that the powers vested in him as President to make treaties by and with the consent of two-thirds of the Senate, was exercised. 1 $283. Jay's treaty; excitement and opposition.-In 1794, however, the famous Jay treaty 1 was concluded between Great Britain and the United States; at once excited discussion arose; questions involving the extent of the treatymaking power, as to the right of the President and the Senate to make treaties, the extent to which treaties could alter existing legislation, and also the right or duty of the House of Representatives to participate in the ratification of the treaty, or, if not in the ratification itself, in the legislation necessary to make the treaty effectual, were debated, not only in Philadelphia where Congress then met, but throughout the entire fifteen States, for by that time Vermont and Kentucky had been admitted to the Union.2 § 284. Strained relations between United States and Great Britain; Washington's message.-Grave causes of difference existed at the time of the negotiation of this treaty between the United States and Great Britain; in fact, the seq., Vol. II, for this and other cases 1See note to § 285, p. 422, post. 1In speaking of this treaty, J. C. Bancroft Davis makes the following remarks, and gives the following references in his notes on Great Britain, p. 1321, in the 1889 edition of the " Compilation of Treaties between the United States and Foreign Powers:" "The treaty concluded by Jay on the 19th of November, 1794, re moved or suspended these grave causes of difference. It named a day for the withdrawal of British troops from the territories of the United States. The United States undertook to make compensation to British creditors who had been prevented by lawful impediments,' in violation of the treaty of 1783, from the recovery of their debts. Great Britain agreed to make compensation to the merchants and citizens of the United States whose vessels had been illegally captured or condemned. The United States undertook to make compensation to certain British subjects whose vessels or merchandise had been captured within the jurisdiction of the United States and brought into the same; or had been captured by vessels originally armed in the ports of the United States. It was agreed that provisions and other relations between the two countries had become so strained that President Washington informed both Houses of Congress by a special message in regard to the occupation by the British of forts in the Western Territory that "this new state of things suggests the propriety of placing the United States in a posture of effectual preparation for an event which, notwithstanding the endeavors making to avert it, may, by circumstances beyond our control, be forced upon 285. Rights of the people; necessity of legislation to enforce the treaty.-The Jay treaty was the first one negotiated under the constitutional power, and it gave rise to many important points affecting the people in their relations, both as to those matters which were admittedly under Federal control, and as to those which were admittedly, in the absence of foreign relations, exclusively under State jurisdiction; not only national and commercial relations were affected, but the relations of individual debtors to British cred articles not generally contraband | Note. On the 5th of May, 1796, of war should not be confiscated if President Washington submitted seized, but that the owners should to the Senate an explanatory artibe fully indemnified; and that cle with the reasons which had vessels approaching a blockaded made it necessary, and another export, in ignorance of the blockade, planatory article was added in should not be detained, nor the March, 1798. cargo confiscated unless contraband. "The appropriations for carrying into effect the Treaty of 1794 were made by Congress on the 6th of May, 1796, and by Parliament on the 4th of July, 1797." See § 295, p. 429, post. "The instructions to Jay embraced many other subjects. How far they were executed, and why he failed to comply with some of them, will appear by reference to 2 The message was a very brief the instructions and correspond-one dated May 21, 1794, and will be which accompanied the found in Richardson's Messages of President's message of June 8, the Presidents, vol. I, p. 155. transmitting the Treaty to the Sen- § 285. ence ate. The reasons which induced the President and his advisers to assent to it are detailed in a letter from Pickering to Monroe of September 12, 1795. This treaty was the cause of the long and able debates in Congress, which have been referred to in the Introductory 1 Treaty of Amity, Commerce and Navigation; concluded November 19, 1794; ratifications exchanged at London, October 28, 1795, proclaimed, February 29, 1796; U. S. Treaties and Conventions, edition, 1889, p. 379, 8 U. S. St. at L. p. 116. itors were adjusted and settled. As existing legislation conflicted to some extent with the provisions of the treaty, the question was at once raised whether Article VI of the Constitution, which makes treaties the supreme law of the land, obviated the necessity of new legislation to carry those provisions into effect, or whether the treaty was a simple contract which required congressional action to carry it out and render its stipulations effective and binding upon the people. § 286. General discussion of these questions.-All of these points were debated not only in Congress and in State Legislatures, but also by the people through the medium of the press and pamphlets, and at mass meetings. It is necessary, therefore, to briefly review the historical facts connected with the negotiation and ratification of this treaty, as well as the proceedings in Congress relating thereto; this is the more important as questions which were almost identical, arose, and were debated on the same lines, in regard to treaties concluded at a later period, and which will be hereafter referred to.2 § 287. John Jay's mission to England; negotiation of treaty.-John Jay was appointed Envoy Extraordinary to His Britannic Majesty, April 16, 1794.1 He was confirmed on the 19th, and went at once to London, where he entered into negotiations with the Foreign Office, then under the control of Lord Grenville; on the 19th of November, 1794, he concluded the treaty which ever since has been known by his name, and which was the basis of our commercial relations with Great Britain from its ratification until the war of 1812. The instrument reached the Secretary of State at Philadelphia on March 7, 1795, just after Congress had adjourned. The president called a special session of the Senate for June 8, 1795; when it convened Washington transmitted the treaty with a brief message, stating that it was "for you in your § 286. 1 See McMaster's History, vol. 2, chap. IX. 2 See § 299, p. 432, post, for reference to subsequent occasions on which this question was discussed in Congress. § 287. 1 The documents relating to John Jay's mission to England will be found in vol. I, Foreign Relations of the United States (Folio). They are condensed in Mr. J. C. Bancroft Davis' U. S. Treaties and Conventions, edition, 1889, pp. 1321-1322. wisdom to decide whether you will advise and consent that said treaty be made between the United States and His Britannic Majesty."2 § 288. Ratification of treaty with amendment.-The Senate finally agreed to ratify the treaty provided Article XII, which related to the West India Treaty, would be suspended by an additional article. This concession was made by Great Britain, and the additional article was incorporated in the treaty; it was ratified, as thus amended, by the close vote of 20 to 10, exactly two thirds, the required constitutional majority. The ratifications were signed by the President, transmitted to London and exchanged October 28, 1795.2 § 289. Popular excitement; French and English parties. -From the time that the treaty was published until long after Congress had convened in December, meetings were held throughout the whole country, most of them for the purpose of denouncing the treaty, but some of them to urge its ratification. By reason of the great friendly feeling for France, and the unfriendly feeling against Great Britain, which naturally existed as the outcome of the war for Independence which had terminated less than a dozen years earlier, great party feeling was stirred up against the treaty, and to a great extent the people of the United States were divided into what might be called British and French parties; it was indeed a strange sight to see the people of this Republic divided on issues affecting two foreign European nations.1 $290. Meeting of Congress; message of the President. -While the treaty had a large majority in the Senate, such was not the case in the House of Representatives. Congress met on the 7th of December, 1795, and was opened, accord 2 Richardson's Messages of the Presidents vol. 1, p. 170. § 288. 1 For reference to other treaties similarly ratified with amendments see § 465, chap. XVI, Vol. II. $289. 1A graphic account of this national debate will be found in the 9th chapter of the 2d volume of McMaster's History of the People of the United States, to 2 U. S. Treaties and Conventions, which students of this incident edition, 1889; pp. 379, 1321; see also of American political history are McMaster's History of the People | referred, as in detail it would reof the United States, vol. 2, quire more space than can be dechap. IX. voted to it in this volume. ing to the custom of those days, by the President, in person. No direct reference was made, however, to the treaty either in his opening address, or in the reply which it was then customary for the Houses to make to the President's address, except as the general hope was expressed in the House reply, that, by treaty and amicable negotiation, all causes of external discord might be "extinguished on terms compatible with our national rights and honor and with our Constitution and great commercial interests."1 Not until March 1, 1796, were the ratifications returned; the treaty together with the fact that the ratifications had been exchanged being transmitted in a message of less than six lines by the President to both Houses of Congress. Debate at once began in Congress as to the extent of the binding force of those stipulations in the treaty which either conflicted with existing legislation, or which required new legislation, or appropriations of money, to carry them into effect. 291. Request of House of Representatives for papers relating to treaty.-On March 2d, Mr. Livingston offered a resolution requesting the President to lay before the House copies of the instructions to the Minister of the United States who had negotiated the treaty with Great Britain, together with the correspondence and other documents relating thereto, with the exception of such papers as any existing negotiations might render improper to be disclosed; debate then followed which lasted for more than two weeks, in which many leading members participated, and the treatymaking power was discussed in every phase and aspect, both as to its extent, and as to the effect of treaties upon legislation, both State and Federal. On March 24th, the resolution was carried by sixty-two to thirty-seven. Messrs. Livingston and Gallatin were sent as a committee to present the resolution to the President, who replied, as they reported to the House on their return, "that he would take it into consideration." § 290. 1 Richardson's Messages of the Presidents, vol. 1, p. 182-189. § 291. 1 Reference is again made to McMaster's History, vol. 2, chap. IX. |