Probably a loan might be obtained on the President's authority; but as this could not be repaid without a subsequent act of legislature, the Representatives might refuse it. So if money in the treasury be converted, they may refuse to sanction it.
The subsequent approbation of the Senate being necessary to validate a treaty, they expect to be consulted beforehand, if the case admits.
So the subsequent act of the Representatives being necessary where money is given, why should not they expect to be consulted in like manner, when the case admits. A treaty is a law of the land. But prudence will point out this difference to be attended to in making them; viz. where a treaty contains such articles only as will go into execution of themselves, or be carried into execution by the judges, they may be safely made; but where there are articles which require a law to be passed afterwards by the legislature, great caution is requisite.
For example; the consular convention with France required a very small legislative regulation. This convention was unanimously ratified by the Senate. Yet the same identical men threw by the law to enforce it at the last session, and the Representatives at this session have placed it among the laws which they may take up or not, at their own convenience, as if that was a higher motive than the public faith.
Therefore, against hazarding this transaction without the sanction of both Houses.
The President concurred. The Senate express the motive for this proposition, to be a fear that the Representatives would not keep the secret. He has no opinion of the secrecy of the Senate. In this very case, Mr. Izard made the communication to him, sitting next to him at table, on one hand, while a lady (Mrs. McLane) was on his other hand, and the French minister next to her; and as Mr. Izard got on with his communication, his voice kept rising, and his stutter bolting the words out loudly at intervals, so that the minister might hear if he would. He said he had a great mind at one time to have got up, in order to put a stop to Mr. Izard.
March the 11th, 1792. Mr. Sterret tells me, that sitting round a fire the other day with four or five others, [Mr. Smith of South Carolina was one], somebody mentioned that the murderers of Hogeboom, sheriff of Columbia county, New York, were acquitted. "Aye," says Smith, "this is what comes of your damned trial by jury."
1791. Towards the latter end of November, Hamilton had drawn Ternant into a conversation on the subject of the treaty of commerce recommended by the National Assembly of France to be negotiated with us, and, as he had no ready instructions on the subject, he led him into a proposal that Ternant should take the thing up as a volunteer with me, that we should arrange conditions, and let them go for confirmation or refusal. Hamilton communicated this to the President, who came into it, and proposed it to me. I disapproved of it, observing, that such a volunteer project would be binding on us, and not them; that it would enable them to find out how far we would go, and avail themselves of it. However, the President thought it worth trying, and I acquiesced. I prepared a plan of treaty for exchanging the privileges of native subjects, and fixing all duties forever as they now stood. Hamilton did not like this way of fixing the duties, because, he said, many articles here would bear to be raised, and therefore, he would prepare a tariff. He did so, raising duties for the French, from twenty-five to fifty per cent. So they were to give us the privileges of native subjects, and we, as a compensation, were to make them pay higher duties. Hamilton, having made his arrangements with Hammond to pretend that though he had no powers to conclude a treaty of commerce, yet his general commission authorized him to enter into the discussion of one, then proposed to the President at one of our meetings, that the business should be taken up with Hammond in the same informal way. I now discovered the trap which he had laid, by first getting the President into that step with Ternant. I opposed the thing warmly. Hamilton observed, if we did it with Ternant we should also with Hammond. The President thought this reasonable. I desired him to recollect, I had been against it with Ternant, and only acquiesced under his opinion. So the matter went off as to both. His scheme evidently was, to get us engaged first with Ternant, merely that he might have a pretext to engage us on the same ground with Hammond, taking care, at the same time, by an extravagant tariff, to render it impossible we should come to any conclusion with Ternant: probably meaning, at the same time, to propose terms so favorable to Great Britain, as would attach us to that country by treaty. On one of those occasions he asserted, that our commerce with Great Britain and her colonies was put on a much more favorable footing than with France and her colonies. I therefore prepared the tabular comparative view of the footing of our commerce with those nations, which see among my papers. See also my project of a treaty and Hamilton's tariff.
Committed to writing March the 11th, 1792.
It was observable, that whenever, at any of our consultations, anything was proposed as to Great Britain, Hamilton had constantly ready something which Mr. Hammond had communicated to him, which suited the subject and proved the intimacy of their communications; insomuch, that I believe he communicated to Hammond all our views, and knew from him, in return, the views of the British court. Many evidences of this occurred; I will state some. I delivered to the President my report of instructions for Carmichael and Short, on the subject of navigation, boundary and commerce, and desired him to submit it to Hamilton. Hamilton made several just criticisms on different parts of it. But where I asserted that the United States had no right to alienate an inch of the territory of any State, he attacked and denied the doctrine. See my report, his note, and my answer. A few days after came to hand Kirkland's letter, informing us that the British, at Niagara, expected to run a new line between themselves and us; and the reports of Pond and Stedman, informing us it was understood at Niagara, that Captain Stevenson had been sent here by Simcoe to settle that plan with Hammond. Hence Hamilton's attack of the principle I had laid down, in order to prepare the way for this new line. See minute of March the 9th. Another proof. At one of our consultations, about the last of December, I mentioned that I wished to give in my report on commerce, in which I could not avoid recommending a commercial retaliation against Great Britain. Hamilton opposed it violently; and among other arguments, observed, that it was of more importance to us to have the posts than to commence a commercial war; that this, and this alone, would free us from the expense of the Indian wars; that it would therefore be the height of imprudence in us, while treating for the surrender of the posts, to engage in anything which would irritate them; that if we did so, they would naturally say, "these people mean war, let us therefore hold what we have in our hands." This argument struck me forcibly, and I said, "if there is a hope of obtaining the posts, I agree it would be imprudent to risk that hope by a commercial retaliation. I will, therefore, wait till Mr. Hammond gives me in his assignment of breaches, and if that gives a glimmering of hope that they mean to surrender the posts, I will not give in my report till the next session." Now, Hammond had received my assignment of breaches on the 15th of December, and about the 22d or 23d had made me an apology for not having been able to send me his counter-assignment of breaches; but in terms which showed I might expect it in a few days. From the moment it escaped my lips in the presence of Hamilton, that I would not give in my report till I should see Hammond's counter-complaint, and judge if there was a hope of the posts, Hammond never said a word to me on any occasion, as to the time he should be ready. At length the President got out of patience, and insisted I should jog him. This I did on the 21st of February, at the President's assembly: he immediately promised I should have it in a few days, and accordingly, on the 5th of March I received it.