Life and Times of Washington, Volume 2 / Revised, Enlarged, and Enriched

by John Frederick Schroeder; Benson John Lossing

"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 upon 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 becomes 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 a true one. Nay, they have more than acquiesced, for until now, without controverting the obligation 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 the members of both Houses respectively was not made necessary.

"It is a fact declared 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 points 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 these 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."

The terms in which this decided, and, it would seem, unexpected negative to the call for papers was conveyed, appeared to break the last cord of that attachment which had theretofore bound some of the active leaders of the opposition to Washington. Amidst all the agitations and irritations of party a sincere respect and real affection for him, the remnant of former friendship, had still lingered in the bosoms of some who had engaged with ardor in the political contests of the day. But, if the last spark of this affection was not now extinguished, it was at least concealed under the more active passions of the moment.

Washington's message was referred to a committee of the whole house. It was severely criticized and resolutions were adopted, by a vote of fifty-seven to thirty-five, declaring the sense of the House on this matter, and claiming the right to deliberate on the expediency of carrying into effect stipulations made by treaty on subjects committed by the constitution to Congress.

In March the subject came up incidentally. The treaties with the King of Spain and with the Dey of Algiers were ratified by the President and laid before Congress. On the 13th of April (1796), Mr. Sedgwick moved, "that provision ought to be made by law for carrying into effect with good faith the treaties lately concluded with the Dey and Regency of Algiers, the King of Great Britain, the King of Spain, and certain Indian tribes northwest of the Ohio." After much altercation on the subject of thus joining all these treaties together, a division was made, and the question taken on each. The resolution was amended by a majority of eighteen so as to read, "that it is expedient to pass the laws necessary for carrying into effect," &c.

The subject of the British treaty was again taken up on the 15th of April. Its friends urged an immediate decision of the question, alleging that every member had made up his mind already, and that dispatch was necessary, in case the treaty was to be carried into effect. The posts were to be delivered up on the 1st of June, and this required previous arrangements on the part of the American government. They appear to have entertained the opinion that the majority would not dare to encounter the immense responsibility of breaking the treaty without previously ascertaining that the great body of the people were willing to meet the consequences of the measure. But its opponents, though confident of their power to reject the resolution, called for its discussion.

The minority soon desisted from urging an immediate decision of the question, and the spacious field which was opened by the propositions before the House was entered into with equal avidity and zeal by both parties. Gallatin, Madison, Giles, Nicholas, Preston, and other eminent members of the republican party, in animated terms opposed the execution of the treaty and entered fully into the discussion of its merits and demerits. Fisher Ames, Dwight, Foster, Harper, Lyman, Dayton, and other men of note among the Federalists, urged every possible argument in its favor.