Memorandum of Conference with the President on Treaty with Algiers
1792. Mar. 11.
Consulted verbally by the President on whom a committee of the Senate (Izard, Morris and King) are to wait tomorrow morning to know Whether he will think it proper to redeem our Algerine captives and make a treaty with the Algerines on the single vote of the Senate without taking that of the Represent.
My opinions run on the following heads.
We must go to Algiers with the cash in our hands.
Where shall we get it?—By loan?—By converting money now in the treasury?
Probably a loan might be obtained on the Presid’s authority.
But as this could not be repd. without a subseqt. act of legislature, the Represent. might refuse it.
So if convert money in treasury, they may refuse to sanction it.
The subseqt. approbation of the Senate being necessary to validate a treaty they expect to be consulted before hand if the case admits.
So the subseqt. act of the Repr. being necessary where money is given, why should not they expect to be consulted in like manner where the case admits?
A treaty is a law of the land, but prudence will point out this difference to be attended to in making them, viz. where a treaty contains such articles only as will go into execution of themselves, or be carried into execution by the judges, they may be safely made: but where there are articles which require a law to be passed afterwds. by the legislature, great caution is requisite. E.g. the Consular convention with France required a very small legislative regulation. This convention was unanimously ratified by the Senate, yet the same identical men threw by the law to enforce it at the last session, and the Repr. at this session have placed it among the laws which they may take up or not at their own convenience, as if that was a higher motive than the public faith.
Therefore against hazarding this transaction without the sanction of both houses.
The Pres. concurred. The Senate express the motive for this proposition to be a fear that the Repr. wd. not keep the secret. He has no opinion of the secrecy of the senate. In this very case Mr. Izard made the communication to him setting next to him at table on one hand, while a lady (Mrs. Mclane) was on his other hand and the Fr. minister next to her, and as Mr. Izard got on with his communication, his voice kept rising, and his stutter bolting the words out loudly at intervals, so that the minister might hear if he would. He said he had a great mind at one time to have got up in order to put a stop to Mr. Izard.1
Mar. 11. 1792. Mr. Sterrett tells me that sitting round a fire the other day with 4 or 5. others of Mr. Smith (of S.C.) was one, some body mentioned that the murderers of Hogeboom sheriff of Columbia county N. York, were acquitted. ‘Aye, says Smith, This is what comes of your damned trial by jury.’
MS (DLC); entirely in TJ’s hand. Entry under 11 Mch. 1792 in SJPL reads: “Notes of conference with the President on the Question whether he should make a treaty with Algiers on the previous vote of the Senate alone.—W. Smith’s expression on trials by jury.” Included in the “Anas.”
Washington failed to inform the Senate committee with which he met the following day that he concurred in TJ’s opinion on the need to apply in advance to the House of Representatives for funds to negotiate a treaty with Algiers and to redeem the American captives in that land. Ralph Izard, Rufus King, and Robert Morris, who had been appointed by the Senate to confer with Washington on this issue, began the meeting by noting that the Senate was concerned that if it became known that the United States planned to conclude a treaty with Algiers, “those European Nations which are interested in the Mediterranean trade, would throw every obsticle in the way, and perhaps totally defeat the object.” Speaking on behalf of the Senate, they expressed doubt that the necessary secrecy could be preserved if Washington applied to the House of Representatives for funding before the treaty was negotiated, and therefore they wished to know if he was prepared instead either to draw money from the treasury without a regular congressional appropriation or to negotiate a loan. They concluded by pointing out that Washington could still request funding from the House after a treaty with Algiers was negotiated and justified this course of action on the ground that the constitution gave the House no share of the treatymaking power. In response, Washington contented himself with observing that the proposal to bypass the House before the conclusion of a treaty with Algiers was “a subject upon which he would wish to consider well before he gave an opinion—and that, at any rate, it would be necessary for him to know from the Secretary of the Treasury the state of the Treasury before he could decide anything upon the matter” (Memorandum of Meeting between President and Senate Committee, 12 Mch. 1792, DLC: Washington Papers, Legislative Proceedings; JEP description begins Journal of the Executive Proceedings of the Senate of the United States … to the Termination of the Nineteenth Congress, Washington, 1828 description ends , i, 106). In the end, however, Washington accepted TJ’s counsel and obtained an appropriation of $50,000 from Congress in May 1792 before embarking on negotiations with Algiers.
The murder of Sheriff Cornelius Hogeboom of Columbia County, New York, who was shot to death in October 1791 while attempting to serve a writ of execution on a delinquent tenant of Philip Schuyler, was the case that evoked William Loughton Smith’s critical remark about trial by jury (Alfred F. Young, The Democratic Republicans of New York: The Origins, 1763–1797 [Chapel Hill, N.C., 1967], p. 204–5).
1. TJ added the last sentence after he had drawn a line across the page to mark a separation between entries. He may have written it immediately afterwards, or much later.