Part 342

This course was long followed, no Indian Treaty being held except authorized by an act of Congress, which was the Legislative consent to the grants of money which such Treaties usually contain, and for the payment of which an Act of Congress would be necessary. And in the two great cases of acquiring foreign territory, (Louisiana and Florida,) under Presidents contemporary with the formation of the constitution, and which required large appropriations to carry them into effect, the consent of the Legislative branch of the Government was sought and obtained before the Executive began to act--the law in both cases originating in the House of Representatives as the proper initiatory branch when money was to be paid which the people would have to raise.

Thus the House, by a majority of 25, passed the call upon the President for the papers, and upon the declared ground of a right to judge the Treaty, as it contained a regulation of commerce, and also required an appropriation of money. President Washington received the call in the sense in which it was made, and although he had no objection to furnishing the papers, and had laid them before the Senate, (whence they became public,) yet he deemed it his duty to resist the claim of right asserted by the House, and therefore to refuse the papers--which he did in a closely reasoned Message, an epitome of the arguments used in the House on that side.

It is seen in this answer of President Washington, that he holds the assent of the House to be unnecessary to the validity of any Treaty whatever, which, of course, includes the class contended for by the House, but makes the question broader than the one presented by its limited claim.

In this resolution the House specifies the class of Treaties over which it claims a right of judgment, and limits it to those which involve a matter which has been specially granted to Congress--as an appropriation of money, or the regulation of commerce.

And thus the President and the House were completely at issue--the House having expressly asserted, by a majority of 27, a right to judge, not every Treaty, or Treaties generally, but those which involved the exercise of any power granted by the constitution to itself. Trained in the school of this majority, the author of this Abridgment, as often as the occasion required, has maintained the same right for the House; and especially in the case of the territorial purchase from Mexico in 1854.

Mr. Hillhouse had submitted a resolution in favor of carrying the Treaty into effect, and afterwards Mr. Maclay submitted one, declaring the contrary; and the question was, which should be taken up? Mr. Madison, as a skilful parliamentary tactician, preferred that of Mr. Hillhouse, as putting the burden of the affirmative upon the adversary, always an advantage in the debate, and, in an even vote, always decisive for the negative side.

The following is the letter received by the committee appointed to inquire into the situation of the son of General LAFAYETTE:

"RAMAPAGH, (New Jersey,) March 28, 1796.

"SIR: I have just received the honorable resolution which the merits of my father have procured for me. Deign to express to the Representatives of the people of America his gratitude--my youth forbids me yet to speak of mine. Every day recalls to me what he taught me, at every period of his life, so full of vicissitudes, and what he has repeated in a letter, written from the depth of his prison. 'I am convinced (he says) that the goodness of the United States and the tenderness of my paternal friend will need nothing to excite them.

"Arrived in America some months since, I live in the country, in New Jersey, occupied in the pursuits of my education. I have no wants; if I had felt any, I should have answered to the paternal solicitude of the President of the United States, either by confiding them to him, or by accepting his offers. I shall hereafter consider it a duty, to impart them to the House of Representatives, which deigns to inquire into my situation.

"I am as happy as a continual inquietude relative to the object of my first affections will permit. I have found benevolence wherever I have been known, and have often had the satisfaction of hearing those, who were ignorant of my connections, speak of their interest in the fate of my father, express their admiration of, and partake the gratitude I feel, for the generous Dr. Bollman, who has done so much to break his chains.

"It is amid all these motives of emulation, that I shall continue my studies. Every day more convinced of the duties which are imposed by the goodness of Congress, and the names I have the honor to bear.

"GEO. WASHINGTON MOTIER LAFAYETTE. The Hon. EDWARD LIVINGSTON, Chairman," &c.

This vote of the House to carry the Treaty into effect, was no abandonment of the right it had asserted to judge its merits, and to grant or withhold the appropriation according to its discretion. The discussion sufficiently shows this, and that many members took care to save their votes from any misconstruction on this head. A sense of expediency, and not the force of obligation, carried the vote; and certainly the inducements to let the Treaty stand were very great. Marshall sums them up thus: "If Congress refused to perform the Treaty on the part of the United States, a compliance on the part of Great Britain could not be expected. The posts on the great lakes would still be occupied by British garrisons: no compensation would be made for American vessels illegally captured: the hostile dispositions which had been excited, would be restored with increased aggravation: and that these dispositions must infallibly lead to war, was implicitly believed." The amount to be appropriated was only $90,000, a sum entirely insignificant, and only to be contested on account of the principle its appropriation would involve. Yet the insignificance of the sum, and with all the inducements to let the Treaty stand, and under such a President as Washington, barely saved it from defeat! so jealous was the Democratic party of that day of the rights of Congress, and so determined was the House to remain master of the public purse. Ninety thousand dollars was all the money at stake; but what has since been seen? An Executive offering fifty millions for a slip of territory! and one hundred millions, and afterwards two hundred, for an island! Actually negotiating a Treaty of twenty millions, which the Senate reduced to ten! and all, not only without the sanction, but without the knowledge of the Legislative power. To admit that Congress would be bound to appropriate such sums if the offers had ripened into Treaty stipulations, would be to admit that the President, Senate, and a foreign potentate were masters of the appropriating power; and, of course, of the taxing and borrowing power, and of all the means by which money was to be raised. Even a discretionary power over the appropriation, after the Treaty has been made, is but a slight defence for the treasury, there being always in Congress, as in all public bodies, men to yield to circumstances,--good easy men to be persuaded; timid men to be scared; venal men to be purchased. And out of these classes enough are usually found to turn the scale, when upright men divide upon a large measure. The only safe way is that of consultation beforehand, as practised by Washington in the early part of his Administration, and by the Presidents under whom Louisiana, Florida, and California were acquired.

The claim was renewed continually, and fruitlessly, until the year 1832, when it was allowed, and the horse paid for according to his certificated specie value at the time he was taken in the year 1781--$1,500.

Up to this time and afterwards, until the year 1798, there was no Naval Department, or Secretary of the Navy, and the marine, as well as the land force, was under the charge of the Secretary of War--which accounts for the appropriations of the two branches of the service appearing in the same bill.

The whole sum appropriated for the Military and Naval Establishments of the year, was, $1,318,873--the strength of the army being 3000 men, and the debate is given as an instance of the closeness with which appropriations were scrutinized in the early ages of the Government, and also as showing the expense of maintaining troops in the north-west--then as far off (time and cost considered) as our Pacific possessions now are.