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itors were adjusted and settled. As existing legislation conflicted to some extent with the provisions of the treaty, the question was at once raised whether Article VI of the Constitution, which makes treaties the supreme law of the land, obviated the necessity of new legislation to carry those provisions into effect, or whether the treaty was a simple contract which required congressional action to carry it out and render its stipulations effective and binding upon the people.

§ 286. General discussion of these questions.-All of these points were debated not only in Congress and in State Legislatures, but also by the people through the medium of the press and pamphlets, and at mass meetings.' It is necessary, therefore, to briefly review the historical facts connected with the negotiation and ratification of this treaty, as well as the proceedings in Congress relating thereto; this is the more important as questions which were almost identical, arose, and were debated on the same lines, in regard to treaties concluded at a later period, and which will be hereafter referred to.2

§ 287. John Jay's mission to England; negotiation of treaty.-John Jay was appointed Envoy Extraordinary to His Britannic Majesty, April 16, 1794. He was confirmed on the 19th, and went at once to London, where he entered into negotiations with the Foreign Office, then under the control of Lord Grenville; on the 19th of November, 1794, he concluded the treaty which ever since has been known by his name, and which was the basis of our commercial relations with Great Britain from its ratification until the war of 1812. The instrument reached the Secretary of State at Philadelphia on March 7, 1795, just after Congress had adjourned. The president called a special session of the Senate for June 8, 1795; when it convened Washington transmitted the treaty with a brief message, stating that it was "for you in your § 286.

1 See McMaster's History, vol. 2, chap. IX.

2 See § 299, p. 432, post, for reference to subsequent occasions on which this question was discussed in Congress.

§ 287.

1 The documents relating to John Jay's mission to England will be found in vol. I, Foreign Relations of the United States (Folio). They are condensed in Mr. J. C. Bancroft Davis' U. S. Treaties and Conventions, edition, 1889, pp. 1321-1322.

wisdom to decide whether you will advise and consent that said treaty be made between the United States and His Britan nic Majesty."2

§ 288. Ratification of treaty with amendment.-The Senate finally agreed to ratify the treaty provided Article XII, which related to the West India Treaty, would be suspended by an additional article. This concession was made by Great Britain, and the additional article was incorporated in the treaty; it was ratified, as thus amended, by the close vote of > 20 to 10, exactly two thirds, the required constitutional majority. The ratifications were signed by the President, transmitted to London and exchanged October 28, 1795.2

§ 289. Popular excitement; French and English parties. -From the time that the treaty was published until long after Congress had convened in December, meetings were held throughout the whole country, most of them for the purpose of denouncing the treaty, but some of them to urge its ratification. By reason of the great friendly feeling for France, and the unfriendly feeling against Great Britain, which naturally existed as the outcome of the war for Independence which had terminated less than a dozen years earlier, great party feeling was stirred up against the treaty, and to a great extent the people of the United States were divided into what might be called British and French parties; it was indeed a strange sight to see the people of this Republic divided on issues affecting two foreign European nations.1

$290. Meeting of Congress; message of the President. -While the treaty had a large majority in the Senate, such was not the case in the House of Representatives. Congress met on the 7th of December, 1795, and was opened, accord

2 Richardson's Messages of the Presidents vol. 1, p. 170.

§ 288.

1 For reference to other treaties similarly ratified with amendments see § 465, chap. XVI, Vol. II.

2 U. S. Treaties and Conventions, edition, 1889; pp. 379, 1321; see also McMaster's History of the People of the United States, vol. 2, chap. IX.

$289.

1 A graphic account of this national debate will be found in the 9th chapter of the 2d volume of McMaster's History of the People of the United States, to which students of this incident of American political history are referred, as in detail it would require more space than can be devoted to it in this volume.

§ 291 ing to the custom of those days, by the President, in person. No direct reference was made, however, to the treaty either in his opening address, or in the reply which it was then customary for the Houses to make to the President's address, except as the general hope was expressed in the House reply, that, by treaty and amicable negotiation, all causes of external discord might be "extinguished on terms compatible with our national rights and honor and with our Constitution and great commercial interests."1

Not until March 1, 1796, were the ratifications returned; the treaty together with the fact that the ratifications had been exchanged being transmitted in a message of less than six lines by the President to both Houses of Congress. Debate at once began in Congress as to the extent of the binding force of those stipulations in the treaty which either conflicted with existing legislation, or which required new legislation, or appropriations of money, to carry them into effect.

§ 291. Request of House of Representatives for papers relating to treaty.—On March 2d, Mr. Livingston offered a resolution requesting the President to lay before the House copies of the instructions to the Minister of the United States who had negotiated the treaty with Great Britain, together with the correspondence and other documents relating thereto, with the exception of such papers as any existing negotiations might render improper to be disclosed; debate then followed which lasted for more than two weeks, in which many leading members participated, and the treatymaking power was discussed in every phase and aspect, both as to its extent, and as to the effect of treaties upon legislation, both State and Federal. On March 24th, the resolution was carried by sixty-two to thirty-seven. Messrs. Livingston and Gallatin were sent as a committee to present the resolution to the President, who replied, as they reported to the House on their return, "that he would take it into consideration."

§ 290.

1 Richardson's Messages of the Presidents, vol. 1, p. 182–189.

§ 291.

1 Reference is again made to McMaster's History, vol. 2, chap. IX.

§ 292. President Washington's reply to the House.-The reply returned by the President to the House of Representatives, March 30, 1796, showed that he thoroughly appreciated the effect of acceding to the request, as well as the effect that the precedent, if established, might have in altering the entire plan of the Constitution, as to the powers and func tions of the Executive. He, therefore, declined to furnish the papers. This reply is one of those documents that will endure in the constitutional history of this country as long as the Constitution stands, a monument alike to Washington's astute diplomacy as well as to his great ability. It is of sufficient importance to be quoted at length, and it will be found in its entirety in the notes to this section.1

§ 292.

1" United States, March 30, 1796.

"To the House of Representatives

of the United States:

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

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

"I trust that no part of my conduct has ever indicated a disposition to withhold any information which the Constitution has enjoined upon the President as a duty to give, or which could be required of him by either House of Con

gress as a right; and with truth I affirm that it has been, as it will continue to be while I have the

honor to preside in the Government, my constant endeavor to harmonize with the other branches thereof so far as the trust delegated to me by the people of the United States and my sense of the obligation it imposes to 'preserve, protect, and defend the Constitution' will permit.

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a

§ 293. Effect of Washington's reply; action by the House. By this move Washington forced the House of Rep

small number of members.
mit, then, a right in the House of
Representatives to demand and to
have as a matter of course all the
papers respecting a negotiation
with a foreign power would be to
establish a dangerous precedent.

To ad- came the law of the land. It is thus that the treaty-making power has been understood by foreign nations, and in all the treaties made with them we have declared and they have believed that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the Constitution every House of Representatives has heretofore acquiesced, and until the present time not a doubt or suspicion has appeared, to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.

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

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

"There is also reason to believe that this construction agrees with the opinions entertained by the State conventions when they were deliberating on the Constitution, especially by those who objected to it because there was not required in commercial treaties the consent of two-thirds of the whole number of the members of the Senate instead of two thirds of the Senators present, and because in treaties respecting territorial and certain other rights and claims the

64 Having been a member of the General Convention, and knowing the principles on which the Constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the Government to concurrence of three-fourths of this moment my conduct has exemplified that opinion-that the power of making treaties is exclusively vested in the President, by "It is a fact declared by the Genand with the advice and consent of eral Convention and universally the Senate, provided two-thirds of understood that the Constitution the Senators present concur; and of the United States was the result that every treaty so made and of a spirit of amity and mutual promulgated thenceforward be- concession; and it is well known

the whole number of the members of both Houses, respectively, was not made necessary.

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