CONGRESS.
HO USE OF REF R E SENTATtVES,
Friday, March 18.
Debate on Mr. LiTtugft»n'i resolution continued.
Mr. Livhigjlm'c Jpeech continued.
The portions had been/*fTuraed, differing not
materially in the powar ascribed to treaties,' but
distinguished chiefly by the mode of applying this
By some it was contended, that the intcrference
of the Lcgiflature was neceflary in some iriftance« r
but that the treaty operated by way of moral obli
gation, to enforce the necessary steps to give it va
lidity ; and that though there u a phyiical power
of retufal, yet it ought in no cafe to operate again (I
the superior obligation.
Others had attested, that treaties being the su
preme law, might operate diredly, without the in
tervention of any other body. That where e*ift
ing legislative a&s opposed their execution, the
treaty was paramount.and cotlld repeal them.
These positions were in fad the fame, because if
a treaty was at all events to have effe&, it was per
fectly immaterial whether it operated dire&ly by
its own power or indiie&ly by the instrumentality
of another boUy; both he thought equally subver
sive of the principles of the government; but the
iirft was moil degrading to the legislative dignity.
Nor could he discover 'from what part ef the Con
stitution it was inferred .j wherever in that instru
ment a duty was imposed, it was clearly and expli
citly a (Tig tied, as io cafe of the PreGdenPs compeit
fatian, that of the Judges and many other inftan
ees. It h not then to be conceived, that lo im
portant an obligation as this fhouid have been left
-to implication. If it had been intended so to .an
nihilate this discretion the fame language would
have been used. 41 Congress shall pass laws to car
ry every treaty into effect," bat nothing of this
kind appears. Again, if it had bein intended to
make treaties paramount over laws; it-would feenf
to have beenrtbe more simple mode to havedifpen
■fed with their interference. Why leave a phantom
of discretion, an unreal mockery of power in the
bands of the Legislature. In order to get rid of
this difficulty some gentlemen fisem willing to allow
a species of violation, but it was a pittance that
would be scarcely worth accepting. In cases of
extreme necessity, and ia others where from corrup
tion or other good cause the compadt is void, this
House, they lay, may refufe to carry it into effe&.
In the firft cafe where it is impojfible to give efficacy,
to a treaty, the power of refufing it was surely of
little value. Andwhen'thecoropaft is void in itfclf,
the liberty of not being bound by it would
scarcely be contended For. If thelubjeft were lefk
serious.Mr. 1,, said, one would be tempted tofmile,
at the efforts that aTe made to reconcile the eonfti
tutional predcjlination, contended for with the free
agency of discretion. 'It was as difficult to be un
derstood, as the most entangled theological contro
versy, and like mod disputants in thatfcieace, they
concluded with anathemas against all who could not
comprehend or would not believe them. We have
a discretion whether to at& or not, fay they ; but
we are under an obligation to aft, and if we do not, i
we are guilty of treifon and rebellion. This was \
the fame 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 Holfon'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 CongrtJJitnal
discretion.
If then the treaty does net operate by way of
obligation on the Legislative power, let us, said
Mr. Ltvlngftoa, examine, whether as is contended,
" a treaty is paramount to a law, and can repeal it,
though it itfclf cannot beafted on by the Legisla
tive power," this he said was the most important
question, that bad ever been agitated within those
•walls.—lt evidently tended to the substitution of a
foreign power, in lieu of the popular branch, it was
replete with the most fetious evils. He could ne
ver suppose so great and pernicious an absurdity,
was contemplated by the Conftitutipn, but if fjich
was the true conftruftion, greit as tlie evil was, we
mult submit, until it coold be legally amended.
The Constitution gave all Legislative power io
the Congress of the United States, veiled 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, /hould be thafu
premelaw of theland. He had always considered
the order in whichthis enumeration was made as
descriptive of the relative authority of each. Ift.
The Constitution which no other aft 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 reftriftion w'»h refpeft to them as i«
the cafe of laws, that they * e made pursuant to the
Constitution.—He did not believe gentlemen would
contend for this absurdity, they must therefore re
fer to the order of the enumeration to measure the
relative effect of the Conftitutiun, laws and treaties.
If the objects of legislation, and of treaty compact
would be kept diftinft, no question would arile,
there would be no pretext for interference, but
they could not ; almost «very objedt of legislation
might also become that of couipaft with a foreign
pqwer.
He then read the enumeration of powers veiled
incongrefs, and said, that many of these had alrea-.
dy become the objects of treaty—many more pro
bably would be, and the whole directly or indirect
ly, were liable to be embraced by it. If then all,
or even any one of these objed* may be regulated
by treaty, without any interference of law, the
cpijftiuition, said M,r. L. has contained the evident
ahfurdity of submitting the fame object at the fame
tiir'e lathe controul of two diftinft powers. An
absurdity tßat couldupt; be deftipyed- but b* sup
:" t ■'
poling that—lt was intended these different pow-i
eis (houid operate under this constitution as they I
do in that of England. So that every treatyope
ratingon obje£ls submitted to the legiflativc power
ihould receive its fanftion before it took effect—
This conftru&ion would reconcile all the parts of |
thje instrument to each other ; whereas other
would set them at-variance, and by
the House of reprefentatives.of all the (hare in Le
gislation. This was not reafoning,-he said from an
abuse of power - : If it was properly vcfted in the
President and Senate, it was not only permitted
but it was their duty to tife it, and no one could
call the of a-conftitutional right, an abi/fe
of power. He admitted, that if the text w«re*x
plicit, reafomng from consequence was a bad mode,
but as that was not pretended in the prefeilt cafe, ,
it would he well to -weigh the serious evils that it
tended the conftruftion gentlemen fef\r~
And to .enquire whether there is more dasjjst in j
trailing the representatives of the people witji a
check on all treaties relating to those oljje&s, which
are Specially vcfted 'in them bythe constitution,
than in making those representatives subservient to
(he will of twentyone men, who may be leagued
with a foreign power ?
In looking for the true conftruAion of this in
strument we fhovild cenfider the state of things at
the time it was proposed and adopted. The op
position it >met was well known, and the power
•given to the Senate and frefldent, was considered
as one great cause of opposition. Itcannot-be sup
posed as the sentiments of the people were known
by the framers of the conftitmio'n, that they would
have propafed arty plan mofe energetic than the
government of Grea' Britain. *
But it was probable, Mr,' Livingfton (aid, that
the treaty power was intended to be placed in
the-Prefident and-Senate to the fame extent only
in which it existed ta the executive of G. Britain.
The word* of our constitution on this point were
the fame made use of by the British writers in de
fining the corresponding power in their government.
—And it seemed evident that some ofC it* 5 features
{and this was none of the lead prominent) were
drawn from that original. He was happy ihit the
parallel was not perfect in other jnftadacif He
thought it completely so in this, aad that Hie prac
tice, therefore, of that govemraent would in fbme
lead to the true conftrudlion of this. A.
ware of the weight of .precedents drawn from En.
glifh history, gentlemen endeavored to weaken them
by a very ingenious .argument :—■" The British
constitution, fay they, is not written, it informed
of usages ; if you prove, therefore, that it i» the
u(eg£ for Briti(h Parliament* to fanftion treaties,
you prove it to be their constitution, Eiutyou dw
not prove it to be ours." It was true, Mr. Li
vingfton observed, that the English constitution was
formed partly of immemorial usages ; bat it was
also true, that those usages were collected th books
of authority, and th.at the different powers of go
vernment were generally designated, so that the
leading points in their constitution were as well
known and defined as they were in that -of Ame
rica. It had been (hewn, by a reference ta writers
of the belt authority, that by the Conftitetion 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 pow
er, controuled the former, whenever it affedied qb
je<fts of legislation. Thus, in the conftttutien of
the United States, (he contended) the power of
making treaties, that is all treaties, is relied in the
President and Senate—but as all legt/lative power is
-vcfted in Congress, uo treaty operating upon any
objeSs of legislation can takeeffe& until it receives
the fan&ion of Congress. The praflice, too, was
the fame. The King asserted his right of making
and completing treaties, by not only concluding
but-ratifying them, before they were submitted to
Parliament, bat he believed no commercial treaty
was proclaimed as the'law of the land before it had
received the fan&ion of Parliament. Indeed it
was impossible in any country, and under any con
stitution, where the legislative and treaty-making
powers are lodged in different bands, that any other
confhufh'on can be given, without -running into
the absurdity he had before hinted at, of making
two different powers supreme over the fame objedt
at the fame time. Our ideas had been confounded
by referring to the practice of governments where
the two powers were united, and where a ratifica
tion gave the consent of both.
If, then, there was a perfect analogy between thi
powers vested in the crown in England, .and thai
delegated to the President and Senate in America
on the fobjeft of treaties ; and if the Parliament
by virtue of its general Legj/lative authority wa
in the pra&ice of giving or withholding its fan&ioi
to treaties concluded by the King, it was but a fail
inference to fay, that the fame discretion existed it
Congress.
Some inftancfs of the exercise of this power by
Parliament had been before quoted by other*. The
inexecution of the treaty of Utrecht in consequence
of Parliamentary opposition, and the difficulties
with which tbe 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 fame source,
equally ftrikiog, or ptthaps mote so, at the course
of proceeding there followed, was preei&ly that
which was proposed by the refolatiop in debate.—
The fitft was the proceeding on the.barrier treaty,
taken from the fth Vol. Pari, Debates, p. 43 —
where the House of Commons began by a resolution
to address the Queen, " that all inJlru'dionswA or
ders giwra to the Plenipotentiaries that tranfaded
the barrier treaty, and also all treaties mentioned
atad referred to in the said treaty, might be laid be
fore the house, except Rich treaties as they already
had." We are told in the subsequent page, that
on tbe 13th, (that is) only two days after the le-
Tjneft, " Mr. Secretary St, John prefeated to rhe
House, by her Majefty'i command, a copy of the
inftru&ions to the Duke of Marlboro' and Lord
Townfend, about the barrier treaty, extraQi of
let ten from Mr. Boyle to Lord Towniend eencern
ing the said treaty, also a copy ef the preliminary
articles figired at the Hague; the titles of which
copies and extracts of letters were referred to the
committee of the whole h«ufc. Afttr this it was
i cfolved to present an address to her MajeftyJ tliat
the letters written by Lord Townfeod • to Mr.
Boyle, the Secretary of State, dated the lit and
26th November, 1709, might be laid before the
Hoafe, which Mr. Secretary St John accordingly
did on the 14th February." After having obtain
ed the papers, Mr. L. laid, the House of Com
mons proceeded to the conlideration of the treaty
in committee of the whole, and voted, I ft, that
the treaty contained articles deftrudlive to the trade
and iuterell of Great-Britain ; 2d, that the nego*
ciator had asked without authority ■; 3d, that the
advisers and negociators were enemies to the Queen
and kingdom.
The treaty being thus obftru&ed, the States Ge
neral remonstrated to the Queen on the fubjeA,
but confeious that the Parliament were only exer
cising a constitutional power, they make no com
plfints in rheir memorial of any breach of faith,
thaugh the treaty had been ratified—They entervin
to. the merits of the treaty, offer to negooiate on
the obnoxious articles, and conclude with " in
treating the continuance of her Majesty's friend
fhtp."
This in fiance, then, said -Mr. L, is complete to
(hew the propriety of a call for papers by the House
of Commons ; a ready compliance on the part ps
the crown, a deliberation on a ratified treaty, a re
ijefttdn of it, and an acquiescence on the .part of the
foreign nation,, without remenftrancc.
The other inftanee was an address ( in the year
1714,' requelling that " the treaties of peace and
commerce between her Majesty and the King of
Spaift, and the inftru&ions givento her Majesty's
ambafladors thereupon, together with the copies of
the King of Spain's ratifications of the said treaties,
and the prcliminari s signed by the Lord Lexing
ton and the Marquis of Bcdmar at Madrid, and all
other agreements and ftiptilations which had been
made concerning the commerce between Great-Bri
taiu and indly, An account of what en
gagements of guaranty her Majesty has entered into
by virtue of any treaty with any foreign .prince or
(late from tbeyear 171©. And, 3dly, an account
of what inltances had been used by her Majesty
for the rcitonng the Catalans their amient privileg
es, and all letters relating thereunto. And then it
was resolved, to take into ?Hrther conlideration the
rntffage that day sent from the Lords upon Thursday
next following.'"
Objections had been raffed to this cenftru&ion,
drawn from three different fourees.
i . From the prevalent conftru&ioii at the time of
eftablifhingthe constitution.
.2. From the pra&ice of the government since
that- period.
3. From the present ideas entertained by the
people of the United State*.
-As to the coraftruftion generally received when
:he cor.ftitution was adopted, Mr. Livingfton 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 leall of deter
mining 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 dif
ferent articles. But he did not believe the general
cinftruftion at that time differed from the one he
had adopted. A member from Virginia, (Mr.
Brent) had (hewn, by recurring to the debates in
the Convention of that state, and to other contem
poraneous productions, thai the fratnersand friends
to the constitution con&rued it in in the manner
that we do ; whilst its enemies endeavored to ren
der it odious and unpopular by endeavouring 1 to fix
on it the contrary conftrudion. And as the friends
to the constitution were the moll numerous, we
ought rather to take the .explanation ysder irfeich
a majority accepted the constitution, as the true
one, than to look for it in the bug-bears by which
anti-fcderalifm endeavoured to prevent its adoption.
Livingftan's fpeecb to bt continued.J
Friday, May 6.
Mr. Richard Sprigg, jun, from Maryland, yef
tcrday took hit feat in the house, in the place of
Mr. Duval, some time ago resigned.
'Petitions praying the British treaty to be carried
into effect, were presented by Meflrs. Bradbury,
Bourne, D. Foster, S. Lyman, Brent, Wadfwortb,
Read, Williams, Van Alen, Sprigg, jun. Ruther
ford, Gilbert, and Hartley.
A bill fur the relief of Sylvanns Bourne, was
twice read, and ordered to be engrailed for a third
.reading.
The bill malting provision for certain debts of
the United States, was read a third timeand parted.
The blank for the sum which the President was en
titled to borrow on loan irredeemable for a number
of years, was filled up with five millions.
The bill for repealing that part of the aft relative
to the Diftri& Court of Pennsylvania being held al
ternately at Philadelphia and York-Town, was read
the third time and pafled.
Me(Tr», Sedgwick, Dearborn and Varmmt ob.
tained leave of abfenee for the remainder of the ses
sion.
Mr.; S. Smith laid A resolution to th« flowing
effect .upon the table :
"■ Resolved that therebe allowed andpaid for the
yew 4 796 to the fecretarie* of the treafary and
war department, the treasurer, comptroller, audi
tor, register, pwveyor anctattorney general,
per oent on their rcipc&ive salaries, in addition
thereto.'*.
The houfc took up the order of the day, and re
solved itfelf into a committee of the whole, Mr.
Bourne in the chair, on the report of the committee
to whom was referred the message of the President
relative to the territory of the United States south
of the «ver Ohio. The lefolution recommended
to the consideration of the howfe by that committee
(and the propriety of adopting or reje&ing which
was the fubjeft of debate yeftcrday and today,) was
in the following words ;
" Resolved, That by the authenlicated docu
ments accompanying the message from the Presi
dent of the United States to this house, on the |Bth
day of the prefcnt month, and by the ordinance of
bearing datethe 13th of July 1787, and
bys iawofthe Uriittd States passed on the a6thof
May 1790, it appears that the citizen* of that part
#£«> »{fr:
of the United States wh Ich has been called the ter
ritory of the United States fouth,of the river Ohio,
and which is now formed into a (late, under a re
publican form of government, by the name of Te
neffee are entitled to all the rights and privileges to
which the citizens of other states in the Union, are
-entitled utrder the contfitutioaof the United States,
and that the date ofTencflee is hereby declared
to be one of the iixteen United States of America/'
It appears by the ordinance of Congress pa?ed
in July, 1787, and by a law patted on the 26th of
May, 1790, that the people of this territory were
entitled to be become one of the states of the uaioa
when they fliouW amount to 60,000 free male in
habitants ; and the temporary Government conceiv
ing that number s were there at present, had pasTed
an a£t for taking a census, by which it appears,
there are upwards of 67,000, be'fides about 15';ooof
negroes ; they have, therefore, proceeded to form
themselves into a Hate, under the nanjie of the state
of Teneffee, and request to become a member of
the Union, and to fend repiefentativfs t» Congress
according to their population. The President, fame
time ago, sent the documents which he had receiir
ed from thence, to congress, giving it as his opi
nion that the state of Teneflee fhonld be admitted
into the union. That meflage was referred to a fe
left committee, who reported the above resolution.
It was obje&ed by members opposed to the reso
lution, that, before that state could be admittedints
the unfon, it (hould firft be declared a (late by Con
gress, and the number of its inhabitants ascertained
under the direction of Congress ; and that it was
pot fuf&cient for the state to declare itfelf entitled.
Some objections were also made to their conftit'u
tion, and to the manner of taking the census.
It was aflerted on the otlier hand, that the fact
ef there being 6i»,ooo free male inhabitants was
fufEeient to entitle them to become a state of the
Union : t'hat the census having been taken by the
legiflaiure of the ft ate (the governor and conncil
of which were appointed by the President of the
United States) was as good authority as they coufd
wilh, and fhat they ought not to be too ftri&i with
refpeft to forms, but admit the citizen# of that
i» untry to all the rights of freemen.
After feveiaf propositions being offeied in place
of the refoiution reported by the committee, which
were not received,
Therefolution of the feleft cotnmiltee p4fled,by "
yea* and nays, *s feiHows .
¥ E A S.
MefTrs. Bailey, Baird, Baldwin, Benton, Bloupf,
Brent, Bryan, Burgt(s, Claiborne, Clopton, Crabb,
Fjnaley, Franklin, Gallatin, Gillefpie, ' Giles,
Gregg, Hampton, Harnfon, Harper, Havens,
Heifter, Hollaud, Jackson, Locke, W. Lyman,
Maclay, Macon, Madrfon, Moore, "New, Nicholas,
Orr, Page, Preft'on, Read, Rutherford, I. Smith,
Sprigg, Tatem, Van Cortlandt, Venable— 42.
NAYS.
Mefirs. Bonrnr, Bradbury, Cliriftie, Coit, Dent,
A- Poller, D. Foster, Gilbert, Glenn, Goodrich,
Grifwold, Hartley, Henderfon, Hillhoufe, Hind
man, Kitchell, Leonard, S. Lyman, Malbone,
Sedgwick, Sitgreaves, Jer. Smith, N. Smith, Isaac
Smith, Wm. Smith, Thatcher, Tracy, Van Alen>
Wadfworth, Williams— 50.
A meflage was received from the Pref/dent, in
forming the house that he had approved and Ggn*d
the following acts, viz, an aft authorising a loan
for the city of Washington ; an aft for making
further provision relative to Revenue Cutters ; an
a& declaring consent to an aft of the state of Ma
ryland, appointing an Health Officer at Baltimore
and teethe several a6ls for carrying the treaties
with Spain, Great Britain, Algerines, .and thein
dian Tribes, into tffedl.
Adjourned.
•MRS. MARSHAL'S NIGHT.
NEW THEATRE.
On Monday E»cnirg, May g, will' be presented a celcbratcd
Tragedy, never performed here, called
Alexander the Great.
Or, THE RIVAL QUEENS.
Alexander, Mr. Moreton.
Hepheftion, Mr. Warrell, jun.
Lyfimachus, Mr. Maiftali.
Caffander, Mr Green.
Polyperchon, .Mr. Darley, ju».
Philip, Mr. Morgan.
C lit us, Mr. Whitlock,
•; •• Mr. Warrell.
PcrdicCas, Mr. Beetc.
Eumenes, Mr. Francis.
Slave, \ Mr. Mitchell.
: - . Roxana, Mr». Shaw.
Syfigambii, Mrs. Rowfon.
Paralatis, Mis« Willems.
Statira, Mrs, Marltiall.
in act II the grand Triumphal intry of Mexiniir ir.to Babylon, at
t&id:d ty_hu Gtncnti, Captains, &e with banners, trophies, (ic,,
The Vocal Parts by
Messrs. Marshall, Darley jun. Warrfcll, T. Waricll, Mitchell*)
Solomon—Mrs. Oldnnxou. M«s. Wanell, Mrs. Bates,
Miss Willems, Mrs. Solomon, Mfs. Hervev, Mrs,
Gillingham, Mrs. Doctor, Mifi Melbourne,
Mr*. De Marque.
To which will be added a grand serious Pantomime) ncvet
performed here, called
The Deserter of Naples.
As performed at the Theatres Covent Garden, Drury Lans,
and the Royalty, upwards of 200 nights.
General, S,g. Doflor.
Ruffe", Mr. Wanell.
Henry, Mr Marshall.
Skirmish, Mr. Bates.
Simkin, Mr- Francis.
_ J" lor ' , Mr. Bliffett.
Onicers, Meilrs. Darley, jun* Warrell, jun. Mitchell) Beeti.
Margaret, Mrs. Rowlon.
J en °yt_ __ Miss Mi 'bourne.
Mrs. Marshall.
Villagers, Messrs. Morgan, Solomon, T. Warrell—Mifs Wil
lems, Mrs. Bates, Mrs. Harvey, Mrs. Solomon, tylrs.
g f > Mrs. Gillingham, Mrs Do£lor. &c.
In act 11. a Jotemn military procejfion to the execution of Henry,
The Pantomime under the dire&ion of Mr, Francis.
Ticket* to be had at the usual places, and of Mrs. Marshall
No. 23 north Ninth street.
Wednesday, a comedy, never performed here, called
SUCH THINGS ARE, written by the authoreis of Every
one has his Fault, With A MOGUL TALI, or, The Def-
CCI I-« *!?, Balloon—For ihe Benefit of Mr. Darley.
K*S Night will be on Friday.
One Dollar—PlT, Three-Fourths of a Dollar—
tnd GALLERY, Haifa Dollar.
Places for the Boxes to be taken of Mr. Wells, at the
Fron of the Theatre:
No money or tickets to be returned; nor any person, 00
any account wfeatfocver, admitted behind the scenes.