To George Washington from James McHenry, 11 March 1796
From James McHenry
War office 11 March 1796.
Sir.
A treaty of peace between the United States and the Regency of Algiers being completed gives operation and effect to the 9th section of the “act to provide a naval armament” which section, enacts “that if a peace shall take place between the United States and the Regency of Algiers that no farther proceedings be had under this act.”1
As this event produces a virtual repeal of that act, it becomes from henceforward illegal to create by new orders or measures any new expenditure of money not essential to and required for the fulfilment of contracts made and entered into before this event.2
It appears also to be within the meaning of the proviso that all orders respecting the building of the Frigates, procuring materials for them, or preparing materials already obtained which can be suspended without intrenching upon any actual contract or engagement should be forthwith suspended.
Under this view of the act it is important to know the intention of Congress on this subject as soon as possible. I would submit therefore whether some communication to Congress may not be proper that would bring it before them and hasten a decision. With the greatest respect I have the honour to be Sir your Excellency most obt
James McHenry
ALS, DLC:GW; LB, DLC:GW; copy (in McHenry’s writing), DLC: James McHenry Papers; ADf, DLC: James McHenry Papers; ADf, MiU-C: McHenry Papers. The draft at MiU-C evidently is an earlier composition than that at DLC.
1. For the act of 27 March 1794, see 350–51.
2. Treasury Secretary Oliver Wolcott, Jr., pointed this out in his letter to McHenry of 8 March (CtHi: Oliver Wolcott, Jr., Papers). McHenry then solicited the opinion of Attorney General Charles Lee on 10 March.
In McHenry’s letter to Lee, which apparently enclosed a draft of this letter, he wondered whether, in light of the congressional debate about the rights of the House with respect to treaties, such a communication might “be considered by them as an indirect attempt to draw them into an act which would be a conceding of this right, and may it not indispose them against any immediate decission respecting the frigates? On the other hand, may the Executive consistently with the law decline making such a communication and at the same time decline to suspend proceedings on the frigates?” (DLC: James McHenry Papers).
In his reply of 10 March, Lee gave opinion “that every proceeding for carrying the act to provide a naval armament into effect, ought to cease, until Congress shall direct by a new law or resolution what shall hereafter be done” (Parke-Bernet Galleries, Inc., catalog 562, The James McHenry Papers … Part One, 3 May 1944, item 97).