Newspaper Page Text
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SOUTHERN
RECORDER.
VOL. I.
MILLEDGEVILLE, TUESDAY, MAY 9, 1020.
No. 13.
PUBLISHED WEEKLY,
(on Tuesdays)
BY S. GKAjYTLAJYD Sf R. M. ORME,
ST THREE DOLLARS, IN ADVANCE, OR
FOUR DOLLARS A'T THE EXPIRATION
OF THE YEAR.
Advertisements conspicuously inser-
tL'dat the customary rates.
HOUSE OF REPRESENTATIVES
APRIL 8, 1820.
The following resolutions, submitted by
jjjr, Clay, being under consideration, in com
mittee of the whole, viz:
1st. Resolved, That the constitution
of the United States vests in Congress
the power to dispose of the territory be
longing to them, and that no treaty, pur
porting to alienate any portion thereof,
as valid without the concurrence ofCon-
gress.
2. Resolied, That the equivalent pro
posed to be given by Spain, to the Unit
ed States, in the treaty concluded be
tween them, on the 22d day of February
1019, for that part of Louisiana lying
west of the Sabine, was inadequate ; and
that it would be inexpedient to make a
transfer thereof to any foreign power,
«r to renew the aforesaid treaty.
Mr. Lowndes followed Mr. Clay in the
Debate. Before entering into a discussion
of the merits of the propositions submitted
by the Speaker, he said, it appeared to him
there wa3 a previous question to be settled,
the determination of which might preclude
a decision of the main question on its me
rits. The question was, whether an attempt
on the part of this house, to take, the conduct
of negociations with foreign powers into its
hands would not be greatly prejudicial to
the interests of the country. It was worthy
of enquiry, also, whether it was consistent
with prudence, or with wisdom, to engage
in the discussion of propositions, the adop
tion of which would have that effect.
Mr. L. said he was far from considering
the two resolutions now before the commit
tee as of the same character, lie was ready
to admit that the consideration of the ques
tion, how far this house has a right to inter
pose in respect to treaties—of this theoreti
cally abstract question, was not liable to the
Mr.
came objection as the discussion of the se-
j 1— but he should consider the
cond resolve
consumption of time in its discussion utterly
Cseless and wasteful at this moment.
The gentleman from Kentucky had made
a remark, in relation to the late communica
tion of the President to Congress, which Mr
Tj. said, appeared to him to have arisen en
♦irely from misapprehension of the nature
of that communication. The gentleman con
sidered the Message as founded on the wish
« of those foreign powers, whose views on
the subject our government had been appri
sed of. The best attention which lie had
been able to bestow on the subject, Mr. L.
eaid, had led to conclusions totally different
from this. The papers accompanying the
message were such as ought to have been
communicated for the information of Con-
f ress, but were not the only grounds of the
lessage. Could any man read the Message
Without seeing that the ground of the delay
recommended by the President, is the pro
bability, of which evidence is furnished in
part by communications from the Ministers
foreign powers directly and indirectly to
cur government, that the object of the U
Btates may he accomplished without a re
eort to such measures as had been reeotn
mended by a committee of this house ? It
would he an extravagance of independence
to say, not only that foreign nations should
cot interpose in a controversy between us
and a foreign power, but that they should
mot even be allowed to furnish us with facts;
with that information without which there
was no w isdom in the conduct of foreign ne
gociations. Mr. L. quoted the Message o
the President, to shew, that the only ground
on which a delay of coercive measures a-
guinst Spain was recommended, was, that
there was reason to believe that the object
of the United States might be attained with
out resorting to them. Was it at all extraor
dinary, that information on this head should
be obtained from foreign powers? Was it
at all extraordinary that Spain should not
dcvelope her views to us, who are the ad
verse party, yet should disclose them to a
power which is not a principal in the con-
■ troversy, but her ally and a mutual friend ?
The Executive does not reject information
■from any quarter, and least of all from a
quarter where it is most to be relied on.—
With regard to foreign interference, he
should repel, with as much indignation as
the gentleman from Kentucky, any attempt
to intermeddle in our internal affairs. Yet,
every man who would reflect on the condi
tion in which, in the lapse of time, the Unit
ed Stales may tie placed, would see, that
there might he cases in which, with all our
repugnance to the interposition of foreign
nations,, we. may he induced, as to collisions
with foreign states, to consent to the arbitra
tion of other foreign states, not interested in
the controversy. Thus, such a provision
had been made in regard to certain eases
embraced by the -treaty of Ghent; and at
this very moment one of the questions aris
ing between us and Great Britain in regard
to that treaty tiad been referred to the arbi
tration of the Emperor of Russia. If, as in
tiie case provided for by the treaty ot Ghent,
the mediation of a foreign power may be ac
cepted with respect to questions of bounda
ries, may we not go so far as to say that
there may be cases in which we shall pay
considerable deference to the opinions of a
disinterested foreign power where territorial
acquisitions are concerned ?
But, Mr. L. said, a remark of the gentle
*nan from Kentucky, apart from llie main
question before the committee, seemed to
require that he should, before proceeding
further, say something of the condition in
Which the committee of foreign relations, ol
Which he was one, was placed by the nics
•age from the President. Whether it wa
owing to insensibility or not, Mr. L. said he
id ant ftel tfuit auk'vardiMSS wliicb tuu
gentleman from Kentucky seemed to sup
pose that committee must feel. When the
committee recommended the immediate oc
cupation of Florida, and when they with
drew that recommendation, they ucted on
both occasions from the same motive. With
one information one course might be cor
rect, whilst with other information a differ
ent course would be proper. Though not
satisfied that $ different course should he
pursued from that recommended by the
committee, yet, a different course being re
commended by circumstances subsequently
disclosed, indicating the feeling of the nation
and tile sentiment of this House, would a
discussion of the subject have been deemed
by any gentleman advantageous to the inte
rests of the conntry ? Ought the commit
tee to have urged a decision on their propo
sition, when no possible advantage could
have resulted from it ? Must it not, on the
contrary, have led to a discussion which
would be as injurious as he would shew that
the present discussion would be, should he
not succeed in a motion which be would
make, as indiscreet ns the gentleman might
think it, to prevent the further discussion
of it.
A strong objection, even to a discussion of
the resolutions of the Speaker, was, that, in
relation to both of them, no possible benefit
could arise from the discussion of them—
nay, that a discussion, in such a manner ns
to lead to a just decision of them, was im
practicable. He asked any gentleman to
say, whether it was not apparent that the
questions involved in them could not now
be freely discussed? Under the circum
stances, it certainly was ; and, said lie, a dis
cussion, into which we enter manacled, we
ought not to enter at all.
[With regard to the treaty-making power,
r. E. said, he was willing to admit, that, in
lation to those stipulations which apply to
subjects such as are among the enumerated
powers of Congress, the sanction of the Ite-
lresentative body to them was necessary.—
tie had, however, no intention to enter mto
this general argument. If discussed, said he,
it would force us into an extent of discussion
which the limits of the session would he
too narrow. It would include not only all
the. discussions of 1790 and 1819, hut would
open new grounds. The Speaker himself,
he presumed, would not he disposed to in
sist that this house has a power, in relation
to a treaty stipulating for a cession of terri
tory, which it has not in relation to a stipu
lation for the payment of money. If there,
be a power peculiarly ours, said Mr. L. it is
the power over the purse of the nation. II
it he contended, that neither can territory he
ceded, nor money paid, without the consent
of this House, there is a question beyond
that again: will you maintain that a claim,
on our part,for money or for territory, how
ever well founded, cannot he yielded ? Such
cases were peculiarly a subject for treaty
stipulations. The very treaty of which we
are speaking contains a renunciation of
claims. In case of a claim on your part, not
recognized by the opposite party, your rights
may he renounced, by treaty, for an equiva
lent, he. Mr. L. said, he had no disposition
to enter at large or systematical)v into the
question respecting the treaty-making pow
er; but the observation which he hall made
connected itself with no other.
Gentlemen conversant with the history of
the proceedings of Congress, might recollect
the ground taken by the gentleman who is
now our distinguished Minister in France:
that, in addition to those powers purely Ex
ecutive, which did not come in conflict with
the powers of the House oi’ Representatives,
Mr. Gallatin admitted, in the great debate of
1795, there was another and a resulting pow
er which did belong to the treaty-making
authority. That, for example, to a stipula
tion that any act should no/ pass, the consent
of the House of Representatives was not ne
cessary, because the President and Senate,
being branches of Congress, hud it in theii
power to enforce and fulfil the treaty, by
withholding their assent from any such act.
Apply that argument to the case of a renun
ciation of a claim for money or for territory
Not being in the possession either of our go
vernment or of a foreign power, it could be
reclaimed or renounced only by negociation
or Ity war, and to either course the consent
of the negociating power was necessary, Ike.
In relation to questions of boundary, it was
admitted on all hands that the treaty-mak
ing authority was competent to their adjust
ment: its competency must bo equally ad
mitted in relation to all unadjusted claims.
He submitted then to the committee, whe
ther there could beany case, of an adjust
ment of a claim to boundary, which did not
include a cession of supposed right to terri
tory by one or the other party. You maj
establish points; you may say, there a colo
ny was planted—here a man was shiptt reck
ed : you may assert that these points include
the territory to which you have a right; but
the lines of your boundary must, alter all,
be adjusted by negociation—by reciprocal
agreement. Mr. L.said he should be soil)
if it should he inferred, from what he had
aid, that he was of opinion that the ground
assumed in the resolution was decidedly er
roneous. That it asserted a power much
weater than had heretofore been claimed tor
the House of Representatives, lie was confi
dent; but he did not mean to say that he
had formed a decided opinion different from
that of the gentleman from Kentucky on
this point, lie had thought of it hut for a
day or two. It was, however, a question
into which he thought the house ought not
wantonly and uselessly to enter, especially
as it had now no superfluous time on its
hands.
THcre, the hour being late, Mr. Lowndes
complied with the wish of a gentleman near
him, and gave way for an adjournment, lhc
next day he resumed his remarks.]
Mr. L. did not, he repeated, intend to ex
press any opinion affirmatively or negatively
on the proposition contained in the first of
the above resolutions. But, he said, it touch
ed a subject so complicated and difficult as
to make it necessary, if acted on at all, that
it should occupy a much greater portion ot
time in the discussion than could he spared
at this period of the session for the discus
sion of an abstract proposition. There must
Iq; pjany gentlemen on this floor, who re
collected the length and arduous nature of
the discussion of 1795, on tlii3 subject.—
There were none who could not see that the
resolution of the Speaker embraced a larger
object than was embraced by that of 1795.
The conclusion must be, that, if decided at
all by this House, it would be after a long dis
cussion. But, suppose the resolution went no
further than that of 1795—however strong
might be the opinion of a majority in favor
of the resolution of 1795, it could not he ex
pected hut tile re would he some debate on
such a proposition. The smaller the mino
rity, the stronger the reason why their argu
ments should he heard and laid before the
public. The resolution of 1795 remains on
the Journals, and there could he no reason
assigned, even did this resolution go no fur
ther than that, for re-affirming it. But this
resolution goes much further than that of
1795, or than the doctrines advanced by any
who took part in that, discussion. It was not
then as far as Mr. L. knew, contended by
any one, that, in relation to territory claim
ed by us, but not in our possession, a treaty
for the adjustment of the title would require
the sanction of this House. Would it he
prudent, said lie, by anticipation, when we
know not of any circumstances which make
the decision of this question necessary, to
undertake to decide it ? Ij> there any mem
ber of this committee who supposes that the
effect of a decision in favor of this proposi
tion will he to preclude a discussion and de
cision of the question hereafter, should the
treaty be eventually ratified? Mr. L. pre
sumed not. Indeed., lie said, were this pro
position to be discussed now for a week, it
would only serve to prepare the ground lor
another discussion hereafter.
Whilst, however, he had no other objec
tion to the discussion of the first resolution,
hut"what arose from a regard to the economy
of time, he had much stronger objections to
the consideration and decision of the second.
He did not understand how any decision, or
even free discussion of that question, could
take place without endangering the import
ant interests of the country. This he was
sure the Speaker would do as unwillingly as
any man. But, said lie, pending the ratifi
cation of the treaty by Spain, are we to
enter into the question of our title to the
territory as far as the Rio del Norte ?—
Would it be prudent to do so? Certainly
not. Yet, if there was an unreserved dis
cussion, that must be the preliminary step.
Do you attach any consequence to a reso
lution of this kind ? Do you expect it to
have an influence at home, and tn he re
spected abroad ; and do you not begin by a
laborious aud careful examination of your
right to tiie territory in question ? Will you
come to a formal and solemn annunciation
that you are fully entitled to all this territo
ry, without deliberately and temperately
examining the grounds on which that right
rests ? If you determine that you will write
instructions to our negotiators: that we
shall on this floor prescribe what the. condi
tions of a treaty for a settlement of limits
shall he, it becomes necessary that the title
of the respective parties shall he fully inves
tigated. Our open doors shew that this is
not the place to discuss what wc will ask in
negotiation with a foreign power, and what
we will he content to receive. It vvouid be,
to use the Speaker’s figure, to display our
open hand to our adversary, his being con
cealed, as ours ought to he.
It had been doubted, Mr. L. said, whether
the other branch of the Legislature has a
right to join in instructions given to our di
plomatic agents with regard to the terms
of a treaty. From convenience, at ’east,
tliis power, given to the Senate almost by
the terms of the constitution, had not, under
the practical construction of that instrument,
been latterly exercised by the Senate, but
the Executive had been entirely charged
with that duty and that responsibility.
Mr. L. enlarged upon tiie inconvenience
of a public discussion here of what, in an a-
micable negotiation, we. mean to insist on,
and what we mean to give up. He had
no objection to saying, for himself, what lie
would do on that head. But, he said, if a
discussion was to take place on the formal
proposition contained in this resolution, un
less the discussion was to he utterly unmean
ing, it would be necessary to examine n:s well
the validity of titles as the relative value ot
territory, btc. lie. it was unnecessary for
him to assign reasons why an enquiry into
the validity of title would he injurious.—
They were sufficiently obvious. With re
gard to the value of the territory in question,
if the members were fully informed on the
subject, it would jet be. needless to discuss
it. But, he said, he believed the requisite
information was not at hand, i or his part,
although he had paid considerable attention
to this subject, and gathered information
from all sources accessible to him, he had
never heard, respecting the value ot the Pro
vince of Texas, any estimate of its seaport,
in any degree corresponding with that given
by tiie honorable gentleman from Kentuc
ky- J '
If the bouse was called on to vote on this
resolution, it was above all desirable that
they should understand it. Mr. L. said that
he thought he did understand it. Its mean
ing clearly was, that it was inexpedient to
cede any part of the territory which we. have
west of the Sabine. Suppose our claim to
that teritory to be undoubted, said lie, an
we prepared to say, however worthless it
may be—however great the equivalent lor
it—-that wc will give up no part of it for any
territory, however essential or important to
us? Nuw, for myself, lam not ready to
sav, that I am not willing to give up any
thing west of the Sabine for any considera
tion w hatever. If there be any territory of
doubtful i able beyond the Sabine, 1 am not
prepared to say that there is iu tiie rest ol
the world nothing of so much value that I
might not he induced to exchange the one
for the other.
Mr. L. therefore was opposed to engag
ing in this discussion, mid because lie consid
ered the second resolve to embrace mi ob
ject adverse to the interests ot the country,
as well as contrary to the spirit of the con
stitution. That this house, according to the
view of the Speaker, might have some pow-
to deny. But, whatever that power was, he
thought that a just view of the principles
of the constitution w ould necessarily require
that it should he a restraining, and not a di
recting power. If, in progress or time, this -
house should adopt the practice of giving
instructions to our ministers, or, w hat is the
same thing, of determining beforehand, as
now proposed, wliat should be yielded and
w hat retained, the effect would be to divide
the responsibility of the different depart
ments of the government, and destroy alto
gether that of the treaty-making power.—
That there was in this house a corrective
power, to restrain the treaty-making power
in a course, not believed to lie beneficial to
the interests of the country, lie was ready
to admit; but, whilst he admitted this, it was
a power which lie said, ought to be exercis
ed with great discretion. Otherwise, instead
of restraining the Executive power, the ef
fect would be, to increase its power by di
minishing its responsibility. As a common
t ule of action, therefore, lie was in favor of
leaving the powers of the government where
the constitution had placed them.
If any ease could arise in which the Exe
cutive would pursue a policy so repugnant
to the true interests of the country as to
justify the interposition of this house, Mr.
L. said it would be one the very reverse
of that now under consideration, it would
hardly ever happen that an Executive would
be averse to enlarging the boundrics of the
nation, or be accused of a desire to restrict
them to too narrow a limit. In the execu
tive branch of every government, the dispo
sition is naturally favorable to the extension
of territory and the enlargement of its pow
er. (In thought that we may safely intrust
to the Executive of this government the
charge of supporting the rights of the coun
try, and extending its territorial limits us far
as justice and sound policy will allow.
Mr. L. made some remarks to shew that
no advantage could result from the adop
tion of this resolve. If, indeed, it was pro
posed to employ force to support it, there
might he some ground. Otherwise, he con
tended, to pass them would not only he use
less, hut injurious.
But, Mr. L. said, he would refrain from
entering into the general questions of policy
growing out of this resolution : but, iu rela
tion to the province of Texas, he would ray
that, if Florida were not necessary to us, and
therefore a desirable acquisition, in exchange
for any claim we may he. supposed to have
to Texas, lie should not think it important
to occupy Texas at this time. If we have
ajustciaimto that province, the treaty being
rejected, it will be at any time in our power
to enforce it. Lying between ns and Mexi
co, its destiny must always essentially de
pend on, as it is connected with, American
interests. Whatever claim we have to Tex
as, it is a claim which we are able, to sup
port and enforce. This is an opinion, said
Mr. L. which the Speaker applies to Flori
da and l to Texas.
M r. L. asked the members of this com-
mittee to cast their eye a little, forward, and
see, if the connection between Mexico and
Spain should be dissolved, what motive
could Spain have for desiring to retain the
possession of the Province of Texas. What
has been her object in ceding Florida ? T<
get in exchange a boundary, well defined,
between Mexico and the United States. To
secure herself against what she believes (and
what Mr. L. feared all the (lowers of Europe
believe) our ambition, sbe was willing to
cede Florida. But, suppose, the connection
between Spain and Mexico to be dissolved ;
suppose all hope, on her part, of her resum
ing the control of that country was destroy
ed, what motive could she have for ceding
Florida ? Mr, L. said, he had not adverted
to this contingency with a single view to her
relinquishment of Florida to us, but with a
view also to the preponderance which a re
duction to a single island of the colonial pos
sessions of Spain would give to another pow
er ; when Spain- would no longer be mis
tress of her own actions, hut the agent to
serve the interests of another power. And
if we relinquished now 1 lie acquisition of
Florida in order to gain Texas, that, in the
contingency just adverted to, when Florida
was overflowed by Royalists, and the value
of Cuba increased, what possible motive
w ould Spain have, under such circumstances,
for the cession of Florida to us? We must
obtain it, then, by force, or not at all. But
it would always he as easy a matter as it
may he now, to obtain Florida by force. It
w ould be more easj r , lie said, to obtain Ca
nada by force, than it would be to obtain
Florida by force, if the power to whom it
belonged was determined to hold it. It
would be an error fatal to the best interests
of the country, to refuse to receive Florida
into our possession whilst we can. Mr. L.
did not saj’ it was so important an acquisiti
on that it ought not for any consideration to
he postponed for a day ; but that a combi
nation of circumstances make that practical
now which may not be a year or two hence,
lie thought was very clear.
i re concluded, by saying, that he had had
no intention of entering into the gejieral dis
cussion of these resolves. He meant only to
shew, that they could nut be discussed with
out giving so ranch time to the subject as
could not be afforded at this time ; and that
the discussion would moreover he prejudici
al to the public interests. Under these cir
cumstances, he thought it his duty to move
to lay the resolutions on the table.
Mr. Archer of Virginia, said, that the
withdrawal of the motion of the gentleman
from South Carolina, (Mr. Lowndes) having
removed the obstacle to discussion of the re
solutions under consideration, hr. would pro
ceed to submit his views of them tu the com
mittee. The attention of this body, Mr. A.
observed, was a species of joint stock coil-
demands upon the public, that moderation in
llieir amount formed no unessential condition
of their success, had, ill no instance, stronger
application, than in relation to demands ad
dressed to the patience of this assembly.
Mr. A. adverted to the place which the sub
ject of our relations with Spain had recently
occupied in the public attention, and the uni
versal expectation that some measure expres
sive of the sense of Congress, would, before
this period of the session, have been adopted.
The measure, which, alter long delay, the
gentleman from South Cnrolins,(Mr. Lown
des) had reported from the committee of
Foreign Relations, had been recenlly wrest
ed from the consideration of the House, in
consequence of the suggestion of n foreign
potentate, who, Mr. A. believed, was pretty
much in the habit of exerting an operative
influence in the affairs of other Hates, with
the same declaimer, it was probable, in every
instance, of an intention to (lo bo, which had
been employed in relation to ourselves. If
the motion which the. gentleman from South
Carolina had intimated an intention to renew,
should prevail, a fate similar to that which
had attended his own proposition would be
served for the prepositions now under con
sideration. Mr. A. confessed lie felt surprise
at the intimation of resort to such a course,
both on account of the importance of the
subject and the character of the proceeding
itself: the subject involving, as it did, the
policy of the alienation of perhaps the most
valuable portion, in proportion to its extent,
of the territory of the Union, was surely well
entitled to consideration, from its magnitude.
In this respect, it was to he regarded as se
cond only to the question which had been
connected with the discussion of the Missou
ri bill, to which, indeed, it bore a strong cha
racter of affinity. That uuestion related to
the propriety of the transfer of the common
territorial property of the Union, to the ex
clusive benefit of the population of one por
tion of it. The question now presented, in
volving a consideration of the. policy (which
it was the purpose of the resolution to coun
teract) of the transfer of the most valuable
portion of this common property, ton foreign
power. If a question, involving a considera
tion of great momentous character, had no
claim to the maturest deliberation of the
House, Mr. A. was unaware of any, wbieh
could be regarded as invested with sneli a
claim. The effect, too, of the success of the
motion of the gentleman from South Caro
Finn, ought not to escape observation. It
would he to preclude all effective expression
of the public sentiment in relation to the po
licy of the ratification :;f the Spanish treaty.
The ease had no resemblance to that of an
ordinary postponement of a subject, the con
sideration of wliieli might, at a succeeding
session of Congress, be resumed. Every
person knew that, before the ensuing session
of Congress, the treaty would he ratified
The government of Spain could have no o-
ther design iu sending the Minister who was
know n to have been despatched here. And
the determination which would operate with
our own government to accept the ratifica
tion, (unless this determination should he ar
rested by the expression of public sentiment
in some mode) could not lie a subject of
question. The prevalence of the motion to
lay the resolutions on the table, would then
be decisive iu relation to the important inte
rests conceived to he. involved in their adop
lion. By the policy of avoiding conflict, the
fruits of complete victory would bo achieved.
The Speaker had treated the questions,
presented by the resolutions, as affording
scope forexpatiatiou Jo a considerable extent
in tiie general field of Spanish relations.—
This example, alluring as the subject was,
from the variety and interest of the topics it
involved, Mr. A. said, that, not having the
same claims with lhc Speaker, on the atten
tion of the committee, lie should forbear to
follow, and confine himself strictly to lb
questions arising on tile resolutions. These
were of sufficient dignity and extent, indeed
to merit a distinct consideration. The ques
lion presented by the first resolution was
that which had heretofore given occasion to
considerable discussion, relative to the cha
racter and extent of tliu treaty-making 1 pow
er in our government. To the President
and Senate was given the power “ to mat,
treaties." To Congress were given various
powers, among others, that “ to dispose ol
the territory of the United States.’ And
the question was, whether the general pow
er to make treaties, confided to the President
and Senate, took place of the particuls
grant of powers to Congress, so as to operate
conclusively on the subjects of this particular
grant, w ithout any necessity for the concur-
encc and assent of Congress.
In contemplating this question, the atten
tion could not fail, Mr. A. said, to be attract
ed to the extravagance of tiie pretensions of
this treaty making power, in point of ex
tent, the power claimed to cover all the oh
jects which fall within the scope of interna
tional stipulation, that is to say, all the ob
jects of national interest, which were not of
essential municipal character. This was the
claim in point of extent of jurisdiction. In
point of force of authority, the power claim
ed the exertion not only of a superceding
but a mandi lory influence, over the legisla
tive department; the direct representative
of the national authority ; in relation to all
subjects of its exercise, whether comprelien
ded or not, within the delegation of jurisdic
tion to that department of the government.
The claim was not only to exclude Congress
from all participation of control over sub
jects specifically submitted to its control by
the constitution, but to bind it to an undeh-
berating ministerial execution of the stipula
tions of the President and Senate, in relation
to these same subjects, wherever they might
of
required, to confound the appropriate func
tions oft he.se authorities. To the President
anil Senate was assigned the exclusive fa
culty of exercising deliberation 5 fcnd on l on-
gress was imposed the unqualified duty oi
conforming to, and effectuating, without any
exercise of discretion, the results of that de
liberation. ....
Such an assignation of functions would
present a ease of political anomaly, w Inert
was not predicable of the character of^th®
constitution. Tiie entire exclusion ot (ron-
gresB from authority over the subjects as
signed to the jurisdiction of the treaty-mak
ing power, would involve no political incon
sistency. This was designed in relation to
all but a particular class of subjects. Eut, if
tin* operation of tiie legislative powei were
admitted at all, it e.ould only be.admitted in
its proper character of a power involving es
sentially the exercise of discretion.. The re
cognition, therefore, of the necessity forth®
co-operation of the authority of Congress in
the execution of treaty stipulations, was. in
lation to all the subjects to which it exten
ded, a recognition of the legislative, as a part
of, and a check upon, the treaty-making
power
Mr,
cem, of which all iis members were equally
jw appeared,
participant in interest. He now appe
for the first time, to assert a claim to any
share, and he did not doubt that the claim
would meet with due allowance from the
courtesy of the committee, unless indeed,
(he fund on which it was addressed, had al
ready been exhausted by the drafts which
had been made upon it. One recommenda
tion this claim would have, that it would not
require the intervention of legislative details,
and a resort to municipal authority, for their
execution. The exertion of the power ot
tiie President and Senate was said, bv com
mitting the public faith for its stipulations,
to bind the other departments of the govern
ment, to an obligation of co-operation in the
objects of those stipulations. Such was tiie
claim of this treaty-making power in point
of authority. The first remark, Mr. A. said,
which arose upon this statement of the cha
racter of the powers, related to its effect,
er in regard to treaties for the cession or ac- be an immoderate one. And, Mr. A. heliev-1 where the co-operation of legislative and
imiuliou of territory, he did rjot juw mean ed that the general remark, iu reference to I Executive authorities wwif ndayitted to U
A. had been adverting to « statement
of the pretensions of this treaty-making
lower, ns furnishing evidence sufficient, to
tis mind, to condemn them. If other evi
dence were wanted, it would be . found in
the discrepancy which the power in the ex
tension claimed for it, presented to the cha
racter of the. genera! grant of power contain
ed in the constitution and of the more im
portant particular powers which made up
the composition ot that grant. It was to
be expected of every political systi m, and
more especially of a system sprung from
men so illustrious for wisdom as the framers
of our federal form of polity, that It would
he found presenting a general consistency
of structure and elements. But the consti
tution was admitted to convey hul a limited
grant of power. All Its more important
omponent powers, the power over the
purse, over the sword, the power of punish
ment, were limited, by express restrictive
qualifying provisions. The admission of
the treaty-making power, therefore, in the
absolute, unrestricted character it assumed
to wear, would be a violation of the whole
consistency of the constitution.
Mr. A. said that a person observing v ith
nj' degree, of attention the progress of our
government, could not fail to be struck with
the conflict between many of the principle®
adopted in the construction of the Consti
tution and its true character and intendment*
The framers of this instrument lmd expend*
d the resourees of an incomparable wisdom,
in devising limitations on the powers which
it conveyed, and in the contrivance of ade
quate sale-guards against, the exercise of o-
ther now era In the illusion of ngenerou*
confidence, they had no doubt conceived
that these safe-guards would he found sufii-
ient. But, in the current of the administra
tion of a constitutional government, ther®
was generated a reptile destructive or dan
gerous to the dams and mounds w hich wer®
instituted to restrain it. The name of this
reptile was construction. Such was its fc-
undity, that it was impossible to extinguish
the race. Such was its subtlety and activity
f nature, that it was difficult to counteract
its operations. This reptile had been at
work in the mounds of our Constitution, nor
was it a little to be feared, that the breaches
had already been effected which were des
tined, in future time, to give, a general ad
mission to discretionary power.
It might possibly he objected to what bad
iccn observed, that the power confided to
the President and Senate, was a power to
make or conclude treaties, and that the con
struction contended for, would convert their
faculty, in this respect, into a mere function
of initiating treaties. But the distinction
was, that the power which, in relation to tho
general subjects of treaty stipulation, was
xclusive in the President, and Senate, in rc»
ation to the particular class of subjects un
der discussion ; those confided to the con
trol of Congress, was a concurrent power.—
in the clause of the Constitution, indeed,
creating the (lower to make treaties, there
was no express designation of limits to that
power. But, as exclusive powers were no
less effectually defined by the coterminous
relation of their respective spheres of opera
tion, Ilian by an express designation of lim
its ; so concurrent powers were indicated, in
us satisfactory a manner, by separate grants
of the same subjects of jurisdiction, to seve
ral (lowers, as they could be. by a grant pur
porting in its terms to be a joint one. It was
to be recollected, too, that no consideration
affecting either (tie efficacy of the treaty-
niaking power within its appropriate sphere,
or its relation to the public convenience, re
quired that it Simula be exclusive over all
the subjects of its operation. In the denial
of any particular subject or class of subjects
to its exclusive jurisdiction, the efficacy of
the power would suffer no impairment, in
relation to others which were conceded.—-
And, as respected public convenience, this
consideration, so far from requiring any in
definite extension or character ofthe power,
demanded, on the contrary, that its dispoa-
ing control should be guarded in relation to
subjects of public interest of more than ordi
nary delicacy or magnitude, by the check of
the necessary co-operation of some depart-*
ment of concurrent jurisdiction. Nor, ad
mitting this observation to be just, w as there
any subject of public intercut, characterized
by a more indisputable title to the peculiar
safeguard in question, than that which relat
ed to the disposal of llie territorial property
ofthe nation.
The power of the President and Senate to
tiienate territory, might perhaps be inferred
as a consequence of their power to acquire it,
Mr. A. both objected to tne consequence, a®
illogical, and protested against the mode of
construing the powers ofthe government by
which it must be derived. An incidental
power would have to be derived from an in
cidental power; and this first incident, tho
source of others, was itself supposed to bo
derived in a mode still more unauthorized,
not from any specific power, but as a result
of the general collective powers and sove
reign character of the government. In sceh
, a. mode of derivation of powet, it ghtr”,.