Notes for Speech in Congress
These notes present a difficult editorial problem insofar as their contents do not clearly establish a structure for any of the three major speeches JM delivered during the Jay treaty debates in March and April of 1796. The notes cannot have served as JM’s preparation for his speech of 10 March since their organization, as well as other internal evidence (see nn. 4, 5, and 9, below), suggests that JM could not have begun drafting them until the House debate on Livingston’s resolution was well advanced, if not actually completed. Moreover, with the exception of the points included under his heading of “Cotemporary evidence,” JM drew on very little of this material for his speech of 6 April on the two resolutions presented by Thomas Blount, while that speech, in turn, discussed many topics not included in these notes. And if JM made any preparations for his 15 April speech on the merits of Jay’s treaty, it was probably by recalling to his mind the arguments he had written out in September 1795 for the petition to the General Assembly of Virginia. The structure of JM’s argument, if not the exact wording, in his final speech on Jay’s treaty is very similar to that found in the document he had so painstakingly penned in the fall of 1795.
Given the marked differences between these draft notes and any of the reported versions of the speeches JM actually delivered, there is the possibility that these notes were made for a speech that was never given, at least certainly not along the lines JM was considering as he compiled them. JM himself, in his speech of 6 April, provided one clue that this could have been the case when he mentioned that he had intended to speak again in the debate on Livingston’s resolution but was prevented from doing so by its “sudden termination.” JM’s remarks on 6 April, however, suggest only that he had wished to speak again in order to respond to demands, made repeatedly by several Federalists during the March debate, that he and Abraham Baldwin of Georgia inform the House about the true intentions of the 1787 Federal Convention as to which branches of the government were to be entrusted with treaty-making powers. Yet only one section of JM’s notes—that under the heading of “Cotemporary evidence”—seems to address this particular problem, and it does so by reference to the debates in three state ratifying conventions rather than to the proceedings of the Federal Convention itself. Furthermore, the notes, considered as a whole, seem more wide-ranging than would have been necessary had JM only wished to respond to Federalist allegations that he was guilty of political inconsistency in changing his mind on these issues between 1789 and 1796.
There remains, therefore, the possibility that JM had some uses for these notes that may not have been fully realized. That hypothesis seems all the more plausible if it is recalled that after the passage of Livingston’s resolution in the House on 24 March, the Jay treaty debate did not take the course that JM and other Republican leaders had anticipated. The correspondence of JM, John Beckley, and Edward Livingston in mid-March 1796 establishes quite clearly that they expected the debate on Livingston’s resolution to be followed by the introduction of two further resolutions on the right of House members to refuse legislation for treaties containing provisions that encroached on their constitutionally defined duties. These two resolutions were never presented in the form that the House Republican leaders seem to have contemplated, largely because Washington’s refusal to comply with the call for Jay’s papers so disturbed the fragile antitreaty coalition in the House that JM felt obliged to consolidate a majority for any future vote on the treaty by persuading the House, in the debate on the two resolutions presented by Thomas Blount on 6 April, that its members had been within their rights to request Jay’s papers in the first place.
To some extent, JM and the Republican caucus that met on 2 April attempted to salvage something of this earlier strategy by incorporating into the first of Blount’s resolutions a declaration to the effect that the House had a “right and duty” to deliberate on the expediency of legislating for treaties that stipulated “regulations on any of the subjects submitted by the Constitution to the power of Congress.” But a debate on the right to call for information was a very different matter from one that would have asserted a clear constitutional basis for the House to reject appropriations or any other measures necessary to implement the Jay treaty, and it was probably for this reason that JM seems not to have used much of the material contained in these notes. At the most, he seems to have adapted only some of their contents for his speech of 6 April as part of his response to the situation arising from Washington’s refusal to deliver Jay’s diplomatic papers to the House.
[ca. 23 March–2 April 1796]
The Patrons of the Treaty power take part of Constn;
—–Easy to say. P. & S. have power to Treaty—& treaties supreme laws.
—–Equally easy to say Congs. have power to legisl: & their acts laws.
—–Apparent collision the most they can pretend to.
|Difference of opinion||1. as to extent of Treaty power—|
|2. as to the nature of the Oblign. on Congs.|
—–The prevailing opinion is
|—the power unlimited, &||so as|
|—the obligation inviolable|
|—to supersede all existing laws, &|
|—to make Congs. ministerial in providing new laws.|
—–If this high & paramount operation belong to Treaties—it must proceed either
1—from the nature of the Treaty & Legisl: powers;
2—from the terms of the Constitution, or
3—from some palpable absurdity or grievous inconveniency of the contrary doctrine
1. Not from the nature of Treaty making, & law making power
—–In general law—the highest exertion of power & the legisl: supreme over other Departs.
—–No instance where Treaty power is not vested in the Legislure, as Sweeden—Poland—Venice—France—Spain—
—–except G. B. where limited to verge of Prerogative°
—–In Govt. of U. S.—lawmaking power in some respects superior & directory—in no respect less than co-ordinate with other Depts.
—–Case of repealg. a law—
—of the same specific nature & force
—repeal equipollent to enactment when repealg or suspending law repealed.
Besides then, the objection to 2 supremes one capable of annulling the other—it is inconsonant to const:l. principles generally & to the spirit of our own, that ⟨laws⟩ be repeald but by law
—–Contended that Treaty power relates to a new Region of Legislation—embraces new objects—& operates in new modes.
—–Then can not interfere with the Region, the objects or the modes, of Congressl. legislation.
But, if Treaties are to have the force given to them—
—they operate within the sphere of Congs.
—they operate on the same objects—e.g. on commerce
|—they operate||in the same mode|
|by the same officers|
|under the same sanctions|
|with the same results.|
It is true that they are distinguished by the circumstance of mutuality—but this consideration or inducement only—not change in the operation itself.
Not even mutuality—as commercial laws—for money
A law—in pursuance of contract, domestic or foreign, law
>From this view—the nature of the case, no argument.
>see State Treaties—& compacts—can these repeal laws of U. S.?
2. Does not proceed from the terms of the constitution
—–if it does, obey—but, should be clear.
—–General & Specific Grant to be otherwise expounded
—–See the text—Constitution, laws & Treas. to “land”2—no superiority expresd—contrary implied.
—–True meaning—Const: laws conformable to it—& Treaties consistent with both—genl. code, supreme law
—–This the meaning if text stopt there—but followg words preclude every other.
—–To express subordination of State laws—& not fedl. laws—where less dbtful—exempts the latter.
Maryd. Va. & No. Ca. amends.
—–See Ratifications—p. 15–19–25. for sense of those States, as to fundl. & unalienable rights.3
—–See also p. 29—art 23d. for sense of N. C. as explained by Mr. Holland.4
3. Does it proceed from palpable absurdity, or grievous inconveniency?
—Unity in Govt. remains
—inconveniency of conflicting authorities the other way
—Foreign Govt. bound to know ours.
It is said—that Congress have no legislative Agency, in case of Treaties, because if Const:n. silent, not devolve on them.
—–All States, where Legisl. & Ex. separate give the power—except G. B.
—–Congs. can pledge faith, as to money &c
—–States can make compacts, by Legislres.
—–Congs. not Ex. consent to them.
☞ If Congs. had power to treat—cd. they supersede the specified powers of the Executive.
But if Congs. can’t treat, can alone legislate & as when they want Treaty, depend on Ex. so when laws wanted—Ex. depend on Congs.
Said that Parlt. extorted from Prerogve. that this the worst part of that Govt. that no negative on Treaties but one and that interference with Treaties, only for inns & outs
—–Tory doctrine & not true, K. & Coms. both extort from order of Nobles
—–best part of that Govt.—if King by treaty as wth Hanovr. cd. bring troops into G. B.
—fatal to the Legisl: & to liberty.
—–if no interference, for same reason as no negative—Royal influence
—–if to impeach & supplant—execute Treaty first—discuss it afterwards.
—Obscurity & irregularity—its characters
—No specific investment of powers in States
—Supremacy over State laws, now specified, now over Congs.
—Unity of Govt. now—then variety of Govts.
—suability of States8
But ready to meet it—Virga. Debates
—J. M. Vol. 2. p. 137—Vol 3. p. 82–84–93–94–95.
—G. N. Vol. 3. p. 83–84–86–87.
—Corbin Vol 2. 152—Vol. 3. 89–90
—E R—Vol 3–85.9
|2 ideas||—Treaty power limited|
|—reference to British Model|
N. Carolina Debates—p. 152–15310
Pena. do—same illustration by Brit: Model11
Ratifications &c. p. 3–5–13–16–18 & 19–21–25–27–29.12
These explanatory, as well as alterative & inconsistent with idea of giving war &c. to P. & S.
Case of Small States.
House of Reps. less responsible &
—longer the power & fewer the hands more interest in it—more object of foreign seduction
—–tendency to encroachts. to be tested by
—foreign experience—in popular—in limited Govts
—further opportunities & prospects.
1. If War Ex. prerogve. then three powers of war
2. Treaty power extend to all powers of Congs
3. Restrictions on Congs—none on Treaties
4. Case of appropriations the stronger—as the check is reserved to the people, who can chuse new members—every two years—
Not conceivable that people so jealous of the sword & the purse, shd. have intended to put both into the hands of P. & S.—& make Congress
—the mere heralds to proclaim war
—the agents—to recruit armies
—& the Cashiers, to pay out the money for them.
Ms (DLC). In JM’s hand and headed by him at a later time: “Notes for speaking on the Treaty power (Jays Treaty).” Written in columns on a folded sheet of paper.
1. JM seems to have consulted the 1793 translation of Vattel’s Law of Nations, published in London by G. G. J. and J. Robinson. The pages cited are in book 2, chapter 14, and book 4, chapter 2, and deal with faith in treaties and treaties of peace. Both sections included arguments that the power of monarchs to make treaties, especially in England, was often limited by the need to observe fundamental laws or to have Parliament consent to any debts incurred in a treaty.
2. JM was referring to article 6 of the U.S. Constitution.
3. JM had consulted the collection of amendments and declarations of rights appended by several states to their ratifications of the Constitution and published by Augustine Davis, The Ratifications of the New Fœderal Constitution, Together with the Amendments, Proposed by the Several States (Richmond, 1788; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 21529). For JM’s ownership of two copies of this pamphlet, see PJM description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (1 vol. to date; Charlottesville, Va., 1984—). description ends , 11:300 n. 2. The citation to page 15 referred to the Maryland amendments; those to pages 19 and 25 to the Virginia and North Carolina declarations of rights.
4. Article 23 of the North Carolina Declaration of Rights stated: “That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws be repealed, or made conformable to such treaty; nor shall any treaty be valid which is contradictory to the Constitution of the United States.” In the debate on 14 Mar. 1796, James Holland (North Carolina) argued that the Constitution would not have been ratified had it been generally understood that the House of Representatives would have less influence over treaties than did the House of Commons in England (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 4th Cong., 1st sess., 543–44).
5. JM may have had in mind the speeches given by John Williams (New York) and Joshua Coit (Connecticut) on 21 and 22 Mar. 1796. Both had opposed the call for Jay’s instructions, arguing that these could throw no light on the treaty, which should be judged on the basis of the text and its merits alone. They had also spoken against attempts to seek the meaning of constitutional provisions through reference to the proceedings of the conventions concerned with the making and ratification of the Constitution. Coit and Williams, moreover, had attacked JM personally in their speeches, partly on the basis of his remarks on 10 Mar. and partly on the grounds that JM had apparently abandoned the positions he had taken on the treaty powers of the government in the years 1787 and 1788 (ibid., 643–44, 657–58).
6. In February 1791 JM had opposed the bank bill on the grounds that the 1787 Federal Convention had rejected the proposal that Congress be empowered to grant charters of incorporation. He was widely criticized for this mode of constitutional interpretation, especially by Elbridge Gerry (PJM description begins Robert A. Rutland et al., eds., The Papers of James Madison: Presidential Series (1 vol. to date; Charlottesville, Va., 1984—). description ends , 13:374–82; Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 1st Cong., 2d sess., 1954–55, 1970, 1980, 2003–6).
7. Virginian opponents of the carriage tax had failed to persuade the Supreme Court of their understanding of the 1787 Federal Convention’s intent in Hylton v. U.S., while on 8 Mar. 1796 Smith (South Carolina) had reminded the House that in deciding the case, the court had not called for any congressional proceedings in order to judge the constitutionality of the tax (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 4th Cong., 1st sess., 440–41).
8. In 1793, in the decision in Chisholm v. Georgia, the Supreme Court had rejected Antifederalist theories of state sovereignty that an individual could not sue a state in a federal court. The decision led to the ratification by most states in 1795 of the Eleventh Amendment to the Constitution.
9. JM here collected arguments advanced in the Virginia ratifying convention on 13, 18, and 19 June 1788 by himself, George Nicholas, Francis Corbin, and Edmund Randolph. Their purpose was to demonstrate that although treaties were necessarily the law of the land, it did not follow that there were no restraints on the treaty-making power. In this respect, the powers of the English monarchy were limited by Parliament, and the speakers anticipated that the House of Representatives would have a comparable influence on American treaties. Other arguments by these same Virginian speakers in 1788, incidentally, had been extensively quoted by Theodore Sedgwick in his speech of 13 Mar. attacking opponents of the Jay treaty (see David Robertson, Debates and Other Proceedings of the Convention of Virginia, Convened at Richmond … for the Purpose of Deliberating on the Constitution … [3 vols.; Petersburg, Va., 1788–89; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 21551]; Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 4th Cong., 1st sess., 524–26).
10. For similar arguments advanced by James Iredell, see Proceedings and Debates of the Convention of North-Carolina, Convened … for the Purpose of Deliberating and Determining on the Constitution … (Edenton, N.C., 1789; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 22037).
11. See Thomas Lloyd, Debates of the Convention, of the State of Pennsylvania, on the Constitution … in Two Volumes (Philadelphia, 1788; Evans description begins Charles Evans, ed., American Bibliography … 1639 … 1820 (12 vols.; Chicago, 1903–34). description ends 21365), 1:111–13.
12. In Ratifications of the New Fœderal Constitution, JM noted the following: Page 3. From the New York declaration of rights: “no treaty is to be construed, so to operate, as to alter the Constitution of any State.”
Page 5. Three constitutional amendments proposed by New York: “That no standing army or regular troops shall be raised, or kept up in time of peace, without the consent of two thirds of the senators and representatives present in each House.” “That no money be borrowed on the credit of the United States without the assent of two thirds of the senators and representatives present in each House.” “That the Congress shall not declare war without the concurrence of two thirds of the senators and representatives present in each House.”
Page 16. The declaration of the Maryland convention that “no standing army shall be kept up in time of peace, unless with the consent of three-fourths of the House and Senate.”
Page 18. The Virginia convention demand “that there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people.”
Page 19. The amendment proposed by Virginia “that all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the legislature, is injurious to their rights, and ought not to be exercised.”
Page 21. Three amendments proposed by Virginia: “That no navigation law or law regulating commerce shall be passed without the consent of two-thirds of the members present, in both houses.” “That no standing army or regular troops shall be raised, or kept up in time of peace, without the consent of two-thirds of the members present, in both houses.” “That no soldier shall be inlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.”
Page 25. The North Carolina declaration: “Resolved, that a Declaration of Rights, asserting and securing from encroachment the great principles of civil and religious Liberty and the unalienable rights of the People … ought to be laid before Congress, or the Convention of the States.”
Page 27. Three North Carolina amendments, the same as those proposed by Virginia on page 21.
Page 29. The North Carolina amendment, cited at n. 4 above.