Albert Gallatin
and temporary exigencies, he accustomed it to take a practical business
view of its legislative duties, and the people to understand the
principles he endeavored to apply.
In a debate at the beginning of the session, on a bill for establishing
trading houses with the Indians, Mr. Gallatin showed his hand by
declaring that he would not consent to appropriate any part of the war
funds for the scheme; nor, in view of the need of additional permanent
funds for the discharge of the public debt, would he vote for the bill
at all, unless there was to be a reduction in the expense of the
military establishment; and he would not be diverted from his purpose
although Mr. Madison advocated the bill because of its extremely
benevolent object. The Federal leaders saw clearly to what this doctrine
would bring them, and met it in the beginning. The first struggle
occurred when the appropriations for the service of 1796 were brought
before the House. Beginning with a discussion upon the salaries of the
officers of the mint, the debate at once passed to the principle of
appropriations. The Federalists insisted that a discussion of the merits
of establishments was not in order when the appropriations were under
consideration; that the House ought not, by withholding appropriations,
to destroy establishments formed by the whole legislature, that is, by
the Senate and House; that the House should vote for the appropriations
agreeably to the laws already made. This view was sanctioned by
practice. Mr. Gallatin immediately opposed this as an alarming and
dangerous principle. He insisted that there was a certain discretionary
power in the House to appropriate or not to appropriate for any object
whatever, whether that object were authorized or not. It was a power
vested in the House for the purpose of checking the other branches of
government whenever necessary. He claimed that this power was shown in
the making of yearly instead of permanent appropriations for the civil
list and military establishments, yet when the House desired to
strengthen public credit it had rendered the appropriation for those
objects permanent and not yearly. It was, therefore, "contradictory to
suppose that the House was bound to do a certain act at the same time
that they were exercising the discretionary power of voting upon it."
The debate determined nothing, but it is of interest as the first
declaration in Congress of the supremacy of the House of
Representatives.
The great debate which, from the principles involved in it as well as
the argument and oratory with which they were discussed, made this
session of the House famous, was on the treaty with Great Britain. This
was the first foreign treaty made since the establishment of the
Constitution. The treaty was sent in to the House "for the information
of Congress," by the President, on March 1, with notice of its
ratification at London in October. The next day Mr. Edward Livingston
moved that the President be requested to send in a copy of the
instructions to the minister of the United States who negotiated the
treaty, together with the correspondence and other documents. A few days
later he amended his resolution by adding an exception of such of said
papers as any existing negotiations rendered improper to disclose. The
Senate in its ratification of the treaty suspended the operation of the
clause regulating the trade with the West Indies, on which Great Britain
still imposed the old colonial restriction, and recommended the
President to open negotiations on this subject; and in fact such
negotiations were in progress. The discussion was opened on the Federal
side by a request to the gentlemen in favor of the call to give their
reasons. Mr. Gallatin supported the resolution, and expressed surprise
at any objection, considering that the exception of the mover rendered
the resolution of itself unexceptionable. The President had not informed
the House of the reasons upon which the treaty was based. If he did not
think proper to give the information sought for, he would say so to
them. A question might arise whether the House should get at those
secrets even if the President refused the request, but that was not the
present question. In reply to Mr. Murray, who asserted that the treaty
was the supreme law of the land, and that there was no discretionary
power in the House except on the question of its constitutionality, Mr.
Gallatin said that Congress possessed the power of regulating
trade,--perhaps the treaty-making power clashed with that,--and
concluded by observing that the House was the grand inquest of the
nation, and that it had the right to call for papers on which to ground
an impeachment. At present he did not contemplate an exercise of that
right. Mr. Madison said it was now to be decided whether the general
power of making treaties supersedes the powers of the House of
Representatives, particularly specified in the Constitution, so as to
give to the executive all deliberative will and leave the House only an
executive and ministerial instrumental agency; and he proposed to amend
the resolution so as to read, "except so much of said papers as in his
(the President's) judgment it may be inconsistent with the interest of
the United States at this time to disclose." But his motion was defeated
by a vote of 47 nays to 37 yeas.
The discussion being resumed in committee of the whole, the expressions
of opinion were free on both sides, but so moderate that one of the
members made comment on the calmness and temper of the discussion.
Nicholas said that, if the treaty were not the law of the land, the
President should be impeached. But the parts of the treaty into which
the President had not the right to enter, he could not make law by
proclamation. Swanwick supported the call as one exercised by the House
of Commons. On the Federal side, Harper said that the papers were not
necessary, and, being unnecessary, the demand was an improper and
unconstitutional interference with the executive department. If he
thought them necessary, he would change the milk and water style of the
resolutions. In that case the House had a right to them and he had no
idea of requesting as a favor what should be demanded as a right.
Gallatin, he said, had declared that it was a request, but that in case
of refusal it might be considered whether demand should not be made, and
he charged that when, at the time the motion was made, the question had
been asked, what use was to be made of the papers, Gallatin did not and
could not reply. Mr. Gallatin answered that whether the House had a
discretionary power, or whether it was bound by the instrument, there
was no impropriety in calling for the papers. He hoped to have avoided
the constitutional question in the motion, but as the gentlemen had come
forward on that ground, he had no objection to rest the decision of the
constitutional power of Congress on the fate of the present question. He
would therefore state that the House had a right to ask for the papers.
The constitutional question being thus squarely introduced, Mr. Gallatin
made an elaborate speech, which, from its conciseness in statement,
strength of argument, and wealth of citations of authority, was, to say
the least, inferior to no other of those drawn out in this memorable
struggle. In its course he compared the opinion of those who had opposed
the resolution to the saying of an English bishop, that the people had
nothing to do with the law but to obey it, and likened their conduct to
the servile obedience of a Parliament of Paris under the old order of
things. He concluded with the hope that the dangerous doctrine, that the
representatives of the people have not the right to consult their
discretion when about exercising powers delegated by the Constitution,
would receive its death-blow. Griswold replied in what by common consent
was the strongest argument on the Federal side. The call, at first view
simple, had, he said, become a grave matter. The gist of his objection
to it was that the people in their Constitution had made the treaty
power paramount to the legislative, and had deposited that power with
the President and Senate.
Mr. Madison once more rose to the constitutional question. He said that,
if the passages of the Constitution be taken literally, they must clash.
The word _supreme_, as applied to treaties, meant as over the state
Constitutions, and not over the Constitution and laws of the United
States. He supported Mr. Gallatin's view of the congressional power as
cooeperative with the treaty power. A construction which made the treaty
power omnipotent he thought utterly inadmissible in a constitution
marked throughout with limitations and checks.
Mr. Gallatin again claimed the attention of the House, as the original
question of a call for papers had resolved itself into a discussion on
the treaty-making power. In the treaty of peace of 1783 there were
three articles which might be supposed to interfere with the legislative
powers of the several States: 1st, that which related to the payment of
debts; 2d, the provision for no future confiscations; 3d, the
restitution of estates already confiscated. The first could not be
denied. "Those," he said, "might be branded with the epithet of
disorganizers, who threatened a dissolution of the Union in case the
measures they dictated were not obeyed; and he knew, although he did not
ascribe it to any member of the House, that men high in office and
reputation had industriously spread an alarm that the Union would be
dissolved if the present motion was carried." He took the ground that a
treaty is not valid, and does not bind the nation as such, till it has
received the sanction of the House of Representatives. Mr. Harper closed
the argument on the Federal side. On March 24 the resolution calling for
the papers was carried by a vote of yeas 62, nays 37, absent 5, the
speaker 1 (105). Livingston and Gallatin were appointed to present the
request to the President.
On March 30 the President returned answer to the effect that he
considered it a dangerous precedent to admit this right in the House;
that the assent of the House was not necessary to the validity of a
treaty; and he absolutely refused compliance with the request. The
letter of instructions to Jay would bear the closest examination, but
the cabinet scorned to take shelter behind it, and it was on their
recommendation that the President's refusal was explicit. This message,
in spite of the opposition of the Federalists, was referred, by a vote
of 55 yeas to 37 nays, to the committee of the whole. This reference
involved debate. In his opposition to this motion, Mr. Harper said that
the motives of the friends of the resolution had been avowed by the
"gentleman who led the business, from Pennsylvania;" whereby it appears
that Mr. Gallatin led the Republicans in the first debate. During this
his first session he shared this distinction with Mr. Madison. At the
next he became the acknowledged leader of the Republican party.
On April 3 the debate was resumed. This second debate was led by Mr.
Madison, who considered two points: 1st, the application for papers; 2d,
the constitutional rights of Congress. His argument was of course calm
and dispassionate after his usual manner. The contest ended on April 7,
with the adoption of two resolutions: 1st, that the power of making
treaties is exclusively with the President and Senate, and the House do
not claim an agency in making them, or ratifying them when made; 2d,
that when made a treaty must depend for the execution of its
stipulations on a law or laws to be passed by Congress; and the House
have a right to deliberate and determine the expediency or inexpediency
of carrying treaties into effect. These resolutions were carried by a