States, and the danger of Indian hostility avoided; on the large amount the merchants would receive for their property illegally condemned by the British courts of vice-admiralty; and lastly, that the treaty was the only alternative of war, which, besides its direct burdens and evils, would deprive the country of the golden harvest it was then reaping from its neutrality. These arguments, which appealed so forcibly to the self-interest of individuals, finally and with difficulty prevailed, and thus Great Britain obtained, for her mercantile community indemnity for the past and security for the future; important concessions to her belligerent interests; and an unresisting submission to her colonial monopoly, at no other expense than a surrender of seven military posts within the limits of the United States, which she was bound by treaty to surrender twelve years before; and an agreement to pay for such property as her subjects had illegally taken, after a failure to recover of the captors in the due course of law. Great as was the disparity of the parties, in point of power, a treaty so grossly unequal and defective could not have been ratified, if the immense amount of property captured had not interested so many in its ratification. Nor could this power of bribing American merchants with their own money find any counteraction among individuals from the money to be received by British creditors, as that was to be paid out of the treasury of the United States.

On the main question, whether more good or evil resulted to the United States from the ratification, there is still room for a difference of opinion. To trace out the chain of causes and effects in a series of events which have actually occurred, though not always an easy task, may yet be within the scope of human wisdom, but to perceive the concatenation, on a different state of facts, is beyond the reach of any degree of sagacity; and no one can conclusively show that had the treaty been rejected, war would have been the certain consequence; or, though it had, that the spirit it indicated would not have prevented the subsequent spoliations on American commerce, and the war of 1813; or whether, on the whole, the substantial interest of the nation would have been thereby promoted or impeded. In such ques

tions the most we should look to is, whether we have defended our own rights, without infringing the rights of others, and to approve or condemn our course, according as it has conformed to that rule. If tried by this test, it would not be easy to defend the treaty of 1794.

In this unqualified condemnation of the treaty it is not meant to cast any imputation on the zeal, talents, or patriotism of its distinguished negotiator. They are unquestionable, and were never more faithfully exerted. But the misfortune was, that Mr. Jay left the United States under the firm belief, generally entertained by his party, that peace with England, the prevention of a closer fraternity with the French, and the continued ascendancy of the federalists, all depended on his making a treaty. Every thing then, which could interest either his patriotic or party feelings, (and neither were lukewarm,) was hazarded on this single step. The moral necessity under which he acted was as well known to the British ministry as it was felt by himself, and they naturally profited by it to insist on every thing which he could venture to give, and to concede nothing which they could decently refuse.

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CHAPTER XXI.

The British Treaty ratified by the President and Senate. Proceedings in Congress. The right of Congress to refuse appropriations for executing a treaty discussed. Considerations on this subject drawn from the character of the Federal Government. Letter to Mr. Giles. The duty to take sides between conflicting parties considered. Construction of the Constitution as to the power in Congress to establish Post Roads. Letter to Mazzei. Mr. Jefferson's defence of that letter-the objections to it considered. General Washington's Farewell Address. Mr. Adams and Mr. Jefferson rival candidates for the Presidency. Mr. Jefferson chosen Vice-President-the considerations which reconciled him to that result.

1796.

THE ferment of the public mind went on increasing until the meeting of Congress, when all eyes were turned on that body to see the course it would take. In the president's opening speech to both Houses of Congress, he had mentioned the British treaty and stated that it had been ratified by the United States, with the exception of a part of the 12th article, since which the course of the British government was not known. The answer by the House of Representatives, though not explicit, plainly intimated disapprobation of the treaty. In February, the treaty being returned with the ratification of the British government, it was announced to the nation by proclamation, a copy of which was sent to each House of Congress on the 1st of March, 1796.

This course was censured as disrespectful to the House of Representatives, and as implying that the concurrence of the

legislature was not necessary to give validity to the treaty. On the 2nd of March a motion for a copy of the instructions to the minister who negotiated the treaty, brought on a debate in which the powers of the executive, and of the legislature, with reference to treaties, was fully investigated by all the talent and zeal which either party could put in requisition.

It was contended by the opposition that although the constitution had vested the power of making treaties in the president and senate, without restriction or qualification, yet that did not prevent the restriction which must necessarily arise from the express provisions of the constitution itself: or, said they, suppose the executive were to make a treaty on any matter prohibited to them by the constitution, or which required powers not delegated to them, as the cession of a state or even a portion of its undisputed territory, would the legislative branch of the government be bound to pass laws for the execution of such an unconstitutional treaty, and thus sanction a breach of the constitution? Assuredly not. Congress then has the power in some cases of refusing its co-operation, and whether the occasion is proper for such an exercise of power depends upon the circumstances of the case, to be decided by a sound discretion. If the treaty is capable of execution without the intervention of the legislature, it is then binding on the nation, and it becomes a rule of action on the citizen as much as any legislative enactment; but if such interposition is necessary, then the legislature is as free to act as the executive, and to grant or withhold its concurrence. It is true that it may be both uncourteous and impolitic for the legislature to take this course. It may make foreign nations cautious of negotiating with a nation which thus has a power in reserve by which it may annul or ratify a treaty according to circumstances. But this is an argument, and a strong one, against the exercise of the right, on light occasions, rather than against its existence. The considerations of impolicy and of its giving offence to the power treated with are as likely to have due weight with the legislature as with the executive, and this must be especially supposed in this country, where the power of declaring war is confided solely to the legislature. Without this

check the power of taxing, the power of naturalization, the power of incorporating other states into the union, and the power of regulating the entire commerce of the country, which have been placed solely in the hands of the legislature, are virtually transferred to the senate.

The friends of the administration maintained that a treaty made pursuant to the forms prescribed in the constitution was binding on the nation, and the legislature could not refuse to co-operate in its execution without a violation of its constitutional duty, and of the national faith. That granting it would not be bound to execute a treaty when the executive had transcended its powers, that would furnish no argument where such a plea could not be pretended, for the same reason that an act done contrary to the constitution is void, an act done in conformity to that instrument is binding.

After a debate of a fortnight, the resolution was carried by a majority of 62 to 37. The president, however, refused to send a copy of the instructions, and stated his reasons at full length, founded on the executive right of the president and senate to make treaties. In support of his opinion he relies on the proceedings of the convention which formed the constitution, on the previous course of the legislature on the subject of treaties, and on the obvious inconveniences and impolicy of disclosing the several steps taken in a negotiation.

Further resolutions were then moved which assert the right of the House of Representatives, whenever stipulations are made by treaty on subjects confided by the constitution to Congress, to deliberate on the expediency of carrying them into execution, which were carried by a vote of 57 to 35.

When subsequently a bill was introduced to carry the treaty into effect, its merits more fully and formally discussed, and after a protracted debate in a committee of the whole, the expediency of making the requisite provisions by law was carried by a single vote, and in the House, by a majority of three; considerations of policy and expediency inducing some to join in executing an unsatisfactory treaty rather than hazard the