George Washington Papers

To George Washington from James McHenry, 26 March 1796

From James McHenry

War office 26 March 1796.


In compliance with your note of the 25 instant1 I beg leave to submit the following opinions on the queries it proposed.

1. Whether the house of representatives hath or hath not a right to call upon the President of the United States for certain papers relative to the negociation of the treaty with Great-Britain.

2. Whether if it does not possess the right, it would be expedient under the circumstances of this particular case to furnish them?

3. And in either case what terms would be most proper to comply with or refuse the request?

As to the first.2 The right to make treaties appears exclusively vested in the President and Senate by the words used to convey the right. The words are, “he (the President) shall have power by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”3 It is not that the President shall, with the advice and consent of the Senate make treaties of a particular kind, but “treaties,” that is treaties of every kind and description For, Had a particular kind been intended, or but a few species only, the generic term which comprehends all the varieties would not have been selected.

So far this right appears to be exclusively vested in the President and Senate. It follows then that when a treaty is made, and contains a promise to do a thing, or to forbear from doing a thing, it is a promise made for the whole nation, consequently whatever is necessary to be done or forborn by the people or by any department of government to fulfil that promise cannot be refused without a violation of the national faith.

In this detached view of the subject the house can have no right to demand the papers, because a treaty which becomes binding without their privity and consent can give it no claim to the inspection of such papers. If papers that respect a treaty are ever laid before the house upon such a request it must be because the President shall judge such a communication expedient from the circumstances of the time, to avoid a public evil or to obtain a public good.

As to the powers vested in Congress which may seem connected with this question and to clash with the exclusive right in the President and Senate to make treaties, it may be observed.4

1. Although the constitution declares “all legislative powers herein granted, shall be vested in a congress of the United States,”5 the legislative powers of Congress are not therefore like the legislative powers of a British Parliament illimitable or undefined, becoming thereby capable to be applied and bear upon every object of government; but defined and contracted by express limitations restrictions and prohibitions beyond which Congress cannot proceed without a violation of the constitution or running into usurpation.

2. Besides, the limitations restrictions and prohibitions to the powers that may be exercised by Congress contained in the 8 & 9 sections of the 1st article of the constitution, these powers are further abridged and restricted by prohibitions and reservations in different parts of the instrument, and by the powers vested in particular departments or officers trenching upon and limiting these powers.

3 Every restriction upon the powers of Congress is an absolute exclusion of the right to legislate upon the object restricted.

To give examples. By article the 1st: sect. 8 Congress have power to raise and support armies and to make all laws proper to carry this power into execution. By article the II. this latter power which is coextensive with the full completion of the object is abridged by an express assignment of the power to appoint officers to the President and Senate, a power abolutely necessary to carry the power to raise and support armies into execution, and without which they could neither be raised nor supported.

By art. 1. sect. 8 Congress have power to regulate commerce with foreign nations, and power to make all laws proper to carry this power into execution. This power to regulate commerce with foreign nations is in like manner restricted by the power given to the President & Senate to make treaties with foreign nations, a power expressly comprehending regulations of commerce.

It is deemed unnecessary to carry this illustration further, the examples stated being sufficient to shew the principle they establish, vz. that wherever a specific or generic power is expresly vested in an officer or department by the constitution, just so much power is taken from the powers vested in Congress.

This is thought to be a sound construction, because it keeps the treaty making power where it is expresly and literally lodged; because from the nature of that power it is more properly lodged with a few than with many, and because were it participated in by the house of representatives in which the States are unequally represented, it would comport less with their safety and sovereignty than by being vested in that branch where each State is equally protected by having an equal number of Senators, circumstances which severally considered evince that the spirit of the constitution in this respect accords with the letter.

If the reverse construction is assumed vz. that the powers vested in Congress by art. 1. Sect. 8 limit the treaty making power to objects not comprised or included in these powers it would result from thence that the treaty making power is a nullity, because the powers vested in Congress by art. the 1. comprehend almost every object that can enter into the composition of treaties.6 This therefore cannot be a good construction because it would defeat one principal end of the instrument.

If it is said that the house of representatives have a participative right in treaty making from whence is it derived? If from construction, that can never be set up against positive and declared right. If from the power given to Congress to regulate trade with foreign nations, that cannot be construed into a power to make treaties. If from the power to grant money, which implies a discretion to give or withhold, such discretion cannot be rightfully exercised to the violation of a compact entered into by those having a right to make it, by a branch possessing no such right.

On none of these grounds then have the house of representatives a right to call for the papers, because they have neither a right to make treaties nor a right to violate them when made.

But as the house of representatives are vested with “the sole power of impeachment”7 has it not a right as an incident of that power to call for papers respecting a treaty when the object is impeachment? I would presume that it has; but to legitimate such a call the object ought to be explicitly and formally announced. Where it is not, it is not to be presumed.

I conclude that the house has no right to make the call for papers in the naked form it appears in, and having no right, that there can arise no obligation to comply, which is not imposed by a different cause or by a sense of the public good.

It may now be remarked that the giving or withholding the papers can neither establish nor nullify the position couched under the resolution that the house have a right to call for them, because the resolution being disconnected with any declared constitutional object that might seem to require the papers, leaves the President at perfect liberty to exercise his negative should he think proper. Being therefore left at liberty to use his discretion, whichever way it is exercised can make very little either in favour or against the position. Were indeed the treaty in discussion, and had the house sent for these papers, as for a scale wherwith to decide upon its merits, a simple compliance with the request without note or commentary would be susceptible of a more pointed application. As it comes forward however it cannot be construed as8 having the same force, unless as connected with the probable ulterior intentions of the house.

In this point of view then to give or to withhold the papers becomes a question of expediency.

If the papers are withheld, the party in the house opposed to the treaty may shelter their refusal to carry it into effect by assigning this as a reason for their vote, and thus endeavour to get rid of the responsibility attached to refusal. The papers being withheld may also give poignancy to all the fictions which have been so industriously propogated on this subject, and may make even good men to wish that no insurmountable obstacle had opposed their communication.

It is worthy too of consideration,9 whether in a government like ours a freer communication in such cases than is usual in a country where the Executive and one branch of government are hereditary, is not a matter of policy if not of propriety.

On the whole I incline to the opinion that the papers may be communicated without a conceding of the principle that the house has a right to demand them, and that by communicating them more good is likely to result than present or future inconvenience.

The right of the house being disavowed what terms would be proper to refuse the request?

It does not strike me that the chain of argument which the case embraces ought to be adopted, because it might involve a series of unprofitable and unpleasant discussions between the house and Executive, and because it is in the nature of every argument to be susceptible of reply. A simple declaration of the opinion that the treaty making power is vested exclusively in the President and Senate with such observations on the nature of negociations between nations as may serve to shew the impolicy of exposing such papers might possibly obviate altercation, while some impressive reasons might be added to lead the house to make the appropriations necessary to give it effect.

In the case of communicating the papers without yielding to the call as a right the same course would perhaps be the least subject to objection.

The answer might assume a turn like the following.

That the request contained in the resolution of —— has received his deliberate consideration.

That certain opinions which have been published as having been delivered in debate upon the resolution afford ground for a belief that there is an intention in some of its advocates to contend that the house of Representatives hath a concurrent or negative power with the President & Senate over treaties, and to infer an acknowlegment of the right from a compliance with the request.10

That having sworn to protect the constitution he feels himself called upon to stay as far as in his power the progress of a doctrine which if carried into practice wuld produce a radical change in the constitution of the United States without the intervention of the mode it prescribes to obtain alterations.

That inasmuch as he believes the right to make treaties to be exclusively vested in the President and Senate by the constitution, as he knows such to have been the sense of the Convention which framed it; and as government have followed this construction in practice, it becomes his duty to protest against any thing tending to establish a different construction of the instrument.

That being the sole judge of what or whether any papers ought to be laid before the house at this juncture, he has annexed such documents and correspondence relative to the negociation of the treaty lately concluded with Great Britain as in his opinion may be communicated consistently with foreign relations and the interests of the union.

That as the treaty requires certain appropriations of money to be made which can neither be refused without a violation of national faith, nor yet delayed beyond a certain time without involving the most important consequences he trusts that the house will give the subject the earliest attention.

That to enable the house to appreciate the value of the moment he has subjoined an extract of a letter from Mr Adams &c.11 The above is respectfully submitted

James McHenry
Secy of War

ALS, DLC:GW; ADfS, MiU-C: McHenry Papers; ADf, MiU-C: McHenry Papers.

Another draft of McHenry’s thoughts on these questions, reportedly addressed to GW and dated 19 Jan., was offered for sale by Parke-Bernet Galleries, Inc., Manuscripts and Autographs … From the Collections of the Late Col. Roy G. Fitzgerald …, 6 Nov. 1963, item 159.

1See GW to the Cabinet, 25 March.

2The ADfS begins at this point.

3McHenry is quoting from Article II, section 2, of the U.S. Constitution.

4At this point in the ADf, McHenry wrote the following text, which he first revised heavily and then marked, presumably for removal: “Should we take it even for granted that making a treaty is a legislative act, because a treaty is declared to be a supreme law, and because to regulate commerce with foreign nations is a power given to Congress, yet it by no means follows that the house of representatives must have an agency in making it or that they have a right to refuse doing what may be imposed upon them to do in order to give it operation.”

5McHenry is quoting Article I, section 1, of the Constitution.

6The last sentence of this paragraph and the entirety of the next two paragraphs do not appear in the ADfS. Instead McHenry continued at this point with the following text, which was later bracketed: “On the contrary by the True construction, the power to impose duties or regulate commerce by duties or restrictions which affect foreign nations still remain to Congress at least so far as the stipulations of treaties do not interfere.”

7McHenry is quoting from Article I, section 2, of the Constitution.

8The ADf stops here.

9At this point in the ADfS, McHenry wrote the following text, which was later bracketed: “whether withholding them is more likely to check the disorganizing spirit of the times or to impel it to greater excesses.”

10Among Philadelphia newspapers, the Aurora General Advertiser on 8 March began printing the debate in the House about the resolution to request the Jay Treaty instructions; by 26 March, the Aurora was printing the speeches of 15 March. The Gazette of the United States had printed speeches to 14 March. Claypoole’s American Daily Advertiser had printed speeches to 22 March. Congressmen who were reported to have suggested that the House had a power over treaties included John Nicholas, who claimed that “in making a treaty, there was a necessity for calling on that house for money, and therefore it was in effect no treaty till they made the necessary appropriations”; Albert Gallatin, who stated that “a treaty cannot be made to embrace any legislative object except that house agreed to it”; and William Branch Giles, who considered that “checks on the treaty making power” included “the right of appropriation placed in Congress” and “the necessity for the concurrence of that house to give efficacy to a treaty whenever it embraces any object which is contained in the powers given by the constitution to Congress,” such as the power to regulate commerce, to declare war, or to raise armies (Claypoole’s American Daily Advertiser, 10, 11, and 14 March). For the debates, see also 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., 426–783.

11The extract has not been identified.

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