Washington and the American Republic, Vol. 3.

by Benson John Lossing

The treaty with Great Britain, ratified by King George, was returned to the United States government in February, much to the relief of its friends, and indeed of all parties. “We are wasting our time in the most insipid manner, waiting for the treaty,” wrote John Adams to his wife on the tenth of January. “Nothing of any consequence will be done till that arrives, and is mauled and abused, and then acquiesced in. For the antis must be more numerous than I believe them, and made of sterner stuff than I conceive, if they dare hazard the surrender of the posts and the payment for spoliations, by any resolution of the house that shall render precarious the execution of the treaty on our part.”

The federal constitution declaring a treaty, when duly ratified by the contracting powers, to be the law of the land, Washington, on the last day of February, issued a proclamation announcing the one just concluded with Great Britain, as such. This had been a mooted point. The president's proclamation decided that the treaty was law without further action of Congress; and it now remained for that body to make provision for carrying it into effect. The president sent it to both houses on the first day of March, with the following brief message:—

“The treaty of amity, commerce, and navigation concluded between the United States and his Britannic majesty having been duly ratified, and the ratifications having been exchanged at London on the twenty-eighth of October, one thousand, seven hundred and ninety-five, I have directed the same to be promulgated, and herewith transmit a copy thereof for the information of Congress.”

This action was the signal for both parties to prepare for a great struggle. The opposition, who had openly denied the right of the president to even negotiate a treaty of commerce, because, they said, it practically gave to the executive and senate the power to regulate commerce, were highly offended because the president had ventured to issue this proclamation before the sense of the house of representatives had been declared on the obligations of the instrument. This feeling assumed tangible form when, on the seventh of March, Edward Livingston, of New York, offered a resolution calling upon the president for copies of all papers relating to the treaty. This resolution, as modified on motion of Madison, was as follows:—

“Resolved, That the president of the United States be requested to lay before this house a copy of the instructions given to the minister of the United States, who negotiated the treaty with Great Britain, communicated by his message of the first instant, together with the correspondence and documents relating to the said treaty, excepting such of said papers as any existing negotiation may render improper to be disclosed.”

A warm debate immediately arose, and speedily took the form of a discussion on the nature and extent of the treaty-making power. “The friends of the administration maintained,” says Marshall, “that a treaty was a contract between two nations, which, under the constitution, the president, by and with the advice and consent of the senate, had a right to make; and that it was made when, by and with such advice and consent, it had received his final act. Its obligations then became complete on the United States, and to refuse to comply with its stipulations was to break the treaty and to violate the faith of the nation.

“The opposition contended that the power to make treaties, if applicable to every object, conflicted with powers which were vested exclusively in Congress. That either the treaty-making power must be limited in its operations, so as not to touch objects committed by the constitution to Congress, or the assent and co-operation of the house of representatives must be required to give validity to any compact, so far as it might comprehend those objects. A treaty, therefore, which required an appropriation of money or any act of Congress to carry it into effect, had not acquired its obligatory form until the house of representatives had exercised its powers in the case. They were at full liberty to make, or to withhold, such appropriation, or other law, without incurring the imputation of violating any existing obligation, or breaking the faith of the nation.”[91]

At the outset, a member had inquired the object of Mr. Livingston's motion, since on that would depend its propriety. It was contended, that if the impeachment of either Mr. Jay or the president was intended, it was a proper motion; but not so if the constitutionality of the treaty was to be questioned, because that must depend on the treaty itself. It was further inquired whether the house proposed to consider whether a better treaty might not have been made. Mr. Livingston did not disavow either of the objects suggested, but stated as his principal reason, a firm conviction that the house was vested with a discretionary power, allowing it to carry the treaty into execution or not. This consideration was made the chief point in the debate, in which Albert Gallatin took a leading part in favor of the resolution, well supported by Madison, Livingston, Giles, and Baldwin, and others of less note. It was opposed by Smith, of South Carolina, Murray, Harper, Hillhouse, and others. About thirty speeches on either side were made, and the debate did not terminate until the twenty-fourth of the month.

During this debate, the eloquent Fisher Ames was a member of the house, but was compelled by ill health to be silent. It was a great trial for the patriot, for he saw the need of soldiers for the contest. He had been, from the beginning, a warm friend of the government; and now, at what he deemed a crisis, he wished to lift up his voice in defence of its measures. To a friend in Springfield he wrote on the ninth of March, saying:—

“I sit now in the house; and, that I may not lose my temper and my spirits, I shut my ears against the sophisms and rant against the treaty, and divert my attention by writing to you.