§ 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 functions 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.

gress as a right; and with truth I 1" United States, March 30, 1796. affirm that it has been, as it will

"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

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. To ad- came the law of the land. It is mit, then, a right in the House of Representatives to demand and to have as a matter of course all the pipers respecting a negotiation with a foreign power would be to establish a dangerous precedent.

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 "It does not occur that the inspec- advice and consent of the Senate, tion of the papers asked for can be they became obligatory. In this relative to any purpose under the construction of the Constitution cognizance of the House of Repre- every House of Representatives sentatives, except that of an im- has heretofore acquiesced, and peachment, which the resolution until the present time not a doubt has not expressed. I repeat that or suspicion has appeared, to my I have no disposition to withhold knowledge, that this construction any information which the duty was not the true one. Nay, they of my station will permit or the have more than acquiesced; for till public good shall require to be now, without controverting the disclosed; and, in fact, all the pa-obligation of such treaties, they pers affecting the negotiation with have made all the requisite proGreat Britain were laid before the visions for carrying them into Senate when the treaty itself was effect. 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 concurrence of three-fourths of the whole number of the members of both Houses, respectively, was not made necessary.

"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 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

resentatives to recognize the fact that the treaty-making power of the Constitution was lodged in the Executive, subject only to the ratification of two-thirds of the Senate, and that the House could not participate therein as a matter of right, to any extent whatever; a resolution was at once passed by the House of Representatives, which recognized the sound basis on which the President's reply was based, and in which that body distinctly disclaimed any agency in making treaties, but asserted the principle that when a call was made on the President for information it was not necessary to state why the information was wanted; the object of this resolution was evidently to convey the idea that the House did not wish to investigate as to how the Executive had made the treaty, but to ascertain what legislation was necessary to carry it into effect, and what the duty of the House was in this respect. It was, however, a distinct victory for the Executive.1

§ 294. Other treaties ratified by the Senate, and before the House. Meanwhile other treaties had been negotiated with Spain, Algiers, and some of the Indian tribes, all

"As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legis

that under this influence the smaller States were admitted to an equal representation in the Senate with the larger States, and that this branch of the Government was invested with great powers, for on the equal participation of those powers the sovereignty and politi-lative provision, and on these the cal safety of the smaller States were deemed essentially to depend. "If other proofs than these and the plain letter of the Constitution itself be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the Department of State. In those journals it will appear, that a proposition was made that no TON." Richardson's Messages of the Presidents, vol. 1, p. 194–196. § 293.

treaty should be binding on the United States which was not rati'fied by law,' and that the proposition was explicitly rejected.

papers called for can throw no light, and as it is essential to the due administration of the Government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request. Go. WASHING

1 See McMaster's History, vol. II, chap. IX, p. 276.

of which had been ratified by the Senate; the House, therefore, had before it at this time no less than four treaties, every one of which had, according to the Constitution, become the supreme law of the land, but all requiring more or less Congressional legislation to make them operative in certain respects, such as tariff, tonnage dues, establishment of commissions and appropriations; the chief questions which had been raised in regard to the treaty with Great Britain were equally applicable to all of the treaties, and they necessarily assumed even greater proportions than before, so that the position became more and more complicated as the debate continued.

295. Fisher Ames's address and argument; treaty legislation enacted.—The leading speech of this debate was made by Fisher Ames,1 in Committee of the Whole in support of a resolution for the enactment of legislation to carry the treaties into effect; under the influence of a great burst of oratory from that eminent Bostonian, the resolution was adopted by a tie vote of the Committee, which was made affirmative by the casting vote of the chairman; the Committee at once rose, the session of the House was resumed, and the resolution carried by a vote of fifty-one to fortyeight. On May 6, 1796, the legislation was enacted and approved, giving effect to all provisions of the above mentioned treaties which required legislative assistance.2

§ 296. Position of House of Representatives in treaty matters defined. Thus ended the first of the great parliamentary battles fought by the House of Representatives to gain control of the treaty-making power of the United States; while one point was definitely settled, other points still remain unsettled, as several of them do to-day. It was definitely decided that the House of Representatives had no voice whatever in the negotiation or ratification of a treaty; that the treaty-making power is vested exclusively in the Executive, subject only to the prescribed ratification by two

$295.

1 For an account of Mr. Ames, and this address, see McMaster's History, vol. 2, chap. IX, pp. 277, et seq.

2 Fourth Congress, Sess. I, chapters XVII, XVIII, XIX and XX; 1 U. S. Stat. at L. 459, 460. The acts are very brief, the four together occupying only a page and a half.

thirds of the Senate; that when the Executive makes a treaty and the Senate ratifies it in a constitutional manner, the treaty becomes the supreme law of the land; on the other hand, as was subsequently stated by Chief Justice Marshall in one of the opinions which will be referred to at greater length in a subsequent chapter,' it was practically decided that although a treaty becomes the supreme law of the land as soon as it is ratified as to every provision which can be enforced without legislation, it remains ineffectual as to those matters which do require legislation, or the appropriation of money, and can only be enforced after both Houses of Congress enact appropriate legislation, in the shape of entirely new laws, or those which modify or repeal such existing statutes as conflict with the treaty, or which appropriate money to carry out such provisions as entail expenditures and payments.

$297. Practical results of this method.-During the ninety-five years which have elapsed since the debate over the Jay treaty in the House of Representatives many statutes have been passed to carry out treaty stipulations,1 both as to appropriations and other measures necessary to make treaties negotiated by the Executive and ratified by the Senate effective. Many of these statutes have been modifications of tariff and tonnage laws, some of them general in their nature and scope, and therefore applicable to all treaties of the class referred to in the statutes, and others specific and applicable only to the treaty specified. It would hardly be worth while to enumerate all of them; a few examples are given in the notes appended to this section, which indicate the vari$296.

1 Foster & Elam vs. Neilson, U. S. Sup. Ct. 1829; 2 Peters, 253, MARSHALL, Ch. J., and see § 314, post, and § 364, Vol. II.

§ 297.

1 Reference has already been made to the statutes carrying out the treaties with Great Britain and other powers in May, 1796 (see note 2, § 295, ante).

Many of the statutes enacted by Congress carrying out the provi

sions of claims conventions will be found either in full, or fully referred to, in Moore's History of Arbitration under the history of the various arbitrations, or adjustments by commissions between the United States and foreign governments.

After the treaties with Great Britain in regard to Canadian matters, fisheries, reciprocal tariff arrangements, etc., statutes have always been passed to make the