The Life of George Washington, Vol. 5 (of 5)
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After some debate, Mr. Madison proposed to modify the amendment of Mr.
Livingston, so as to except such papers, as in the judgment of the
President, it might be inconsistent with the interest of the United
States at this time to disclose. This proposition was rejected by a
majority of ten voices, and the discussion of the original resolution
was resumed. The debate soon glided into an argument on the nature and
extent of the treaty making power.
The friends of the administration maintained, 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 operation, 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 force 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 of breaking the faith of the nation.
The debate on this question was animated, vehement, and argumentative;
all the party passions were enlisted in it; and it was protracted
until the 24th of March, when the resolution was carried in the
affirmative by sixty-two to thirty-seven voices. The next day, the
committee appointed to present it to the chief magistrate reported his
answer, which was, "that he would take the resolution into
consideration."
The situation in which this vote placed the President was peculiarly
delicate. In an elective government, the difficulty of resisting the
popular branch of the legislature is at all times great, but is
particularly so when the passions of the public have been strongly and
generally excited. The popularity of a demand for information, the
large majority by which that demand was supported, the additional
force which a refusal to comply with it would give to suspicions
already insinuated, that circumstances had occurred in the negotiation
which the administration dared not expose, and that the President was
separating himself from the representatives of the people, furnished
motives, not lightly to be over-ruled, for yielding to the request
which had been made.
[Illustration: George Washington
_From the profile portrait by James Sharples_
_Sharples painted two pictures of Washington--this portrait showing
him in the costume of a country gentleman, distinguished as being the
only profile of the First President ever painted, and a full face
presentation of him in military dress, reproduced in Volume IV of this
work._
_Sharples, an English painter by birth, was recommended by the great
George Romney as being equipped to produce a work "worthy of the
greatest of Americans." His success is attested by the praise of
Washington's adopted son, who declared the Sharples portraits to be
"the truest likenesses ever made," and by Ralph Waldo Emerson, who saw
the pictures later in England and wrote: "I would willingly have
crossed the Atlantic, if only to look on these portraits."_
Courtesy Herbert L. Pratt]
But these considerations were opposed by others which, though less
operative with men who fear to deserve the public favour by hazarding
its loss, possess an irresistible influence over a mind resolved to
pursue steadily the path of duty, however it may abound with thorns.
That the future diplomatic transactions of the government might be
seriously and permanently affected by establishing the principle that
the house of representatives could demand as a right, the instructions
given to a foreign minister, and all the papers connected with a
negotiation, was too apparent to be unobserved. Nor was it less
obvious that a compliance with the request now made, would go far in
establishing this principle. The form of the request, and the motives
which induced it, equally led to this conclusion. It left nothing to
the discretion of the President with regard to the public interests;
and the information was asked for the avowed purpose of determining
whether the house of representatives would give effect to a public
treaty.
It was also a subject for serious reflection, that in a debate
unusually elaborate, the house of representatives had claimed a right
of interference in the formation of treaties, which, in the judgment
of the President, the constitution had denied them. Duties the most
sacred requiring that he should resist this encroachment on the
department which was particularly confided to him, he could not
hesitate respecting the course it became him to take; and on the 30th
of March he returned the following answer to the resolution which had
been presented to him.
"Gentlemen of the house of representatives,
"With the utmost attention I have considered your resolution of the
24th instant, requesting me to lay before your house, a copy of the
instructions to the minister of the United States, who negotiated the
treaty with the king of Great Britain, together with the
correspondence and other documents relative to that treaty, excepting
such of the said papers, as any existing negotiation may render
improper to be disclosed.
"In deliberating upon this subject, it was impossible for me to lose
sight of the principle which some have avowed in its discussion, or to
avoid extending my views to the consequences which must flow from the
admission of that principle.
"I trust that no part of my conduct has ever indicated a disposition
to withhold any information which the constitution has enjoined it
upon the President as a duty to give, or which could be required of
him by either house of congress as a right; and with truth I affirm,
that it has been, as it will continue to be, while I have the honour
to preside in the government, my constant endeavour to harmonize with
the other branches thereof, so far as the trust delegated to me by the
people of the United States, and my sense of the obligation it
imposes, to preserve, protect and defend the constitution[41] will
permit.
[Footnote 41: The words of the oath of office prescribed for
the chief magistrate.]
"The nature of foreign negotiations require 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 to other persons. 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 station 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 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 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 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.
[Sidenote: He declines sending them.]
"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, forbid 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 the person of the President.
Amidst all the agitations and irritations of party, a sincere respect,
and real affection for the chief magistrate, the remnant of former
friendship, had still lingered in the bosoms of some who had engaged
with ardour 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.
[Sidenote: Debates upon the treaty making power.]
A motion to refer the message of the President to a committee of the
whole house, was carried by a large majority. In committee,
resolutions were moved by Mr. Blount of North Carolina, declaratory of
the sense of the house respecting its own power on the subject of
treaties. These resolutions take a position less untenable than had
been maintained in argument, and rather inexplicit on an essential
part of the question. Disclaiming a power to interfere in making
treaties, they assert the right of the house of representatives,
whenever stipulations are made on subjects committed by the
constitution to congress, to deliberate on the expediency of carrying
them into effect, without deciding what degree of obligation the
treaty possesses on the nation, so far as respects those points,
previous to such deliberation. After a debate in which the message was
freely criticised, the resolutions were carried, fifty-seven voting in
the affirmative, and thirty-five in the negative.
In the course of the month of March, the treaties with his Catholic
majesty, and with the Dey of Algiers, had been ratified by the
President, and were laid before congress. On the 13th of April, in a
committee of the whole house on the state of the union, the instant
the chairman was seated, Mr. Sedgewick 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 north-west
of the Ohio."
This motion produced a warm altercation. The members of the majority
complained loudly of the celerity with which it had been made, and
resented the attempt to blend together four treaties in the same
resolution, after the solemn vote entered upon their journals,
declaratory of their right to exercise a free discretion over the
subject, as an indignity to the opinions and feelings of the house.
After a discussion manifesting the irritation which existed, the
resolution was amended, by changing the word "treaties" from the
plural to the singular number, and by striking out the words "Dey and
Regency of Algiers, the King of Great Britain, and certain Indian
tribes north-west of the river Ohio," so that only the treaty with the
King of Spain remained to be considered.
Mr. Gallatin then objected to the words "provision ought to be made by
law," as the expression seemed to imply a negative of the principle
laid down in their resolution, that the house was at perfect liberty
to pass, or not to pass, any law for giving effect to a treaty. In
lieu of them, he wished to introduce words declaring the expediency of
passing the necessary laws. This amendment was objected to as an
innovation on the forms which had been invariably observed; but it was
carried; after which, the words "with good faith," were also
discarded.
The resolution thus amended was agreed to without a dissenting voice;
and then, similar resolutions were passed respecting the treaties with
Algiers, and with the Indians north-west of the Ohio.
[Sidenote: Upon the bill for making appropriations to carry into
execution the treaty with Great Britain.]
This business being despatched, the treaty with Great Britain was
brought before the house. The friends of that instrument urged an
immediate decision of the question. On a subject which had so long
agitated the whole community, the judgment of every member, they
believed, was completely formed; and the hope to make converts by
argument was desperate. In fact, they appeared to have entertained the
opinion that the majority would not dare to encounter the immense
responsibility of breaking that treaty, without previously
ascertaining that the great body of the people were willing to meet
the consequences of the measure. But the members of the opposition,
though confident of their power to reject the resolution, called for
its discussion. The expectation might not unreasonably have been
entertained, that the passions belonging to the subject would be so
inflamed by debate, as to produce the expression of a public sentiment
favourable to their wishes; and, if in this they should be
disappointed, it would be certainly unwise, either as a party, or as a
branch of the legislature, to plunge the nation into embarrassments in
which it was not disposed to entangle itself, and from which the means
of extricating it could not be distinctly perceived.
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, seemed to be entered with equal avidity and
confidence by both parties.
At no time perhaps have the members of the national legislature been
stimulated to great exertions by stronger feelings than impelled them
on this occasion. Never has a greater display been made of argument,
of eloquence, and of passion; and never has a subject been discussed
in which all classes of their fellow citizens took a deeper interest.
To those motives which a doubtful contest for power, and for victory,
can not fail to furnish, were added others of vast influence on the
human mind. Those who supported the resolution, declaring the
expediency of carrying the treaty into effect, firmly believed that
the faith of the nation was pledged, and that its honour, its
character, and its constitution, depended on the vote about to be
given. They also believed that the best interests of the United States
required an observance of the compact as formed. In itself, it was
thought as favourable as the situation of the contracting parties, and
of the world, entitled them to expect; but its chief merit consisted
in the adjustment of ancient differences, and in its tendency to
produce future amicable dispositions, and friendly intercourse. If
congress should refuse to perform this treaty on the part of the
United States, a compliance on the part of Great Britain could not be
expected. The posts on the great lakes would still be occupied by
their garrisons; no compensation would be made for American vessels
illegally captured; the hostile dispositions which had been excited
would be restored with increased aggravation; and that these
dispositions must lead infallibly to war, was implicitly believed.
They also believed that the political subjugation of their country
would be the inevitable consequence of a war with Britain, during the
existing impassioned devotion of the United States to France.
The opposite party was undoubtedly of opinion that the treaty
contained stipulations really injurious to the United States. Several
favourite principles to which they attached much importance, were
relinquished by it; and some of the articles relative to commerce,
were believed to be unequal in their operation. Nor ought the
sincerity with which their opinion on the constitutional powers of the
house had been advanced, to be questioned. In the fervour of political
discussion, that construction which, without incurring the imputation
of violating the national faith, would enable the popular branch of
the legislature to control the President and senate in making
treaties, may have been thought the safe and the correct construction.
But no consideration appears to have had more influence than the
apprehension that the amicable arrangements made with Great Britain,
would seriously affect the future relations of the United States with
France.
Might a conjecture on this subject be hazarded, it would be that, in
the opinion of many intelligent men, the preservation of that honest
and real neutrality between the belligerent powers, at which the
executive had aimed, was impracticable; that America would probably be
forced into the war; and that the possibility of a rupture with France
was a calamity too tremendous not to be avoided at every hazard.
As had been foreseen, this animated debate was on a subject too deeply
and immediately interesting to the people, not to draw forth their
real sentiments. The whole country was agitated; meetings were again
held throughout the United States; and the strength of parties was
once more tried.
The fallacy of many of the objections to the treaty had been exposed,
the odium originally excited against it had been diminished, the
belief that its violation would infallibly precipitate the nation into
a war, if not universal, was extensive. These considerations brought
reflecting men into action; and the voice of the nation was pronounced
unequivocally with the minority in the house of representatives.
This manifestation of the public sentiment was decisive with congress.
On the 29th of April the question was taken in the committee of the
whole, and was determined, by the casting vote of the chairman, in
favour of the expediency of making the necessary laws. The resolution
was finally carried, fifty-one voting in the affirmative, and
forty-eight in the negative.
That necessity to which a part of the majority in the house of
representatives had reluctantly yielded, operated on no other subject;
nor did it affect the strength of parties. Their opinion respecting
that system of policy which ought to be observed in their external
relations, remained the same; and their partialities and prejudices
for and against foreign nations, sustained no diminution.
With regard to internal affairs also, the same spirit was retained.
So excessive had been the jealousy entertained by the opposition
against a military force of any kind, that, even under the pressure of
the Algerine war, the bill providing a naval armament could not be
carried through the house without the insertion of a section
suspending all proceedings under the act, should that war be
terminated. The event which was to arrest the executive in the
prosecution of this work having occurred, not a single frigate could
be completed, without further authority from the legislature. This
circumstance was the more important, as a peace had not been concluded
with Tunis, or Tripoli; and, of consequence, the Mediterranean could
not yet be safely navigated by the vessels of the United States. The
President called the attention of congress to this subject; and stated
the loss which would accrue from the sudden interruption of the work,
and dispersion of the workmen. A bill to enable him to complete three,
instead of six frigates, was with difficulty carried through the
house.
But, except the treaty with Great Britain, no subject was brought
forward in which parties felt a deeper interest, than on those
questions which related to the revenue.
Notwithstanding the increasing productiveness of the duties on
external commerce, this resource had not yet become entirely adequate
to the exigencies of the nation. To secure the complete execution of
the system for gradually redeeming the public debt, without
disregarding those casualties to which all nations are exposed, it was
believed that some additional aids to the treasury would be required.
Upon the nature of these aids, much contrariety of opinion prevailed.
The friends of the administration were in favour of extending the
system of indirect internal taxation: but, constituting the minority
in one branch of the legislature, they could carry no proposition on
which the opposition was united; and the party which had become the
majority in the house of representatives, had been generally hostile
to that mode of obtaining revenue. From an opinion that direct taxes
were recommended by intrinsic advantages, or that the people would
become more attentive to the charges against the administration,
should their money be drawn from them by visible means, those who
wished power to change hands, had generally manifested a disposition
to oblige those who exercised it, to resort to a system of revenue, by
which a great degree of sensibility will always be excited. The
indirect taxes proposed in the committee of ways and means were
strongly resisted; and only that which proposed an augmentation of the
duty on carriages for pleasure was passed into a law.
[Sidenote: Congress adjourns.]
On the first day of June, this long and interesting session was
terminated. No preceding legislature had been engaged in discussions
by which their own passions, or those of their constituents were more
strongly excited; nor on subjects more vitally important to the United
States.