From a Speech of the Hon. Henry R. Storr, delivered in the House of Representatives May 15, 1830 on the Bill for the removal of the Indians.
At the threshold of this inquiry, we shall find ourselves met with a very grave question, intimately connected with the treaty making power which I hope those who intend to sustain what has been done, will be able to answer to the satisfaction of the House. I am the more anxious to know their views of if, as we have heard some specious appeals to the friends of State rights to come forward on this occasion, and sustain their principles. The alarm has been sounded; and they have rushed to the standard with an alacrity which leaves us no reason to doubt that they have really believed their favorite doctrines to be in jeopardy. I fear that these appeals have had some influence upon the question before us.
If there was any point, on which, more than any other, the opposition to the adoption of the Constitution originally turned, and the influence of which has been felt by one of the great parties which divided the country, it was the apprehension that the new government was either too monarchical in principle, or would turn out to be so in practice. This alarm, too, was chiefly founded on the opinion that the Constitution had provided n o adequate security to the States by imposing definite and effectual limitations on the executive power and executive discretion. It has been a fruitless source of crimination whether just or unjust, upon one of the parties and especially upon general Hamilton and his friends that the tendency of their principles, and of the measures which they advised was to invest the President with powers which must prove fatal to the wholesome influence of the House of Representatives and destroy the control of the States in the Senate. Under these banners, battles have been fought and won; and laurels have either been, or thought to have been gathered. They have certainly been claimed as the rewards of victory, and are even yet worn here as the hereditary honors of the field.
The question before us does not involve the right of the President, in the recess of Congress, to decide, in the first instance for the regulation of his conduct until they can be convened, the mere construction of the terms of a treaty-nor to determine the effect of an infraction of any of its engagements by the other party. There is nothing ambiguous or of doubtful interpretation on the fact of the Cherokee and Creek treaties, and no pretence has been set up that they had been disregarded by the executive because these nations have not observed them on their part, and kept their faith with us honestly. They were well understood, originally on all sides, and are framed in language that cannot be perverted. There can be no quibbling as to the real intention of both parties. The terms are not susceptible of different significations, and the expressions used are definite and suitable to the subject matter of them. It is enough, however, that the Executive has not assumed to act on this ground, and the complaints of bad faith are unfortunately all on the other side. Nor are we examining whether the casus faederis has occurred under any treaty with a third party, by which any engagements on our part, not operative before, have come into force. He claims the broad power that it is for the Executive to determine the abrogation of our stipulations, because Georgia has enacted certain laws for more effectually exercising the jurisdiction which she claims over the Cherokee Nation and their lands. He maintains the right, in that department of the government, to treat the obligations, by which the United States are bound on the face of the treaties, as annulled from that time--that they shall be reduced to mean nothing any longer--in a word, that, from that time, they have no existence as treaties with the Cherokee or Creek nations. This is the doctrine which must be sustained, and it is this stretch of executive power which must be vindicated by those who support the measures of the President. The doctrine will reach our treaties with other powers, too, as well as those now before us; for we are examining the right of the Executive to determine such a question at all, in any case, and not whether he has decided it correctly in this.
But, Sir, the power asserted will be much higher than the Executive claims it to be. The assumption on which it ostensibly rests in the message is, that, by the happening of the contingency, that Georgia has extended her laws over the Cherokees, the treaty has now come into collision with the jurisdiction of the State, and must therefore be yielded. But the principle which lurks under this disguise really goes to the annihilation of the treaties from the beginning, and assumes that they were never binding on the United States at all. If they ever were so, no act of one of the States could discharge our obligations. The jurisdiction of Georgia must have been as perfect when these treaties were first made as it was in 1827, and the general laws of the State must have always applied to the Cherokee country. If the treaties are invalid now, they were always so. The right of Georgia to the improvements of the Cherokees, too, is as perfect as it is to their vacant lands. There is no hiding place half way. There is no middle ground on which the Executive can stand. I doubt if there was ever meant to be any, for less than the whole would not reach the object to be attained. The principle set up cannot be arrested at any point short of the total prostration of the treaties, and the unqualified power in the Executive to mould and fashion them, and to annihilate these or any other treaties at his own will and pleasure. He asks no advice from any other department, and consults no co-ordinate branch of the government. He acknowledges no obligation to such a question to Congress or even to the Senate.- His march is onward to the direct accomplishment of the executive will, as if the whole action of the government on this subject was the exclusive attribute of executive power. It is this, Sir, which has led to all our embarrassments, and brought about the present disorderly condition of the government in this matter. It is to support measures ' doctrines like these that appeals have been made on this occasion, to the friends of State rights. I think that if they examine their principles carefully, we have reason to believe that they will be found on the other side of the question.
It is well known that the disposition of the treaty-making power was one of the most difficult points to be settled in the Convention of 1787. In Europe, it was in the hands of the sovereign, and was liable to the greatest abuse. It had been used there for personal objects and perverted to the most mischievous designs of ambition. The whole policy of many of the European governments had been seriously involved in the exercises of this power, and it had led to measures the most fatal to their prosperity and peace. Indeed, Sir, many of the calamities which they suffered for a century may be traced to the abuse of this power in the hands of the crown. It was in the view of this evil, that, under our Constitution, it was considered unsafe to trust it to the Executive. In Europe it was prerogative; but here it was to be limited by the Constitution, and subjected to the control of the States in the Senate, where their sovereignty was equal. It was a political power, which so seriously effected the general policy of the country in its relations with other nations, as well as in its operation on the prosperity of the States at home, that it was even considered unsafe to intrust it to a majority of the States, and the concurrence of two thirds of the Senators was therefore required. For this purpose, the Senate is the council of the States, and the treaties are the acts of the States. The executive, is little more, in that respect, than the agent or organ of the States, in matters of negotiation. He may refuse to act at all, and shut the door of negotiation, or decline to submit his preliminary arrangements to the Senate. This was deemed to be quite as much power as could be safely trusted to his discretion. His will or his opinion, however, was nothing without their sanction. The treaties, therefore, express the will of the States, and not the capricious inclinations or the pleasure of the executive department. They would have been the supreme law of the land under the law of nations, without any express provision in the Constitution; but that sanction has been superadded, that there should be no question of supremacy. As they constitute the public law of the country, the treaty-making power was withheld from the Executive, because, under our Constitution, this was to be a government of law, and not of prerogative; for if his will was to have the force of law, that was, to a certain degree, despotism. When the Executive and the States have entered into a treaty, the Constitution has attached its sanction to it, and giver it all its efficacy. Its validity rests upon that, and its force and operation, are sustained by that. When once fixed and adopted as the law of the land, the Executive has no dispensing power. His own duty is plainly prescribed in the Constitution. The control of the States over his will has been constitutionally interposed to very little purpose, if treaties are to take effect or not, or be suspended in their operation afterwards, at his pleasure, without any violation of them by the other party. They are clothed with a sanctity which entitles them to higher respect than our mere municipal regulations. There are two parties to them, and the public faith secures their inviolability. And yet it has been gravely asserted, and attempted to be maintained, that after the States have entered into treaties, the Executive may revise their solemn acts-that he may judge over the States and above the States-that he may entertain an appeal from them to himself or his cabinet-that he may virtually abrogate their treaties by an order in council, and give the force of law to an executive proclamation.
The treaties and laws of nations constitute the public law of the Union. They deeply concern private right, as well as the political relations of the country. If a question should arise between one of your citizens and the government or a foreign power, would the judiciary regard an interposition of the executive, which professed to exercise the right of impugning the integrity of your treaties The power, Sir, to adjust and settle the conventional law of all countries, must exist somewhere in all governments. It is vested here in the States themselves, and when they have established it, the political rights of others become irrevocable. You are denied the power of unsettling it, or revoking your obligation at your own pleasure. Above all things we have never trusted the Executive with that dangerous prerogative. The Senate was vested with the power to determine the conventional law of the Union, because they are the peculiar guardians and conservators, as well as the representatives of the States, in the exercise of that function of their sovereignty. In such matters as, in the exercise of this high political attribute, might affect their citizens or their own jurisdiction, it could be safely trusted no where else. The individual States were denied this power, because that might defeat the conventional law of the whole. There is nothing new, or suggested for the first time, in that operation of treaties, which to some extent, affects and controls their domestic jurisdiction, and impairs, in some degree, what gentlemen have so tenaciously held to, as the reserved rights of the States. Every treaty of limits must have that operation. The treaty of 1783 abrogated all the State laws which impeded the recovery of the British debts, and prohibited the States from passing any in future.- Yet the old Congress had no jurisdiction over that matter, except as a result of the treaty-making power. In the letter of Mr. Jefferson to Mr. Hammon, of 29th of May, 1792, he says that it was always perfectly understood that the treaties controlled the laws of the States-the Confederation having made them obligatory on the whole; that Congress had so declared and demonstrated them; that the legislatures and executives of most of the States had admitted it; and that the judiciaries, both of the separate and general governments, had so decided. He stated further, that the formal repeal of the laws of the States was all supererogation, and showed that Georgia herself had so considered it, and her courts had so adjudged. It was every where considered that these laws of the States were annulled by the treaty. It would be quite easy to refer to numerous instances of the same sort, in various treaties since the adoption of the present constitution. As it was foreseen that such must of necessity be their effect by the law of nation, that feature of the old Confederation, which retains this power in the hands of the States by the federative representation of these sovereignties in the Senate, is continued under the present Constitution. It was confided to, or rather reserved to the States there, as a political Confederation of sovereignties that they might determine for themselves how far, to what objects, the conventional law of the Union should be extended. It is not, in any sense, the dismemberment of the sovereignty of the States. That suggestion is a mere abuse of words. It may as well be said that the sovereignty of a particular State is dismembered by the constitutional operation of the laws of Congress for regulating the commerce of the country. The thing of which gentlemen speak is the totality of sovereignty, which exists no where under our institutions. I consider that the States have, in the strictest sense, retained to themselves in the Senate, their own control of their reserved rights in the exercise of the treaty-making power. It is safely placed there under their own conservation, and they are bound, in good faith to the Union, to respect the treaties which are there entered into. They are represented and act there as in their original capacity.- They could not act with convenience or usefulness in any other way.- Their rights are safe in their own council. What is constitutionally settled there, becomes their public law, and they are bound to observe it. It is not perhaps strictly a legislative power, though Mr. Madison has treated it, in a publication to which I shall presently refer, as partaking much of that character. The Constitution declares that 'all legislative powers' therein granted shall be vested in Congress. It is not; however, essential to the views which I take of the question, to consider that point.
The course of the Executive has overturned these constitutional securities of the States, and swept away their power. His doctrines fall nothing short of an assumption of the power of Congress to abrogate the public treaties in a case of high and uncontrollable necessity by exercising the power of declaring war. If the friends of State rights propose to sanction the violation of these Indian treaties, they must bear him out to the full extent of this thoughtless usurpation. This question is not altogether new, though no stretch of executive prerogative like this has ever before occurred or been claimed under any administration. I presume that gentlemen are familiar with the history of the Proclamation of Neutrality, issued by General Washington in 1793. This declaration by the President of the disposition of the government to remain at peace, and warning our citizens to abstain from any act that might involve them or the government in the war, was looked upon with jealousy. it was a topic of much remark, and was closely scrutinized. Yet it violated no treaty. It assumed to suspend none of our obligations, and settled no question arising upon them. General Washington neither claimed nor exercised such a power. The Proclamation was precisely what it professed to be, and no more. The administration assumed a posture of neutrality and the Proclamation declared the intention of the President not to change the relations of the Government, until Congress should convene and settle that question. In the mean time, our citizens were forewarned, that if they mingled with the parties to the war, and took part with either side, the government would not extend its power for their protection. It was unanimously sanctioned in the cabinet. Mr. Jefferson approved it, and has informed us that he 'admitted that the President, having received the nation at the close of Congress, in a state of peace, was bound to preserve it in that state till Congress should meet again; and might proclaim anything which went no further.' Whether the Proclamation was to be treated as implying a pledge of future neutrality was another matter, and a speculative question. But General Washington and his administration were uncommitted to any such construction of it. It was an abstract question, and the President at the opening of the next session of Congress, laid the whole subject before them for their constitutional action upon it. General Hamilton fully declared, that no opinion of the President, on the point of neutrality or the French guaranty, could in the least effect the question; and the message simply announced the issuing of the Proclamation and its real object. Mr. Madison had furnished us with his opinions on the nature of the treaty-making power, in the letters of Helvidius. The friends of State rights may clearly see, in that commentary, in what direction the government is advancing, if the measures of the Executive, since the adjournment of the last Congress are sanctioned by this House. The power he has exercised involves the assumption of the most transcendental sovereignty of the States, and prostrates every other department of the Government. The Executive may in other ways bring you into collision with foreign nation, on his responsibility to those who may constitutionally call him to answer; but in the case before us, I consider that he has acted by open usurpation. It should be quite enough that he may, in the exercise of his confessed powers, force you into war against your own will, without yielding him the power to enthrone himself above the Constitution. If, on any question which involves the construction of a treaty-much more its validity- he may assume the powers of the Senate, the Judiciary and Congress, there is no longer any power in the government which can be said to have been limited by the Constitution at all. It is a bold step indeed of executive prerogative, and I have been surprised to find that gentlemen in this house sit down so quietly under it. I was anxious, in the early part of the session to know how it might be received by the Senate; but my doubts were entirely removed when this bill appeared at your door.- They have capitulated. They are completely disarmed, and have been marched out of their entrenchments without the honors of war. The duty of the Executive in this matter, was exceedingly plain. If he doubted as to the validity or operation of these treaties, the example of his predecessors were before him. He should have at least paused before he moved so rashly-have kept all thing in the condition in which they stood, and submitted the whole case to Congress. The first suggestion made to the Cherokee delegation was right; and it is to be lamented that it was ever revoked or withdrawn. What is to be our security to our European treaties? If the Executive doubts as to the construction or validity of those too, shall he cut the knot for himself, and dissolve their obligations? Our commercial treaties have no greater sanctity that any other. Is your foreign trade and intercourse with other nations to be at his mercy too? I am not aware that the laws of Congress have any greater sanctions than your treaties. You have many treaties with other nations for the advantage of your citizens. Shall the Executive so deal with these, too, as to prostrate your navigation or subject it to retaliation He may annul the stipulation of treaties made to favor your own trade; for if he can overleap the law of nations and the Constitution, by revoking those which favor others, you have no better security than his will for yourselves. He can release them from their stipulations in your favor as well as those which operate against them. If he should think that all his predecessors and former Senators have been wrong headed on other points and that they have been too liberal to particular interests or have favored commerce, or navigation or manufactures too much, it is only for the Executive to put forth his prerogative, and your constitutional securities are at his hand.
I am ready to admit that a case of high and uncontrollable necessity may occur, so deeply involving the fate of the country, or so seriously affecting its safety, that the President, submitting himself to a high responsibility, may feel it to be his duty to decline the execution of a treaty until Congress can be convened. But his duty in such a case is very clear. He may suspend acting upon it altogether, but he has no power to determine such a question finally for himself. He must submit it to Congress. If a treaty is to be declared void, it is for Congress only to annul it. The President and Senate cannot do it unless by negotiation. But, Sir, these are extreme cases, and that before us is not one of them.- The President has not acted, or professed to act, with any such views. He has given to the other party his own final determination of the question, and has acted upon it throughout. He declined to suspend the matter at all till the case could be sent here, and directed the Secretary of War Department to inform the Cherokee delegation that the course of the government was changed, and to communicate to them his final decision. He asks us now for no opinion upon it; but, considering it settled, we are called upon to appropriate some millions to relieve the other party from the condition to which this decision has reduced them. I know that there is apathy here under these assumptions of the Executive; but we are bound to resist these encroachments on the powers of Congress at the beginning. This is not a distant alarm. The invaders are within this hall. His manifesto is on your table; and, at the next step, we too, shall have surrendered at discretion. I have often thought that, after all, those who usurp authority were not so much to blame as were commonly consider them to be, when we find others so ready to yield up the powers of government into their hands. Rome preserved her liberties until her public councils prepared the way for one family to establish itself on their ruins; and the Tudors and Stuarts did not rule in England by proclamation, until servile parliaments looted upon the advances of prerogative at least with indifference. If these encroachments of the executive department are not met and repelled in these halls, they will be resisted no where. The only power which stands between the Executive and the States is Congress. The States may destroy the Union themselves by open force, but the concentration of power in the hands of the Executive leads to despotism, which is worse. Of the two evils, I should prefer the nullifying power in the States. It is less dangerous, and admits of surer remedy. A single State may occasionally sit unquietly under the measures of government, but the good sense of the people will set all things right in the end. But the executive department never yields up power. The whole Union will sooner or later feel the shock, if this control of our treaties shall be surrendered. The mischief will reach everywhere, and is irreparable. The judiciary may partially protect individual right, but there are two parties to the treaties, and one of them will not always be under your control. We have already reached a point in legislation, at this session where we should pause and seriously consider in what path we are advancing. There are several bills now on your table, formally prepared in the committee rooms of the House and reported here, which confer powers of an extraordinary character on the Executive. When you shall have passed the bill now under consideration, which places your territory west of the Mississippi at his sole disposal, the two bills relating to the army and navy, the reciprocity act reported a few days ago by one of my colleagues, and yielded up the power claimed over your treaties, this government will scarcely be a masked monarchy. The Constitution will have become a blank paper, and the first dictator may come to your table and write his decrees upon it at his pleasure. It may not become me to address and admonition to this House, and it would profit nothing from me or any man, if history has already done it so often in vain. But it is at least time for us, as prudent men, to open that book at almost any page, and read the fate of all republics that have gone before us and perished; or, if we are not admonished by the past, to look around us, and see what is passing in the world in our own day. What is now the condition of South America, in whose emancipation we felt so deep an interest; and where we hoped to find the cause of free government strengthened against the alliances of its enemies? Disunion has blasted our hopes. Slavish Congresses have there betrayed their country, and the power of that whole continent is swayed by bands of reckless despots. Yet, while their liberties have been crushed, we find in Europe that in spite of the power of kingly alliances, the parliament of one government at least, and that, too, once the most despotic of them all, is successfully limiting the power and influence of the crown. Shall we, then, strengthen the hands of the Executive here as one of the securities of the rights of the States? I know very well the answer which gentlemen are ready to offer on this occasion. We are to be told that his decision has been in favor of the States. It is this which leads us to look upon his measures with complacency; and this is the soothing opiate by which he has quieted our fears. I should like to hear the answer to another question. What will be the decision of the Executive in the next case? Will that be in favor of the States, or against them? I will tell you, Sir. They will not be suffered to ask the question. When they have conceded the power to settle such a matter for himself, the Executive will take care to exercise his new prerogative without consulting them. We may see on this occasion, in the clearest light the tendency of executive power in these collisions which occasionally spring up in every federative government between the members of it and the head. This department is constantly on the watch, and seldom fails to secure to itself the arbitrament of every such matter. This third party is every lying in wait for power. Under some plausible disguise, it attracts the confidence of the parties, and not unfrequently by appeals to the pride as well as the interests of States it secures itself in its usurpations, and leads them willingly to rivet their own chains. If the Executive had decided that all our former treaties with the Cherokees and Creeks had been void, as to the cessions of land which some of the States have received under them, should we not have witnessed a very different feeling here? Should we not have heard something-and that, too, quiet earnestly-of plighted faith--of solemn treaties--and the constitutional securities of the States? By what process of infatuation, or by what operation of self love or State pride, have we brought ourselves to yield to the Executive the power to pronounce these treaties to be worthless to the other parties? There can be no tyranny worse than that which refuses to be governed by its own rule.
I find that we have entered into more than two hundred treaties with the Indian nations since the Declaration of Independence. Fifteen are with the Cherokees alone, and all but one of these have been made since the adoption of the present Constitution. They have been made under every administration. Commissioners for treating have been nominated to the Senate, and regularly commissioned for this purpose. Every Senate since 1789 has ratified them; and they are proclaimed by the Executive like all other treaties. The statesmen whose names have sanctioned them are: Washington, Adams, Jefferson, Madison, and Monroe. I see among them, too, the name of the present Chief Magistrate. It is in the face of such a case as this, that we have heard the validity of Indian treaties denied, and the history of this government for half a century treated as a deliberate system of jugglery and imposture.