To Rufus King1
New York March 16. 1796
My Dr. Sir
“That it could not be admitted as a right of course in the House of Representatives to call for & have papers in the Executive department essentially those relating to foreign negociations which frequently embrace confidential matters. That under all the circumstances & upon so indefinite a call without any declared specific object he did not think it proper nor consistent with what he owed to a due separation of the respective Powers to comply with the call. That if in the course of the proceedings of the House a question of their competency should arise for which any of the papers in question might be necessary an application made on that ground would be considered with proper respect &c.”4
But after what has taken place in the discussion, if it can with propriety be got in as to form, I think a stand ought to be made by the President against the usurpation. The following propositions comprise an obvious ground
I The constitution empowers the President with the Senate to make Treaties.
II A treaty is a perfected contract between two nations obligatory on both.
II That cannot be a perfected contract or Treaty to the validity of which the concurrence of any other power in the state is constitutionally necessary. Again—
III The Constitution says a Treaty is a law.
IV A law is an obligatory rule of action prescribed by the competent authority. But
V That cannot be such a rule of Action or a law to the validity of which the assent of any other power is requisite. Again
VI The object of the Legislative Power is to prescribe a rule of Action for our own Nation which includes foreigners coming among us.
VII The object of the Treaty Power is by agreement to settle a rule of Action between two Nations binding on both.
VIII. These objects are essentially different and in a constitutional sense cannot interfere.
IX The Treaty Power binding the Will of the nation must within its constitutional limits be paramount to the Legislative power which is that Will; or at least the last law being a Treaty must repeal an antecedent contradictory law. And
X If the Legislative power is competent to repeal this law by a subsequent law—this must be the whole legislative power, by a solemn act in the forms of the Constitution, not one branch of the legislative power by disobeying the law.
XI The foregoing construction reconciles the two powers and assigns them distinguishable sp[h]eres of Action. While
XIII The other construction, that claiming that a right of assent is sanction for the House of Representatives, destroys the Treaty making Power & negatives two Propositions in the Constitution to wit I that The President with the Senate are competent to make Treaties. II That a Treaty is a Law.
On these grounds with the Presidents name a bulwark not to be shaken is erected. The propositions amount in my judgment to irresistable demonstration.
ALS, New-York Historical Society, New York City; copy, William Cabell Rives Papers, Library of Congress.
1. For background to this letter, see the introductory note to H to George Washington, March 7, 1796. See also H to William Loughton Smith, March 10, 1796.
2. Space left blank in MS. King’s letter to H has not been found.
3. H is referring to Edward Livingston’s resolution introduced in the House of Representatives on March 2, 1796, requesting that the President submit to the House the papers relating to the negotiation of the Jay Treaty. See the introductory note to H to Washington, March 7, 1796.