CHAPTER tioned above. There had been transmitted to Baldwin VIII. a memorial to Congress to do nothing recognizing the 1796. validity of that sale until an investigation could be had.

Gunn, one of the Georgia senators, himself deeply interested in the business, claimed the right to see this memorial before its presentation, and also to be informed of the names of the signers. Baldwin having refused to allow this, Gunn, who was a person of very fiery temperament, sent him a challenge through Frelinghuysen of New Jersey, a brother senator also concerned in the Georgia purchase. As this was not a personal, but a political matter-not a question of etiquette and chivalry, so Baldwin expressed it, but one relating to his rights and duties as a representative, he laid the challenge before the House. The committee to whom the subject March 8. was referred reported that both Gunn and Frelinghuysen had been guilty of a breach of privilege; but, as both the senators had addressed letters of apology to the House, disclaiming any intentional disrespect, no further proceedings were deemed necessary.

While waiting for the British treaty, the House leisurely employed itself on several bills, of which a further account will be presently given. The Senate refused to confirm the nomination of Rutledge as chief justice—a refusal by no means disagreeable to the president—and, after presiding at one term of the court, he had the mortification to be obliged to retire. Cushing of Massachusetts, one of the original judges, was then nominated and approved; but, as he declined to accept the promotion, the office was ultimately given to Ellsworth of Connecticut, to whose seat in the Senate Hillhouse presently succeeded.

The treaty with Great Britain having at length returned with the suspending article appended, the presi

Both

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dent proclaimed it as the law of the land, and, agreeably CHAPTER to his promise, sent a copy of it to the House. parties were roused by its appearance for a determined 1796. struggle. The first movement came from the opposition, March 2. in the shape of a motion by Livingston to call upon the president for his instructions to Jay, and the correspondence and other documents relating to the treaty.

When this motion came up for debate, Tracy inquired March 7. as to its object, since on that its propriety would depend. The call would be proper if an impeachment either of Jay or the president were intended, but not so if the constitutionality of the treaty was to be questioned, because that must depend on the treaty itself. Or did the House propose to inquire whether a better treaty might not have been made?

Without disavowing either of the objects above suggested, Livingston stated, as his principal reason, a firm conviction that the House was vested with a discretionary power whether or not to carry the treaty into execution. This, accordingly, became the point on which the passage of the resolution was made to turn. Gallatin took the leading part in favor of it, sustained by Madison, Baldwin, Livingston, Giles, and others. The opposite view was maintained by Smith of South Carolina, Harper, Murray, Hillhouse, and others of less note.

Those who maintained the right of the House to execute a treaty or not at its pleasure relied upon that clause of the Constitution vesting the legislative power in Congress. Treaties being the law of the land, and the legislative power being in Congress, the House, as one of the branches of Congress, must have the right of granting or refusing that consent, without which no law could be enacted. The other side relied upon the clause of the Constitution expressly vesting in the president,

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CHAPTER with the advice and consent of the Senate, the power to make treaties. From these extreme points, both sides 1796. advanced a little to meet each other. The House, it was admitted, had no right to interfere, except so far as a treaty might involve some one of the matters specially enumerated in the Constitution as subject to the control of Congress; while the other side conceded that if a treaty were made, ruinous and destructive in its nature, the House might rightfully defeat its operation. This right, however, stood on the same ground with the right of insurrection, being, in fact, extra-constitutional and revolutionary. In support of the right of the House, Gallatin appealed to the practice of Great Britain, alleging that Parliament claimed the right of passing upon all treaties. Giles was rather doubtful about appealing to British example for any thing; but as the House of Commons was the special representative of the British people, such an appeal might, in that view, perhaps, be tolerated. Smith and Harper denied that any example could be produced of a treaty defeated by a refusal on the part of the House of Commons to pass the laws or to make the appropriations necessary to carry it into effect; and, in the second place, they denied any analogy between the two cases. The British Parliament claimed to be omnipotent; the powers of Congress were specially limited. The British House of Commons was the sole representative of the people, whereas the president and Senate were as much the people's representatives as the members of the House, who would be guilty of arrogance and usurpation in undertaking to claim a power which the people had seen fit, through the Constitution, to intrust to other agents. Though treaties had the force of laws, they differed in one essential point from those laws, the power to make which was exclusively vested in Congress. A

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law was an act of authority, to the validity of which the CHAPTER consent of Congress alone was sufficient, but which could have no operation exterior to the jurisdiction of Congress. 1796. A treaty was a compact, a bargain, by means of which, in consideration of certain rights, to have the force of law, yielded within our jurisdiction, certain advantages were obtained wholly exterior to it. If money were needed to carry out this compact, Congress must, indeed, be applied to, because no money could be drawn from the treasury except by act of Congress. But, in such a case, the only discretion possessed by Congress was as to the method of raising and paying the money. Congress had no discretion to revise the terms of the bargain, or to exercise any authority as to its fulfillment.

After some thirty speeches on either side, in a debate of three weeks, which continued to grow warmer and warmer the longer it lasted, the discussion was somewhat abruptly terminated, the resolution being carried March 24. by the decisive vote of sixty-two to thirty-seven.

Thus called upon, the president consulted his cabinet as to the right of the House to demand the papers, that right, under the circumstances of the call (the resolution not containing any hint of an impeachment), being conceived to depend on the right of the House to participate in the treaty-making power. He also requested their opinion as to the expediency of furnishing the papers, even though the belief might be entertained that the House had no right to call for them.

As to the question of right on the part of the House, the cabinet were unanimous against it. They were also unanimous on the other question. No pretense could be set up that the papers contained any thing which the government were afraid to show, for they had already been communicated to Livingston, as chairman of a com

CHAPTER mittee on impressments, and to other members of the VIII. opposition. The call must be looked upon as a mere 1796. unfounded claim of power put forward by the House. Due regard for the authority and rights of the presidential office seemed to require that such a pretension should be met at once by an explicit refusal. In these opinions March 30. the president concurred. He stated in his message, de

clining to accede to the call of the House, that, having himself been a member of the Federal Convention, and knowing the principles upon which the Constitution was formed, he had never doubted that the power of making treaties was exclusively vested in the president, with the advice and consent of two thirds of the Senate. It even appeared, from the journal of the Convention, deposited with the Department of State, that a motion had been made and explicitly rejected, that no treaty should be binding which had not been ratified by law. There was every reason to believe that the state ratifying conventions had understood the Constitution as he did. On that construction he had always acted; foreign nations had negotiated in that expectation; and, hitherto, the House of Representatives had not only acquiesced, but had never questioned it. "As, therefore, it is perfectly clear, to my understanding," so the message concluded, "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."