To George Washington from Charles Lee, 29 March 1796
From Charles Lee
Philadelphia 29th march 1796
Dr Sir
I have examined with care the journals of the house of representatives and I have not met with any act of your administration which contradicts your present opinion relative to the right of that house to participate in making treaties, or any other part of your intended message. Col. Pickering was desired to express this as my opinion, and least he should omit it I have thought it necessary to communicate it.
The instances produced by Mr Livingston, properly understood, afford very slight ground for believing that you entertained at that time a different opinion—The case of the message in 1789 about indian affairs, mentioned by him, was before any fund existed for foreign intercourse; and when the government was going into motion, and from those circumstances became necessary.1
All other messages concerning the indians, are to be accounted for truly, without reference to the present question.
The communications respecting the british & spanish and algerine affairs, were voluntary & to shew whether offensive measures ought to be resorted to.2
The instructions you gave to the indian commissioners to which Mr Livingston refers were proper in themselves, and prove nothing. I am most respectfully your obedient Servant
Charles Lee
ALS, DLC:GW.
1. Lee is discussing the cases cited in Edward Livingston’s speech of 18 March to support his contention that GW “had been in habits of free communication with the Legislature as to our external relations” and “that their authority in questions of commerce, navigation, boundary, and intercourse with the Indian tribes, had been expressly recognised, even when difficulties on these questions were to be adjusted by treaty.” In his message to Congress of 7 Aug. 1789, GW asked them to consider the expediency of appointing commissioners to adjust differences with the southern Indians. GW’s instructions to the commissioners of 29 Aug. 1789 then stated that they could not “constitutionally” expend more than the sum directed by Congress when they approved the commission. This language, Livingston argued, conceded a “discretion of the House of Representatives as to commerce” that was not limited by “an obligation to comply with the terms of every Treaty made by the PRESIDENT and Senate” ( 4th Cong., 1st sess., 628–42).
2. In his speech, Livingston had referred to GW’s messages to Congress of 30 Dec. 1790 and 16 Dec. 1793 about negotiations with Algiers, arguing that the latter message showed that “it was not deemed imprudent to trust this House with the secrets of the Cabinet.” He also had referred to GW’s message of 5 Dec. 1793 in which GW stated that he thought it his “duty to communicate” some correspondence with European nations. Livingston had claimed that it was “clear” that GW thought that the communications “which related to commerce and boundary, were constitutionally vested in the discretion of Congress.” This interpretation was supported by GW’s message of 16 Dec. 1793, in which he announced that he had appointed commissioners to negotiate with Spain on boundaries, navigation, and commerce, and he gave Congress a copy of his instructions to them.