constitution, and yet the Parliament have the power there which he contends for in favor of Congress here; that is, they must repeal prior laws repugnant to a new Treaty, before it can be the law of the land; and why is not an act of Congress, it is asked, necessary for the same purpose, in a similar case here? He would answer, because our constitution is different from the British in this respect: it declares that a Treaty made under the authority of the United States, (and he had shown that a Treaty made by the PRESIDENT, as aforesaid, was made under such authority,) is the law of the land, and if it is a law, nothing further can be requisite to make it so. There was no such declaration in the Constitution and laws of England.

There was no arguing from the power of Parliament to the power of Congress. The Parliament must have controlled this Treaty power of the King, and stripped him of his prerogative, by use and custom. There had been in England a constant struggle between power and privilege; the prerogatives of the King were not founded in the grant of the people; they were founded on force, on the right of conquest; whatever, therefore, was gained from the King by the Commons, was considered as so much gained by the people from an adverse power.

If the PRESIDENT were an hereditary monarch, deriving his power from his predecessors by descent, a power originally founded in conquest, Congress would do well to get as much of it out of his hands as they could. It would here be, as it was there, a struggle between prerogative and privilege; it would be the people against the King. But as this was not the case, and as Congress never had in fact assumed and exercised the power of confirming, by an act of theirs, Treaties made by the PRESIDENT, this argument from analogy wholly failed.

Suppose the Parliament of Great Britain should pass a law expressly delegating the Treaty-making power to the King, with the advice and consent of two-thirds of his Privy Council, and should declare in the act, that a Treaty made under such authority should be the supreme law of the land. They claim a right to make such a law, for Judge Blackstone affirms, that the denial of a power in every government, even to alter every part of its constitution, is the height of political absurdity; and in England, he expressly ascribes this power to Parliament.

What would be the effect of such an act of Parliament? Would not a Treaty made under it be clearly the law of England? and would not all acts of Parliament, prior and repugnant to it, be repealed by it? He was clearly of opinion they would; and this clause, he said, was inserted in the American Constitution, probably to guard against that very construction which is now endeavored to be put upon the Treaty power; on purpose to cut off all pretence of a power in Congress to control a Treaty, by refusing to repeal any prior laws that might stand in the way of it.

But, said the same gentleman, shall a British House of Commons have this right of controlling the Treaty-making power, and shall it be denied to the Representatives of a free people? He answered, the PRESIDENT and Senate of the United States were as much the Representatives of a free people as that House was; they were as truly, though not so immediately, chosen by the people as they were. The people distributed their powers as they pleased. The PRESIDENT, said he, represents the people as their Executive agent, and is possessed of all Executive power, and the power of making Treaties. The true question, then, was, shall one constituted representative authority usurp the power and control the acts assigned by the constitution to another representative authority of the same free people? They certainly ought not. If they should attempt it, it would be opposing one authority of the people to another. It would be dividing a free people against itself. But he hoped he had said enough to show the unsoundness of that principle, and fully to establish what he first undertook to prove, that the Treaty was already completed; that it was already the law of the land; and that it did, by its own force, repeal all prior laws, if there were any standing in the way of it; and if so, they could have no need of the papers to assist them in making it a law. It had also been laid by the King before his Parliament, and he supposed the necessary appropriations had been made to carry it into effect. He did not know that any other Parliamentary provision was necessary.

But it may be said, that it is fit and proper that they should call for the papers mentioned in the resolution, even if the Treaty were law, because appropriations by act of Congress would be necessary to carry it into effect, and they ought to have the papers to judge whether it be fit for them to make those appropriations.

He answered, whether that be fit or not, in his opinion, must depend wholly upon the Treaty or law itself, and upon nothing out of it. It was like all other laws requiring appropriations, in making which they must be governed by a sound and legal discretion, and that discretion must be governed by the instrument itself.

Even if a question should arise and be proper for the discussion of that House, on the constitutionality of the Treaty, yet that question must be decided by the Treaty itself, and by nothing else; and there could be no need of any papers for that purpose. If general information were the object, to allay the public sensibility, he should think the better way would be to request the PRESIDENT to publish the papers in all the newspapers throughout the United States. But he believed he must be considered as the best judge in that matter. He would only add, that the correspondence between their Envoy and the British Minister was, in its nature, secret and confidential. It was communicated to the Senate because they were a part of the Treaty-making power, which the House was not; but even to them it was communicated in confidence. A request to the PRESIDENT, said he, to communicate these papers, amounts to a requirement; but there can be no right to require where there is no obligation to obey.

Mr. PAGE spoke as follows: I confess, sir, that I had wished that this House, instead of asking the PRESIDENT for information respecting the negotiation and ratification of the Treaty, at this late day of its session, had given him, as soon as possible after its meeting, fully their opinions, and that of their constituents, respecting the Treaty itself. But, as time has been afforded for deliberation, and the House has waited most patiently and respectfully till the PRESIDENT could "place the subject before them," according to his promise in his Address to Congress, I think they have shown a spirit of moderation which deserves credit. The friends of the Treaty cannot complain that it has been hastily and rudely attacked, and should not object to the request which is proposed to be made to the PRESIDENT, to furnish a statement of facts which, from what has been said elsewhere, may be supposed sufficient to silence the most clamorous opposers of the Treaty.

I think that the Treaty is constitutional, as far as relates to the powers of the contracting parties to make Treaties; and is constitutional and valid, also, as far as relates to that part of it which gives it the name of a Treaty of Amity, and which might be in a separate and distinct Treaty by itself; for the PRESIDENT, by and with the advice and consent of two-thirds of the Senators present, has an undoubted authority, under the express words in the first article of the constitution, to make Treaties. And I have no doubt that the Treaties which were in the view of the framers of that article, must have been principally Treaties of Peace, of Amity, of Neutrality, or of Alliance. This is the more probable, as the first and principal Treaties in which nations were concerned, were Treaties of Peace, or Treaties to secure the blessings of peace; and it is certain that the Treaty of Peace with Great Britain was the very Treaty which gave rise to the declaration of the constitution, that all Treaties made and to be made by the authority of the United States shall be the supreme law of the land: for the Treaty of Peace with Great Britain was said to be in a state of inexecution on account of an obstruction thrown in the way by the laws of certain States. This article, therefore, was intended to remove all obstacles, which had arisen or might arise from State Legislatures, and might, I will here remark, as easily have been extended to remove all obstructions from the General Legislature by adding to the words "any Constitution or law of the States," these words, "or the Constitution or laws of the United States notwithstanding." The power to make Treaties of Commerce and Navigation, I humbly conceive, could scarcely be within the view and design of the Convention, at least not as a primary object, when they formed the article respecting Treaties; because they knew, that the extent, situation, population, and productions of the United States, were such as would command them a sufficient share of the commerce of the world, without the aid of Commercial Treaties. They knew that almost all Europe stood in need of their productions, and that Great Britain and her islands could scarcely exist without them; they knew more, they knew this, sir, that the almost universal belief of their constituents, that giving a power to Congress to regulate commerce, which would answer every purpose of Commercial Treaties, gave existence to the very powers under which they were acting at the moment they framed that article. This mode of regulating commerce was favored by the opinion of the people, who celebrated the adoption of the constitution with so much exultation and expensive parade in the great commercial cities of the United States. They had no doubt that the new Congress would use the power with which it was invested, so as to oblige Great Britain to open her ports to them in the West Indies, and to put their trade with them upon a more equitable and stable footing. Indeed, sir, the people thought, as associations not to import certain articles from Great Britain, entered into by them when they were poor helpless Colonists, with halters about their necks, repealed the Stamp act, that acts of Congress regulating commerce, so as to retaliate on Great Britain, would at least prevent the enacting of the law by which the British King was authorized to regulate the commerce of the United States with Great Britain and her Islands.

I acknowledge, sir, that whenever a Treaty is to be made, the PRESIDENT and Senate are the proper agents to make it. I think it an excellence in our constitution that the PRESIDENT and Senate, though not allowed to declare war, have authority to put a stop to its horrors. This is a wise provision against the injury which the pride and ambition of the larger States might do to the smaller, by continuing a war. But I cannot conceive that when Congress is authorized to make all laws necessary and proper to carry into effect all the powers granted by the constitution, the Treaty-making power as well as others, and are to provide for the general welfare, which is not confided to the PRESIDENT and Senate, nor can be intrusted to them alone by the people upon any principle which has ever had weight in the formation of a Republican Government,--I cannot conceive, I say, that as this is the case, and the House of Representatives is composed of members proportioned to a certain ratio of the number of persons to be represented, and has the sole right to originate money bills, how it can possibly be supposed that the PRESIDENT and Senate, without their concurrence, can make regulations of commerce, which may be injurious to the general welfare, ruinous to the commerce of certain, and even the largest, States; and by a Treaty, too, which may, moreover, deprive that House, which, by the supposition of those who have defended the Treaty is at least a Committee of Ways and Means, (and, indeed, nothing more,) of the resources of revenue to which, by the constitution, they might have recourse.

But we are told, sir, that the power given to Congress by the constitution to regulate commerce cannot extend to that regulation which depends upon the will of a foreign nation or government, and which can only be regulated by compact, or by the Treaty-making or pactitious powers. Granting that this assertion be true, which, however, may be denied, as the general belief which I have alluded to, and on which the existence of the present Government was founded, seemed to contradict it; for it was almost universally believed that an act of Congress regulating the commerce of the United States with Great Britain, as had been proposed to the former Congress, or Congress under the Confederation, or as proposed to this House on the 3d of January, 1794, and well known by the name of MADISON's propositions, or as proposed by Mr. CLARK, 7th April, 1794, would have brought about a more advantageous commercial intercourse with Great Britain than any direct negotiation with the British Minister. It was thought highly probable that the Parliament of Great Britain would (if any of these propositions had been adopted by Congress) have refused to have renewed their act, by which the trade with these United States (as if they were more degraded than Colonies) was regulated by the King's Proclamation. I say, granting, however, that assertion to be true, how does it prove, or what other assertion can prove, that Congress has not a right, under the express words of the constitution, which declares that it shall have power to regulate commerce with foreign nations, to be a party to that compact, or to have some share, either previously or subsequently, in the Treaty-making business, when it regulates the commerce of the United States with foreign powers?

I may agree that a Treaty is necessary to establish a commercial intercourse between two nations, to their mutual advantage and satisfaction, but I must affirm, that as that Treaty would be a commercial regulation, and as Congress is expressly empowered by the constitution to regulate commerce, whenever such Treaty shall be made between the United States and any other nation, Congress must either direct that the negotiation be commenced upon conditions approved, or sanction the ratification of such Treaty by some act showing that the regulation of commerce, by the Treaty, was made by the authority of Congress, in conformity to the constitution.

Besides, sir, if the PRESIDENT and Senate can regulate the commerce of the United States with one nation, they can with all nations, and if they can with all, what nation can there be with whom Congress can regulate commerce? This argument, therefore, must fall to the ground. We are told, however, that the Treaty-making power, from its nature, is competent to all the objects at least of the Treaty under consideration, and is not to be controlled or checked by this House. Let me examine this assertion. If this be true, sir, we find that although the British King, from whose tyranny we revolted, cannot force upon his subjects, against the will of their Representatives, a Treaty, which it is acknowledged, too, he has a right to make, the PRESIDENT OF THE UNITED STATES can, by his Proclamation, force upon the people who are his constituents a Treaty which their direct Representatives wish to suspend, alter, or annul. Can this possibly be a true construction of the Treaty-making power? Surely it cannot. If it be true, then, can the PRESIDENT repeal, as he has by the Treaty, the laws of Congress, although by the constitution he cannot negative them? He can oblige Congress to levy taxes; can withdraw impost and tonnage from their reach; prohibit the exportation of sundry articles, the produce of the United States, although the constitution forbids, the Senate and Representatives concurring, to lay the smallest duty on the exportation of any article; he can create offices and annex salaries thereto; destroy the rights of this House; provoke war; in short, he can do any thing; but this we are sworn to deny. The absurdity of that construction, then, must be evident, and the recollection of our oaths to support the constitution, of which we have been reminded, must force us to revolt at the thoughts of adopting such a monstrous construction of the constitution. We are reminded also of the PRESIDENT's Proclamation. I will attend to it. I look upon it as a proper notification of the ratification of the Treaty of Amity with Great Britain, but it can have no effect on the Treaty of Commerce and Navigation, till sanctioned by the votes of Congress. The evacuation of the posts on our frontiers held by the British, if intended in consequence of the Treaty of Amity, ought to take place, or if in conformity to the Treaty of Peace; but, if intended as a compliance with conditions annexed to the Treaty of Commerce and Navigation, good faith requires that they ought not to be evacuated until the final adjustment of the differences which may arise in the course of the discussion of the merits of that Treaty, and this with me is one reason why I wish for information from the PRESIDENT respecting the Treaty. I confess too, sir, that I wish for a full and free conference with the Senate on the important subject of the Treaty.

Mr. BOURNE said he would have given a silent vote on this question, had it not have been for some strange doctrines which had been asserted, for he did not consider the question in itself as necessarily involving any constitutional question. The doctrine, that the formal assent of the House of Representatives was essential to the legal existence of a Treaty, struck him as a perfect novelty. That the PRESIDENT and Senate had power under the constitution to make Treaties, and that these Treaties were the laws of the land, he had never heard denied until this debate. It was true he had heard it said, that the House might control the PRESIDENT and Senate in the exercise of this power, by refusing to carry Treaties into effect by withholding appropriations of money; but he did not expect to hear the assertion, that the ratification of the House was necessary to a Treaty, before it became the law of the land.

As a Representative of a small State, he felt himself much interested in opposing the doctrine contended for. Under the former Confederation Rhode Island had an equal vote with any State in the making of Treaties. This right was thought to have been fully preserved under the present constitution. But, if the sentiments he was combating prevailed, the small States would be deprived of one of their most essential rights; for the power of making Treaties, as one of the principal rights of sovereignty, was vested in all the States separately when they became independent, was afterwards, and in the old Confederation, vested in Congress, each State having an equal vote. It was now, in his opinion, exclusively vested in the PRESIDENT and Senate, in which body the great and small States had the same equality of suffrage. The opinion which he advanced was not merely the opinion of Rhode Island when the constitution was adopted. A gentleman from Massachusetts had already shown from the debates of the Virginia Convention, that that Assembly entertained the same opinion. He was sure the opinion prevailed in the Convention of Massachusetts--he had attended their debates when this part of the constitution was the subject of discussion. Objections were raised against it, from the indefiniteness of the power vested in the PRESIDENT and Senate of making Treaties. No one suggested that the House of Representatives had any control over, much less a participation in this power. It was urged, from the nature of the power, that it ought to be placed where it was--in the PRESIDENT and Senate. The Senate represented the sovereignty of the States; besides, from their small numbers, they were better adapted to the exercise of this power in respect to secrecy and despatch, necessary in negotiations. Objections were raised on the ground of the possible abuses to which the power of making Treaties, unlimited and undefined as it was, might be carried. No one said the PRESIDENT and Senate did not possess the power, nor was it pretended that Congress had any power to control it.

He then called the attention of the committee to the debates of the Convention of North Carolina. He had been a little surprised to hear a member from that State yesterday say he was a member of the Convention, and that it was understood that Congress could control the PRESIDENT and Senate in making Treaties, so far as respected commerce; the power of legislating on commercial regulations being given to Congress. What created his surprise was, that he had read the debates of the first Convention, and found no such sentiment. The gentleman had explained himself by saying, there was a second Convention called in that State, of which he was a member, and there the doctrine alluded to had been advanced. The debates of this Convention Mr. B. had not seen.

Mr. BRENT said he should not in the present debate touch on the merits of the Treaty, which he conceived foreign to this question. On a motion to ask for papers with respect to the Treaty, he did not conceive with what propriety the fitness of the instrument could be brought into view.

The turn which the debate had taken had given rise, he said, to an important constitutional question; he did not believe its decision of consequence to the decision on the present motion; but as the debate had taken that turn, he should pursue the same road in answer to the arguments of gentlemen. He laid this down as a sound inference from the provisions of the constitution on the subject of the Treaty power: that the PRESIDENT and Senate possess the right of forming Treaties, and of carrying on the necessary negotiations with foreign countries; but when these contain stipulations bearing a relation to the specific power vested in the Legislature, the House had a right to take cognizance of it, and such a Treaty could not become the supreme law of the land until sanctioned by the Legislature. To show the justness of this position, he should examine this subject, he said, in a threefold light. He should examine it by a recurrence to the words of the constitution; then to the opinions which prevailed as to its meaning at the time it was framed and adopted; and, lastly, he should examine what construction was best calculated to preserve the liberties of this country.

The constitution contains two clauses in reference to the Treaty-making power. The first declares that the PRESIDENT, with two-thirds of the Senate, shall have power to make Treaties. He proceeded to inquire whether this clause gives them the right to make Treaties the supreme law of the land? To determine this it was necessary to examine the import of the word in those countries where the Treaty power had been frequently exercised, and to consult the opinions of the best civilians. The general power of making Treaties is under the control of the constitution. In despotic countries, where all power, Legislative, judicial, and Executive, is in the hands of one person, there the Treaty-making power is without control, and a Treaty as soon as made becomes, ipso facto, the supreme law of the land; but in all limited governments, the Treaty power is subject to the limitations in the constitution. The practice of this principle may be found even in the British Government. There, though the King originates Treaties, as the PRESIDENT and Senate do here, they do not become the supreme law of the land, respecting Legislative subjects, until the co-operation of Parliament is obtained. Thus the power of making Treaties does not imply the power of making those Treaties in all cases the supreme law of the land. If the Executive make a Treaty involving none but Executive powers strictly, then it becomes immediately the supreme law; but if they contain provisions, which involve the Legislative authority, the Executive can make them but conditionally, and they do not become supreme until the Legislature choose to make them so. The British Government furnishes an example where this doctrine has been practised, and it is by a reference to the practice of despotic Governments, that the mistaken idea is taken up that all Treaties, as soon as made, become the supreme law of the land. The clause in our constitution, he concluded, does not give authority to the PRESIDENT and Senate to make a supreme law of the land.

When this clause of the constitution is compared with the other parts of it, it will be found, he said, that the above interpretation is just; for the Treaty-making power is delegated as a general power, while to Congress specific powers are granted. The rational and admitted rule of construction in these cases is, that specific power restrains general powers; and here, then, the general Treaty power must be restrained by the specific powers of Congress. He admitted that the Executive had full power, under the general authority vested in them by the constitution, to originate Treaties and to carry on negotiations with foreign powers; but that if the provisions of a Treaty so negotiated clashed with specific powers granted, the authority exercising those specific powers must give it their sanction before it becomes the supreme law of the land.

He next turned to the second clause of the constitution respecting Treaties, which had been noticed in the debate. It says, that the constitution, laws, and Treaties, shall be the supreme law of the land; and gentlemen contend, he remarked, that though the first clause does not make the Treaties entered into by the Executive the supreme law of the land, yet that this does; but its obvious and only meaning, when the whole of it is taken into view, is, that the Constitution, laws, and Treaties of the United States, are only meant to be declared supreme to constitutions and laws of the individual States. It is admitted, as a sound rule of construction, that to discover the true meaning of any instrument, it is fair to have recourse to the existing circumstances that produced it. When the constitution was formed, it was under a strong impression of the inconveniences experienced under the Confederation, when great obstruction was thrown in the way of the Treaty power, by the States refusing to carry into execution those agreed to by the constitutional authority. This was the evil the framers of the constitution had in view when they inserted this clause, and it has no relation to the powers of the General Government, which stand precisely in the same situation with or without it. It does not declare that Treaties shall abrogate laws, but that the States shall not have it in their power to throw impediments in the way of their execution. The words of the constitution cannot be understood otherwise than that the constitution, laws, and Treaties, shall exist together; it does not say that a Treaty shall repeal a law, or a law repeal a treaty. Then the constitution certainly contemplated that they never should be in opposition, for contradictory and opposing laws cannot exist at the same time; if they exist at the same time, they cannot be in opposition to each other. If it can be supposed that the PRESIDENT and Senate can make a Treaty in opposition to a law of the Legislature, and yet both the Treaty and the law be at the same time the supreme law of the land, an absurdity is supposed. But if it be admitted that the House shall have a participation in the business of Treaties, in cases which involve the Legislative authority, then the words of the constitution become intelligible, and both Treaties and laws may be at the same time the supreme law of the land.

Gentlemen say, that Treaties, ipso facto, repeal anterior laws clashing with their provisions: they say, that the constitution, laws, and Treaties, stand upon the same footing in the constitution, being all declared the supreme law of the land. If Treaties can repeal laws, then laws can repeal the constitution, for the second (laws) are to the first (constitution) what the third (Treaties) are to the second (laws); then, also, by parity of reasoning, Treaties may repeal the constitution. If all stand on the same footing, and the precedence is according to the point of time, the last always prevailing, then Treaties may change the fundamental principles of our Government; then the PRESIDENT and Senate, by entering into stipulations with a foreign government, may give us a monarchy, may convert our PRESIDENT into a king, and our Senate into a nobility; for, say the gentlemen, Treaties are the law of the land as well as the constitution, and a subsequent law repeals those which are anterior. But these positions are false in all their parts; a law or a Treaty cannot repeal the constitution, nor can a Treaty repeal a law. If the manner in which the three words are placed in the constitution is to have any force, it would not favor the construction of the gentlemen; they contend for the supremacy of Treaties, whereas Treaties are last named, and the true construction from this source would be the reverse, when there was clashing. He next adverted to the lengths to which the mode of interpretation contended for by the gentlemen would carry them. It was never intended, he asserted, by the people, when they instituted this Government, that the Treaty power should possess this omnipotence. It was never intended that the PRESIDENT and Senate should have it in their power to effect a radical change in our Government, and stipulate with a foreign nation for a guarantee of the change. Laws contrary to the constitution are nugatory, and Treaties contrary to existing laws, the same; because, when in that stage, they are not concluded under the authority of the United States, but are only so (and then there is no longer any clashing) when once they have received the sanction of the Legislature. From the above, he concluded that the PRESIDENT and Senate originate Treaties, and that the Legislature to a certain extent should exercise a check upon this power. And upon these principles the British Treaty is not the supreme law of the land until a decision on it was had in the Legislature.

Mr. FINDLAY.--It seems to be agreed by both parties that the express words of the constitution will not support either position without a liberty of construction. The difference of opinion is now confined to what construction is most agreeable to the general principles of the constitution.

That the construction which gives the fullest scope to all the powers vested in the different departments of the Government, and which, by combining their operation, is the best calculated for the preservation of the Government itself, offers fairest to be the true one, cannot reasonably be doubted.

The Legislative powers, to regulate commerce with foreign nations, to levy taxes, appropriate money, &c., are specifically vested in Congress, and as deposited in the Legislature, are secured by numerous negative checks, declaring what things Congress shall not do, and guards regulating the manner in which it shall exercise its powers on the proper subjects.

The Treaty-making power is not vested in Congress; the negotiating part of making Treaties is partly of an Executive nature, and can be most conveniently exercised by that department, and is, therefore, vested in the PRESIDENT and Senate. The PRESIDENT shall have the power to make Treaties, two-thirds of the Senate agreeing therewith.

Even the power of negotiating, which includes the timing of Treaties, the appointment of Envoys, and instructing them, and approving of Treaties, so far as to present them for ratification, are powers of great importance, and may put the Government in such circumstances as to render it expedient to ratify a Treaty, which, if it had not been agreed to by the negotiating agents, it would have rejected--are powers of great importance of themselves; but it is acknowledged that more than this is vested by the constitution in the Treaty-making powers.

The power of making treaties is admitted to be so extensive as to embrace all subjects arising under the law of nations, for securing amity and friendship betwixt nations, and for the mutual protection of the citizens in their correspondence with each other. Authority for this purpose is not vested in Congress among the enumerated powers, but expressly given to the PRESIDENT and Senate; therefore, Treaties to this extent, ratified under their authority, are the laws of the land, according to the constitution.

The powers specifically vested in Congress are so explicitly checked and guarded as to form an unequivocal limitation to the Treaty-making power, when it extends to powers specifically vested in the Legislature, consisting of the Senate and House of Representatives, with the approbation of the PRESIDENT.

The Legislature cannot transfer its essential powers, nor evade them; the exercise of its privileges it may dispense with, but if it may dispense with or transfer any one Legislative power, it may, on the same principle, dispense with or transfer every power with which it is vested, and for the exercise of which the Legislature only are responsible.

The Executive cannot assume or exercise any power expressly vested in the Legislature. If the Executive may, by an extension of the Treaty-making power, regulate commerce, make laws to raise and appropriate money, &c., or, which is the same thing, command laws to be made for carrying Treaties, which interfere with the Legislative powers, into effect; or if, as is contended, the Legislature has no moral power of discretion, no power to refuse to make laws to carry Treaties into effect, or even to form an opinion on the goodness or badness of Treaties, when they relate to powers explicitly intrusted to its deliberation: on the same principle all Legislative discretion may be exercised by the Treaty-making power without regard to the constitutional guards provided to prevent the abuses of those powers. For there is no Legislative power vested in Congress but what may be either directly or indirectly exercised by the Treaty-making power.

If the Treaty-making power is admitted to the extent pleaded for, and the specific powers vested in Congress are admitted in the extent in which they are unequivocally expressed, we are reduced to a dilemma, and the constitution is necessarily admitted to have instituted two interfering Legislative authorities, acting in direct competition with each other on the same subjects, and both making supreme laws of the land; which though they may be nominally distinct, have the same effect on the citizens, with this difference only, that we may be relieved from the oppression of laws by a repeal of them, but cannot be relieved from the hardships resulting from a Treaty, without the consent of another nation.

In advocating the resolution before the committee, we admit a reasonable latitude to both the Legislative and Treaty-making powers. Where the Treaty-making power extends itself to express Legislative objects, and where Legislative aid is absolutely necessary to carry the Treaty into effect, we contend that the Legislature in making such laws, exercise that moral power that is necessary for legislating in all other cases, and are not reduced to the situation of an executive officer, or mere treasurers of the United States. In this case, we say, that the powers are not intended to make war with each other; that the departments ought to concur in the exercise of them. This method preserves the exercise of both powers in their proper places; the other destroys the Legislative authority which is, by the constitution, the most explicitly vested, and precisely guarded.

Mr. SMITH, of New Hampshire, said, he had not intended to have delivered his sentiments on the question before the committee, but as he did not fully agree in opinion with any gentleman who had spoken, it became necessary for him to express the grounds of his opinion. This he would do as briefly as possible.

As this question involved the constitutional powers of the House, he viewed it as important; it was a delicate question. We were called upon to decide as to our own powers. For these reasons he thought that the discussion should be conducted with moderation, coolness, and candor; that such a temper was most favorable to truth. However gentlemen might differ, he observed, on other subjects, in this we are all agreed, that, in forming our judgments on all such questions, the constitution must be our sole guide. It was this instrument, he said, which defines the powers given to the General Government, and which distributes these powers among the several departments. If the constitution had not assigned to each its peculiar portion of power, these departments, like the original elements, would be engaged in a perpetual war for power. All would be confusion, disorder, and anarchy. He proposed, in the first place, to give what he conceived to be the true exposition of the constitution, on the subject of Treaties in general. He should then, he said, state as correctly as possible the exposition or construction of the constitution contended for by the gentleman opposed to him. He lamented that he could not do this with greater accuracy. The gentlemen had not agreed among themselves. He could only state what seemed to be the general current of opinion. The construction which he advocated was, that, by the Constitution of the United States, the power of making Treaties is exclusively vested in the PRESIDENT and two-thirds of the Senate. That this power extends to all kinds of Treaties--of Peace, of Alliance, of Amity, of Commerce and Navigation, and embraces all those subjects, and comprehends all those objects, which can with propriety be the subject of convention or compact between nations; that is, every thing in which they have a mutual or common interest. That a compact so made which does not change the constitution, and which does not palpably and manifestly betray or sacrifice the private interests of the State, (which is invalid on natural principles,) is binding on the nation without any sanction on the part of the House of Representatives. That such a Treaty is by the constitution paramount to the constitution and laws of the several States; that the Judges in the several States are bound to obey it. That it is by the reason and nature of the thing paramount to a law of the United States, and abrogates and annuls all pre-existing laws contrary to it, and, as long as it remains in force, limits and restricts the power of the Legislature of the United States to pass any laws in contravention of it. That, when such a Treaty requires money to be provided, or rather Legislative acts to be performed, it is the duty of the Legislature to provide and appropriate the money in the same manner as it is their duty to provide and appropriate money for the payment of our debts. That the nation must judge whether it be constitutionally formed or not; whether the stipulations contained in it be such as in good faith they are bound to execute, and whether any circumstances have happened which would justify a non-observance of it. That on these subjects they must exercise a sound discretion. That neither the nation, nor any departments of the Government, are at liberty to reject a Treaty merely because it is a hard bargain.

The doctrine on the other side is--

That the power to make Treaties is limited to such objects as are not comprehended and included in the specified powers given to Congress by the constitution; or, that a Treaty which comprehends or embraces any such object is not valid; that is, not the supreme law of the land, until the House of Representatives have added their sanction to it; or, if this be not admitted, that the House of Representatives, by the theory of our constitution, have check on the Treaty-making power, in providing and appropriating money necessary to carry a Treaty into effect; which power, it is admitted on all hands, they possess; and thus in this way control the doings of the PRESIDENT and Senate, and can reject a Treaty, or at least certain parts of it. That they can and ought to do this if they believe the Treaty to be a bad one, though not injurious in an extreme, such as manifestly betraying or sacrificing the private interest of the State, (which by the Law of Nations nullifies such a compact,) and which on all hands would readily be admitted as a sufficient cause for refusing to carry it into execution.

Mr. WILLIAM LYMAN began with remarking, that the gentlemen opposed to the resolution had at first contended, that the House had not a constitutional right to require papers of the Executive, relative to any subject whatever; and that if a requisition was made, it would be discretionary with the Executive, whether it should be complied with or not.

To this he replied, that the House possessed the power of impeachment solely, and that this authority certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect. But not to rely solely on this, he recollected one case, he said, perfectly in point, which was in the correspondence of the former Secretary of State (Mr. JEFFERSON) with the British Minister, communicated to the House. From dates and references, there appeared in that correspondence a chasm. The House, therefore, passed a resolution requesting the Executive to lay before them what had been omitted; and further, the resolution in that case was offered by the gentleman from South Carolina, (Mr. SMITH,) who was now so vehemently opposed to the present. The right of calling for papers was sanctioned, he said, by the uniform and undeniable practice of the House ever since the organization of the Government; they had called for papers and information whenever it was judged expedient; and he asserted, that the House had the fullest right to the possession of any papers in the Executive department; they were constituted the especial guardians of the people for that purpose; and he would undertake to say, that this was the first time it had ever been controverted.

In order to ascertain the powers of the House, he would advert to the constitution. In the first article and first section, it was declared, "that all Legislative powers therein granted, were vested in a Congress, to consist of a Senate and House of Representatives;" and in the eighth section of the same article, the powers granted were defined and specified, such as to lay and collect taxes, borrow money, regulate commerce, and to exercise other important powers enumerated in the several clauses of that important section. He said it was unnecessary to read them, as they had been so frequently referred to in the course of the debate; but he would request gentlemen to pause and reflect whether it could be supposed that this section was not to be efficacious and operative; was it possibly conceivable that a section so definite and so important had been introduced in the constitution merely for the purpose of being nullified and rendered nugatory by a subsequent article or section? The very supposition, he said, appeared to him the height of absurdity, and an affront to common sense; and yet this would be the case, if the doctrines advanced were true, viz: that Treaties, when made and ratified by the PRESIDENT and Senate, were supreme law, and that they controlled and repealed all laws that stood in their way. Congress could neither regulate commerce, borrow money, prescribe rules of naturalization, nor legislate on any other subject, because the PRESIDENT and Senate, by Treaty, would abrogate them all. It was in vain to consult the House of Representatives in the formation of laws, if they thus were liable to be annulled at the pleasure of the PRESIDENT and Senate. The present question, he said, was not, whether the House should make Treaties, but whether the PRESIDENT and Senate should make laws; all the power contended for on the part of the House was the power of self-preservation; it was a repelling power, a power to prevent the PRESIDENT and Senate, under the color of making Treaties, from making all the laws. A gentleman from Connecticut (Mr. GRISWOLD) had said, that the Legislative power occupied all ground, and was vested in Congress; and that the Treaty-making power occupied all ground, and was vested in the PRESIDENT and Senate; and that although Congress, who were the agents for the people, should make laws, yet, that the PRESIDENT and Senate, who were also their agents, might, by Treaty, repeal them. This, Mr. L. said, contradicted a sound axiom, and one he had never before heard controverted, viz: that it required the same power to repeal as to make a law. Such incongruities as the gentleman had advanced, Mr. L. said, could never be reduced to practice; two persons could not be possessed fully and completely of the same thing and at the same time. The gentleman could never reconcile his positions, the one would certainly defeat the other; upon his construction, the Treaty-making power must absorb the Legislative power, or the Legislative power would absorb the Treaty-making power.

It appeared, therefore, to him, that constitutions, laws, and all writings, ought to receive such interpretation and construction as to render them consistent with themselves; and that it was highly presumptive a construction was erroneous when it produced an absurd conclusion. If the several parts of the constitution were compared and critically examined, the determination must be, that, although the PRESIDENT and Senate could make Treaties, yet it could not be intended, those Treaties that entrenched on the specific Legislative powers of Congress, unless with their concurrence and consent; otherwise, it followed, that, although the three branches were consulted in the enacting laws, two might repeal them. But it had been asserted that this power, insisted upon on the part of the House, was a novel doctrine, introduced merely upon the spur of the present occasion; notwithstanding which, it had been proved by several gentlemen who had spoken upon the question, that this interpretation was given to the constitution in most of the State Conventions at the time of its adoption; that the same interpretation had also been given, at that time, by the writers both for and against its adoption. It had appeared, from the extracts of publications at that period, that whatever might have been the diversity of opinion in other respects relative to the constitution, that, in this construction, at least, both its friends and opposers perfectly agreed. This principle, then, being thus settled and understood, it remained only to show that it had been invariably admitted and recognized from the first organization of the Government until this time. The first Treaty that had been made under this constitution, he said, was that with the Creek Indians, in the year 1789; previously to the making of which, the PRESIDENT communicated the subject to Congress; an extract from which communication he would read, viz: "If it should be the judgment of Congress, that it would be most expedient to terminate all differences in the Southern district, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest," &c. Here, Mr. L. said, he wished it might be particularly noticed, that this subject was expressly referred to the judgment of Congress to determine on its expediency or inexpediency, and for what purpose, he would ask, was it referred? If the Senate and PRESIDENT possessed the full power of making Treaties, there could be no occasion for consulting the House of Representatives; and yet, in this case, the first that presented itself, it had been conceived necessary. In consequence of this communication, Congress had judged it expedient to hold the Treaty; and on the 20th of August, the same year, enacted a law in which the sum of twenty thousand dollars was appropriated for that purpose; and, in conformity thereto, the PRESIDENT appointed Commissioners and gave them instructions, which instructions had been also communicated to Congress, from which he would also read one paragraph; it was as follows: "You will observe that the whole sum that can be constitutionally expended for the proposed Treaty shall not exceed twenty thousand dollars." On this, he said, any commentary was unnecessary, as the principle that the Legislative power operated to restrain the power of making Treaties, was so fully and explicitly recognized and admitted by the PRESIDENT himself. By pushing inquiry further, it would be found that, in January, 1790, in consequence of communications from the Executive which were referred to a select committee, and a report made thereon, the House came to the following resolution, to wit: "That provision ought to be made by law for holding a Treaty with the Wabash, Miami, and other Indian tribes north-west of the river Ohio." In March following, a law was made, the title of which was "An act entitled an act providing for holding a Treaty to establish peace with certain Indian tribes."

In March, 1791, the sum of twenty thousand dollars was appropriated for obtaining a recognition of the Treaty with the Emperor of Morocco. In March, 1793, one hundred thousand dollars were appropriated to defray the expense of a Treaty with the Indian tribes north-west of the river Ohio.

Thus it was apparent that laws had always been deemed necessary to provide for holding Treaties and for defraying the expenses thereof.[71]

MARCH 17.--In Committee of the Whole, on Mr. LIVINGSTON's resolution.

Mr. REED said, he saw no necessity for the papers referred to in the resolution. If the constitutionality of the Treaty should be questioned, or the propriety of making appropriations, these questions, he conceived, must be determined by comparing the Treaty with the constitution, and by attending to those stipulations contained in the Treaty itself.

It was not his intention to have troubled the committee by speaking on this occasion; but perceiving that some gentlemen, in the course of the debate, had gone further into the opposite extremes than he was prepared at present to follow them, he felt as if he ought to express his own sentiments with regard to the constitutional rights of that House relative to the Treaty in question. The Treaty was undoubtedly negotiated, ratified, and promulgated by constitutional authority. The PRESIDENT, with the advice and consent of two-thirds of the Senate, was, in his opinion, unquestionably that authority which the United States had authorized to make Treaties. But still it seemed taken for granted that some agency of that House, in its Legislative capacity, would be needed in order to carry the aforesaid Treaty into effect. A question, therefore, arose, viz: Was that House, in all such cases, bound and obliged to put so implicit and absolute a confidence in the Executive or in Treaties as would render it entirely unnecessary to have any opinion of their own about them, or the probable consequences of their operation? For his part, if he had never seen the Treaty in contemplation, and were perfectly ignorant of its contents, or, if he fully believed, as a citizen, that it was unconstitutional, or calculated to ruin, or very materially injure the country, he should not think himself justifiable in voting to appropriate money for the purpose of carrying it into effect. It had been conceded by gentlemen that if a Treaty were evidently unconstitutional, it would not be wrong to withhold appropriations; and he conceived that a Treaty might possibly be so injurious in its effects as to justify such a measure. Supposing such a possible event should ever actually happen, did not the right of refusing to legislate in support of the said Treaty involve the right of previously examining all Treaties which need the aid of the Legislature, and of judging for themselves whether it would be proper or improper to make laws for the purpose of carrying them into effect?

In making Treaties the Executive would use his own discretion, keeping within the limits prescribed for him by the constitution. In making laws the Legislature must use their own discretion, always keeping within those limits and bounds which the constitution had fixed for them. He said, the discretionary right here contended for was not the right of doing wrong; it was not the right of violating the constitution; it was not the right of supporting a Treaty which ought to be defeated, nor of defeating a Treaty which ought to be supported; but, simply the right of judging for themselves, whether they ought, by their own act and deed, in the character of Legislators, to appropriate by law such sums of money as would be needed in order to support an existing Treaty, all things and circumstances relating thereto being suitably examined and properly considered. Perhaps it would be objected, that the constitution nowhere expressly gave the Legislators that right. He answered, the right was not precluded, but implied, and, in some respects, evidently one of the original and essential rights of man; a law of nature, prior and superior to all other laws; a law never to be transgressed in any station whatsoever. Individuals, in many cases at least, had a right to exercise their own discretion with respect to the propriety of submitting to a civil law or of risking the penalty, the consequence of disobedience; and, as a branch of the Legislature, he believed they had a right to deliberate and consult, among other things, the expediency and duty of making or of refusing to make appropriations, even in the case of a Treaty. It appeared to him that, in legislating, the Legislature should have this right of judging for themselves with respect to the propriety of making or refusing to make any law whatsoever. In most cases their duty would perhaps appear plain and obvious, particularly in the case of appropriating money where a law or Treaty actually existed. However, the obligation did not arise wholly from the circumstance of an existing law, but partly from the nature, reasonableness, and tendency of the thing itself.

A Treaty negotiated by constitutional authority was, he contended, a solemn compact between two nations. It was an important consideration; but he thought they might, with propriety, attend to other considerations, for and against it, especially when their own aid was required, in order to carry it fully into effect. This he conceived was the right of the House, and no encroachment upon the prerogative of the other branches. An appropriation was a specific sum, appropriated by a particular law to a particular purpose.

The right of appropriating the public money was not a natural right, but a right derived from the constitution; and the Legislature were to exercise that right according to the honest dictates of their own best discretion; excepting those instances in which they were expressly restricted by the constitution itself, as in the cases of compensation for the services of the President of the United States, and for the services of the Judges. Congress might deliberate and act discretionally in stating at first their salaries.

Mr. TRACY said, he felt a diffidence in giving his sentiments in that House, which was much increased when he considered the ability with which the question had already been discussed, and the length of time it had consumed; but the magnitude of the question would justify him, in his own opinion, for asking of the committee to indulge him with a small portion of their time and attention.

This was the first time, since the adoption of the present Government, that a discussion of the important constitutional question of the extent of the Treaty-making power could have taken place, as it respected a foreign nation; and, of course, would probably form a precedent for all future inquiries of a similar nature.

The constitutional rights of the House of Representatives to interfere with Treaties, might properly be considered in two points of view:

1. Had they a right to assist in the formation of Treaties in such a manner as that a Treaty would be incomplete without their sanction officially given? And,

2. Had they a right to refuse appropriations of moneys, (if necessary to carry into effect some provisions in a Treaty,) and in that way defeat its operation?

He acknowledged, if the first position could be supported, the right to call for the papers would be conclusive; but, he contended, they could not be wanted on the latter ground.

If the constitution was examined, it would be found the Treaty-making power was given to the PRESIDENT; and no interference, or right given to any other men or body of men but to two-thirds of the Senate, and that by way of consent or advice. Could it be pretended there was a shadow of authority given to the House of Representatives?

In the constitution it is said, "all Legislative powers herein granted shall be vested in a Congress," &c. Would it be pretended, had the constitution gone no further, that the then thirteen independent sovereign States, by that part of it, had parted with the Treaty-making power? No! they reserved a great share of Legislative power to themselves, and delegated it to Congress only in certain cases, best calculated, in their opinions, to advance their own happiness; and unquestionably reserved every right, power, and sovereignty, which they did not expressly give away by the constitution itself. The powers of legislation are the powers of making statutes in all cases respecting men and things within the jurisdiction of the Legislature; but it could by no means in its nature comprehend the Treaty-making power, which is the power of contracting or making bargains in the name of a nation, as a moral person, with another nation or moral person, for their mutual benefit, and to be binding and operative on them, as parties to the contract or bargain. And although this had binding force on the nation, when once formed and completed, yet it was not a Legislative act. But the constitution went further: it had actually designated the PRESIDENT, with the advice of the Senate, to be a Plenipotentiary for the formation of Treaties. Vattel, page 179, speaking of the various customs of nations, in the deposit of this power, says:

"All conductors of States (meaning the Executives) have not the powers, of themselves, of making public Treaties: some are obliged to take the advice of a Senate, or of the Representatives of a nation. In the fundamental laws of each State we must see what is the power of contracting, with validity, in the name of a State."

He supposed, by "fundamental laws," Vattel must mean the constitution of a State; if so, it will not follow that the supreme Legislative or Executive power of a State, as such, have necessarily the power of making Treaties; it might be, and in most countries was, an object of precise delegation, and probably always, or certainly more commonly, given to the Executive. This constitution had precisely given it to the Executive, subjoining the advice and consent of the Senate; and in this particular, and in no other, had the individual sovereignties delegated all their power without limitation. It was necessary and proper this power should be lodged somewhere, and equally necessary it should be entire and unlimited, to meet every exigency that the welfare of the nation might require. It had been said, that general expressions of power would be limited by specific: this was a general truth, but he denied the application which had been attempted. It was said, the Treaty-making power is a general power; the Congress has a specific power to regulate commerce, &c. Of course, the specific power to regulate commerce will check the operation of a Treaty of a commercial nature. He said this part of the subject had been so ably and conclusively managed by a gentleman from New Hampshire, yesterday, (Mr. SMITH,) that he would not exhaust the patience of the committee by going over the same ground. He would however observe, that by the common rule of construction, all the powers given to the PRESIDENT which could, and in their nature would, check or operate on legislation, must be considered as a specific portion of power carved out of the general power given in the former part of the instrument. The general powers of legislation first given to Congress, and in the next place specific powers given to the PRESIDENT, could not fail to lead the mind directly to such a construction. "All Legislative powers, &c., are vested in a Congress," but the PRESIDENT has a qualified and specific check. Power to regulate commerce with foreign nations is vested in Congress, yet the specific power of contracting, bargaining, or making a Treaty, is, so far forth as it may touch Legislative points, a specific check upon it. Yet he acknowledged this was not his chief reliance. The nature of the case was such, that whatever internal regulations, or those relating to external and foreign commercial subjects, which may have become objects of Legislative attention, oppose or come in competition with a contract or bargain about the same things, must give way. It does not exclude legislation from the object of foreign commerce, but establishes certain points within which it shall operate, and which it cannot violate. The thirteen sovereignties possessing all the power, gave to Congress a certain portion of Legislative authority; but they certainly could give to the Executive, or any other body, the power to make Treaties. This he contended they had done, by the words of the constitution, in an unlimited manner.

It had been said, that the constitution was similar to that of Great Britain in the part respecting Treaties. This, he contended, was an incorrect statement: in his opinion they were very different. The constitution of Great Britain was formed almost entirely of usages. It had been, for a great length of time, the usage for the King to lay before Parliament, for their approbation, Treaties--especially those of a commercial nature. If this was a usage, all that could be said of it was, that it was a part of their constitution. He supposed this right had been given by the Crown, at some time, to obtain a grant of money; but he could not recollect that the Parliament, with all their pretensions to a right of rejecting Treaties, had ever exercised it. They generally made a pretext of dislike to a Treaty to change the Administration. This had been often done; it was on the Treaty of Peace of 1783. The Treaty of Utrecht, which was concluded in 1713, had been cited as an instance of rejection by the British Parliament. It was a fact, in that instance, that nothing was rejected but a conditional Treaty. In forming the Treaty, there were many distinct parts: one part of it was a Commercial Treaty between England and France, separately signed and conditional--that is, "within the space of two months after a law shall pass in Great Britain, whereby it shall be sufficiently provided, &c., the general tariff made in France, &c., shall take place there again, &c." The law did not pass in Great Britain, and of course the Commercial Treaty failed. Mr. T. said he had searched all the Treaties made by Great Britain since the Treaty of Munster, which, if his memory was accurate, was concluded in 1648, and could not find an instance of the Parliament's refusing their assent to a Treaty made unconditionally; and he really believed, if they practised fully on the right they claimed, it would very soon destroy their Government. It had been said, Blackstone in his Commentaries had defined the powers of the King of Great Britain to be unlimited in the making of Treaties. He observed, that, let Blackstone or any other Crown lawyer say what he would in favor of prerogative, it was well known the usage had been to submit to Parliament the consideration of Treaties, and that usage was a part of their constitution; and he rejoiced, that in that particular the constitution of his country was different. Gentlemen had said, Shall this House not have as much power respecting Treaties as the House of Commons in Great Britain? This question was both improper in itself, and calculated to mislead. Were we in convention, and forming a constitution, it might have weight; but in a cool discussion of a constitution already formed and adopted, and the question is, What powers are given? it could not be proper. And it ought to be remembered that Parliament, and not the Commons alone, had this right in Great Britain. In defining the relative powers given by the Constitution, there was danger of the popular branch making encroachments on the other branches, under pretence of favoring the liberties of the people. This pretence, however grateful it might sound in debate, he thought was but a pretence. It was the duty of the House to make a stand against all encroachments on their own rights, if any were attempted, but it must equally be their duty to exercise great caution not to encroach on others. He said, he considered the responsibility which was so very necessary on those in the exercise of the Treaty-making power could not exist if it was extended to the House of Representatives.

He acknowledged if a Treaty was unconstitutional, it was not then a contract of binding force, and of course contained no obligation of any kind whatever; if a Treaty was so terrible in itself, and manifested consequences ruinous to the nation, no argument could be drawn from such a statement to establish general rules. The moral law had said, we shall not kill, and yet a man may be placed in such a situation, as that he not only may, but it becomes his duty to kill; could it be said a general right to kill is proved by this concession? But could gentlemen seriously say, we now wanted these papers, mentioned in the resolution, to assist us in determining upon the question of appropriation? He thought not. He supposed the first extensive and unlimited right of interfering in the making of a Commercial Treaty could alone justify the call, and he believed that ground must be given up. He said his colleagues (Messrs. SMITH and GRISWOLD) had asserted no other doctrines than such as he now advocated, and yet they had been accused of saying that this House had no will of their own, but must in all cases implicitly obey the PRESIDENT and Senate. The construction he had given to the constitution he believed to be just, and trusted he could be under no necessity of declaring the purity of his intentions, as he did not doubt but every member of the House was guided in the investigation by the purest motives.

Mr. S. SMITH said, that at the present state of the discussion, little was left but gleanings, and to bear testimony against a doctrine that appeared to him big with consequences fatal to the true interests of the country. He would not pursue the sophistry of the gentleman last up (Mr. TRACY) through all its windings and turnings; he would only observe that the gentleman had read some, and quoted much to prove that Treaties were the supreme law--a doctrine that was admitted by all, that is, when under the authority of the United States.

He said the resolution requested certain papers to be laid before the House. What had been the custom of the House heretofore? Invariably to ask for all and every paper that might lead to information. He well recollected that, in 1793, a great ferment had arisen in the public mind in consequence of the Proclamation of Neutrality, (which had always appeared to him to be a wise measure,) that on the meeting of Congress a great number of useful papers relative to our situation with respect to foreign nations were submitted, some of them of a most confidential nature, relating to Treaties then depending, particularly that with Spain. The PRESIDENT was not afraid to place his confidence in that House, and he was right; the public mind was restored to quiet, and the people of Kentucky (then restless) were satisfied that the Executive were doing every thing in their power to obtain the free navigation of the Mississippi. The PRESIDENT went further; he sent a special agent to Kentucky to communicate to that Government the line of conduct then pursuing for their welfare. Had the public mind been less disturbed on the late Treaty than in 1793? He thought not; and that every paper which would tend to satisfy that the Treaty was expedient, or to give information on a subject that must be discussed before that House, might with propriety be asked for.

A gentleman from Vermont (Mr. BUCK) repeated by another from South Carolina (Mr. SMITH) said, to vote for this resolution would be treason against the laws and constitution. Why this harsh language? Did it lead to a discovery of truth? Where did these gentlemen find that definition of treason? Not in the constitution, for there it was properly defined.

Mr. S. said, gentlemen had taken a ground that appeared alarming, viz:

That the PRESIDENT and two-thirds of the Senate may, by the aid of a Treaty, do any thing, and every thing, not morally impossible, (provided they do not infringe on the constitution,) and that the immediate Representatives forming this House, have only to be informed thereof, and to obey.

Let us pause for a moment, and ask, Was this possible? Could this be the fair construction of our so much boasted constitution? If it should be, he would not regret the services rendered his country during the late glorious Revolution, nor the part he had taken to promote the adoption of the constitution; nor would he, by inflammatory speeches within, nor his actions without doors, do any thing that should tend to destroy the harmony then subsisting, or to disunite a people whom nature and relative wants seemed to have connected together; but he would endeavor, in a constitutional manner, to obtain amendments to the constitution, which would prevent the evil in future. But is there occasion for amendments to the Treaty-making power? He thought not. There were checks and balances sufficient in the constitution to prevent the evils that might arise out of it. He said, he could offer nothing new, but would pursue the train of reasoning began by a gentleman from Virginia, (Mr. MADISON.)

In the eighth section of the first article of the constitution, Congress have power to lay duties, &c., &c., but all duties shall be uniform throughout the United States:

Can regulate trade with foreign nations:

Can establish a uniform rule of naturalization.

Congress, then, although they have the power to lay taxes and duties, and to make laws of naturalization, are bound to make them uniform; and in another article, are prevented from giving a preference by any regulation of commerce or revenue to the ports of one State over those of another. But the Treaty-making power is not so confined; it may relieve one of our ports from this uniformity of duties, or one of the States from the uniformity of naturalization; that is, it may relieve goods imported in British bottoms into New York, from the one-tenth extra duty, and let it remain on all the other ports of the Union. But, say gentlemen, it is unfair to reason against the use of power by its probable abuses. He thought it advisable to guard against abuses; but has this abuse not already taken place? He thought it had. Not with respect to a port of the consequence of New York; that would have been too palpable; but on the Lakes, by the third article of the Treaty, goods imported to the territory in that quarter, in British bottoms, are subjected to no higher duty than goods imported in American vessels to the Atlantic ports. Here appeared a departure from that uniformity required by the constitution; here appeared a preference given to the ports of one State over those of another; and yet gentlemen contend, that the House have no right to inquire into the business. Indeed, so delicate was one gentleman (Mr. BUCK) on the subject, that he opposed committing the Algerine Treaty, lest it should establish a claim to investigation! It was true, the trade on the Lakes was small, but it would increase. Thus, although Congress were very wisely restricted, when laying duties, to make them uniform, yet the PRESIDENT and Senate would be capable, by the assistance of a foreign power, to destroy that uniformity.

Mr. S. then stated, that he did not mean, and he hoped he should not be understood to preclude himself from voting to carry the Treaty into effect. He held himself entirely open to conviction; and if he should find that the same was expedient, whatever might be his opinion at present on the instrument, (and in truth he did not think it good,) yet he would keep himself at full liberty to act as he might think most to the interest of this country, when that subject should come before the House.

MARCH 18.--In Committee of the Whole, on Mr. LIVINGSTON's resolution:

Mr. ISAAC SMITH did not pretend to prescribe limits to other men's faith, but he never could believe that men, as wise as those who compose the convention, would have left so important a regulation, as was now contended for by some gentlemen, to mere uncertain construction. He believed, if they intended that House should have had an agency in the making of Treaties, they would have said so in express terms. Had they done so? Nothing like it. So far from it, that they had unequivocally appropriated the Treaty-making power to the PRESIDENT and two-thirds of the Senate, in terms as express and positive as words could form: and the gentleman in opposition could not, did not deny it. But, say they, this power may be abused, shamefully abused, and, therefore, we will construe it out of the hands the people have placed it in. We will assume and declare ourselves the sole guardians of the people, and we will cry out liberty, liberty; and, as the people love the sound, (he hoped they would always love the substance,) perhaps they will believe us. Here rests the fallacy. The people knew, whether they knew or not, that they chose the PRESIDENT, and they firmly believe, as well they may, that he is their guardian. The people knew, also, that they chose the Senators, and they likewise think they are their guardians. How we, said he, became sole guardians, will require a modesty superior to that of New England to explain. The people have declared that the PRESIDENT and Senate shall make Treaties, without a single exception, and, lest there should be any mistake or cavilling about it, they have put it in written words, as they thought, too plain to be doubted, too positive to be contradicted. It appeared to him that it was a sufficient answer, though a short one, to all the laborious arguments had in favor of their interference, to say, that the people wills it otherwise: sic volo, sic jubeo, stat pro ratione voluntas. If they had under consideration alterations or amendments to the constitution, those arguments might, perhaps, be proper; but, as matters now stand, they are mere inapplicable declamation.

Mr. LIVINGSTON said, that the very able support this resolution had received, might seem to release him from any obligation of speaking in its defence; nor would he now trouble the committee with any observations on the subject, if those he made on the introduction of the business had not been misstated, and his subsequent explanation partly suppressed. He had stated, when he had laid the resolution on the table, as a reason for requesting the papers, that important and constitutional questions would probably arise on the discussion of the Treaty. It had been represented, (certainly from misapprehension, not design,) that he confined the use of the papers to the elucidation of a constitutional question only; and it had been asked, with an air of great triumph, how the instructions and correspondence could throw any light on the question of constitutionality, to decide which nothing was necessary but a comparison of the Treaty with the constitution? Mr. L. said he had not confined the utility of the papers to that point, but that, if he had, it would not be difficult to suppose a case in which they were necessary to determine the constitutionality of the Treaty. The constitution, he said, gave to the PRESIDENT the power to make Treaties, "by and with the advice and consent of the Senate." Men, respectable for their talents and patriotism, had supposed that, by the true construction of this clause, the PRESIDENT could make no Treaty unless by the previous advice and consent of the Senate; in other words, that the Senate should advise the making of a Treaty, which they could only do before it was commenced; and should consent to it by a ratification after it was concluded. He would give no positive opinion on this subject, but supposed it a point worthy the attention of the House. The construction, he said, appeared reasonable, and had been heretofore sanctioned by practice. Two instances he could recollect; one was in the Treaty of Holston, where Governor Blount was "vested with full powers and specially empowered by and with the advice and consent of the Senate." The other instance was found in the answer of the PRESIDENT to the French Minister, who offered to enter into negotiations for a Treaty of Commerce, which the PRESIDENT declined, by referring him to the meeting of the Senate, which was not then in session. If the PRESIDENT supposed he could not commence a negotiation without the concurrence of the Senate, it gave force to this construction; and, if it was a true one, nothing was more demonstrable than that the papers were necessary to determine whether the Treaty in this point had been constitutionally made.

Two positions had been assumed, differing not materially in the power ascribed to Treaties, but distinguished chiefly by the mode of applying this power.

By some it was contended, that the interference of the Legislature was necessary in some instances, but that the Treaty operated by way of moral obligation, to enforce the necessary steps to give it validity; and that though there is a physical power of refusal, yet it ought in no case to operate against the superior obligation.

Others had asserted, that Treaties being the supreme law, might operate directly, without the intervention of any other body. That where existing Legislative acts opposed their execution, the Treaty was paramount, and could repeal them.

These positions were in fact the same, because, if a Treaty was, at all events, to have effect, it was perfectly immaterial, whether it operated directly by its own power, or indirectly by the instrumentality of another body; both, he thought, equally subversive of the principles of the Government; but the first was most degrading to the Legislative dignity. Nor could he discover from what part of the constitution it was inferred. Wherever, in that instrument, a duty was imposed, it was clearly and explicitly assigned, as in case of the PRESIDENT's compensation, that of the judges, and many other instances. It is not, then, to be conceived, that so important an obligation as this should have been left to implication. If it had been intended so to annihilate this discretion, the same language would have been used, "Congress shall pass laws to carry every Treaty into effect," but nothing of this kind appears. Again, if it had been intended to make Treaties paramount over laws, it would seem to have been the more simple mode, to have dispensed with their interference. Why leave a phantom of discretion, an unreal mockery of power, in the hands of the Legislature? In order to get rid of this difficulty, some gentlemen seem willing to allow a species of volition, but it was a pittance that would be scarcely worth accepting. In cases of extreme necessity, and in others, where, from corruption or other good cause, the compact is void, this House, they say, may refuse to carry it into effect. In the first case, where it is impossible to give efficacy to a Treaty, the power of refusing it was surely of little value. And where the compact is void in itself, the liberty of not being bound by it, would scarcely be contended for. If the subject were less serious, Mr. L. said, one would be tempted to smile at the efforts that are made to reconcile the constitutional predestination contended for, with the free agency of discretion. It was as difficult to be understood, as the most entangled theological controversy, and, like most disputants in that science, they concluded with anathemas against all who could not comprehend, or would not believe them. We have a discretion, whether to act or not, say they; but we are under an obligation to act, and if we do not, we are guilty of treason and rebellion. This was the same kind of discretion a man has, whether he will commit murder or let it alone; he may do it, but if he does, he will be hanged. This was a worse alternative than that generally called Hobson's choice--that was, "this or nothing;" but here we are told, "do this, or be hanged for a traitor." So that hereafter, when any one intended to express an inevitable necessity, he would call it Congressional discretion.

If, then, the Treaty does not operate by way of obligation on the Legislative power, let us, said Mr. L., examine, whether, as is contended, "a Treaty is paramount to a law, and can repeal it, though it, itself, cannot be acted on by the Legislative power;" this, he said, was the most important question that had ever been agitated within these walls. It evidently tended to the substitution of a foreign power, in lieu of the popular branch; it was replete with the most serious evils. He could never suppose so great and pernicious an absurdity was contemplated by the constitution; but, if such was the true construction, great as the evil was, we must submit, until it could be legally amended.

The constitution gave all Legislative power to the Congress of the United States; vested the power of making Treaties in the PRESIDENT and Senate, and declared that the constitution, the laws made in pursuance thereof, and Treaties made under the authority of the United States, should be the supreme law of the land. He had always considered the order in which this enumeration was made as descriptive of the relative authority of each. 1st. The constitution, which no other act could operate on. 2d. The laws made in pursuance thereof. 3d. Treaties, when they contradicted neither; for, if no weight was given to this argument, Treaties would be superior, both to the constitution and the laws, as there is no restriction with respect to them, as in the case of laws, that they be made pursuant to the constitution. He did not believe gentlemen would contend for this absurdity; they must therefore refer to the order of the enumeration, to measure the relative effect of the constitution, laws, and Treaties. If the objects of Legislation and of Treaty compact could be kept distinct, no question would arise, there would be no pretext for interference; but they could not; almost every object of legislation might also become that of compact with a foreign power.

But it was probable, Mr. L. said, that the Treaty power was intended to be placed in the PRESIDENT and Senate to the same extent only in which it existed in the Executive of Great Britain. The words of our constitution on this point were the same made use of by British writers in defining the corresponding power in their Government, and it seemed evident that some of its features (and this was none of the least prominent) were drawn from that original. He was happy that the parallel was not perfect in other instances. He thought it completely so in this; and that the practice therefore of that Government would, in some measure, lead to the true construction of this. Aware of the weight of precedents drawn from English history, gentlemen endeavored to weaken them by a very ingenious argument: "The British Constitution," say they, "is not written, it is formed of usages; if you prove, therefore, that it is the usage for British Parliaments to sanction Treaties, you prove it to be their constitution, but you do not prove it to be ours." It was true, Mr. L. observed, that the English Constitution was formed partly of immemorial usages; but it was also true, that those usages were collected in books of authority, and that the different powers of Government were generally designated, so that the leading points in their constitution were as well known and defined as they were in that of America. It had been shown by a reference to writers of the best authority, that, by the Constitution of England, the power of making all Treaties was in the King; but as the power of making all laws was in the Parliament, this latter, as the greater power, controlled the former, whenever it affected objects of legislation. Thus, in the Constitution of the United States, he contended, the power of making Treaties, that is, all Treaties, vested in the PRESIDENT and Senate; but, as all Legislative power is vested in Congress, no Treaty operating upon any object of legislation can take effect until it receives the sanction of Congress. The practice, too, was the same. The King asserted his right of making and completing Treaties, by not only concluding, but ratifying them, before they were submitted to Parliament, but he believed no Commercial Treaty was proclaimed as the law of the land before it had received the sanction of Parliament. Indeed, it was impossible, in any country, and under any constitution, where the Legislative and Treaty-making powers are lodged in different hands, that any other construction can be given without running into the absurdity he had before hinted at, of making two different powers supreme over the same object at the same time. Our ideas had been confounded by referring to the practice of Governments where the two powers were united, and where a ratification gave the consent of both.

If, then, there was a perfect analogy between the power vested in the Crown in England, and that delegated to the PRESIDENT and Senate in America, on the subject of Treaties; and if the Parliament, by virtue of its general Legislative authority, was in the practice of giving or withholding its sanction to Treaties concluded by the King, it was but a fair inference to say, that the same discretion existed in Congress.

Some instances of the exercise of this power by Parliament, had been before quoted by others. The inexecution of the Treaty of Utrecht, in consequence of Parliamentary opposition, and the difficulties with which the Commercial Treaty with France was carried through the House of Commons, in 1787, had been already noticed. He would mention two other precedents drawn from the same source equally striking, or perhaps more so, as the course of proceeding there followed was precisely that which was proposed by the resolution in debate. The first was the proceeding on the Barrier Treaty, taken from the 5th vol. Parl. Debates, p. 43, where the House of Commons began, by a resolution to address the Queen, "that all instruction and orders given to the Plenipotentiaries that transacted the Barrier Treaty, and also all Treaties mentioned and referred to in the said Treaty, might be laid before the House, except such Treaties as they already had." We are told in the subsequent page, that on the 13th, that is, only two days after the request, "Mr. Secretary St. John presented to the House, by Her Majesty's command, a copy of the instructions to the Duke of Marlborough and Lord Townsend, about the Barrier Treaty, extracts of letters from Mr. Boyle to Lord Townsend, concerning the said Treaty; also a copy of the Preliminary Articles, signed at the Hague; the titles of which copies and extracts of letters were referred to the Committee of the whole House. After this, it was resolved to present an address to Her Majesty, that the letters written by Lord Townsend to Mr. Boyle, the Secretary of State, dated the 1st and 26th of November, 1709, might be laid before the House, which Mr. Secretary St. John accordingly did on the 14th of February." After having obtained the papers, Mr. L. said, the House of Commons proceeded to the consideration of the Treaty in Committee of the Whole, and voted, 1st. That the Treaty contained articles destructive to the trade and interest of Great Britain. 2d. That the negotiator had acted without authority. 3d. That the advisers and negotiators were enemies to the Queen and Kingdom.

The Treaty being thus obstructed, the States General remonstrated to the Queen on the subject; but, conscious that the Parliament were only exercising a constitutional power, they make no complaints in their memorial of any breach of faith, though the Treaty had been ratified. They enter into the merits of the Treaty, offer to negotiate on the obnoxious articles, and conclude with "entreating the continuance of Her Majesty's friendship."

This instance, then, said Mr. L., is complete to show the propriety of a call for papers by the House of Commons; a ready compliance on the part of the Crown, a deliberation on a ratified Treaty, a rejection of it, and an acquiescence on the part of the foreign nation, without remonstrance.

The other instance was an address in the year 1714, requesting "the Treaties of Peace and Commerce between Her Majesty and the King of Spain, and the instructions given to Her Majesty's Ambassadors thereupon, together with the copies of the King of Spain's ratifications of the said Treaties, and the preliminaries signed by the Lord Lexington and the Marquis of Bedmar, at Madrid, and all other agreements and stipulations which had been made concerning the commerce between Great Britain and Spain. 2dly. An account of what engagements of guaranty Her Majesty had entered into by virtue of any Treaty with any foreign Prince or State, from the year 1710. And 3dly. An account of what instances had been used by Her Majesty for restoring to the Catalans their ancient privileges, and all letters relating thereto. And then it was resolved, to take into further consideration the Message that day sent from the Lords upon Thursday next following."

Objections had been raised to this construction, drawn from three different sources.

1. From the prevalent construction at the time of establishing the constitution.

2. From the practice of the Government since that period.

3. From the present ideas entertained by the people of the United States.

1st. As to the construction generally received when the constitution was adopted, Mr. L. did not conceive it to be conclusive, even if admitted to be contrary to that now contended for; because he believed we were now as capable at least of determining the true meaning of that instrument, as the Conventions were; they were called in haste, they were heated by party, and many adopted it from expediency, without having fully debated the different articles. But he did not believe the general construction at that time differed from the one he had adopted. A member from Virginia (Mr. BRENT) had shown, by recurring to the debates in the Convention of that State, and to other contemporaneous productions, that the framers and friends to the constitution construed it in the manner that we do; whilst its enemies endeavored to render it odious and unpopular, by endeavoring to fix on it the contrary construction. And as the friends to the constitution were the most numerous, we ought rather to take the explanation under which a majority accepted the constitution, as the true one, than to look for it in the bugbears by which anti-Federalism endeavored to prevent its adoption.

2d. The second argument that had been used to deprive the Legislature of any right of interference, in cases of this kind, was drawn from the uniform practice of the Government ever since its formation. The gentleman from South Carolina (Mr. SMITH) who made this objection, had cited one instance of this practice in the resolution directing Treaties to be published with the laws, and had adverted to the appropriations for the Indian Treaties, (under the general head of the Military Establishment,) as favoring his principle. As to the resolution, Mr. L. said, there was no doubt that Treaties, when properly sanctioned, ought to be observed, and therefore the resolution was proper, that they ought to be promulgated. On the subject of appropriation, it had been well observed by a gentleman from Virginia (Mr. GILES) that the House exercised as much discretion in granting the supply, by way of addition to the military appropriations, as if it had been given specially for the purposes of the Treaty. But the truth is, said Mr. L., that an accurate examination into the communications of the Executive in analogous cases, and the proceedings of this House, will form a strong, I think an irresistible, argument in favor of the resolution. It would appear, he said, from the view he was about to take, that from the first establishment of the constitution until the negotiation of this Treaty was begun, the Executive had been in habits of free communication with the Legislature as to our external relations; that their authority in questions of commerce, navigation, boundary, and intercourse with the Indian tribes, had been expressly recognized, even when difficulties on these questions were to be adjusted by Treaty.

The first case related to a provision for an Indian Treaty, and was suggested by the PRESIDENT, in a Message of the 7th of August, 1789, in which he says: "If it should be the judgment of Congress that it would be most expedient to terminate all differences in the Southern District, and to lay the foundation for future confidence by an amicable Treaty with the Indian tribes in that quarter, I think proper to suggest the consideration of the expediency of instituting a temporary commission for that purpose, to consist of three persons, whose authority should expire with the occasion." In consequence of this Message, Congress took into consideration the expediency of the measure recommended to them, and passed the act of the 26th of August, in the same year, appropriating twenty thousand dollars for defraying the expense of negotiating and treating with the Indian tribes, and authorizing the appointment of commissioners. The PRESIDENT having appointed commissioners to treat under the direction of the act, gave them instructions, which were communicated to the House, and from which this is an extract: "You will please to observe, that the whole sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Nothing having been effected by the commissioners, the PRESIDENT mentions the subject again in his Address to both Houses, on the 1st of January, 1792. In the month of March, in the same year, the House of Representatives adopted the following resolution, recommended by a select committee: "That provision ought to be made by law for holding a Treaty to establish peace between the United States and the Wabash, Miami, and other nations of Indians, north-west of the river Ohio; also, for regulating trade and intercourse with the Indian tribes, and the mode of extinguishing their claims to lands within the limits of the United States." On the 29th March, following, a bill passed the House of Representatives, the title of which was amended in the Senate and passed, appropriating twenty thousand dollars for purposes expressed in the preceding resolution.

Mr. L. said this case was important, as it was the first communication relative to a Treaty made under the constitution. An attentive examination of its different parts would show that very different ideas were then entertained from those which were now enforced. He would first observe, that the discretion of the House of Representatives as to commerce with foreign nations, stood precisely on the same footing with that which they ought to exercise in regulating intercourse with the Indian tribes; that if one could be done without their concurrence, by Treaty, the other might also; and that, therefore, when the PRESIDENT recognized their right to deliberate in one case, he virtually did it in the other. Let us then attend to the language of the Message, said Mr. L., and we shall find that right of deliberation most expressly referred to. "If it should be the judgment of Congress that it would be most expedient"--what can be more explicit than this language? And again, "I think proper to suggest the consideration of the expediency of instituting a temporary commission." Here the same discretion is not only applied to, but the PRESIDENT, at that time supposing that no implicated power could deprive Congress of the right to regulate trade and intercourse with the Indian tribes, submitted to their consideration the expediency of appointing commissioners. They passed the necessary laws, and he instructed the commissioners, not in the language that is now held, that they might stipulate for the payment of any sum, and that Congress would be obliged to find the means; but he tells them, "the only sum that can be constitutionally expended is twenty thousand dollars, and that the same cannot be extended." Why, (if the doctrine is true that we are under an obligation to comply with the terms of every Treaty made by the PRESIDENT and Senate,) why did he say no further sum could constitutionally be expended? If that doctrine were indeed true, his language would have been, Use what money may be necessary, contract for the payment of it in your Treaty, and Congress are constitutionally obliged to carry your stipulations into effect.

The resolution above quoted, Mr. L. said, was important, as it proved that Congress then supposed that they ought not only to provide by law for holding a Treaty with the Indians, but that they also had the power, and ought to exercise it, of regulating trade and intercourse with the same people, and of prescribing the mode of extinguishing their claims to lands within the United States; but all this, said he, it is now discovered may be done without their aid, by Treaty.

The second instance of the exercise of this dreaded discretion, was in the law of March 3d, 1791, appropriating twenty thousand dollars to enable the PRESIDENT to effect a negotiation of the Treaty with Morocco. This originated in the Senate, and is a decided proof that neither the PRESIDENT nor Senate had at that period any idea of the moral obligation that is now discovered, or they would, without the formality of a law, have at once stipulated with the new Emperor for the payment of the necessary sum, which must have been provided by the House.

In a third case, the PRESIDENT had thought proper to take the sense of that House in a matter that of all others demanded secrecy, and under circumstances that would have prevented his making the application, if he had conceived himself at liberty to act without their concurrence. He adverted to the Message of 30th December, 1790, where the PRESIDENT says: "I lay before you a Report of the Secretary of State, on the subject of the citizens of the United States in captivity at Algiers, that you may provide in their behalf what to you shall seem expedient."

No act having been passed by Congress in consequence of this Message, the PRESIDENT did not conceive himself authorized to bind the United States by Treaty, for the necessary ransom of their citizens; and therefore nothing was concluded until after a subsequent Message and previous appropriation, in the year 1793, when another Message was sent relative to the negotiations with Morocco and Algiers, then pending: "While it is proper (he says) that our citizens should know that subjects which so much concern their interests and their feelings, have duly engaged the attention of their Legislature and Executive, it would still be improper that some part of this communication should be made known." Part of this Message, therefore, was confidentially communicated, which shows, Mr. L. said, on some occasions, it was not deemed imprudent to trust this House with the secrets of the Cabinet; and in consequence of this Message, a law was passed, appropriating one hundred thousand dollars for the purchase of a peace with the Algerines. It was ostensibly appropriated to a more general purpose, but the intent was well understood.

The next transaction that he should quote, Mr. L. said, as favorable to his doctrine, was the Message of the PRESIDENT of the 5th December, 1793, and the measure to which it gave rise. The PRESIDENT says: "As the present situation of the several nations of Europe, and especially those with which the United States have important relations, cannot but render the state of things between them and us matter of interesting inquiry to the Legislature, and may, indeed, give rise to deliberations to which they alone are competent, I have thought it my duty to communicate to them certain correspondence which has taken place."

This Message, Mr. L. said, accompanied the papers relative to France, to Great Britain, and to Spain; and a question would immediately occur, what were the deliberations to which the PRESIDENT then thought the Legislature alone was competent, and which he therefore thought it his duty to communicate. All our disputes with the nations referred to in the Message, were such as on the new construction of the Treaty power he could have adjusted by compact, without any reference to the House of Representatives; but it is plain, by the express words of the Message, that he did not believe that construction. It was no answer, Mr. L. said, to the argument drawn from this transaction, to say that the PRESIDENT only submitted the question of War or Peace to the Legislature by this Message.

1. Because the Message related to the three principal nations in Europe, and he never could have imagined that Congress would have deliberated on going to war with them all.

2. This was evidently not his intention, because as soon as measures were proposed in that House, which he supposed would lead to a rupture with one of those nations, all these measures were palsied by the appointment of an Envoy, and the commencement of negotiation.

It was clear, then, that the PRESIDENT thought the matters communicated by his Message, which related to commerce and boundary, were constitutionally vested in the discretion of Congress. The idea was corroborated by the words of a Message relative to the negotiation with Spain:

"And, therefore, by and with the advice and consent of the Senate, I appointed Commissioners Plenipotentiary for negotiating and concluding a Treaty with that country, on the several subjects of boundary, navigation, and commerce, and gave them the instructions now communicated."

Why, said Mr. L., communicate the instructions to the Ministers? Because they related to commerce, to navigation, to boundary, on all which subjects the PRESIDENT must have thought the Legislature had a right of decision. He must have thought so at that period; but, unfortunately, all precedent of free communication ended here; Mr. Jay's negotiation began, and a different construction was assumed.

From this view of the acts of Government, Mr. L. said, he trusted that a far different impression would be made, than that the doctrine he contended for was a new one, originating in opposition to the English Treaty, and a desire to disorganize the Government. That, on the contrary, it had been declared by the PRESIDENT, acquiesced in by the Senate, and acted upon by the House of Representatives.

MARCH 21.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. WILLIAMS observed much had been said upon the subject of the present resolution, and so much time consumed, that he should confine his observations within a narrower compass than he at first intended.

It was contended that in a Republican Government there ought to be no secrets; but he would ask whether it was not specified in the constitution that secrecy should be observed on particular occasions? and, had not his colleague (Mr. LIVINGSTON) quoted the secret Journals of the House? He believed if the constitution of France were examined, it would be found that their system admitted of secrets. He had the honor, he said, to be upon a committee, before whom many papers were laid, which it would be improper to publish. With respect to the present papers, he did not think there were any secrets in them. He believed he had seen them all. For the space of ten weeks any member of that House might have seen them. It was not merely with respect to the present papers that he opposed the motion, but because it would be establishing a bad precedent; and, as they were a young Government, they ought to be cautious how they established bad precedents. It was well known that in the negotiations in time of war, confidential communications were necessary; but if no papers were allowed to be kept secret, what person would ever venture to make any such communication? Hence this country, when in the greatest danger, may be much injured by improper precedents.

He quoted authorities to prove that there never was but one precedent in Great Britain of a negotiator's papers being given up; that was in the last year of the reign of Queen Anne when the Ministry were soon afterwards obliged to fly their country. He was sorry that a gentleman returned by the Republican interest of one of the first cities of the Union should have had recourse to a desperate Tory faction for a precedent.

Some gentlemen had observed that the papers ought to be obtained, because the PRESIDENT had intimated, in his Speech, that he would lay the papers before the House with the Treaty; but they were mistaken in their observations, because the papers had not been laid before us.

A gentleman from Pennsylvania said, because the King of England laid the papers relative to a negotiation before Parliament along with the Treaty to which they related, they had also a right to papers, the Governments being similar; but when the King did this, he informed them that he had concluded such a Treaty; and after a thing was concluded, he did not know what could remain for Parliament to do. He would refer to a recent authority, and not go back to 1714; it was to the case of the Treaty with Great Britain respecting American loyalists, when papers were refused to be given up, and it was deemed a most inconsistent thing to require them. This business caused great debates in Parliament, and the motion for papers was lost, there being only sixty-three for it, and one hundred and four against it. Mr. W. read the observations of different members of Parliament on the occasion, and observed, that although he was unwilling to quote precedents from a Government not similar to ours, yet this was a case in point, and this Treaty was negotiated between Mr. JAY, on the part of the United States, and Mr. OSWALD, on the part of Great Britain.

The resolution before them called for all papers, whether public or private, except such as related to any existing negotiation; but as the Treaty was completed, the resolution included all papers. He should have had less objection to the motion, if the amendment proposed by the gentleman from Virginia had been adopted. He did not see the use the papers would be of if they were got. The House was not vested with either the power to alter or amend the Treaty. But, say gentlemen, they are wanted for information. But he believed they ought to form their judgments of the Treaty from the instrument itself. Suppose I were to employ an agent, and give him instructions to make a contract for me, on condition that it should not be binding until I had approved it; and my agent return and I approve of the contract, what light can be thrown upon it by the instructions which were given to the agent? The instrument alone was what must be had recourse to; because he had it in his power to have withheld his sanction.

If his information was right, when certain resolutions were brought forward in the year 1793, a gentleman from Virginia said that Great Britain would refuse to negotiate with this country; but immediately upon the Treaty being made known, it was every thing that was bad.

He would endeavor to answer some observations which had fallen from a gentleman from Virginia, (Mr. GILES.) It was asked if the Treaty power could receive any check? He conceived the will of the people ought to be obeyed. They had given power to the PRESIDENT and Senate to make Treaties, which if not complied with, would be to oppose their will. In speaking of the amendments proposed to the constitution by the Legislature of Virginia, it was said they were only intended to make the check more certain than at present; but he read the resolution, viz: "That no Treaty containing any stipulations upon the subject of the powers vested in Congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority in the House of Representatives. That the PRESIDENT, before he shall ratify any Treaty, shall submit the same to the House of Representatives; and insisted that it might be clearly deduced from them, that they did not conceive the Treaty power to have any check in that House. That State had kept uniformly the same ground in all their actions; but the different State Legislatures to which their amendments had been proposed, had determined the Treaty power rightly placed where it is at present. But because the people will not agree that they should have a check upon the Treaty power, gentlemen seem disposed to usurp it by their present doctrines."

The same gentleman (Mr. GILES) observed, that the checks in the Government of the United States had been completely routed for these six years. He was exceedingly sorry that the PRESIDENT could bind that House, but he said that was a sword that cut two ways. It was too late in the day to assert this doctrine, when the people were become so enlightened as to be better acquainted with the nature of Government, and better educated, than the people of any other nation in the world. They would, therefore, take care of themselves.

He said that a gentleman from South Carolina had observed that the Treaty was put into operation by the Proclamation of the PRESIDENT, and made a part of the laws of the land. An honorable gentleman from Virginia (Mr. GILES) granted that, when completed, the Treaty ought to be annexed to the laws. Mr. W. asked, was this not done? It had been promulgated in the way in which Treaties are directed to be promulgated; and he would ask, if a case were to come before the Judges upon it, whether they would not be bound to consider it as the law of the land? If the member from Virginia (Mr. GILES) had been opposed to the Treaty going into operation, why did he not take the proper mode to prevent it? He knew of the resolution which directed how Treaties are to be promulgated and annexed to our code of laws, he knew the Treaty had arrived, and he might have had the subject discussed. If a majority were for preventing the Treaty from being promulgated in the ordinary way, then the resolution might have been done away, and some other mode adopted which was thought most prudent.

The same gentleman next contended that law can annul Treaties. But he believed that the constitution decided that there was no other way of repealing Treaties but by mutual agreement of the parties, or by war. To break one article of a Treaty was to break the whole, and war, or a new Treaty must be the consequence. The reason he gave why laws could repeal Treaties, was, because laws were the will of the people. Treaties, Mr. W. said, were as much the will of the people as laws. The people had fixed barriers to the different branches of the constitution, which could not be overleaped without endangering the whole fabric.

In speaking of power, gentlemen say it is more likely to be abused in the Executive than in that House. But, in the year 1789, when amendments were first proposed to the States, a gentleman from Virginia (Mr. MADISON) asserted "that it was less necessary to guard against abuse in the Executive Department than any other, because it was not the stronger branch of the system, but the weaker; it therefore must be levelled against the Legislative, for it is the most powerful, and the most likely to be abused, because it is under the least control;" and Mr. W. quoted several laws which had originated in that House, by which very large sums of money had been expended to little purpose, which he would explain when they were in a Committee of the Whole on the report from the Committee of Ways and Means.

But gentlemen say, "Have we not as much power as the House of Commons in Great Britain?" He answered, their powers were limited; the constitution was their guide. He thought gentlemen proceeded as if they were about to form a constitution rather than discuss a constitutional question. Some gentlemen had said, Treaties of Amity ought to be vested in the PRESIDENT and Senate; others, that Treaties for a cessation of arms ought to be vested in the Executive; thus they wander, well knowing the ground they had taken was not tenable. It brought to his mind an observation made by an Indian Chief, in a Treaty at Albany, since the late war, who, after thanking the Great Spirit for directing them back in the good old path, which made them happy, lamented, that ever since they had wandered from that path, they had been miserable. So it would be with them if they left the constitution; they would wander from the right path, and involve themselves in difficulties. Appropriations for the army and navy in Great Britain must be made annually, without which they must be discharged. By our constitution we may appropriate for two years for the army, and no mention as to what time for the navy; so that we can make appropriations for a longer time for our army and navy than in Great Britain.

The gentleman (Mr. GILES) further observed, that the opinions entertained in that House three years ago, were not to influence them now; it was necessary however, in Mr. W.'s opinion, that whenever nations changed their customs, some notice ought to be given of the change, that it might be known by nations with whom they may have any transactions. To prove this, he quoted Marten's Law of Nations. The Treaty had been laid before them, that they might appropriate money for carrying it into effect. On the first of June, the British were to give up the Western posts; if money was not appropriated, would they not be deceived?

Before he proceeded to remark on what had fallen from his colleague (Mr. LIVINGSTON) he would mention, that they had, for some years, in general concurred in their political opinions, and during the present session they had varied very little; in the question before the House, however, they should differ very considerably. Soon after the constitution was framed, a Convention was held in the State of New York, in which he had the honor to be a member. He was fully of opinion at that time, as he was now, that the Treaty power was a dangerous power, and, in consequence, gave his dissent to it.

He would proceed to remark on what had fallen from his colleague. He had said, how could they determine whether the Treaty was constitutional or not, or whether an impeachment was necessary, without information? The papers, as he had said before, were open for ten weeks, during which time gentlemen might have had access to them. But that gentleman said, they had denied him of late, and so they had been to him; but he understood they were at the Secretary of State's office, and might be seen there. He mentioned a case of a Treaty with a foreign country, in which their Minister might have received presents; but declared, that he did not believe there was any corruption in the negotiation of the Treaty in question. It appeared to him, therefore, inconsistent still to talk of impeachment.

Suppose, for instance, his colleague was Attorney General of the State of New York, and a man were to charge another with being guilty of burglary, whose character, reputation, and standing in life were irreproachable, would he subpoena him to meet the charge? No, he would not. And still the case is exactly similar to the present.

If, said Mr. W., his colleague or any member of the House wanted the papers, they had only to rise in their place and declare there were grounds of suspicion for an impeachment; would any member refuse the call? But he presumed no such thing was thought of. Why, then, expend so much precious time unnecessarily? The gentleman believed that the Minister had deviated from the instructions originally given him; but that he received new instructions. Whatever instructions were given to him, it appears, by the Treaty being ratified, that he executed them to the satisfaction of his employer.

It may be, said Mr. W., that this House may determine that it has a check on the Treaty-making power; but the next Congress may say there is no such thing. Whether there is, or there is not this check, it is necessary for the stability of the Government to have it determined; and he would join in sentiment with the gentleman from Maryland in a wish that it might be settled. But he would have the amendment constitutionally made; for, if we ourselves do not understand the constitution, it is not likely that our constituents at large should understand it. If I am wrong now in the true meaning of the constitution, I have been wrong since its adoption. The people are the sovereign; their will shall be my guide, from which I will not, knowingly, depart. I live in the midst of a body of plain but intelligent freemen, whose employment is the cultivation of the earth, and who prize nothing beyond the freedom they enjoy. They are jealous of their liberties, but they are obedient to, and willing to respect and support the laws of the land. How will they know the laws, if we do not understand the constitution after it has been in operation for nearly eight years?

Gentlemen observed, that if the Treaty-making power was meant to be vested solely in the PRESIDENT and Senate, it would have been said so explicitly; but, he thought, if the constitution had intended that House to have interfered in Treaties, that would have been expressed, as a few words would have done it.

His colleague asserted, that that House had the power of carrying into effect or not any Treaty; but he thought the House obliged to carry into effect all Treaties constitutionally and completely made. To support his doctrine, Mr. LIVINGSTON had referred to the practice of Great Britain, and singled out the Treaty of Utrecht.

In England, said Mr. W., the Treaty-making power is in the King. A Treaty, when made by him, pledges the public faith and binds the nation; but the Courts of Law and the officers of the revenue do not consider Treaties as the supreme law (when they change the regulations of commerce or interfere with previous acts of Parliament) until Parliament has passed acts conformably to such stipulations of a Treaty. The propriety, and, indeed, necessity of this rule, results from the monarchical form of that Government, the power of the King alone to repeal existing laws being a just ground of apprehension. From a like apprehension, a Treaty, though negotiated and made in all its parts by the PRESIDENT, must be submitted to the Senate for their ratification. The Senate is a popular assembly, and representing the States. The concurrence of two-thirds is equal on every principle of combining the public will with the acts of the constituted authorities to the sanction of Parliament.

In England, Treaties of Peace, of Alliance, and, perhaps, many others, are perfect and binding without co-operation of Parliament. The opinion of some is understood to be, and Blackstone seems to be of the number, that every Treaty, when made by the King, is obligatory without the concurrence of Parliament. The practice, however, is to lay Treaties before Parliament when laws are necessary to carry them into effect, and for Parliament to pass such laws. And, although a very broad discretion has been claimed in Parliament to pass or reject such laws, the uniform practice, except in one instance, has been to pass them. The faith of the nation is considered as pledged. The case where laws to carry the Treaty into effect have been refused, is the Treaty of Utrecht, in 1714. The credit of the example is much abated by the circumstances of the times when it happened. The Duke of Marlborough had been displaced, but his friends were powerful; a Tory Minister was in power and much hated; Queen Anne was decaying, and died that year, and the succession to the Crown was doubtful. Parties were ready to draw the sword against each other, and the most distinguished Ministers were soon proscribed and fled the country. A civil war broke out in 1715, the next year. One only example in such times, and the forerunner and cause of such events, weighs little against the course of practice in numberless cases, all issuing another way. It proves that the practice of Parliament corresponds with our doctrine. If, however, their maxims are different, so is their constitution in this particular. The act of the King should be compared with the act of the PRESIDENT alone; and the ratification of the Senate should be, and, by our constitution, it must be, considered equal to the sanction of Parliament. The doctrine ascribed by Mr. GALLATIN to the Parliament affords a reason for their calling for papers; because, he says, they are to act upon them. Yet such call is seldom made, and would probably be refused, if made without manifest occasion for the papers. Our constitution has settled a different doctrine; and, as the papers cannot be needed, they cannot properly be asked for.

He doubted not that the Treaty lately concluded with Great Britain had ere now been laid before Parliament, and a sum of money granted for recompensing spoliations committed in this country. Should they then attempt to refuse appropriations for carrying the Treaty into effect, on their part, where would be their national honor, their national faith? Suppose the Treaty were a bad bargain, that would not authorize them to break it. No: if a bad bargain be made to-day, make a better to-morrow. Neither should they determine the thing before it came before them. Probably they may not find it so bad as it had been represented; for though it might, in some respects, narrow our commercial intercourse, yet, perhaps, by so doing, the agricultural interest would be proportionally benefited. He was convinced that the agricultural interest was the true interest of this country. If by the Treaty we find that it tends to the welfare of the farmer, we may conclude our negotiator had the true interest of his country in view; and it was his (Mr. W.'s) opinion that a man taken from the plough and put on board a vessel was a man lost to the true interest of this country. This country is not like that of Great Britain: they are confined to small islands; we have a country extensive and fertile, and it is our duty to encourage settlers, increase our numbers, and, by so doing, we shall soon be in a situation to bid defiance to all the world. He was willing to encourage commerce to its full proportion, but not so as to injure the agricultural interest. The third article in the Treaty had been quoted by a gentleman from Maryland (Mr. S. SMITH) as having a tendency to operate unequally in our impost duties; Mr. W. observed he did not think that was very exceptionable, so far as it had been explained. He did not think the third clause of the Treaty a bad one: it only went to this, that when Great Britain carried goods through our country they were to pay the same duty as American citizens. And would not this be a greater advantage to the United States than if they went up the rivers St. Lawrence or Mississippi, and paid no duty? All the duty received of them would be so much gain to the country.

His colleague (Mr. LIVINGSTON) went on too contemporaneous a construction, and said that the House were better able to judge of the meaning of the constitution than the conventions which were held to consider upon its adoption. He did not think so. He said, he had always been called an anti-Federalist, and was so considered to this day. He would willingly join to obtain an amendment to the constitution with respect to the Treaty power; but, because he did not believe the constitution contemplated an interference in that House in respect to Treaties, he could not agree to the proposed doctrine.

Mr. W. said, it was not necessary for him to go into the argument which induced the convention to fix the Treaty-making power: it need only be mentioned that they knew how and where that power was exercised in Great Britain; and, in order to avert the difficulties which had arisen there, the convention vested the power with the PRESIDENT and Senate; and, to guard against undue influence, directed that two-thirds of the Senators present should concur with the PRESIDENT. The convention had many difficulties to surmount in this article; they had to do away the equal power the small States shared, under the Confederation, with the large States. But, to do away the discordant interests of the different States and to give the small States satisfaction, agreed that all the States should be equally represented in the Senate. In the Treaty-making power each State hath an equal voice. To extend it further, for another check, without the consent of the smaller States, would be doing away, in part, that power which the small States had retained.

He read the observations of one of the Judges of the Supreme Court of the State of New York, when debating on the merits of the constitution in the convention held in that State, to prove that Treaties were considered to be paramount to any law. Among the several passages from the debates of the Convention of New York, Mr. W. read the following proposed amendment of Mr. Lansing, who was a member of the convention that formed the constitution of the United States, whose abilities and candor were not doubted by any who knew him:

"Resolved, As the opinion of this committee, that no Treaty ought to operate so as to alter the constitution of any State; nor ought any commercial Treaty to operate so as to abrogate any law of the United States."

He believed that the amendments proposed in the Virginia Convention arose from their considering that there was no check in that House: the contrary supposition, he said, would be like rowing a boat one way and looking another.

His colleagues read extracts from the journals to prove that the PRESIDENT had laid before that House instructions which he had given his Ministers employed on the Treaty business. He believed, when much money was likely to be wanted, it was prudent and right to do so. It was as if he asked that House whether it would agree to a proposed negotiation or declare war--as if he had said, "I cannot unlock your Treasury; which way would you have me act?" It was inconsistent to say that he had diminished his power by asking advice. Books, he said, might be produced without number; but nothing could be brought to justify the breaking of a contract constitutionally made. It has become the law of the land. The House has, indeed, the physical power to refuse to appropriate to carry such a Treaty into effect; but the constitution meant that what was done by one branch of the Legislature should be confirmed by the others, except the act was unconstitutional. If a Treaty was constitutional, they were therefore impliedly bound to carry it into effect.

His colleague denied that any danger lay in the popular part of the Government; he thought differently. To say there was more danger to be apprehended from the Executive than the Legislative branch of Government was unsound doctrine. He should enlarge on this subject when the Treaty came before the House, and he trusted he should clearly show that the greatest danger of abuse lay in that House. Have there not bills originated in this House which have caused the expenditure of much money to very little purpose? Is there not more responsibility in one man than in large bodies? and was not the member from Virginia (Mr. MADISON) of this opinion, as I have before stated?

Where have (said Mr. W.) the acts originated that have cost so much money to be expended, by reason of which the report of the Committee of Ways and Means states the necessity of borrowing such large sums to meet the necessary demands--the laying additional taxes and duties? Did these acts originate with the Executive? No. Where then? In this House. All money-bills must originate in this House, being so directed by the constitution.

Though his colleague represented Great Britain as being in chains, yet he was drawing precedents from their Government. At first, he thought he had fallen in love with the Government, but he afterwards found his mistake. In that Government, said Mr. W., one precedent creates another, and they soon accumulate and form laws; but his friend was drawing precedents from that nation to support the checks, which, Mr. GILES said, had been for six years completely routed from the Government of the United States. He feared, if the gentlemen were permitted to take their course, we should soon have a curious sort of constitution.

But, to conclude, the ruin or prosperity of the nation depended much on the present Government. He said, if the people flourish and are happy; if they are industrious and at peace, they will not complain of their Government. If this be the case, it will scarcely be admitted that the checks in the Government have been completely routed for these six years; if they were, however, he thought the nation could not be better than happy.

Mr. MILLEDGE observed, that as the hour of adjournment was drawing near, he would not detain the committee long. The length of the debates, on both sides of the question, had left him little room for observation; but as a constitutional question had been involved in the resolution before the committee, and as all constitutional questions were important in their nature, he could not think of giving a silent vote. He perfectly agreed with the gentleman who had spoken last, from the State of Connecticut, that we ought not to put our foot from off the constitution, and on that, he said, he would stand. Nor did he think it necessary to resort to this or that Government to know their usages, or to know what was said in this or that State, or what was written by this or that man--but, according to the common and most obvious meaning of words contained in the constitution, to draw our conclusion. That part of the constitution which had been often mentioned, he begged that he might be permitted to read--that all Treaties made by the authority of the United States should be the supreme law of the land. He asked, what was the authority of the United States? Powers derived from the constitution. What are these powers? Legislative, Executive, and Judicial. The better to understand these, let us see, said he, in what order they present themselves to us. In the constitution we find that in the very first section all Legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. This, then, is the Legislative power, the statute making power, the ordaining power, the enacting power, or any other name by which it may be called. Now, then, said he, let us see the extent of this power. In the 8th section, Congress shall have power to make all laws. It would be necessary, he said, to attend to the monosyllable all. If the PRESIDENT and two-thirds of the Senate have a right to make a law, do Congress make all laws? Certainly not.

The constitution being his guide, he felt supported by a just confidence in his opinion; but he would not say but he might be mistaken, and was unwilling to commit himself. It was his opinion, then, that Treaties ought to be bottomed on a law before they can have any binding influence. To elucidate this, he said, it would be necessary to read the whole of the clause: Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, (which are, he said, seventeen in number, particularly expressed,) and all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. Here, again, he observed, we find the monosyllable all. What does it import? Every one--the whole. Of what? Of all other powers vested by this constitution in the Government of the United States, or in any department or officer thereof. What is the PRESIDENT and two-thirds of the Senate? The Treaty-making department. Therefore, being a department, whatever powers are vested in them by the constitution cannot be carried into execution but by a law, otherwise the clause in the constitution means nothing. What is a law? The will of the people made known. Where is that will to be found? In the Senate and House of Representatives of the United States in Congress assembled. Are the PRESIDENT and two-thirds of the Senate Congress? No; therefore they cannot make a law.

The gentleman from New Hampshire asked, what do the PRESIDENT and two-thirds of the Senate operate upon? I answer, with him, on Treaties; but in their nature they are only a department, and whatever a department does cannot, he repeated, be carried into execution but by a law. The Treaty-making power is an intermediate department, and no instrument they can make can operate the repeal of a law, the same force being required for a repeal as to enact. The gentleman from Rhode Island observed, that if the House of Representatives was to have a control over Treaties, small States might be injured in their commerce, because the representation on that floor was unequal. Mr. M. observed, that though his State was not a small State, yet it was small in representation, but he apprehended no danger. Under the Articles of Confederation, it was a Government of States; under the present Government, it was a Government of departments, of checks. He said, the local interest of one State was so blended with another that the security of the one became the security of the whole, founded on a proportion of sovereignty surrendered by each to the whole, and each drawing from the whole its proportion of security. Let us then, said he, examine the compact made by each with the whole on the score of commerce. Here he read part of the 9th section: No tax or duty shall be laid on articles exported from any State; no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. He said, the negotiators of the Treaty, in the 12th article, had laid a prohibition on the exportation of cotton to any part of the world, except in British vessels--cotton, the growth of our own soil, an important staple in the two Southern States, particularly in the one he had the honor to represent. But it is said, and so we find it, that this article is suspended, and open to further negotiation. He called on the committee for any member to deny that the principle did not still exist. He said, then, if a principle still exists in that Treaty which militates with a fundamental principle, a principle in the constitution, he left to the committee, which ought to yield. Were this principle to prevail, it would destroy a vital part of the constitution, and injure the agriculture of the States. He called on that gentleman to beware of admitting such a principle; for, if once allowed, it would extend not only to the cotton of Georgia, but to the flaxseed of Rhode Island, the flour of Pennsylvania, and the tobacco of Virginia.

Mr. M. concluded by observing, that, from all he had said, it was to be understood that the powers of legislation were only with Congress, and that the House of Representatives could not, on the subject before them, legislate without information. Before he sat down, he could not help observing that it was somewhat strange that the first Treaty negotiated under the present Government with a European nation, should produce such a contrariety of sentiment on the meaning of the constitution, and that he was reminded by this circumstance of the pertinent words of a celebrated writer:

"The works of human invention are progressive, and are not completed but by degrees. At the last improvement we are apt to sit down satisfied, and vainly imagine that we have accomplished the end we have proposed, but time soon unravels the fine-spun system, and we find ourselves obliged to interweave fresh materials to repair the disordered texture."

Mr. KITCHELL observed, that he could not think of giving a silent vote on so important a question as this had become; but he should not go into an argumentative discussion on the subject, nor should he inquire into the opinions held in different conventions at the adoption of the constitution, or refer to Great Britain for precedents. He would look at the constitution alone, and see what were the powers given to the different branches of Government. When it says that such and such powers are vested in Congress, and such in the Executive, he would abide by that decision. Where that instrument says Congress shall lay and collect taxes, regulate commerce with foreign nations, establish a uniform rule of naturalization, provide for the common defence, &c., and that the Executive shall have power, by and with the consent of two-thirds of the Senate, to make Treaties, appoint Ambassadors, &c., the directions of the constitution must be abided by.

He would inquire what Treaties could be entered into by the PRESIDENT and Senate, without infringing upon the powers placed in Congress? He believed Treaties of Peace, of Amity, and Friendship, could be made by them. If this could be done, he said, those were the powers meant to be vested in the PRESIDENT and Senate, and not that Treaties should embrace objects which are expressly appointed to the management of Congress. In this view, the PRESIDENT and Senate would not have the power to influence that House in their proceedings; but commercial or other Treaties which embraced objects the regulation of which was placed in Congress, must be laid before them for the purpose of their passing or refusing to pass laws to carry them into effect, in the same way as Treaties with the Indians had been laid before them.

He did not think the question of itself before the House important, as it related to the production of papers, but only as it involved in it an important principle, viz: that when Treaties were made by the PRESIDENT and Senate, and presented to that House, they had nothing to do but appropriate money to carry them into effect. It was true gentlemen had seemed willing to allow them what they called discretion; but it was such a sort of discretion as a criminal might be said to have, who was told he might choose this or that posture of suffering, but that he must die.

It had been said that the PRESIDENT and Senate were equally the Representatives of the people with that House. He would inquire how they became so? The constitution has appointed that Representatives shall be chosen by the people in proportion to their population. Were the Senate so chosen? No. The people have no vote at all in choosing them. Are they amenable to the people for their conduct? No. Therefore, in no shape can they be called the Representatives of the people. The Senate, he said, represented the several State Legislatures, and that House the people at large. He was sure, therefore, that every thing in which the interests of the people at large were concerned should be submitted to their consideration, before it was carried into effect.

A great deal, he observed, had been said upon this subject, some things well said, and a good deal that might have been as well unsaid, for any good effect it was likely to produce. He was sorry to hear what had fallen from a gentleman from Rhode Island with respect to the interests of small States. He said he was himself a Representative of a small State, and he believed his constituents were well satisfied with the present distribution of power, and did not wish that of the PRESIDENT or Senate to be increased.

He did not think what fell from his colleague, when he said gentlemen wished to amuse the people with the cry of liberty, liberty, and spoke of the groans of three or four hundred thousand slaves assailing his ears, was meant as a reflection upon any gentleman in that House who might hold slaves; but an earnest wish that the people at large might never bend their necks to slavery.

He did not think the subject of the Treaty at all before the House. He should give his vote for the papers; not so much on account of their being of great importance in themselves, but in order to repel the doctrine, that they had no right to discuss the merits of any Treaty whatever.

MARCH 22.--In Committee of the Whole on Mr. LIVINGSTON's resolution:

Mr. COIT said, the attention of the committee was doubtless fatigued with the subject before it; to those gentlemen who had already delivered their sentiments upon the occasion, he need not make any apology; and to those who had not done so, he would assure them that he would not occupy much of their time.

Most of the gentlemen who had gone before him, he observed, had regretted that the debate had taken the turn it had, but he was happy it had taken such a turn. It appeared to him, that the motion was intended as a stepping-stone to a violation of the rights of the other branches of the Government by that House. It became him when he made a declaration of this kind to say, that he did not impute other than pure motives to any member of that House. He believed the general wish was to discover the true sense of the constitution; yet it was not extraordinary if in doing this men were actuated by the sentiments which they had long been in the habit of considering as well-founded, to lean to that construction which most favored their favorite opinions. He had no idea that any gentleman meant to make inroads on the constitution; but it was his opinion that if the doctrines now insisted upon prevailed, they would have that effect.

He was happy, for two reasons, that the true ground of the present motion was made to appear. Because, if the resolution had passed without discussion, the motives which led to it would not have been seen; and because he wished the question of what were the powers of that House, with respect to Treaty-making, to be discussed, independent of the Treaty, which was likely soon to come before them. They stood now on the pure ground of an abstract constitutional question.

Some obscurity, Mr. C. thought, had arisen from not distinguishing the application of arguments to the different principles on which the resolution had been advocated, which he should endeavor to avoid. He considered the Treaty-making power as absolutely vested in the PRESIDENT and Senate; still, that when Legislative acts were necessary to carry a Treaty into effect, the Legislature were not without discretion in the passing of them; if the Legislature had a hand in making Treaties, there could be no question of the propriety of calling for papers; he should then, in the first place, examine the propriety of calling for papers, taking for granted that the Legislature had no hand in making Treaties.

If they were to consider the power by which a Treaty was made, there would be found two nations concerned, whose consent would be also necessary to repeal it. But were there no other ways of cancelling a Treaty? There were certainly ways of breaking a Treaty. There were circumstances in which the breaking of a Treaty would be justifiable. For instance, if, before a Treaty was carried into effect, there was such a change of circumstances as to make it necessary to declare war; could they not discuss the subject, whether it were more advisable to carry into effect the Treaty, and keep at peace, or break it and declare war? If a question of this kind came up, there could be no impropriety in looking into it; not with an idea of having any concern in making the Treaty, but because such alterations had taken place in the state of affairs, as to make it necessary to discuss the propriety of going to war.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gentlemen of the House of Representatives:

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

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

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

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

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

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

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

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

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

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

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

G. WASHINGTON.[73]

UNITED STATES, March 80, 1796.

REFERENCE OF THE ANSWER TO A COMMITTEE OF THE WHOLE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The yeas and nays were now taken on the question of a reference of the PRESIDENT's Message to a Committee of the Whole; and the motion was agreed to--yeas 55, nays 37.

DEBATE ON THE PRESIDENT'S ANSWER.

APRIL 6.--The House accordingly resolved itself into a Committee of the Whole on said Message.

Mr. BLOUNT brought forward the following resolutions:

"Resolved, That, it being declared by the second section of the second article of the constitution, 'that the President shall have power, by and with the advice of the Senate, to make Treaties, provided two-thirds of the Senate present concur,' the House of Representatives do not claim any agency in making Treaties; but, that when a Treaty stipulates regulations on any of the subjects submitted by the constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.[74]

"Resolved, That it is not necessary to the propriety of any application from this House to the Executive, for information desired by them, and which may relate to any constitutional functions of the House, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application."

Mr. HARPER, Mr. DAYTON, and Mr. KITCHELL, offered a few remarks with respect to the propriety of considering the resolutions now moved, or those laid upon the table, by Mr. KITCHELL, a few days ago. After which--

Mr. MADISON rose, and spoke as follows: When the Message was first proposed to be committed, the proposition had been treated by some gentlemen not only with levity, but with ridicule. He persuaded himself that the subject would appear in a very different light to the committee; and he hoped that it would be discussed on both sides without either levity, intemperance, or illiberality.

If there were any question which could make a serious appeal to the dispassionate judgment, it must be one which respected the meaning of the constitution; and if any constitutional question could make the appeal with peculiar solemnity, it must be in a case like the present, where two of the constituted authorities interpreted differently the extent of their respective powers.

It was a consolation, however, of which every member would be sensible, to reflect on the happy difference of our situation, on such occurrences, from that of governments in which the constituent members possessed independent and hereditary prerogatives. In such governments, the parties having a personal interest in their public stations, and not being amenable to the national will, disputes concerning the limits of their respective authorities might be productive of the most fatal consequences. With us, on the contrary, although disputes of that kind are always to be regretted, there were three most precious resources against the evil tendency of them. In the first place, the responsibility which every department feels to the public will, under the forms of the constitution, may be expected to prevent the excesses incident to conflicts between rival and irresponsible authorities. In the next place, if the difference cannot be adjusted by friendly conference and mutual concession, the sense of the constituent body, brought into the Government through the ordinary elective channels, may supply a remedy. And if this resource should fail, there remains, in the third and last place, that provident article in the constitution itself, by which an avenue is always open to the sovereignty of the people, for explanations or amendments, as they might be found indispensable.

If, in the present instance, it was to be particularly regretted that the existing difference of opinion had arisen, every motive to the regret was a motive to calmness, to candor, and the most respectful delicacy towards the other constituted authority. On the other hand, the duty which the House of Representatives must feel to themselves and to their constituents, required that they should examine the subject with accuracy, as well as with candor, and decide on it with firmness, as well as with moderation.

In this temper, he should proceed to make some observations on the Message before the committee, and on the reasons contained in it.

The Message related to two points. First. The application made for the papers. Secondly. The constitutional rights of Congress, and of the House of Representatives, on the subject of Treaties.

On the first point, he observed, that the right of the House to apply for any information they might want, had been admitted by a number in the minority, who had opposed the exercise of the right in this particular case. He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations on the subjects submitted to them by the constitution; being responsible, nevertheless, for the propriety of the measure. He was as ready to admit that the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure of it at the time. And if the refusal of the PRESIDENT had been founded simply on a representation that the state of the business within his department, and the contents of the papers asked for, required it, although he might have regretted the refusal, he should have been little disposed to criticise it. But the Message had contested what appeared to him a clear and important right of the House; and stated reasons for refusing the papers, which, with all the respect he could feel for the Executive, he could not regard as satisfactory or proper.

One of the reasons was, that it did not occur to the Executive that the papers could be relative to any purpose under the cognizance, and in the contemplation of the House. The other was, that the purpose for which they were wanted was not expressed in the resolution of the House.

With respect to the first, it implied that the Executive was not only to judge of the proper objects and functions of the Executive Department, but, also, of the objects and functions of the House. He was not only to decide how far the Executive trust would permit a disclosure of information, but how far the Legislative trust could derive advantage from it. It belonged, he said, to each department to judge for itself. If the Executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent, though a responsible judge within his own department. If the papers could be communicated without injury to the objects of his department, he ought not to refuse them as irrelative to the objects of the House of Representatives; because the House was, in such cases, the only proper judge of its own objects.

The other reason of refusal was, that the use which the House meant to make of the papers was not expressed in the resolution.

As far as he could recollect, no precedent could be found in the records of the House, or elsewhere, in which the particular object in calling for information was expressed in the call. It was not only contrary to right to require this, but it would often be improper in the House to express the object. In the particular case of an impeachment referred to in the Message, it might be evidently improper to state that to be the object of information which might possibly lead to it, because it would involve the preposterous idea of first determining to impeach, and then inquiring whether an impeachment ought to take place. Even the holding out an impeachment as a contemplated or contingent result of the information called for, might be extremely disagreeable in practice, as it might inflict a temporary pain on an individual, whom an investigation of facts might prove to be innocent, and perhaps meritorious.

From this view of the subject he could not forbear wishing that, if the papers were to be refused, other reasons had been assigned for it. He thought the resolutions offered by the gentleman from North Carolina, one of which related to this subject, ought to stand on the journal along with the Message which had been entered there. Both the resolutions were penned with moderation and propriety. They went no farther than to assert the rights of the House; they courted no reply; and it ought not to be supposed they could give any offence.

The second object to which the measure related was the constitutional power of the House on the subject of Treaties.

Here, again, he hoped it may be allowable to wish that it had not been deemed necessary to take up, in so solemn a manner, a great constitutional question, which was not contained in the resolution presented by the House, which had been incidental only to the discussion of that resolution, and which could only have been brought into view through the unauthentic medium of the newspapers. This, however, would well account for the misconception which had taken place in the doctrine maintained by the majority in the late question. It had been understood by the Executive, that the House asserted its assent to be necessary to the validity of Treaties. This was not the doctrine maintained by them. It was, he believed, fairly laid down in the resolution proposed, which limited the power of the House over Treaties, to cases where Treaties embraced Legislative subjects, submitted by the constitution to the power of the House.

Mr. M. did not mean to go into the general merits of this question, as discussed when the former resolution was before the committee. The Message did not request it, having drawn none of its reasoning from the text of the constitution. It had merely affirmed that the power of making Treaties is exclusively vested by the constitution in the PRESIDENT, by and with the advice and consent of the Senate. Nothing more was necessary on this point than to observe that the constitution had as expressly and exclusively vested in Congress the power of making laws, as it had vested in the PRESIDENT and Senate the power of making Treaties.

He proceeded to review the several topics on which the Message relied. First. The intention of the body which framed the constitution. Secondly. The opinions of the State Conventions who adopted it. Thirdly. The peculiar rights and interests of the smaller States. Fourthly. The manner in which the constitution had been understood by the Executive and the foreign nations, with which Treaties had been formed. Fifthly. The acquiescence and acts of the House on former occasions.

1. When the members on the floor, who were members of the General Convention, particularly a member from Georgia and himself, were called on in a former debate for the sense of that body on the constitutional question, it was a matter of some surprise, which was much increased by the peculiar stress laid on the information expected. He acknowledged his surprise, also, at seeing the Message of the Executive appealing to the same proceedings in the General Convention, as a clue to the meaning of the constitution.

It had been his purpose, during the late debate, to make some observations on what had fallen from the gentlemen from Connecticut and Maryland, if the sudden termination of the debate had not cut him off from the opportunity. He should have reminded them that this was the ninth year since the Convention executed their trust, and that he had not a single note in this place to assist his memory. He should have remarked, that neither himself nor the other members who had belonged to the Federal Convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject. He might have further remarked, that there would not be much delicacy in the undertaking, as it appeared that a sense had been put on the constitution by some who were members of the Convention, different from that which must have been entertained by others, who had concurred in ratifying the Treaty.

After taking notice of the doctrine of Judge Wilson, who was a member of the Federal Convention, as quoted by Mr. GALLATIN from the Pennsylvania debates, he proceeded to mention that three gentlemen, who had been members of the convention, were parties to the proceedings in Charleston, South Carolina, which, among other objections to the Treaty, represented it as violating the constitution. That the very respectable citizen, who presided at the meeting in Wilmington, whose resolutions made a similar complaint, had also been a distinguished member of the body that formed the constitution.

It would have been proper for him, also, to have recollected what had, on a former occasion, happened to himself during a debate in the House of Representatives. When the bill for establishing a National Bank was under consideration, he had opposed it, as not warranted by the constitution, and incidentally remarked, that his impression might be stronger, as he remembered that, in the convention, a motion was made and negatived, for giving Congress a power to grant charters of incorporation. This slight reference to the convention, he said, was animadverted on by several in the course of the debate, and particularly by a gentleman from Massachusetts, who had himself been a member of the convention, and whose remarks were not unworthy the attention of the committee. Here Mr. M. read a paragraph from Mr. GERRY's speech, from the Gazette of the United States, page 814, protesting, in strong terms, against arguments drawn from that source.

Mr. M. said, he did not believe a single instance could be cited in which the sense of the convention had been required or admitted as material in any constitutional question. In the case of the Bank, the committee had seen how a glance at that authority had been treated in this House. When the question on the suability of the States was depending in the Supreme Court, he asked, whether it had ever been understood that the members of the bench, who had been members of the convention, were called on for the meaning of the convention on that very important point, although no constitutional question would be presumed more susceptible of elucidation from that source?

He then adverted to that part of the Message which contained an extract from the Journal of the convention, showing that a proposition "that no Treaty should be binding on the United States, which was not ratified by law," was explicitly rejected. He allowed this to be much more precise than any evidence drawn from the debates in the convention, or resting on the memory of individuals. But, admitting the case to be as stated, of which he had no doubt, although he had no recollection of it, and admitting the record of the convention to be the oracle that ought to decide the true meaning of the constitution, what did this abstract vote amount to? Did it condemn the doctrine of the majority? So far from it, that, as he understood their doctrine, they must have voted as the convention did; for they do not contend that no Treaty shall be operative without a law to sanction it; on the contrary, they admit that some Treaties will operate without this sanction; and that it is no further applicable in any case than where Legislative objects are embraced by Treaties. The term "ratify" also deserved some attention; for, although of loose signification in general, it had a technical meaning different from the agency claimed by the House on the subject of Treaties.

But, after all, whatever veneration might be entertained for the body of men who formed our constitution, the sense of that body could never be regarded as the oracular guide in expounding the constitution. As the instrument came from them it was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Convention, which accepted and ratified the constitution. To these also the Message had referred, and it would be proper to follow it.

2. The debates of the convention in three States (Pennsylvania, Virginia, and North Carolina) had been before introduced into the discussion of this subject, and were believed the only publications of the sort which contained any lights with respect to it. He would not fatigue the committee with a repetition of the passages then read to them. He would only appeal to the committee to decide whether it did not appear, from a candid and collected view of the debates in those conventions, and particularly in that of Virginia, that the Treaty-making power was a limited power; and that the powers in our constitution, on this subject, bore an analogy to the powers on the same subject in the Government of Great Britain. He wished, as little as any member could, to extend the analogies between the two Governments; but it was clear that the constituent parts of two Governments might be perfectly heterogeneous, and yet the powers be similar.

At once to illustrate his meaning, and give a brief reply to some arguments on the other side, which had heretofore been urged with ingenuity and learning, he would mention, as an example, the power of pardoning offences. This power was vested in the PRESIDENT; it was a prerogative also of the British King. And, in order to ascertain the extent of the technical term "pardon," in our constitution, it would not be irregular to search into the meaning and exercise of the power in Great Britain. Yet, where is the general analogy between an hereditary Sovereign, not accountable for his conduct, and a Magistrate like the PRESIDENT OF THE UNITED STATES, elected for four years, with limited powers, and liable to impeachment for the abuse of them?

In referring to the debates of the State Conventions as published, he wished not to be understood as putting entire confidence in the accuracy of them. Even those of Virginia, which had been probably taken down by the most skilful hand, (whose merit he wished by no means to disparage,) contained internal evidence in abundance of chasms and misconceptions of what was said.

The amendments proposed by the several conventions were better authority, and would be found, on a general view, to favor the sense of the constitution which had prevailed in this House. But even here it would not be reasonable to expect a perfect precision and system in all their votes and proceedings. The agitations of the public mind on that occasion, with the hurry and compromise which generally prevailed in settling the amendments to be proposed, would at once explain and apologize for the several apparent inconsistencies which might be discovered.

He would not undertake to say that the particular amendment referred to in the Message, by which two States require that "no Commercial Treaty should be ratified without the consent of two-thirds of the whole number of Senators, and that no Territorial right, &c. should be ceded without the consent of three-fourths of the members of both Houses," was digested with an accurate attention to the whole subject. On the other hand, it was no proof that those particular conventions, in annexing these guards to the Treaty power, understood it as different from that espoused by the majority of the House. They might consider Congress as having the power contended for over Treaties stipulating on Legislative subjects, and still very consistently wish for the amendment they proposed. They might not consider the Territorial rights and other objects for which they required the concurrence of three-fourths of the members of both Houses, as coming within any of the enumerated powers of Congress, and, therefore, as not protected by that control over Treaties. And although they might be sensible that Commercial Treaties were under that control, yet, as they would always come before Congress with great weight after they had passed through the regular forms and sanctions of the Treaty department, it might be deemed of real importance that the authority should be better guarded which was to give that weight to them.

He asked, whether it might not happen, even in the progress of a Treaty through the Treaty department, that each succeeding sanction might be given, more on account of preceding sanctions than of any positive approbation? And no one could doubt, therefore, that a Treaty which had received all these sanctions would be controlled with great reluctance by the Legislature, and, consequently, that it might be desirable to strengthen the barriers against making improper Treaties, rather than trust too much to the Legislative control over carrying them into effect.

But, said Mr. M., it will be proper to attend to other amendments proposed by the ratifying conventions, which may throw light on their opinions and intentions on the subject in question. He then read from the Declaration of Rights proposed by Virginia to be prefixed to the constitution, the seventh article, which is as follows:

"That all power of suspending laws, or the execution of laws, by any authority, without the consent of the Representatives of the people in the Legislature, is injurious to their rights, and ought not to be exercised."

The Convention of North Carolina, as he showed, had laid down the same principle in the same words. And it was to be observed that, in both conventions, the article was under the head of a Declaration of Rights, "asserting and securing from encroachment the essential and inalienable rights of the people," according to the language of the Virginia Convention; and "asserting and securing from encroachment the great principles of civil and religious liberty, and the inalienable rights of the people," as expressed by the Convention of North Carolina. It must follow that these two Conventions considered it as a fundamental, inviolable, and universal principle in a free Government, that no power could supersede a law without the consent of the Representatives of the people in the Legislature.

In the Maryland Convention also, it was among the amendments proposed, though he believed not decided on, "that no power of suspending laws, or the execution of laws, unless derived from the Legislature, ought to be exercised or allowed."

The Convention of North Carolina had further explained themselves on this point, by their twenty-third amendment proposed to the constitution in the following words: "That no Treaties shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made conformable to such Treaty; nor shall any Treaty be valid which is contradictory to the Constitution of the United States."

The latter part of the amendment was an evidence that the amendment was intended to ascertain rather than to alter the meaning of the constitution; as it could not be supposed to have been the real intention of the constitution that a Treaty contrary to it should be valid.

He proceeded to read the following amendments accompanying the ratification of State Conventions:

The New York Convention had proposed "that no standing army or regular troops shall be raised or kept up in time of peace without the consent of two-thirds of the Senators and Representatives in each House."

"That no money be borrowed on the credit of the United States, without the assent of two-thirds of the Senators and Representatives in each House."

The New Hampshire Convention had proposed "that no standing army shall be kept up in time of peace, unless with the consent of three quarters of the members of each branch of Congress." In the Maryland Convention a proposition was made in the same words.

The Virginia Convention had proposed "that no navigation law, or law regulating commerce, shall be passed without the consent of two-thirds of the members present in both Houses."

"That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two-thirds of the members present in both Houses."

"That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war."

The Convention of North Carolina had proposed the same three amendments in the same words.

On a review of these proceedings, may not, said he, the question be fairly asked, whether it ought to be supposed that the several Conventions who showed so much jealousy with respect to the powers of commerce, of the sword, and of the purse, as to require, for the exercise of them, in some cases two-thirds, in others three-fourths of both branches of the Legislature, could have understood that, by the Treaty clauses in constitution, they had given to the PRESIDENT and Senate, without any control whatever from the House of Representatives, an absolute and unlimited power over all those great objects?

3. It was with great reluctance, he said, that he should touch on the third topic--the alleged interest of the smaller States in the present question. He was the more unwilling to enter into this delicate part of the discussion, as he happened to be from a State which was in one of the extremes in point of size. He should limit himself, therefore, to two observations. The first was, that if the spirit of amity and mutual concession from which the constitution resulted was to be consulted on expounding it, that construction ought to be favored which would preserve the mutual control between the Senate and House of Representatives, rather than that which gave power to the Senate not controllable by, and paramount over those of the House of Representatives, whilst the House of Representatives could in no instance exercise their powers without the participation and control of the Senate. The second observation was, that, whatever jealousy might unhappily have prevailed between the smaller and larger States, as they had most weight in one or the other branch of Government, it was a fact, for which he appealed to the journals of the old Congress from its birth to its dissolution, and to those of the Congress under the present Government, that in no instance would it appear, from the yeas and nays, that a question had been decided by a division of the votes according to the size of the States. He considered this truth as affording the most pleasing and consoling reflection, and as one that ought to have the most conciliating and happy influence on the temper of all the States.

4. A fourth argument in the Message was drawn from the manner by which the Treaty power had been understood by both parties in the negotiations with foreign Powers. "In all the Treaties made we have declared and they have believed," &c. By we, he remarked, was to be understood the Executive alone, who had made the declaration, and in no respect the House of Representatives. It was certainly to be regretted, as had often been expressed, that different branches of the Government should disagree in the construction of their powers; but when this could not be avoided, each branch must judge for itself; and the judgment of the Executive could in this case be no more an authority overruling the judgment of the House than the judgment of the House could be an authority overruling that of the Executive. It was also to be regretted that any foreign nation should at any time proceed under a misconception of the meaning of our constitution. But no principle was better established in the laws of nations, as well as in common reason, than that one nation is not to be the interpreter of the constitution of another. Each nation must adjust the forms and operations of its own government, and all others are bound to understand them accordingly. It had before been remarked, and it would be proper to repeat it here, that of all the nations Great Britain would be the least likely to object to this principle, because the construction given to our Government was particularly exemplified in her own.

5. In the fifth and last place, he had to take notice of the suggestion, that every House of Representatives had concurred in the construction of the Treaty power, now maintained by the Executive; from which it followed that the House could not now consistently act under a different construction. On this point, it might be sufficient to remark, that this was the first instance in which a foreign Treaty had been made since the establishment of the constitution; and that this was the first time the Treaty-making power had come under formal and accurate discussion. Precedents, therefore, would readily be perceived to lose much of their weight. But whether the precedents found in the proceedings preparatory to the Algerine Treaty, or in the provisions relative to the Indian Treaties, were inconsistent with the right which had been contended for in behalf of the House, he should leave to be decided by the committee. A view of these precedents had been pretty fully presented to them by a gentleman from New York, (Mr. LIVINGSTON,) with all the observations which the subject seemed to require.

On the whole it appeared that the rights of the House on the two great constitutional points had been denied by a high authority in the Message before the committee. This Message was entered on the journals of the House. If nothing was entered in opposition thereto, it would be inferred that the reasons in the Message had changed the opinion of the House, and that their claims on those great points were relinquished. It was proper, therefore, that the questions, brought fairly before the committee in the propositions of the gentleman (Mr. BLOUNT) from North Carolina, should be examined and formally decided. If the reasoning of the Message should be deemed satisfactory, it would be the duty of this branch of the Government to reject the propositions and thus accede to the doctrines asserted by the Executive. If, on the other hand, this reasoning should not be satisfactory, it would be equally the duty of the House, in some such firm, but very decent, terms as are proposed, to enter their opinions on record. In either way the meaning of the constitution would be established, as far as depends on the vote of the House of Representatives.

APRIL 7.--The order of the day being called for on the consideration of the PRESIDENT's Message, the House resolved itself into a Committee of the Whole on that subject, and the resolutions of Mr. BLOUNT having been read--

Mr. SWIFT and Mr. W. SMITH rose together, but Mr. SMITH giving way, Mr. SWIFT proceeded to remark, that he did not rise for the purpose of going into the subject, but to move that the question might be then taken. The same principles which were involved in the present question, had already undergone a discussion of three weeks, and no doubt could remain on the mind of any gentleman in that House on the subject; nor did he think that if three weeks more were to be consumed in the discussion, one opinion would be changed. Therefore, as business of the utmost consequence called for their attention, as it was of the last importance that the Treaties lately formed with foreign nations should be carried into effect, he hoped they would enter upon the question of the state of the Union. If gentlemen wished to carry the Treaties into effect, he entreated them to come forward and do so; or, if they meant to defeat them, he wished them at once to say so. If they went into the present discussion at length, there would not be time sufficient to determine upon the Treaties. He was willing to let the matter rest upon the representation of the gentleman from Virginia. He himself had taken no share in the debate, though if it were to be again gone into, he should desire to be heard as well as others. But he was fully satisfied that gentlemen who had spoken on a former occasion would unite with him in wishing the question to be then taken.

The resolutions were then severally put and carried--51 members rising for each.

The House then took them up.

The previous question was called, viz: Shall the question now be put?--on which the yeas and nays were taken, and stood--yeas 54, nays 37.

The yeas and nays were taken on the first resolution, and stood--yeas 57, nays 35, as follows:

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

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

The second resolution was then taken up, and the yeas and nays stood as on the first.

The following members were absent when the yeas and nays were called on the main questions:

Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, New, and Sitgreaves.

The following members were away upon leave of absence:

Messrs. Freeman, Kitchell, Leonard and Isaac Smith.

It was understood that the following members would have voted for the resolutions had they been present:

Messrs. Brent, Claiborne, Gillespie, Greenup, Holland, and New.

RECAPITULATION.

Yeas in the House, 57

Yeas absent, 6--63

Nays in the House, 35

Mr. Sitgreaves absent (probably against the resolution) 1--36 -- Majority for the resolutions, 27[75]

Absent on leave, 4

Mr. Duvall, resigned, 1

The Speaker, 1 ---- Whole number of members, 105

FRIDAY, April 15.

The Treaty with Great Britain.

The House then resolved itself into a committee of the Whole on the state of the Union, when, having read the resolution for carrying the British Treaty into effect--

Mr. BUCK rose, and wished the question to be taken upon Mr. MACLAY's resolution.[76] This was opposed by Mr. MADISON and Mr. HILLHOUSE, and then Mr. MADISON addressed the Chair as follows:

Mr. M. said, on a subject of such extent and importance, he should not attempt to go through all the observations that might be applicable to it. A general view of the subject was all that he meant at present. His omissions would be more than supplied by others who might enter into the discussion.

The proposition immediately before the committee was, that the Treaty with Great Britain ought to be carried into effect by such provisions as depended on the House of Representatives. This was the point immediately in question. But it would be proper in examining it to keep in view also the proposition of the gentleman from Pennsylvania (Mr. MACLAY) which had been referred to the committee, and which would be taken up, of course, if the immediate question should be decided in the negative.

If the proposition for carrying the Treaty into effect be agreed to, it must be from one of three considerations: either that the Legislature is bound by a constitutional necessity to pass the requisite laws without examining the merits of the Treaty, or that, on such examination, the Treaty is deemed in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a good one, or that there are good extraneous reasons for putting it into force, although it be in itself a bad Treaty.

The first consideration being excluded by the decision of the House, that they have a right to judge of the expediency or inexpediency of passing laws relative to Treaties; the question first to be examined must relate to the merits of the Treaty. He then proceeded to consider the Treaty under three aspects: first, as it related to the execution of the Treaty of Peace in 1783; secondly, as it determines the several points in the law of nations; thirdly, as it respects the commerce between the two nations.

First. He would not inquire on which side the blame lay, of having first violated the Treaty of 1783, or of having most contributed to delay its execution, although he did not shrink from the task under any apprehension that the result could be disadvantageous to this country. The Treaty itself had waived this inquiry, and professed to adjust all controversies on this subject, without regard to the mutual complaints or pretensions of the parties. It was, therefore, justly and naturally to be expected, that the arrangements for carrying that Treaty into effect would have been founded in the most exact and scrupulous reciprocity. Was this the case? He was sorry, that on the contrary, the arrangements were founded on the grossest violation of that principle.

There were two articles which had not been executed by Great Britain; that which related to the negroes and other property carried away, and that which required a surrender of the posts. The article unexecuted by the United States was, that which required payment of all bona fide debts, according to the Treaty now in question: this article is now to be carried into the most complete effect by the United States, and damages to the last fraction are to be paid for the delay. Is there a reciprocal stipulation by Great Britain with respect to the articles unexecuted by her? Nothing like it. She is wholly absolved from the obligation to fulfil one of the articles, viz: that relating to the negroes, &c., and she is to make no compensation whatever for delaying to fulfil the other, viz: the surrender of the posts.

It has been urged in apology for those very unequal stipulations, that the injury resulting from a forbearance to surrender the posts, was not susceptible of any precise liquidation into pecuniary damages. However plausible this might appear, it was by no means satisfactory. Commissioners, such as were appointed, with full discretion for other purposes, might have been charged with this subject, and if they could not have done exact justice, might have mitigated the injustice of doing nothing.

Apologies have been attempted also for the very extraordinary abandonment of the compensation due for the negroes, &c. It was said to be at least doubtful whether this claim was authorized by the seventh article of the Treaty of Peace, and that Great Britain had uniformly denied the meaning put by the United States on that article. In reply he made two remarks. First, that it was not true that Great Britain had uniformly denied the American construction of that article; on the contrary, he believed, it could be proved, that till of late, Great Britain had uniformly admitted this construction, and had rejected the claim on no other ground than the alleged violation of the fourth article on the part of the United States.

But had it been true that Great Britain had uniformly asserted a different construction of the article, and refused to accede to ours, what ought to have been done? Ought we to have at once acceded to hers? By no means. Each party had an equal right to interpret the compact; and if they could not agree, they ought to have done in this what they did in other cases where they could not agree; that is, have referred the settlement of the meaning of the compact to an arbitration. To give up the claim altogether, was to admit, either that Great Britain had a better right than the United States to explain the controverted point, or that the United States had done something which in justice called for a sacrifice of their equal right.

It was evident, he thought, from this view of the subject, that the arrangements with respect to the Treaty of Peace were frequently wanting both in justice and reciprocity.

Besides the omissions in favor of Great Britain, already pointed out with respect to the execution of the Treaty of Peace, he observed, that conditions were annexed to the partial execution of it in the surrender of the Western posts, which increased the general inequality of this part of the Treaty, and essentially affected the value of those objects.

The value of the posts to the United States was to be estimated by their influence, 1st. on the Indian trade; 2d. on the conduct and temper of the Indians towards the United States.

Their influence on the Indian trade depended principally on the exclusive command they gave to the several carrying places connected with the posts. These places were understood to be of such importance in this respect, that those who possessed them exclusively would have a monopoly, or nearly a monopoly, of the lucrative intercourse with a great part of the savage nations. Great Britain having hitherto possessed these places exclusively, has possessed this advantage. It was expected that the exclusive transfer of them would transfer the advantage to the United States. By the Treaty now concluded, the carrying places are to be enjoyed in common, and it will be determined by the respective advantages under which British and American traders will engage in the trade, which of them is to share most in it. In this point of view he thought the regulation highly impolitic and injurious. He would say little of the advantage which the British would have in their superior capital: that must be encountered in all our commercial rivalships. But there was another consideration which ought to have great weight on this subject. The goods imported for the Indian trade through Canada pay no duties. Those imported through the United States for that trade, will have paid duties from seven to ten per cent., and every one must see that a drawback is impracticable, or would be attended with an expense which the business would not bear. So far, then, as the importance of the posts is to be considered in a commercial view, they are, in a very great measure, stripped of it by the condition annexed to the surrender of them. Instead of a monopoly in our favor, the carrying places are made common under circumstances which may leave a monopoly in the hands of Great Britain. And this is done, too, by an article which is to last for ever.

Second. The influence of the posts on the general conduct of the Indians, is well known to depend chiefly on their influence on the Indian trade. In proportion, therefore, as the condition annexed to the surrender of posts affects the one, it must affect the other. If the British should continue to enjoy the Indian trade, they would continue to influence the Indian conduct; if not in the same degree as heretofore, at least in so great a degree as to condemn the article in question.

He took notice also of the inequality of the stipulation which opened all the ports of the United States, as the condition of having those of an unimportant province of Great Britain opened in return.

With respect to the Mississippi he could not but consider the clause relating to it as being singularly reprehensible. Happily the adjustment of our claims with Spain had been brought about before any evil operation of the clause had been experienced. But the tendency of it, he thought, could not be doubted. It was the more remarkable, that this extension of the privileges of Great Britain on the Mississippi beyond those in the Treaty of Peace, should have been admitted into the new Treaty, because it is supposed by the Treaty itself, that Great Britain may be deprived, by her real boundary, of all pretensions to a share in the banks and waters of the Mississippi.

Secondly. With respect to the great points in the law of nations, comprehended in the stipulations of the Treaty, the same want of real reciprocity, and the same sacrifice of the interests of the United States, were conspicuous.

It was well known to have been a great and favorite object with the United States, "that free ships make free goods." They have established this principle in all their other Treaties. They have witnessed with anxiety the general effort, and the successful advances towards incorporating this principle into the law of nations; a principle friendly to all neutral nations, and particularly interesting to the United States. He knew that at a former period it had been conceded on the part of the United States that the law of nations stood as the present Treaty regulates it. But it did not follow that more than acquiescence in that doctrine was proper. There was an evident distinction between silently acquiescing in it, and giving it the support of a formal and positive stipulation. The former was all that could have been required, and the latter was more than ought to have been unnecessarily yielded.

The article prohibiting sequestration was next considered by Mr. M. He said he should probably be among the last who would be disposed to resort to such an expedient for redress. But he could not approve of a perpetual and irrecoverable abandonment of a defensive weapon, the existence of which might render the use of it unnecessary. The situation of this country in relation to Great Britain was a peculiar one. As we had not fleets and armies to command a respect for our rights, we ought to keep in our hands all such means as our situation gave us. This article was another instance in which no regard was paid to reciprocity. British subjects, it was well known, had and were likely to have in this country a great deal of the property of the King made sacred. American citizens, it was as well known, had little, and were likely to have little of the kind in Great Britain. If a real reciprocity had been intended, why were not other kinds of private property, as vessels and their cargoes, equally protected against violation? These, even within the jurisdiction of Great Britain, are left open to seizure and sequestration, if Great Britain finds it expedient. And why was not property on the high seas under the protection of the law of nations, which is said to be a part of the law of the land, made secure by a like stipulation? This would have given a face of equality and reciprocity to the bargain. But nothing of the sort makes a part of it; where Great Britain had a particular interest at stake, the Treaty watchfully provides for it; when the United States have an equal interest at stake and equally entitled to protection, it is abandoned to all the dangers which it has experienced.

After taking this brief notice of the positive evils in this part of the Treaty, he might, he said, add the various omissions which were chargeable on it. But as he should not pretend to exhaust the subject, he would mention one only: the not providing for the respect due to the exhibition of sea papers. He could not but regard this omission as truly extraordinary, when he observed that in almost every modern Treaty, and particularly all our other Treaties, an article on this subject was regularly inserted. Indeed, it had become almost an article of course in the Treaties of the present century.

Thirdly. The commercial articles of the Treaty presented the third aspect under which he was to consider it. In the free intercourse stipulated between the United States and Great Britain, it could not be pretended that any advantage was gained by the former. A Treaty was surely not necessary to induce Great Britain to receive our raw materials and to sell us her manufactures. On the other hand, consider what was given up by the United States.

When the Government came into operation, it is well known that the American tonnage employed in the British trade bore the most inconsiderable proportion to the British tonnage. There being nothing on our side to contract the influence of capital and other circumstances on the British side, that disproportion was the natural state of things. As some balance to the British advantages, and particularly that of her capital, our laws had made several regulations in favor of our shipping, among which was the important encouragement resulting from the difference of ten per cent. in the duties paid by American and foreign vessels. Under this encouragement the American tonnage has increased in a very respectable proportion to the British tonnage. Nor has Great Britain ever deemed it prudent to attempt any countervailing measures for her shipping, well knowing that we could easily keep up the differences by further measures on our side. But by the Treaty, she has reserved to herself the right to take such countervailing measures against our existing regulations; and we have surrendered our rights to pursue further defensive measures against the influence of her capital. It is justly to be apprehended, therefore, that under such a restoration of the former state of things, the American tonnage will relapse to its former disproportion to the British tonnage.

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