A gentleman from New York (Mr. Williams) had read to them an amendment proposed in the Convention of that state, by which it was required that a treaty should not abrogate a law of the United States; from whence he inferred that that Convention understood the treaty-making powers would have that effect, unless the amendment was introduced.
The gentleman, however, forgot to inform the committee that the amendment did not obtain; and, therefore, that the inference was the reverse of what he stated. Leaving, however, to other gentlemen, to make further remarks on the debates of the Conventions of their respective states, he would conclude what he had to say on that ground, by adverting to the debates of the Pennsylvania Convention.
The only part of those debates which had been printed contained the speeches of the advocates of the Constitution; and although the subject was but slightly touched, yet what was said on the subject by the ablest advocate of the Constitution in Pennsylvania, by the man who had been most efficient to enforce its adoption in that state, would be found to be in point. He then read the following extracts from Judge Wilson's speech, (page 468, Debates of the Pennsylvania Convention:) "There is no doubt but, under this Constitution, treaties will become the supreme law of the land; nor is there doubt but the Senate and President possess the power of making them."
Mr. Wilson then proceeds to show the propriety of that provision, and how unfit the legislature were to conduct the negotiations; and then expresses himself in the following words: "It well deserves to be remarked that, though the House of Representatives possess no active part in making treaties, yet their legislative authority will be found to have strong restraining influence upon both President and Senate. In England, if the king and his ministers find themselves, during their negotiation, to be embarrassed because an existing law is not repealed, or a new law enacted, they give notice to the legislature of their situation, and inform them that it will be necessary, before the treaty can operate, that some law be repealed, or some be made. And will not the same thing take place here?"
Mr. MADISON. 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.
If the propositions 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 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 mentioned the permission to aliens to hold lands in perpetuity, as a very extraordinary feature in this part of the treaty. He would not inquire how far this might be authorized by constitutional principles; but he would continue to say, that no example of such a stipulation was to be
