Washington and the American Republic, Vol. 3.

by Benson John Lossing

“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 small number of members. To admit, 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.

“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 situation 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.

“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 and with the advice and consent of the senate, provided two thirds of the senators present concur; and that every treaty, so made and promulgated, thenceforward became 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 obligations of such treaties, they have made all the requisite provisions for carrying them into effect.

“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 both houses respectively was not made necessary.

“It is a fact decided by the general convention, and universally understood, that the constitution of the United States was the result of a spirit of amity and mutual concession.

“And it is well known 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 political 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 treaty should be binding on the United States which was not ratified by a law,' and that the proposition was explicitly rejected.

“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 legislative provision, and on these the 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. George Washington.”

[94] Earnest petitions from these had been sent in to Congress, representing that the property of merchants of the United States, to the amount of five millions of dollars, had been taken from them by the subjects of Great Britain, for which they wanted restitution, and, for that purpose, prayed for measures to execute the provisions of the treaty.