The constitutional question being thus squarely introduced, Mr. Gallatin made an elaborate speech, which, from its conciseness in statement, strength of argument, and wealth of citations of authority, was, to say the least, inferior to no other of those drawn out in this memorable struggle. In its course he compared the opinion of those who had opposed the resolution to the saying of an English bishop, that the people had nothing to do with the law but to obey it, and likened their conduct to the servile obedience of a Parliament of Paris under the old order of things. He concluded with the hope that the dangerous doctrine, that the representatives of the people have not the right to consult their discretion when about exercising powers delegated by the Constitution, would receive its death-blow. Griswold replied in what by common consent was the strongest argument on the Federal side. The call, at first view simple, had, he said, become a grave matter. The gist of his objection to it was that the people in their Constitution had made the treaty power paramount to the legislative, and had deposited that power with the President and Senate.
Mr. Madison once more rose to the constitutional question. He said that, if the passages of the Constitution be taken literally, they must clash. The word supreme, as applied to treaties, meant as over the state Constitutions, and not over the Constitution and laws of the United States. He supported Mr. Gallatin's view of the congressional power as coöperative with the treaty power. A construction which made the treaty power omnipotent he thought utterly inadmissible in a constitution marked throughout with limitations and checks.
Mr. Gallatin again claimed the attention of the House, as the original question of a call for papers had resolved itself into a discussion on the treaty-making power. In the treaty of peace of 1783 there were three articles which might be supposed to interfere with the legislative powers of the several States: 1st, that which related to the payment of debts; 2d, the provision for no future confiscations; 3d, the restitution of estates already confiscated. The first could not be denied. “Those,” he said, “might be branded with the epithet of disorganizers, who threatened a dissolution of the Union in case the measures they dictated were not obeyed; and he knew, although he did not ascribe it to any member of the House, that men high in office and reputation had industriously spread an alarm that the Union would be dissolved if the present motion was carried.” He took the ground that a treaty is not valid, and does not bind the nation as such, till it has received the sanction of the House of Representatives. Mr. Harper closed the argument on the Federal side. On March 24 the resolution calling for the papers was carried by a vote of yeas 62, nays 37, absent 5, the speaker 1 (105). Livingston and Gallatin were appointed to present the request to the President.
On March 30 the President returned answer to the effect that he considered it a dangerous precedent to admit this right in the House; that the assent of the House was not necessary to the validity of a treaty; and he absolutely refused compliance with the request. The letter of instructions to Jay would bear the closest examination, but the cabinet scorned to take shelter behind it, and it was on their recommendation that the President's refusal was explicit. This message, in spite of the opposition of the Federalists, was referred, by a vote of 55 yeas to 37 nays, to the committee of the whole. This reference involved debate. In his opposition to this motion, Mr. Harper said that the motives of the friends of the resolution had been avowed by the “gentleman who led the business, from Pennsylvania;” whereby it appears that Mr. Gallatin led the Republicans in the first debate. During this his first session he shared this distinction with Mr. Madison. At the next he became the acknowledged leader of the Republican party.
On April 3 the debate was resumed. This second debate was led by Mr. Madison, who considered two points: 1st, the application for papers; 2d, the constitutional rights of Congress. His argument was of course calm and dispassionate after his usual manner. The contest ended on April 7, with the adoption of two resolutions: 1st, that the power of making treaties is exclusively with the President and Senate, and the House do not claim an agency in making them, or ratifying them when made; 2d, that when made a treaty must depend for the execution of its stipulations on a law or laws to be passed by Congress; and the House have a right to deliberate and determine the expediency or inexpediency of carrying treaties into effect. These resolutions were carried by a vote of 63 to 27.
There was now a truce of a few days. In the meanwhile the country was agitated to an extent which, if words mean anything, really threatened an attempt at dissolution of the Union, if not civil war itself. The objections on the part of the Republicans were to the treaty as a whole. Their sympathies were with France in her struggle for liberty and democratic institutions and against England, and their real and proper ground of antipathy to the instrument lay in its concession of the right of capture of French property in American vessels, whilst the treaty with France forbade her to seize British property in American vessels. The objections in detail had been formulated at the Boston public meeting the year before. The commercial cities were disturbed by the interference with the carrying trade; the entire coast, by the search of vessels and the impressment of seamen; the agricultural regions, by the closing of the outlet for their surplus product; the upland districts, by the stoppage of the export of timber. But the country was without a navy, was ill prepared for war, and the security of the frontier was involved in the restoration of the posts still held by the British.
The political situation was uncertain if not absolutely menacing. The threats of disunion were by no means vague. The Pendleton Society in Virginia had passed secession resolutions, and a similar disposition appeared in other States. While the treaty was condemned in the United States, British statesmen were not of one opinion as to the advantages they had gained by Grenville's diplomacy. Jay's desire, expressed to Randolph, “to manage so that in case of wars our people should be united and those of England divided,” was not wholly disappointed. And there is on record the expression of Lord Sheffield, when he heard of the rupture in 1812, “We have now a complete opportunity of getting rid of that most impolitic treaty of 1794, when Lord Grenville was so perfectly duped by Jay.”[4] Washington's ratification of the treaty went far to correct the hasty judgment of the people, and to reconcile them to it as a choice of evils. Supported by this modified tone of public opinion, the Federalists determined to press the necessary appropriation bills for carrying the treaties into effect. Besides the Jay treaty there were also before the House the Wayne treaty with the Indians, the Pinckney treaty with Spain, and the treaty with Algiers. With these three the House was entirely content, and the country was impatient for their immediate operation. Wayne's treaty satisfied the inhabitants on the frontier. The settlers along the Ohio, among whom was Gallatin's constituency, were eager to avail themselves of the privileges granted by that of Pinckney, which was a triumph of diplomacy; and all America, while ready to beard the British lion, seems to have been in terror of the Dey of Algiers. Mr. Sedgwick offered a resolution providing for the execution of the four treaties. Mr. Gallatin insisted on and received a separate consideration of each. That with Great Britain was reserved till the rest were disposed of. It was taken up on April 14. Mr. Madison opened the debate. He objected to the treaty as wanting in real reciprocity; 2d, in insufficiency of its provisions as to the rights of neutrals; 3d, because of its commercial restrictions. Other Republican leaders followed, making strong points of the position in which the treaty placed the United States with regard to France, to whom it was bound by a treaty of commercial alliance, which was a part of the contract of aid in the Revolutionary War; and also of the possible injustice which would befall American claimants in the British courts of admiralty.
The Federalists clung to their ground, defended the treaty as the best attainable, and held up as the alternative a war, for which the refusal of the Republicans to support the military establishment and build up a navy left the country unprepared. In justice to Jay, his significant words to Randolph, while doubtful of success in his negotiation, should be remembered: “Let us hope for the best and prepare for the worst.” To the red flag which the Federalists held up, Mr. Gallatin replied, accepting the consequences of war if it should come, and gave voice to the extreme dissatisfaction of the Virginia radicals with Jay and the negotiation. He charged that the cry of war and threats of a dissolution of the government were designed for an impression on the timidity of the House. “It was through the fear of being involved in a war that the negotiation with Great Britain had originated; under the impression of fear the treaty had been negotiated and signed; a fear of the same danger, that of war, had promoted its ratification; and now every imaginary mischief which could alarm our fears was conjured up in order to deprive us of that discretion which this House thought they had a right to exercise, and in order to force us to carry the treaty into effect.” He insisted on the important principle that 'free ships make free goods,' and complained of its abandonment by the negotiators.
In a reply to this attack upon Jay, whose whole life was a refutation of the charge of personal or moral timidity, Mr. Tracy passed the limits of parliamentary courtesy. “The people,” he said, “where he was most acquainted, whatever might be the character of other parts of the Union, were not of the stamp to cry hosannah to-day and crucify to-morrow; they will not dance around a whiskey pole to-day and curse their government, and upon hearing of a military force sneak into a swamp. No,” said he, “my immediate constituents, whom I very well know, understand their rights and will defend them, and if they find the government will not protect them, they will attempt at least to protect themselves;” and he concluded, “I cannot be thankful to that gentleman for coming all the way from Geneva to give Americans a character for pusillanimity.” He held it madness to suppose that if the treaty were defeated war could be avoided. Called to order, he said that he might have been too personal, and asked pardon of the gentleman and of the House.
The brilliant crown of the debate was the impassioned speech of Fisher Ames, the impression of which upon the House and the crowded gallery is one of the traditions of American oratory. The scene, as it has been handed down to us, resembles, in all save its close, that which Parliament presented when Chatham made his last and dying appeal. Like the great earl, Ames rose pale and trembling from illness to address a House angry and divided. Defending himself and the Federal party against the charge of being in English interest, he said, “Britain has no influence, and can have none. She has enough—and God forbid she ever should have more. France, possessed of popular enthusiasm, of party attachments, has had and still has too much influence on our politics,—any foreign influence is too much and ought to be destroyed. I detest the man and disdain the spirit that can ever bend to a mean subserviency to the views of any nation. It is enough to be American. That character comprehends our duties and ought to engross our attachments.” Considering the probable influence on the Indian tribes of the rejection of the treaty, he said, "By rejecting the Posts we light the savage fires, we bind the victims.... I can fancy that I listen to the yells of savage vengeance and shrieks of torture. Already they seem to sigh in the west wind,—already they mingle with every echo from the mountains." His closing words again bring Chatham to mind. “Yet I have perhaps as little personal interest in the event as any one here. There is, I believe, no member who will not think his chance to be a witness of the consequences greater than mine. If, however, the vote should pass to reject, and a spirit should rise, as rise it will, with the public disorders to make confusion worse confounded, even I, slender and almost broken as my hold upon life is, may outlive the government and Constitution of my country.” This appeal, supported by the petitions and letters which poured in upon the House, left no doubt of the result. An adjournment was carried, but the speech was decisive. The next day, April 29, it was resolved to be expedient to make the necessary appropriations to carry the treaty into effect. The vote stood 49 ayes to 49 nays, and was decided in the affirmative by Muhlenberg, who was in the chair. But the House would not be satisfied without an expression of condemnation of the instrument. On April 30 it was resolved that in the opinion of the House the treaty was objectionable.