I have examined the cases mentioned in Mr Livingston’s speech, in which he affects to draw certain conclusions that the President has heretofore admitted, by the nature of his communications to the House of Representatives, that their interference is necessary to the due formation and binding force of treaties: but not one applies to the point.1 All the instances cited relate to communications prior to the making of the treaties: whereas the object now contended for is, a right to sanction or reject treaties after they are made.

Mr Livingston’s first reference is to the message of the 7th of August 1789, in which the President, agreeably to his constitutional duty, gives information of the state of the Union, in relation to the Indian tribes who were committing hostilities on our frontiers. The question depending was doubtless this; Whether offensive war should be made, or pacific measures taken to settle all differences with the southern tribes, by holding a treaty with them? And in case the Congress, instead of making war, should think it “most expedient to terminate all differences by an amicable treaty,” the President suggests the measure of a temporary commission of three persons to hold it. But as no money had then been provided for such a purpose, the application to Congress was indispensable. The sum of 20,000 dollars was in consequence appropriated, and the pay of the commissioners fixed.2

On the 22d of July 1790, Congress appropriated the further sum of 20,000 dollars, to defray the expences of holding treaties, maintaining a friendly intercourse, and preserving peace with the Indian tribes.3

Mr Livingston might have mentioned another appropriation of this kind; it was in 1793; and extended to 100,000 dollars, to enable the President to hold a treaty and make peace with the Indians Northwest of the Ohio.4

On the 3d of March 1791, the sum of 20,000 dollars was appropriated to effect a recognition of the treaty of the U. States with the Emperor of Morocco.5

The next case is that of the Algerines and other Barbary powers, for which, and some other objects relating to our intercourse with foreign nations, an appropriation was made to the amount of one million of dollars.6

In all these cases, the negociations were to be conducted in a mode entirely different from that usual with the civilized nations of Europe. It was necessary to have the money in hand, to be paid during the negociations with the savages of America & the pirates of Barbary, or immediately on their conclusion. In these cases, then, it was necessary that the acts of Congress should precede the treaties: and hence the necessity of the President’s making these communications prior to the commencement of the negociations.

The last references of Mr Livingston were to the President’s messages of the 5th & 16th of December 1793. The latter was accompanied by confidential communications relative to our affairs with Spain. This confidential message not being in the public journals, I take Mr Livingston’s own quotation from it. The former part of the message must have stated our situation as comprehending demands refused or disputes to be adjusted. “And therefore (says the President) by and with the advice and consent of the Senate, I appointed commissioners plenipotentiary for negociating and concluding a treaty with that country, on the several subjects of boundary, navigation & commerce, and gave them the instructions now communicated.” Now “why (asks Mr Livingston) communicate the instructions to the ministers? because (he answers himself) they related to commerce, to navigation, to boundary, on all of which subjects the president must have thought the legislature had a right of decision.” But the instructions bear date in February or March 1792, nearly two years before they were laid before the House of Representatives; and the entry in their public journal of Decr 16. 1793, mentions the confidential communications, as “respecting the transactions of the government of the U. States with Spain.” And the fact was, that without consulting that House, the Executive had been acting near two years on the Spanish business; and it was only because the long protracted negociations presented little prospect of success, and because the people west of the Allegany, particularly the Kentuckians, were so restless as to indicate signs of taking by force (& thus involving the U. States in war) what could not be obtained by negociation, that the subject was laid before Congress. It is also remarkable, that the instructions for the Spanish negociation, tho’ withheld near two years from the House of Representatives, were laid before the Senate, as a branch of the treaty-making power, for their approbation, before they were sent to our ministers; the senate being in session, and the subject of great importance.7

Thus it appears that the cases cited by Mr Livingston do not yield a shadow of support to his resolution: and indeed his speech is made up of contemptible sophistry & florid declamation. I am most respectfully sir your obt servant