March 30, 1796.
Gentlemen of the House of Representatives,
With the utmost attention I have considered your resolution
of the 24th inst. requesting mc 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 he 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
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,”
will permit.
The nature of foreign negotiations requires 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 impolitick;
for this might have a pernicious influence on future negotiations, or produce
immediate inconveniences; perhaps danger and mischief, in relation to other
powers. 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 publick 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 on 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
became 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 the true one. Nay, they have
more than acquiesced; for till 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 those 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, forbid a
compliance with your request.
GEO. WASHINGTON.
SOURCE: Thomas B. Wait, Publisher, State Papers and Publick Documents of the United States, Volume 2,
Third Edition, 102-3
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