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To George Washington from Oliver Wolcott, Jr., 26 March 1796

From Oliver Wolcott, Jr.

Treasury Department March 26th 1796

The Secretary of the Treasury in obedience to the command of the President of the United States,1 respectfully submits his opinion, upon certain questions arising out of the following case.

On the 24th instant the following Resolution was passed in the House of Representatives of the United States.

“Resolved that the President of the United States be requested to lay before this House a Copy of the instructions given to the Minister of the United States who negociated the Treaty with Great Britain communicated by his Message of the 1st instant, together with the correspondence & documents relating to the said Treaty; excepting such of said papers as any existing negociation may render improper to be disclosed.”

The general question to be considered is this, whether it be or be not expedient for the President to comply in whole or in part with the request contained in said resolution?

The importance of this question may be inferred from the unqualified terms of the Resolution which clearly assert a right on the part of the House to demand the instructions and documents relating to the negociation of a ratified Treaty.

It has been urged with great force in the course of the debate, that the House of Representatives has a right to judge of a Treaty which affects objects upon which Congress can constitutionally legislate and that their co-operation & sanction are necessary to make it the Law of the Land.2

This position has been supported by the following construction which has been given to the Constitution.

That the power of making Treaties without the co-operation of the House, though expressed in general terms, is in fact limited by that part of the Constitution which defines the legislative power, or power of Congress: thus though it seems to be admitted that if a Treaty did not operate upon any objects of legislation delegated to Congress, it might be valid without the consent of the House of Representatives, yet in cases where the aid of the Legislature is necessary to give effect to a Treaty, or where a Treaty acts upon any objects of Legislation, the Sanction of the House is necessary and may be given or witheld according to the judgement formed by them of its expediency.

This construction evidently gives to the House of Representatives a negative voice or concurrent authority with the President & Senate, in respect to the Treaty lately negociated with Great Britain, and as it is presumed can be shewn, in respect to all Treaties whatever.

This important question then arises. Has a Treaty made by the President, with the advice and consent of two thirds of the Senators who may be present in Session, the force and obligation of Law, without the consent of the House of Representatives?

To a right Judgement upon this question a review of the public Acts and proceedings of the United States in respect to the obligation of Treaties appears to be proper.

The ninth Article of the late confederation empowered the United States in Congress assembled to enter into Treaties & Alliances provided that no Treaty of Commerce should be made whereby the legislative power of the respective States should be restrained from imposing such imposts & duties on foreigners as their own people should be subjected to, or from prohibiting the exportation or importation of any species of goods or Commodities whatever.

Thus it appears that although Congress under the Confederation, had no legislative powers whatever, and though they possessed no authority to regulate the general Interests of Commerce by any internal regulations or even to restrain the clashing systems of the seperate States; yet the power of forming commercial Treaties with foreign nations was expressly given and actually exercised.

The sense entertained by Congress of the obligation of Treaties is manifested by the following Resolution which was unanimously adopted on the 21st of March 1787.

“Resolved that the Legislatures of the several States cannot of right pass any Act or Acts for interpreting explaining or construing a national Treaty or any part or clause of it: nor for restraining, limiting or in any manner impeding retarding or counteracting the operation & execution of the same, for that on being constitutionally made, ratified & published, they become in virtue of the Confederation part of the Law of the Land, and are not only independent of the power & will of such Legislatures, but also binding and obligatory on them.”

On the 13th of April 1787, a Circular letter to the States was unanimously agreed to in Congress, in which the principles of the resolution before recited are fully demonstrated.3

The documents annexed to Mr Jefferson’s letter to Mr Hammond dated the 29th of May 1792 shew that the States of New-Hampshire, Massachusetts, Rhode Island, Connecticut, New-York, Delaware, Maryland, and North Carolina passed Laws in compliance with the resolution of Congress and that New-Jersey & Pennsylvania declared that no Law existed with them contrary to the Treaty with Great Britain. It also appears that respectable Official Characters in several of the States declared that the principles set forth in the resolution of Congress had been generally recognised. Among these authorities that of Mr Monroe deserves notice, especially as the Representatives of Virginia strenuously contend at present for the claim asserted in the House of Representatives.4

Mr Jeffersons opinion of the obligation of Treaties and of the general sense of the States is decidedly expressed in the letter before referred to; his words are, that the Resolution of Congress of March 21st 1787 requiring a repeal of all Acts contrary to the Treaty of Peace, and the proceedings of the States thereupon were all supererogation, for that “requiring such a repeal was only to take away pretext; for that it was at all times perfectly understood that Treaties controulled the Laws of States; the confederation having made them obligatory on the whole;5 Congress having so declared & demonstrated them; the Legislatures & Executives of most of the States having admitted it; and the Judiciaries of the separate & State Governments so deciding.”

These facts will it is believed warrant the following conclusions.

1st That it was the general sense of the people of this Country that the power of making Treaties vested in Congress by the Articles of Confederation was capable of controlling the Legislative powers which then existed in the United States.

2nd That Treaties constitutionally made, ratified and published possessed in virtue of their own powers the force and obligation of Laws.

3d That embarrassments having been experienced in consequence of the non execution of the Treaty of Peace, the Convention which framed the Constitution must have intended such an organization & deposit of the power of making Treaties as would render its exercise at once safe & efficacious.

A summary view of the structure of the Government proposed by the Convention and of the distribution of its powers is next proposed.

All Legislative powers granted to the General Government are declared to be vested in a Congress; which Congress is to consist of a Senate & House of Representatives.

The general powers of Congress are given or to be deduced from a collective construction of the eighth, ninth & tenth sections of the first Article—some powers are indeed given by other Articles, but they are not of a nature to require consideration at this time.

The eighth Section defines certain objects over which Congress shall have power, but the design of this definition was clearly nothing more than to discriminate between the powers of Legislation which were to be exercised by the General Government and those which were to remain in the State Governments.

The ninth Section contains a denial of some powers, not proper to be exercised and limitations upon others vested in Congress by the preceding Section—The main design of the Section was clearly to prevent the assumption of certain powers by implication and accurately to define others, which had been granted in general terms.

The tenth Section contains a denial of some powers to the respective States and limitations upon others—the prevention of disputes respecting a supposed concurrent jurisdiction over Objects, the regulation of which, it was intended to confide exclusively to the General Government was a principal inducement in framing this Section.

An Analytical view of these Sections therefore proves that the great object of that part of the Constitution which defines the Legislative power was to fix the limits of Jurisdiction between the General and State Governments—the distribution of power between the Departments of the General Government, is to be found by a very different course of enquiry.

As however it is pretended that the Executive Department cannot without the concurrence of Congress definitively make Treaties which limit or controul the objects of Legislation, it may be proper to enquire how far Congress possesses exclusive jurisdiction over objects clearly within their sphere of authority.

The power of raising revenue is one of the most important possessed by Government, yet this may be exercised indefinitely, over most objects, both by the General & State Governments—the fact is more generally true than otherwise, that where there are no words which give exclusive Jurisdiction, the jurisdiction is concurrent: As some very important powers vested in Congress are in fact concurrent with the State Governments, it does not follow either from the reason of the definition of the powers vested in Congress, or the strict letter of the Constitution, but that other powers may be concurrent with particular Departments of the General Government.

The Second Article of the Constitution declares that the Executive power of the Government shall be vested in a President of the United States of America; in the specification of Executive powers that of making Treaties is expressly mentioned, but this power like most others is subject to the controul or negative voice of the Senate—that is, a Treaty cannot be valid, unless it be made by the President, by & with the advice & consent of two thirds of the Senators present—In other words the President in respect to Treaties is to initiate or perform an inchoative Act the completion of which is reserved to the Senate.

The obligations resulting from a Treaty are ascertained by the third & sixth Articles of the Constitution, the former of which declares that the judicial power shall extend to Treaties made under the Authority of the United States, and the latter, that such Treaties shall be the Supreme Law of the Land.

Here it may be asked, what are Treaties? the Answer is, that they are Compacts between Sovereign and independent States, originating in free consent and deriving their obligation from the plighted faith of one nation to another—their Objects are relative to Peace, War, Commerce, and Security.

The power of making Treaties, is the same thing as the power of pledging the faith of one nation to another—this power is by the Constitution expressly committed to the President, subject to the controul of the Senate—the obligations arising from public faith when pledged by the representative Organ of our nation in all foreign concerns; agreeably to the mode prescribed by the Constitution, are justly and properly declared to be Laws—the Legislative power is bound not to contravene them, on the contrary it is bound to regard and give them effect. If to omit the exercise of the powers committed to any branch of the Government, would be to annul a Treaty; such an omission would be a violation of the Constitution in that branch which refused to Act.

An attempt was made in the House of Representatives, in the course of the debate upon the resolution now under consideration, to distinguish between the effect of a Treaty upon a Law of a State and a Law of the United States:6 there appears however to be no ground for any distinction. In the first place it may be observed, that as all national & external concerns are under the management of the General Government, the Laws of the particular States will hereafter rarely furnish subjects of complaint to foreign nations, and of course rarely be affected by Treaties—to confine the legal operation of Treaties merely to a correction or repeal of State Laws, would be in fact nearly tantamount to a declaration that no Treaty was binding until confirmed by an Act of Congress. Secondly—All Treaties must of necessity operate either to change or to confirm the existing & legal state of things—in either case the power of Legislation must be abridged or directly controulled—the power of Congress to legislate is as effectually limited by the want of a power to repeal as to enact Laws—the Legislative power cannot therefore for this reason, afford a reasonable limitation upon the power of making Treaties.

3d A power of making Peace cannot be exercised by Treaty, without repealing an Act for declaring war. If the power of making Treaties exercised in its most simple form, implies of necessity the power of repealing a pre existing Law, there ceases to be any criterion for determining what Laws may & what Laws may not be repealed.

It has been enquired—If Treaties possess the power of repealing Laws, what are the limits which restrain the President & Senate from absorbing all the powers of the Legislature? To this question it may be answered that the power of making Treaties must of necessity be very indefinite; it must be allowed to be competent to the adjustment of any dispute with a foreign nation under any circumstances; that the power is indefinite is however no proof that it is not fully vested as is contended solely in the President & Senate; that it is capable of abuse is no argument that the House of Representatives possess a controulling authority—Many of the powers vested in Congress are also indefinite—there are no other restraints upon the powers of declaring war, of raising Armies & of equipping Navies, and of Taxation except the virtue & discretion of Congress.

It is possible to conceive that Congress may declare war unjustly, may raise Armies & equip Navies for purposes of ambition & may tax immoderately & unwisely: It is also possible to conceive that the President may make & the Senate consent to an unwise Treaty, but neither supposition is any proof that the powers are not vested—nor are the evils which result from the abuse of authority to be entirely guarded against by human wisdom—the greatest abuses may happen under the most restricted forms of Government which have been yet devised.

But though Treaties made by the President & Senate, have the force and obligation of Laws in the United States, it is conceived that they are intitled to no precedence over Acts of Congress—the House of Representatives has at any time a power to originate a Bill for declaring war, or for doing any other Act inconsistent with a Treaty, and an Act declaring a Treaty to be void would repeal its legal obligations & afford evidence that the Contract was at an end.

In discussing propositions which are at variance with Treaties, the Legislature are under no peculiar restrictions; they are always bound to regard the obligations of Justice, morality & good faith, and their decisions are ever in contemplation of Law presumed to be consistent with these obligations.

It is not therefore true as has been said that Treaties cannot repeal Laws and that Laws cannot repeal Treaties,7 the reverse is true—Statutes & Treaties of the United States, are alike supreme Laws of the Land and the last Act of which ever description will controul the former.

It is not intended to assert that Treaties can extend to every object of Legislation, there is no doubt that the forms of the Constitution & the powers of the different Departments & Organs of Government are superior to the influence of a Treaty; the limitation of the power of making Treaties, may in some respects be difficult as the exigencies of Society cannot be foreseen, but in respect to matters of mere internal concern, there appears to be nothing upon which the power of making Treaties can operate, in derogation or extension of the power of Legislation.

It being assumed as a consequence of the preceding remarks, that Treaties are Laws and that the power of making Treaties is exclusively vested in the President & Senate, it becomes proper to enquire, why this power was so deposited. To this question it may be replied that Secrecy & dispatch are frequently necessary to the successful negociation of Treaties. There being no ground to expect these qualities in a numerous public body, the Executive Department was of course considered as the only proper deposit for this power. Assuming therefore as a position that the Constitution contemplated the necessity of Secrecy & personal Confidence in executive proceedings, it is the right of the President so to administer the Government as to preserve its principles inviolate.

The Resolution of the House of Representatives appears to consider the right of reserving public documents as extending only to such as relate to pending negociations—there is however no ground for this distinction—in respect to Treaties already compleated there may and probably do exist many particulars on which good faith & prudence require the observance of Secrecy—At any rate the probability of such cases, renders it proper that the maxims of administration should have reference to their existence.

The propriety of a call for papers is moreover rendered doubtful by the duty enjoined upon the President by the Constitution to give to Congress information from time to time of the State of the Union & to recommend to their consideration such measures as he shall judge necessary & expedient.8 It may be fairly understood to be the sense of the Constitution, that the Presidents declaration of a state of facts is a sufficient ground for the proceedings of Congress—at any rate the presumption ought always to be, that every Department will discharge its duty.

Except when an Impeachment is proposed & a formal enquiry instituted, I am of opinion that the House of Representatives has no right to demand papers relating to foreign negociations either pending or compleated.

Whether a compliance with the present call be expedient under the peculiar circumstances of the Treaty with Great Britain, is a question which admits of distinct considerations.

A compliance considering the lengthy debate which preceded the Resolution and in which the right of the House to controul Treaties was asserted would too much bear an appearance of concession to principles subversive of the just powers of the President & Senate.

On the other hand, a refusal would furnish some pretext for Clamour and unjust imputations against the Executive Department & the negociator of the Treaty.

If there was reason to believe that a refusal would diminish the public confidence in the Government this would be a powerful argument in favour of a compliance. It is however to be remembered that the public confidence may be as certainly destroyed by a submission to improper demands as by a conduct tending to inspire jealousy.

That the public jealousy can be excited to any considerable degree is not probable. It is known to the world that Mr Randolph was acquainted with the whole course of the negociation & that his malignity would prompt him to disclose any measures which could embarrass the Executive will not be doubted—All the Correspondence was submitted to the Senate and is admitted to have been seen; The knowledge of what the papers contain has therefore become too general to admit of the propagation of an opinion, that the President or negociator would be affected by a more full disclosure. The public would therefore in my opinion attribute a refusal on the part of the President to its proper motive, a determination to support the Constitution.

For these reasons and others which I have not time to add, it appears to me inexpedient to comply with the call of the House.

If the President shall determine not to comply with the Resolution, his Message may contain the following sentiments, which it is believed will justify his decision.

That the President has considered the Resolution of the House of Representatives passed on the 24th instant, with all that attention & respect which is justly due to a request of the House, and to the importance of a question which in its consequences may affect the Constitution and that a sense of duty requires him to communicate the result of his reflections.

That the Constitution has assigned to each Department of the Government distinct powers & that as every Department is equally bound by the Constitution, it is reasonable that in the regular exercise of its proper duties, each, should receive from the others, a proper share of trust and confidence; that the true interests of the people, not only require vigilance & fidelity from all parts of the Administration, but that they also require that the powers which have been delegated to the Government, should be exercised in the mode & by the Organs designated in the Constitution.

That among the powers delegated to the Government of the United States is that of making Treaties; and that Treaties made in pursuance of the Constitution possess the validity & obligation of Laws of the Land.

That the power of making Treaties is by the Constitution solely vested in the President & Senate of the United States, & that in the distribution of this power between the President & Senate, it is conceived that the right of instituting negociations, of instructing Ministers, and of making or receiving propositions which are to form the basis of Treaties, rests exclusively with the President; that the right of approving or rejecting in whole or in part, all proposals respecting Treaties rests exclusively with the Senate, and that the concurrent assent of the President & Senate agreeably to the Constitution, with a subsequent ratification of the parties concerned & a promulgation according to Law definitively fix the obligations of a Treaty upon the United States.

That in the exercise of the duties committed to the President, secrecy & personal confidence are sometimes essential, and that a regard to the public Interests and to the obligations of good faith will not always permit a full disclosure of all documents connected with foreign negociations.

That for these reasons & to avoid the consequences of a precedent which would embarrass future intercourse with foreign nations, the President has considered it to be his duty to withold a compliance with the Resolution of the House.

In addition to the above observations it may perhaps be proper to state, that all the communications from the Minister of the United States were laid before the Senate for their information. All of which is respectfully submitted

Oliver Wolcott Jr
Secy of the Treas.

ALS, DLC:GW; ADf, CtHi: Oliver Wolcott, Jr., Papers.

1See GW to the Cabinet, 25 March.

2See, for example, the speeches of John Nicholas, John Heath, John Swanwick, Albert Gallatin, Jonathan Nicoll Havens, William Branch Giles, and John Page (Annals of Congress, description begins Joseph Gales, Sr., comp. The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature. 42 vols. Washington, D.C., 1834–56. description ends 4th Cong., 1st sess., 444–51, 464–74, 482–87, 502–14, 556–65).

3For the resolution and the circular letter, see JCC, description begins Worthington Chauncey Ford et al., eds. Journals of the Continental Congress, 1774-1789. 34 vols. Washington, D.C., 1904–37. description ends 32:124–25, 177–84.

4Thomas Jefferson’s letter to George Hammond of 29 May 1792 was the official American response to Hammond’s letter of 5 March 1792, in which he complained of American violations of the Treaty of Paris in regard to the claims of British creditors and the treatment of Loyalists (Jefferson Papers, description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 41 vols. to date. Princeton, N.J., 1950–. description ends 23:551–613, 196–220). The sixty documents that Jefferson appended are printed in ASP, Foreign Relations, 1:216–37. The letter from James Monroe to Jefferson of 1 May 1792 was among the appended documents. Monroe stated that in Virginia it was “always the Opinion of the ablest counsel” that the debts due to British merchants “were recoverable, that no law prohibited it, and if it were otherwise, that the treaty would controul it” (Jefferson Papers, description begins Julian P. Boyd et al., eds. The Papers of Thomas Jefferson. 41 vols. to date. Princeton, N.J., 1950–. description ends 23:475–76).

5Article IX, section 1, of the Articles of Confederation gave to Congress “the sole and exclusive right and power” of “entering into treaties and alliances,” while Article XIII required that the states “abide by the determinations” of Congress and “inviolably” observe the articles. Moreover, Article VI, section 3, specifically prohibited the states from laying “any imposts or duties which may interfere with any stipulations in treaties, entered into by the United States” (1 Stat. description begins Richard Peters, ed. The Public Statutes at Large of the United States of America, from the Organization of the Government in 1789, to March 3, 1845 . . .. 8 vols. Boston, 1845-67. description ends 4–9).

6Gallatin, for example, in his speech of 9 March argued that the clause declaring treaties the law of the land “does not compare a Treaty with the law of the United States, or either of them with the Constitution: it only compares all the acts of the Federal Government with the acts of the individual States” and declares that federal acts, whether treaties or laws, are superior to state acts. Treaties, therefore, are the supreme law “when standing in competition against acts of the several States; but the clause by no means expresses that Treaties are equal or superior to the laws of the Union, or that they shall be supreme law when clashing with any of them” (Annals of Congress, description begins Joseph Gales, Sr., comp. The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature. 42 vols. Washington, D.C., 1834–56. description ends 4th Cong., 1st sess., 468–69).

7Wolcott is referring to a position taken in the House debate by Gallatin in his speech of 9 March and later by others such as Richard Brent of Virginia (Annals of Congress, description begins Joseph Gales, Sr., comp. The Debates and Proceedings in the Congress of the United States; with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature. 42 vols. Washington, D.C., 1834–56. description ends 4th Cong., 1st sess., 466, 577–78).

8This duty is stated in Article II, section 3, of the Constitution.

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