George Washington Papers

To George Washington from Charles Lee, 26 March 1796

From Charles Lee

Philadelphia 26th march 1796


It is my opinion that the house of representatives have not a right by the constitution to demand and obtain the papers described in their resolution of the 24th instant without the consent of the President.1

I am not acquainted with those papers, but supposing they contain nothing which may not be disclosed to the public I think it will be expedient under the circumstances of this particular case to comply with the request as to all which preceded the signature of the treaty: & to accompany the compliance with explicit declarations of your opinions upon the propriety of the resolution and upon the right asserted by some of the members to exist in that branch of Congress to complete and ratify a treaty.

I beg leave to refer to the paper already furnished as a mode in which a compliance may be made.2

I will now proceed to state some observations in support of the opinions which I have formed on this important subject.

By a clause of the third section of the second article of the constitution the President “shall from time to time give to the congress information of the state of the Union and recommend to their consideration such measures as he shall judge necessary and expedient.” I understand by this that he is to exercise his own discretion as to the manner of giving to congress information of the State of the Union & he is responsible if he fails to do it in a proper manner. This however does not preclude Congress from requesting copies of papers to be laid before them touching a subject properly under their cognisance, if there is reason to believe there is a probability of obtaining any that may be useful and which at the same time may with propriety be communicated to them; but the president has a right to decide for himself whether he will comply with such request.

The house of representatives has generally from the nature of its functions a right to demand from the President such statements of the transactions in any of the executive departments as they shall conceive necessary or useful in forming their laws, and there may be occasions when the books and original papers should be produced: for instance to sustain an impeachment commenced or to discover whether there be any malversation in office which might require impeachment—But it does not therefore follow that this branch of Congress possesses a right to demand and possess without the consent of the President copies of all the instructions and documents in his custody relative to any subject whatsoever, whenever they shall be pleased to require them. On the contrary it is my opinion that he may withhold from them the confidential communications between foreign ministgers and our own on the subject of a treaty either pending or finally concluded when in his judgment he shall think it best; and that he is bound by the consideration of good faith to the foreign minister & perhaps to our own so to do on some occasions.

When it has been asked for what purpose the papers are to be used, it has been answered to enable the house to determine, first whether the laws contrary to the treaty should be repealed, and secondly whether they ought to make appropriations of public money for carrying it into effect. Neither of these objects warrant the resolution.

As to the first I do not concur with those who think that a treaty made between the United States and a foreign nation by the President by and with the advice and consent of two thirds of the Senate, requires the sanction of the house of representatives to give to it validity, though there be stipulations in it contrary to precedent laws and though money be requisite for the performance of it. It seems scarcely denied by any that the people have vested the authority to make treaties on the part of the United States in the President by and with the advice of two thirds of the senate, for this has been done in express Words. But is this authority vested there exclusive of the participation of the house of representatives. I think it is for the following reasons

1st because a power to participate or co-operate in the making of treaties is not given to that branch of Congress in express terms.

2d Because if this branch is by construction to be allowed to participate in making one treaty, the same reasoning would extend its power to all, even a treaty of mere peace and in the convention who formed the constitution it was proposed that [“]no treaty should be binding that was not ratified by law,” and the proposition was rejected.3

3d Because under the former confederation the whole treatypower resided in a body composed of representatives of each State, like unto the present senate, and in the formation of treaties each state possessed an equal vote, which equality the smaller states considered as essential to their political preservation—So they considered their equality in the Senate when they agreed to the new constitution; and in putting construction on it, regard should be had to the preceding form of government; and that should be adopted in doubtful cases which innovates the least, and tends most to the safety of the Integral parts of the confederacy.

4th because it seems to have been generally understood in the state conventions who adopted the constitution that this branch had no participation in the making of treaties; and this understanding has been confirmed by constant and uniform experience to the present day.

To make a contract and to perform it after it has been duly made are obviously very different things; If the treaty with great britain in its present state of ratification is a complete contract binding on the United States, it is their own act and possesses every power which a treaty made by the nation can possess. But a treaty made by the constituted authority of a nation for that purpose becomes a law: if a law it must possess all the power of a law; and consequently a power to supercede or repeal all laws anterior & contrary thereto. Hence it is manifest that if a treaty contains any stipulations inconsistent with acts of the Legislature, it supercedes them. If a nation has a law and makes a treaty by which it is agreed that the law shall thereafter cease, it exercises a power which it hath to repeal its own laws. By their own authority they made the law—by the same they repeal it.

This general proposition is further supported by Vattel who in book 4. section 24 says “that a treaty of peace binds the contracting parties from the moment of its conclusion as soon as it had passed through all its forms” and in section 25 that “on the publication the treaty becomes a law to the subjects and they are obliged to conform to the articles stipulated therein: if for instance the treaty imports that one of the two nations shall abstain from a particular trade every subject of that nation from the time of its being made public is to renounce that trade.”4

In the controversy between the United States and great Britain touching the inexecution of the treaty of peace, the American minister maintains that a legislative repeal of the laws of the states contrary to the treaty was not necessary “for that it was at all times perfectly understood that treaties controuled the laws of the states the confederation having made them obligatory on the whole.” See the recapitulation of Mr Jefferson’s letter section 56.5

If the laws of the states under the old confederation were repealed by a treaty, I infer that a law of the United States ought to be deemed repealed by a treaty of the United States and it is immaterial by whom as the rightful instruments of the nation, the one or the other is made.

I admit that in England where their usage is their constitution, it is the established usage to repeal by a legislative act any law in opposition to a treaty—But this proves nothing more than this is an exception to the general rule and arises out of their government—and a treaty as well as a law must be conformable to the constitution of every country that has one.

Thus independent of that clause of our constitution in the sixth article declaring a treaty made under the authority of the United States to have the efficacy of a law it seems to me upon general principles to have that efficacy, and this persuasion is confirmed in some degree by that clause.

As to the second object of the resolution, I do agree that the treaty cannot be performed without an appropriation of money which is under the power of that house of congress. But I do not perceive what aid can be derived from the papers to this end, unless it be intended not to perform the treaty. A treaty is to be executed with good faith and “the injury that a nation may sustain from a treaty is not a justifiable reason for such a nation to refuse complying with its conditions.” Martens Law—page 526—If any reasons will excuse a breach of treaty, they must be different from those which may be collected out of the documents which concern the negotiation and therefore on this ground the house of representatives are not conceived to have an undeniable right to the possession of those papers.

The resolution by the generality of its expressions comprehends papers which properly belong to those only whose assent is requisite to the validity of a treaty and not to those who have a power respecting the performance of it only in which light I consider the house of representatives to stand.

As to the expediency of the communication, time will not permit me to go into that subject minutely, and especially as I am a stranger to the papers, my opinion is given under much disadvantage as to this point and is founded on general Ideas. I am with the most profund and sincere respect your most obed. servant

Charles Lee


1Lee is responding to GW’s letter to the cabinet of 25 March.

2Lee drafted a possible answer to the House of Representatives that reads: “Your resolution of the 24th instant requesting my instgructions and the correspondence and other documents relative to the negotiation of the treaty with great britain to be laid before you has been taken into most serious consideration. your debates concerning it have also received my particular attention.

“Whether the resolution was meant to assert a right in your house to give validity to treaties does not precisely appear from itself; but as this seems to have been the intention of at least some of the members who supported it, and as I entertain not a doubt upon the subject, my duty to protect & defend the constitution upon all occasions compels me now to declare my conviction that the constitution has not vested in the house of representatives a power to participate in the making of any treaty whatsoever. Such was the general sense of the convention who formed it and of the conventions who adopted it. So I understand the terms of it, and so it has been uniformly administered without objection and without controversy from its very commencement.

“I consider the treaty with Great Britain in its present form as a complete contract binding on the United States and a law of the land; and although an appropriation of money is requisite for its faithful performance I am persuaded that you do not possess on that account a right to demand and obtain those papers—Thus impressed I feel myself at perfect liberty to withhold them all though none concern a pending negotiation; but having an earnest desire of harmonising with your house to the utmost that is possible I shall transmit copies of such of them as in my judgment may be communicated consistently with my ideas of official propriety, and the Secretary of state will be accordingly directed. I have been thus explicit, that it may not be supposed by any, that in this transaction a precedent has been established admitting any act of your house to be requisite by the constitution to give validity to any treaty whatsoever, and that the rights of the executive may remain perfect and unimpaired as they have been solemnly constituted by the people of our common country” (Df, DLC:GW).

3Filed with this document in DLC:GW is a manuscript summary of some resolutions considered by the constitutional convention in 1787. The relevant portion states that on 23 Aug. of that year, “It was moved and seconded to amend the 1st clause of the 1st Section 9th article to read ‘The senate shall have power to treat with foreign nations, but no Treaty shall be binding on the United States which is not ratified by a law.’ It was moved and seconded to postpone the consideration of the amendment; it passed in the negative On the question to agree to the amendment, it passed in the negative.”

4Lee is quoting from The Law of Nations, a translation of Emmerich de Vattel’s Le droit des gens, ou, principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. In the 1759 edition, the quotations appear on pages 122–23 of the second volume.

5Lee is quoting from Thomas Jefferson’s letter to George Hammond of 29 May 1792 (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, quotation at 598).

6Lee is quoting from William Cobbett’s translation of Georg Friedrich von Martens, Summary of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe … (Philadelphia, 1795).

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