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ADDRESS TO THE FRENCH MINISTER. [CHAP. VIII.

and happiness. They were deeply affected at our momentary misfortunes, occasioned by treasons, purchased by English gold. They have celebrated with rapture the successes of our brave armies."

The Minister accompanied the delivery of the colors to the President with a speech in the same inflated style, to which the President replied in a tone of fervor very unusual with him:

"Wonderful people! Ages to come will read with astonishment the history of your brilliant exploits! I rejoice that the period of your toils and of your immense sacrifices is approaching. I rejoice that the interesting revolutionary movements of so many years have issued in the formation of a constitution designed to give permanency to the great object for which you have contended. I rejoice that liberty—which you so long embraced with enthusiasm - liberty, of which you have been the invincible defenders, now finds an asylum in the bosom of a regularly organized government; a government which, being formed to secure the happiness of the French people, corresponds with the ardent wishes of every heart, while it gratifies the pride of every citizen of the United States, by its resemblance to their own. On these glorious events, accept, sir, my sincere congratulations."

On the ninth of January, the Minister formally complains to the Secretary of State that the French flag, instead of being placed in the Hall of the House of Representatives, as the American flag had been in France, had been shut up among the archives, which mark of "contempt or indifference" would create great discontent in France."

Mr. Pickering replied to this captious complaint, that 1 II. State Papers, page 490.

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1796.] CORRUPT OFFER TO THE MEMBERS OF CONGRESS. 581

the circumstances of the two countries are different; that the Representatives of the people are not a single body here as in France, but are divided into two branches: that the French flag had been exhibited to them all; and that the United States never make a display of their own colors, except in their ships and military establishments.

Some successful speculations with the public lands in the State of Georgia, in which the members of the Legislature participated, and which will be hereafter noticed, induced others to make a similar attempt on the members of Congress. They proposed to purchase, for five hundred thousand dollars, twenty millions of acres in the Michigan territory, and offered to admit members of Congress as partners, and then to purchase such shares as the members did not choose to hold. This corrupt offer was communicated to the House by one of those to whom it was made, and the agents, Messrs. Randall and Whitney, were examined by the House. Randall was sentenced to be reprimanded by the House, and to be committed until further order; but the doctrine of the privileges of members being denied by several of the members themselves and among others by Mr. Madison, Randall was, after a few days, discharged.

Early in March, 1796, the President sent the British treaty completely ratified by both nations, with the exception of the twelfth article, and both parties prepared for the contest which, with their conflicting views and feelings, must necessarily arise.

It was begun by Edward Livingston, of New York, who moved a call upon the President for a copy of his instructions to Mr. Jay, and for the correspondence and other documents relative to the treaty.

The avowed object of the motion was to ascertain the

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POWER OF THE HOUSE AS TO TREATIES. [CHAP. VIII.

sense of the House as to its having the discretionary power to decide the question of carrying the treaty into execution the mover being convinced that the House possessed the requisite power.

This question gave rise to an animated debate, which called forth all the talents of both parties, and continued three weeks.

The opposition, in support of the resolution, maintained, that though the power of making treaties was vested by the Constitution in the President and Senate, that did not prevent the restriction which arose from the express provisions of the Constitution, or which required powers not delegated to the President and Senate, as the cession of a State, for example, or of a part of its undisputed territory. Would the Legislature be bound to sanction such an unconstitutional treaty? It would not. Congress then has the power of refusing its co-operation in some cases; and, in the discharge of this power, they must exercise a sound discretion. If the treaty can be executed without the intervention of the Legislature, it is then binding on the nation, and becomes the law of the land; but if such interposition be necessary, then the Legislature is as free to act within its sphere as the Executive had been. To strengthen this construction of the treaty-making power, they referred to the example of England, where the Legislature, in the exercise of its discretionary power, had sometimes refused to carry a treaty into execution.

In answer to the objection that this course may be impolitic as well as unconstitutional, they said, it may make foreign nations cautious of negotiating with the United States; but this is merely an argument against the exercise of the right, not against its existence. This consideration is as likely to have due weight with the

1796.]

PRESIDENT'S REPLY TO THE HOUSE.

583

Legislature as with the Executive, especially, as the power of declaring war is confided solely to the Legislature. Without this check, the power of taxing, of naturalizing foreigners, of admitting other States into the Union, and of regulating the whole commerce of the country, which the Constitution has placed exclusively in the hands of the Legislature, would thus be transferred to two of its three branches, the President and Senate.

The friends of the administration, on the other hand, maintained that a treaty made pursuant to the forms prescribed by the Constitution, was binding on the nation, and that the Legislature could not refuse to co-operate in its execution without violating their constitutional duty: that, granted they would not be bound to execute a treaty, when the Executive had plainly transcended its powers, that furnished no argument where such a plea could not be pretended; and for the same reason that an act contrary to the Constitution is void, one in conformity with it is binding.

In answer to the argument drawn from the example of England, they drew a distinction between the power there, which derives its authority from usage, and that of the President and Senate in this country, which, by a written Constitution, expressly declares that treaties made by them are the supreme law of the land.

After a debate of a fortnight, the resolution was carried by a majority of sixty-two to thirty-seven. But the President refused to comply with the resolution, and stated his reasons for refusal very fully. He trusted, he said, that no part of his conduct had ever indicated a disposition to withhold information which the Constitution made it his duty to give: that foreign negotiations require caution and secrecy, and the right of the House of Representatives to demand the papers respecting nego

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OF THE POWERS OF THE HOUSE. [CHAP. VIII.

tiations would conflict with these objects, and be a dangerous precedent: nor could he see any purpose to be answered, except it was with a view to impeachment, which had not been indicated. He adds, that from his personal knowledge of the intentions of the framers of the Constitution, a treaty duly ratified by the President and Senate became obligatory; and it appears on the Journals that a proposition that no treaty should be binding that was not ratified by him, was explicitly rejected. These considerations forbade his compliance with their request.

About a week later, two resolutions suggested by the message were offered by Mr. Blount. One asserted that when a treaty stipulated regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution, as to such stipulations, on a law to be passed by Congress, and that the House had a right to decide on the expediency of passing such laws. The other resolution asserted that when, in applications of the House to the Executive for information, if within the range of its powers, the House of Representatives was not bound to state for what purpose the information was wanted.

Mr. Madison supported the resolutions in an elaborate speech, and the vote being then taken, the resolutions. were carried by fifty-seven votes to thirty-five.

On the thirteenth of April, Mr. Sedgwick moved that provision ought to be made by law for carrying into effect the treaties lately concluded with Algiers, Great Britain, Spain, and the Indians.

After much altercation between the members of the opposite parties, the resolution was subjected to amendments, by which its phraseology, implying the obligation of the House to pass the requisite laws, was changed,