James Madison proposed in Congress these seven Resolutions
regarding “Commercial Discrimination” on 3 January 1794:
Mr. Madison, after some general observations
on the report, entered into a more particular
consideration of the subject.
He remarked that the commerce of the United States
is not at this day on that respectable footing
to which from its nature and importance it is entitled.
He recurred to its situation previous to the adoption
of the Constitution, when conflicting systems prevailed
in the different States—the then existing state of things
gave rise to that convention of delegates from the
different parts of the Union, who met to deliberate
on some general principles for the regulation of
commerce which might be conducive in their operation
to the general welfare, and that such measures
should be adopted as would conciliate the friendship
and good faith of those countries who were disposed to
enter into the nearest commercial connections with us.
But what has been the result of the system
which has been pursued ever since?
What is the present situation of our commerce?
From the situation in which we find ourselves
after four years experiment, he observed that it appeared
incumbent on the United States to see whether they could
not now take measures promotive of those objects for
which the government was in a great degree instituted.
Measures of moderation, firmness, and decision, he was
persuaded were now necessary to be adopted, in order
to narrow the sphere of our commerce with those nations
who see proper not to meet us on terms of reciprocity.
Mr. Madison then read the following Resolutions:
Resolved, as the opinion of this committee,
that the interest of the United States would be
promoted by further restrictions and higher duties
in certain cases on the manufactures and navigation
of foreign nations employed in the commerce
of the United States than those now imposed.
1. Resolved, as the opinion of this committee,
that an additional duty ought to be laid on the following
articles, manufactured by European nations, having
no commercial treaty with the United States.
On all articles of which leather is the material of chief value,
an additional duty of ? per centum ad valorem.
On all manufactured iron, steel, tin, pewter, copper, brass,
or articles of which either of these metals is the material of
chief value, an additional duty of ? per centum ad valorem.
On all articles of which cotton is the material of chief value,
an additional duty of ? per centum ad valorem.
On all cloths of which wool is the material of chief value,
where the estimated value on which the duty is payable
is above ? an additional duty of ? per centum ad valorem;
where such value is below ? an additional duty
of ? per centum ad valorem.
On all cloths of which hemp or flax is the material
of chief value, and of which the estimated value
on which the duty is payable is below ?, an additional duty
of ? per centum ad valorem.
On all manufactures of which silk is the material of chief
value, an additional duty of ? per centum ad valorem.
2. Resolved, as the opinion of this committee,
that an additional duty of ? per ton, ought to be laid
on the vessels belonging to the nations having
no commercial treaty with the United States.
3. Resolved, as the opinion of this committee,
that the duty on vessels belonging to the nations
having commercial treaties with the United States
ought to be reduced to ? per ton.
4. Resolved, as the opinion of this committee, that where
any nation may refuse to consider as vessels of the United
States, any vessels not built within the United States, the
foreign built vessels of such nation ought to be subjected
to a like refusal, unless built within the United States.
5. Resolved, as the opinion of this committee, that
where any nation may refuse to admit the produce or
manufactures of the United States, unless in vessels
belonging to the United States, or to admit them in
vessels of the United States, if last imported from any
place not within the United States, a like restriction ought,
after the ? day of ? to be extended to the produce and
manufactures of such nation, and that in the meantime
a duty of ? per ton extraordinary ought to be imposed on
vessels so importing any such produce or manufacture.
6. Resolved, as the opinion of this committee, that where
any nation may refuse to the vessels of the United States
a carriage of the produce or manufactures thereof,
while such produce or manufactures are admitted by it
in its own vessels, it would be just to make the restriction
reciprocal: but inasmuch as such a measure, if suddenly
adopted, might be particularly distressing in cases which
merit the benevolent attention of the United States,
it is expedient, for the present that a tonnage extraordinary
only of ? be imposed on the vessels so employed: and that
all distilled spirits imported therein shall be subject to
an additional duty of one——part of the existing duty.
7. Resolved, as the opinion of this committee,
that provision ought to be made for liquidating and
ascertaining the losses sustained by citizens of the
United States, from the operation of particular regulations
of any country contravening the law of nations, and that
such losses be reimbursed in the first instance out of the
additional duties on the manufactures, productions and
vessels of the nation establishing such unlawful regulations.
Mr. Madison took a general view of the probable effects
which the adoption of something like the resolutions
he had proposed would produce.
They would produce, respecting many articles imported,
a competition which would enable countries who do
not now supply us with those articles to do it and
would increase the encouragement on such
as we can produce within ourselves.
We should also obtain an equitable share in carrying our
own produce; we should enter into the field of competition
on equal terms, and enjoy the actual benefit of advantages
which nature and the spirit of our people entitle us to.
He adverted to the advantageous situation
this country is entitled to stand in, considering
the nature of our exports and returns.
Our exports are bulky and therefore must employ much
shipping, which might be nearly all our own;
our exports are chiefly necessaries of life or raw materials,
the food for the manufacturers of other nations.
On the contrary chief of what we receive from other
countries we can either do without or produce substitutes.
It is in the power of the United States he conceived,
by exerting her natural rights without violating the
rights or even the equitable pretensions of other nations;
by doing no more than most nations do for the protection
of their interests, and much less than some, to make
her interests respected; for what we receive from other
nations are but luxuries to us, which if we chose to throw
aside we could deprive part of the manufacturers of
those luxuries of even bread, if we are forced to contest
of self-denial; this being the case, our country may
make her enemies feel the extent of her power.
We stand with respect to the nation exporting those
luxuries in the relation of an opulent individual to the
laborer in producing the superfluities for his
accommodation; the former can do without those luxuries,
the consumption of which gives bread to the latter.
He did not propose or wish that the United States should,
at present, go so far in the line which his resolutions
point to as they might go.
The extent to which the principles involved
in those resolutions should be carried
will depend upon filling up the blanks.
To go to the very extent of the principle immediately might
be inconvenient: he wished only that the legislature should
mark out the ground on which we think we can stand,
perhaps it may produce the effect wished for without
unnecessary irritation: we need not at first go every length.
Another consideration would induce him, he said, to be
moderate in filling up the blanks: not to wound public credit.
He did not wish to risk any sensible
diminution of the public revenue.
He believed that if the blanks were filled with judgment,
the diminution of the revenue from a diminution in the
quantity of imports would be counterbalanced
by the increase in the duties.
The last resolution he had proposed, he said,
is in a manner distinct from the rest.
The nation is bound by the most sacred obligation,
he conceived, to protect the rights of its citizens against
a violation of them from any quarter; or, if they
cannot protect, they are bound to repay the damage.
It is a fact authenticated to this house by communications
from the executive, that there are regulations established
by some European nations, contrary to the law of nations,
by which our property is seized and disposed of
in such a way that damages have accrued.
We are bound either to obtain reparation for the injustice,
or compensate the damage.
It is only in the first instance, no doubt,
that the burden is to be thrown upon the United States;
the proper department of government will
no doubt take proper steps to obtain redress.
The justice of foreign nations will certainly
not permit them to deny reparation when
the breach of the law of nations appear evidently;
at any rate it is just that the individual should not suffer.
He believed the amount of the damages that
would come within the meaning of this resolution,
would not be very considerable.1
Madison on 11 January 1794 wrote this letter to Jefferson:
The last subject before the House of Representatives
was a Bill revising the Naturalization law,
which from its defects & the progress of things in Europe
was exposing us to very serious inconveniences.
The Bill requires
1. A probationary residence of 5 instead of 2 years,
with a formal declaration on oath of the intention 3 years
at least prior to the admission.
2. an oath of abjuration, as well as of allegiance.
3. proof of good character, attachment to the principles
of our Government and of being well disposed to
the good order & happiness of the U. S.
4. Where the candidate has borne any title or been of
any order of Nobility, he is to renounce both on record.
This last raised some dust.
The Eastern members were weak enough to oppose it;
and Dexter as a setoff moved a correspondent clog
on emigrants attached to slave-holding.
Whether they will be able to throw the dust they have
raised into the eyes of their Constituents I know not.
It will not be easy I think to repair the blunder
they have committed if it reaches the people.
On the yeas & nays there were more than 60
for & little more than 30 against the clause.
The Bill is gone to the Senate.
Our revenue from trade is so increased as to supply
a fund for commencing the discharge of the public debt.
The excises laid at the last Session
will probably be left as they stand.
The treasury bench have attempted to make them
perpetual and brought about a Report of a
Committee to prolong them till the year 1801.
Another Committee after conferring with the Sugar Bakers
& Snuff Makers have agreed on a Counter Report
which will probably defeat the project.
The French gain victories faster than we can relate them.
In Spain, Sardinia & Holland they are
equally sweeping everything before them.
They were not in Amsterdam but expected in a few days.
The patriotic party was openly revived,
and it was not doubted that the Stadholder
would move off to England for his personal safety.
The Duke of York has been
well drubbed again at Nijmegen.
It was said to be agitated in the British Cabinet
whether he should not with all his troops
be withdrawn from the Continent.
It is surmised that Prussia has actually treated with France
and that the Emperor is taking the same Course.
It is indeed agreed that France can dictate peace
to all her enemies, except England;
and that she will probably do so in order to have a fair
campaign with England alone.
Nothing final yet from Jay.
It is expected here that he will accomplish much
if not all he aims at.
It will be scandalous if we do not under present
circumstances get all that we have a right to demand.
Not a word from Monroe.
Knox is succeeded by Pickering.
The successor to Hamilton not fiat, but likely to be Wolcott.
Hamilton will probably go to New York
with the word poverty for his label.
The Legislature of Pennsylvania have
voted out the Western Members.
It is said they will suspend important business
till the seats can be refilled—but this will make little
difference as the City party will still be a majority.
Bingham will be the Senator—Unless the Germans
can be prevailed on to vote for Tench Coxe.
They like neither the one nor the other;
not Bingham because an Aristocrat—not Coxe
on the old score of his being a Tory in the War.2
The British in November 1793 had ordered their navy ships
to seize neutrals trading in the French West Indies.
On 12 March 1794 Madison wrote to Jefferson:
The Merchants particularly of New England
have had a terrible slam in the West Indies.
About a hundred vessels have been seized by the British
for condemnation on the pretext of enforcing the laws
of the Monarchy with regard to the Colony trade.
The partisans of England, considering a war
as now probable, are endeavoring to take the lead
in defensive preparations and to acquire merit
with the people by anticipating their wishes.
This new symptom of insolence & enmity in Britain shows
rather that she meditates a formal war as soon as
she shall have crippled our marine resources,
or that she calculates on the pusillanimity of this country &
the influence of her party in a degree that will lead her into
aggressions which our love of peace can no longer bear.
The commercial propositions are in this State of things,
not the precise remedy to be pressed as first in order;
but they are in every view & in any event proper to
make part of our standing laws till the principle of
reciprocity be established by mutual arrangements.
Adieu.3
On 15 September 1794 James Madison married the 26-year-old widow
Dolley Payne Todd, who had lost her husband and an infant son
in the yellow fever epidemic in August 1793.
In October 1794 they rented a house in Philadelphia.
The United States Senate had approved John Jay’s treaty with the British
on 24 June 1794, and Jay in November signed another treaty with the British.
Madison in a letter to Jefferson on December 21 wrote,
The attack made on the essential & constitutional right
of the Citizen in the blow levelled at the “self-created
Societies” does not appear to have had the effect intended.
It is and must be felt by every man who values liberty,
whatever opinion he may have of the use
or abuse of it by those institutions.
You will see that the appeal is begun to
the public sentiment by the injured parties.
The Republican Society of Baltimore set the example.
That of Newark has advertised a meeting of its members.
It is said that if Edward Livingston, as is generally believed,
has outvoted Watts, for the House of Representatives;
he is indebted for it to the invigorated exertions
of the Democratic Society of that place,
of which he is himself a member.
In Boston the subject is well understood and handled in the
Newspaper on the republican side with industry & address.
The Elections in Massachusetts have turned out
rather better than was of late expected.
The two republican members have stood their ground
in spite of the most unexampled operations against them.
Ames is said to owe his success to the votes of negroes
& British sailors smuggled under a very lax mode
of conducting the election there.
Sedgwick & Goodhue have bare majorities.
Dexter is to run another heat but will succeed;
Gerry, his only considerable competitor & who
would outvote him, refusing to be elected.
There are several changes in the remainder of the
Delegation, and some of them greatly for the better.
In New York there will be at least half republicans;
perhaps more.
It has unluckily happened that in 2 districts
two republicans set up against one Anti.
The consequence is that a man is re-elected
who would not otherwise have taken the field:
and there is some danger of a similar
consequence in the other district.
In New Jersey it is said that not more than one
of the old members will be returned.
The people all over the State are signing
with avidity a remonstrance against the
high salaries of the Government.4
The treaty that John Jay had negotiated with the British
in London was initially signed in November 1794,
and President Washington kept it secret until
the Congress adjourned in early March 1795.
Then he made its terms known.
He did not like the treaty, though he said he would sign it
if it was ratified by the Senators.
On 26 January 1795 James Madison wrote in a letter to Thomas Jefferson:
The Newspapers as usual teem with
French victories and rumors of peace.
There seem to be very probable indications of a progress
made to this event, except in relation to Great Britain
with whom a Duet Campaign is the cry of France.
The Naturalization has not yet got back from the Senate.
I understand however it will suffer no material change.
They have the prudence not to touch the Nobility clause.
The House of Representatives are
on the Military establishment & the public debt.
The difficulty & difference of opinion as to the former
produced a motion to request the President
to cause an estimate of the proper defense &c.
It was in its real meaning, saying we do not know
how many troops ought to be provided by
our legislative duty, and ask your direction.
It was opposed as opening the way for dragging in
the weight of the Executive for one scale on all party
questions—as extorting his opinion where he should reserve
for his negative, and as exposing his unpopular opinions
to be extorted at any time by an unfriendly majority.
The prerogative men chose to take the subject
by the wrong handle, and being joined
by the weak men, the resolution passed.
I fancied the Cabinet are embarrassed on the subject.
On the subject of the Debt the Treasury faction is spouting
on the policy of paying it off as a great evil;
and having hold of two or three little excises passed
last session under the pretext of war, are claiming
more merit for their zeal that they allow to the
opponents of these puny resources.
Hamilton has made a long Valedictory Report
on the subject.
It is not yet printed, & I have not read it.
It is said to contain a number of improper things.
He got it in by informing the Speaker he had one ready,
predicated on the actual revenues for the House
whenever they should please to receive.
Budinot, the ready agent for all sycophantic jobs,
had a motion cut & dry just at the moment of the
adjournment, for informing him in the language applied
to the President on such occasions, that the House
was ready to receive the Report when he pleased,
which passed without opposition & almost without notice.
Hamilton gives out that he is going to New York
and does not mean to return into public life at all.
New Jersey has changed all her members except Dayton
whose zeal against Great Britain saved him.
There are not more than 2 or 3
who are really on all points Republicans.
Dexter is under another sweat in his district,
and it is said to be perfectly uncertain whether
he or his Republican competitor will succeed.5
Those favoring Jay’s Treaty got their two-thirds majority
with exactly a 20-10 vote on June 24.
Yet they included an amendment of Article 12 on trade with the West Indies.
Madison in a letter on 10 August 1795 to Robert R. Livingston
of New York began circulating his ideas on the Jay Treaty.
Madison wrote,
Your favor of July 6 having been addressed to
Williamsburg, instead of Orange Court House,
did not come to hand till two days ago.
Your gloomy picture of the Treaty
does not exceed my ideas of it.
After yielding terms which would have been
scorned by this Country in the moment of its greatest
embarrassments, & of Great Britain’s full enjoyment
of peace & confidence, it adds to the ruinous
bargain with this Nation, a disqualification
to make a good one with any other.
In all our other Treaties it has been carefully stipulated
that the Nation to be treated as the most favored Nations,
& to come in for all new privileges that may be granted
by the United States must pay for them the same
or an equivalent price with the grantee.
The proposed Treaty with Great Britain disregarding
this obvious rule of justice & equality, roundly agrees
that no duty restriction or prohibition with respect to
ships or merchandize shall be applied to Great Britain
which do not operate on all other nations (see Art. XV).
Should any other nation therefore be disposed to give
us the most precious & peculiar advantages in their trade,
in exchange for the slightest preferences in ours,
this article gives Great Britain a negative on the transaction;
unless it be so modified as to let her in for the favor
without paying the price of it.
But what nation would be willing to buy favors for another;
especially when the inducement to buy & the value of the
purchase might depend on the peculiarity of the favor.
It must be seen at once that this extraordinary feature
would monopolize us to Great Britain by precluding any
material improvement of our existing Treaties, or the hope
of any new ones that would be of much advantage to us.
That so insidious an article should have occurred to Lord
Grenville’s jealousy of the U. S. & his policy of barring
their connection with other Countries, and particularly
with the French Republic, can surprise no one.
The concurrence of the American Envoy in this &
several other articles may not be so easily explained;
but it seems impossible to screen him from the most illiberal
suspicions without referring his conduct to the blindest
partiality to the British Nation & Government and to the
most vindictive sensations towards the French Republic.
Indeed the Treaty from one end to the other must be
regarded as a demonstration that the Party to which the
envoy belongs & of which he has been more the Organ than
of the U. S. is a British party, systematically aiming at an
exclusive connection with the British Government & ready to
sacrifice to that object as well the dearest interests of our
Commerce, as the most sacred dictates of national honor.
This is the true key to this unparalleled proceeding;
and can alone explain it to the impartial
and discerning part of the public.
The leaders of this party stand self-condemned in their
efforts to palliate the Treaty by magnifying the necessity
of the British commerce to the U. S. and the insufficiency
of the U. S. to influence the regulation of it.
You will find, on turning to a pamphlet addressed to your
people by Mr. Jay when the Federal Constitution was before
them, that he then could see our power under such a
Constitution to extort what we justly claimed from Great
Britain & particularly to open the West India ports to us.
As an Agent of the Constitution he now voluntarily abandons
the very object which as an advocate for the Constitution,
he urged as an argument for adopting it.
Read also the paper No. XI in the publication entitled
the Federalist, for the view of the subject
then inculcated by another advocate.
It is with much pleasure I can assure you that the
sentiment & voice of the people in this State, in relation to
the attempt to prostrate us to a foreign & unfriendly Nation,
are as decided & as loud as could be wished.
Many even of those who have hitherto rallied to
the most exceptionable party measures, join in
the general indignation against the Treaty.
The few who hold out will soon be under the dilemma
of following the example, or of falling under imputations
which must disarm them of all injurious influence.
You will see by the Newspapers that the City of Richmond
has trodden in the steps of the other Cities
by a unanimous address to the President.
You will remark that our Chancellor Mr. Wythe
presided in the Meeting, a circumstance which will draw
the more attention to it, as he is not only distinguished
for his moderation of character; but was President
of the Meeting which addressed the President
in support of his Proclamation of Neutrality.
How far the other Towns & counties
will imitate Richmond is uncertain.
If they should be silent, it will assuredly be the effect,
in the former, of a supposed notoriety of their harmony
in opinion, & in the latter to the same cause added
to the dispersed situation of the people.
I think it certain that there is not a Town or County in this
State (except perhaps Alexandria), where an appeal to the
inhabitants would be attended with any show of opposition.
You will readily conclude therefore that here,
the public do not need the measure to which You exhort.
With respect to the President his situation must be a most
delicate one for himself, as well as for his Country: and
there never was, as you observe, a crisis where the friends
of both ought to feel more solicitude or less reserve.
At the same time, I have reasons, which I think good,
for doubting the propriety & of course the utility
of uninvited communications from myself.
He cannot, I am persuaded, be a stranger to my opinion
on the merits of the Treaty; and I am equally persuaded
that the state of the public opinion within my sphere of
information will sufficiently force itself on his attention.
It is natural enough for the Apologists of the Treaty to lay
hold of the doctrine maintained by Mr. Jefferson;
but whether that doctrine be right or wrong, they might
be reminded that he expressly urges the policy of
guarding against it instead of establishing it by Treaty.
The appeal to him, therefore, must add to their
condemnation.
See his letter to Mr. G. Morris,
explaining the discussions with Mr. Genét.6
On 20 December 1795 Madison wrote in a letter to James Monroe
with many words in code (indicated by italics):
The last of your favors come to hand
bears date September 8, 1795 of which
a duplicate has also been received.
The others which it may be proper to acknowledge
or re-acknowledge, are of November 30, 1794 which
was opened at Halifax & forwarded to me in that state.
December 18, 1794 covering a copy of one of
same date to Mr. Randolph—February 18, 1795
covering a copy of one of February 12 to the same.
February 25 covering a duplicate of ditto.
June 13 inclosing a copy of a letter of May 4 from Mr. Short.
June 31—28—30 July 26 covering the
correspondence with Jay—and August 15.
As I cannot now give minute answers to each
of these letters, & the necessity of them as to most
has been superseded, I shall proceed to the object
most immediately interesting to you, to wit the posture
of things here resulting from the embassy of Mr. Jay.
The Treaty concluded by him did not arrive till
a few days after the 3rd of March which put
an end to the last Session of Congress.
According to a previous notification to the Senators that
branch assembled on the 28th of June, the contents of the
Treaty being in the meantime impenetrably concealed.
I understand that it was even withheld
from the Secretaries at war & the Treasury,
that is Timothy Pickering & Oliver Wolcott.
The Senate after a few week’s consultation,
ratified the Treaty as you have seen.
The injunction of secrecy was then dissolved by a full
House and quickly after restored sub modo in a thin one.
Mr. Mason disregarding the latter vote sent the Treaty
to the press, from whence it flew with an electric
velocity to every part of the Union.
The first impression was universally
& simultaneously against it.
Even the mercantile body, with an exception of Foreigners &
demi-Americans, joined in the general condemnation.
Addresses to the President against his ratification,
swarmed from all quarters and without a
possibility of preconcert or party influence.
In short it appeared for a while that the latent party in favor
of the Treaty were struck dumb by the voice of the nation.
At length however, doubts began to be thrown out in New
York whether the Treaty was as bad as was represented.
The Chamber of commerce proceeded to an address
to the President in which they hinted at war as
the tendency of rejecting of the Treaty,
but rested the decision with the Constituted authorities.
The Boston Chamber of Commerce followed the example,
as did a few inland villages.
For all the details on this subject I refer to the
Gazettes which I presume you continue to
receive from the Department of State.
It appears that the struggle in the public mind was
anxiously contemplated by the President, who had bound
himself first not to disclose the Treaty till it should be
submitted to the Senate, and in the next place, not to
refuse his sanction if it should receive that of the Senate.
On the receipt here, however of the predatory orders
renewed by Great Britain, the President as we gather
from Mr. Edmund Randolph’s pamphlet was advised not
to ratify the Treaty, unless they should be revoked and
adhered to this resolution, from the adjournment of the
Senate about the last of June till the middle of August.
At the latter epoch Mr. Fauchet’s intercepted letter
became known to him, and as no other circumstance
on which a conjecture can be founded has been hinted
to the public, his change of opinion has been referred
to some impression made by that letter, or by comments
upon it; although it cannot easily be explained how the
merits of the Treaty, or the demerits of the provision-order
could be affected by the one or the other.
As soon as it was known that the President had yielded
his ratification, the British party were reinforced by those
who bowed to the name of constituted authorities and
those who are implicitly devoted to the president.
The principal merchants of Philadelphia with others
amounting to about four hundred took the lead
in an address of approbation.
There is good reason to believe that many subscriptions
were obtained by the banks whose directors solicited
them and by the influence of British capitalists.
In Baltimore, Charlestown & the other commercial towns
except Philadelphia, New York and Boston
no similar proceeding has been attainable.
Acquiescence has been inculcated with more success
by exaggerated pictures of the public prosperity,
an appeal to the popular feeling for the president
and the bugbear of war.
Still however there is little doubt that the real sentiment
of the mass of the community is hostile to the treaty.
How far it may prove impregnable must be left to events.
A good deal will depend on the result of the session
& more than ought on external contingencies.
You will see how the Session opened
in the President’s Speech & the answer to it.
That you may judge the better on the subject, I add in the
margin of the latter the clause expunged as not true in itself;
and as squinting too favorably at the Treaty.
This is the only form in which the pulse
of the House has been felt.
It is pretty certain that a majority disapprove the treaty,
but it is not yet possible to ascertain
their ultimate object as matters now lie.
The speech of the president was well adapted to his view.
The answer was from a committee consisting of myself
Sedgwick & Seagrove in the first instance with the
addition of two other members on the recommitment.
In the first committee my two colleagues
were of the treaty party.
And in the second there was a willingness
to say all that truth would permit.
This explanation will assist you
in comprehending the transaction.
Since the answer passed & was presented nothing
has been said or done in relation to the treaty.
It is much to be feared that the majority against the treaty
will be broken to pieces by lesser & collateral differences.
Some will say it is too soon to take up the subject
before it is officially presented in its finished form:
Others will then say it is too late.
The opportunity of declaring the sense of the House
in the answer to the speech was sacrificed to the opinion
of some from whom more decision was expected
than will be experienced, towards an immediate
consideration of the subject by itself.
The truest policy seems to be to take up the business
as soon as a majority can be ascertained
but not to risk that even on a preliminary question.
What the real state of opinions is, is now under enquiry.
I am not sanguine as to the result.
There is a clear majority who disapprove the treaty,
but it will dwindle under the influence of causes
well known to you; more especially as the states instead of
backing the wavering are themselves rather giving way.
Virginia has indeed set a firm example but Maryland,
North Carolina & New Hampshire have counteracted it
& New York will soon follow with
some strong proceeding on the same side.
I am glad to find by your letters that France
notwithstanding the late treaty continues to be friendly.
A magnanimous conduct will conduce
to her interest as well as ours.
It must ultimately baffle the insidious projects for bartering
our honor and our trade to British pride & British monopoly.
The fifteenth article of the treaty is evidently meant
to put Britain on a better foot than France &
prevent a further treaty with the latter
since it secures to Britain gratuitously all privileges
that may be granted to others for an equivalent and
of course obliges France at her sole expense to include
the interest of Britain in her future treaties with us.
But if the treaty should take effect this abominable part
will be of short duration and in the meantime,
something may perhaps be done toward
disconcerting the mischief in some degree.
You will observe a navigation act is always in our power.
The article relating to the Mississippi being permanent
may be more embarrassing; yet possibly
not without some antidote for its poison.
I intended to go on in Cypher, but the tediousness obliges
me to conclude the present letter in order to
seize a conveyance just known to me.
Mr. Randolph’s pamphlet is just out.
Mr. Tazewell will send that & several other things
collected for you by this conveyance.
Pickering is Secretary of State
Charles Lee Attorney General—no Secretary at War.
The Senate have negatived Rutledge as chief Justice.
Mr. Jones keeps you informed of your private affairs.
He & Mr. Jefferson are well.
I have just received your two favors of October 23
& 24 with the accompaniments by Mr. Murray.
The articles have probably not arrived in the same ship—
as Mr. Yard has no information from New York thereon.
Accept from Mrs. M. & myself ten thousand thanks
for your & Mrs. Monroe’s goodness—which will,
as generally happens probably draw more trouble on you.
Mr. Yard & Mrs. Yard well.
Your friends at New York so too.7
Washington signed the treaty in late August.
The ratified Jay Treaty became effective on 29 February 1796.
Madison then gave two long speeches on the
Jay Treaty in the House of Representatives.
He argued that the Constitution gave the House the
right to participate in the ratification of treaties.
Here is the shorter speech on March 10:
Mr. Madison said that the direct proposition before
the House had been so absorbed by the incidental
question which had grown out of it, concerning the
constitutional authority of Congress in the case of Treaties,
that he should confine his present observations to the latter.
On some points there could be no difference of opinion;
and there need not consequently be any discussion.
All are agreed that the sovereignty resides in the people:
that the Constitution, as the expression of their will,
is the guide & the rule to the Government; that the
distribution of powers made by the Constitution, ought to
be sacredly observed by the respective Departments:
that the House of Representatives ought to be equally
careful to avoid encroachments on the authority given
to other departments, and to guard their own authority
against encroachments from the other departments.
These principles are as evident as they are vital
& essential to our political system.
The true question therefore before the Committee was not
whether the will of the people expressed in the Constitution
was to be obeyed; but how that will was to be understood;
in what manner it had actually divided the powers
delegated to the Government; and what construction
would best reconcile the several parts of the
instrument with each other, and be most
consistent with its general spirit & object.
On comparing the several passages in the Constitution,
which had been already cited to the Committee,
it appeared that if taken literally and without limit,
they must necessarily clash with each other.
Certain powers to regulate commerce, to declare war,
to raise armies, to borrow money &c &c,
are first specifically vested in Congress.
The power of making Treaties, which may relate
to the same subjects, is afterwards vested in the
President and two-thirds of the Senate.
And it is declared in another place that the Constitution,
and the laws of the United States made in pursuance
thereof, and Treaties made or to be made under the
authority of the United States shall be the supreme law
of the land: and the judges, in every State, shall be
bound thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding.
The term supreme, as applied to Treaties evidently
meant a supremacy over the State Constitutions and laws,
and not over the Constitution & laws of the United States.
And it was observable that the Judicial authority
& the existing laws, alone of the States, fell
within the supremacy expressly enjoined.
The injunction was not extended to the Legislative authority
of the States or to laws requisite to be passed by the States,
for giving effect to Treaties; and it might be a problem
worthy of the consideration, though not needing the
decision of the Committee, in what manner the requisite
provisions were to be obtained from the States.
It was to be regretted, he observed, that on a question
of such magnitude as the present, there should be any
apparent inconsistency or inexplicitness in the Constitution,
that could leave room for different constructions.
As the case however had happened, all that could
be done was to examine the different constructions
with accuracy & fairness, according to the rules
established therefor, and to adhere to that which should
be found most rational, consistent, and satisfactory.
He stated the five following, as all the
constructions worthy of notice, that had either
been contended for or were likely to occur.
I. The Treaty-power and the Congressional power
might be regarded as moving in such separate orbits,
and operating on such separate objects, as to be
incapable of interfering with or touching each other.
II. As concurrent powers relating to the same objects;
and operating like the power of Congress
& the power of the State Legislatures in
relation to taxes on the same articles.
III. As each of them supreme over the other,
as it may be the last exercised; like the different
assemblies of the people under the Roman Government
in the form of Centuries & in the form of Tribes.
IV. The Treaty power may be viewed, according
to the doctrine maintained by the opponents of the
proposition before the Committee, as both unlimited in
its objects and completely paramount in its authority.
V. The Congressional power may be viewed as
co-operative with the Treaty-power on the Legislative
subjects submitted to Congress by the Constitution;
in the manner explained by the member from Pennsylvania
(Mr. Gallatin) and exemplified in the British Government.
The objection to the First construction is that it would
narrow too much the Treaty-power to exclude from
Treaties altogether the enumerated subjects submitted
to the power of Congress; some or other of this class
of regulations being generally comprised in the
important compacts which take place between nations.
The objection to the Second is that a concurrent exercise
of the Treaty & Legislative powers on the same objects
would be evidently impracticable.
In the case of taxes laid both by Congress and by the
State Legislatures on the same articles, the Constitution
presumed that the concurrent authorities might be exercised
with such prudence and moderation as would avoid an
interference between their respective regulations.
But it was manifest that such an interference
would be unavoidable between the Treaty
power & the power of Congress.
A Treaty of commerce, for example,
would rarely be made, that would not
trench on existing legal regulations,
as well as be a bar to future ones.
To the Third, the objection was equally fatal;
that it involved the absurdity of an Imperium in imperio;
of two powers both of them supreme, yet each
of them liable to be superseded by the other.
There was indeed an instance of this kind found in the
Government of Ancient Rome, where the two Authorities
of the Comitia Curiata, or meetings by Centuries and the
Comitia tributa or meetings by tribes, were each possessed
of the supreme Legislative power and could each annul
the proceedings of the other: For although the people
composed the body of the meetings in both cases,
yet as they voted in one according to wealth and in the
other according to numbers, the organizations were
so distinct as to create in fact two distinct authorities.
But it was not necessary to dwell on this political
phenomenon, which had been celebrated as a subject
of curious speculation only and not as a model for
the institutions of any other Country.
The Fourth construction is that which is contended for
by the opponents of the proposition depending;
and which gives to the Treaty-power all the latitude
which is not necessarily prohibited by a regard to the
general form & fundamental principles of the Constitution.
In order to smooth the way for this doctrine,
it had been said that the power to make treaties
was laid down in the most indefinite terms; & that the
power to make laws was no limitation to it, because the
two powers were essentially different in their nature.
If there was ingenuity in this distinction, it was all the merit
it could have: for it must be obvious that it could neither
be reduced to practice nor be reconciled to principles.
Treaties and laws, whatever the nature of them may be,
must in their operation be often the same.
Regulations by Treaty, if carried into effect, are laws.
If Congress pass acts relating to provisions in a Treaty,
so as to become incorporated with the Treaty,
they are not the less laws on that account.
A legislative act is the same whether performed
by this or that body, or whether it be grounded
on the consideration that a foreign nation agrees
to pass a like act, or on any other consideration.
It must be objected to this construction therefore
that it extends the Power of the President & Senate
too far and cramps the powers of Congress too much.
He did not admit that the term “Treaty” had the extensive
and unlimited meaning which some seemed to claim for it.
It was to be considered as a Technical term, and its
meaning was to be sought for in the use of it, particularly
in Governments which bore most analogy to our own.
In absolute Governments, where the whole power of
the Nation is usurped by the Government, and all the
Departments of power are united in the same person,
the Treaty power has no bounds, because the power
of the Sovereign to execute it has none.
In limited Governments the case is different.
The Treaty power, if undefined,
is not understood to be unlimited.
In Great Britain it is positively restrained on the
subjects of money and dismembering the Empire.
Nor could the Executive there, if his recollection was right,
make an Alien a subject by means of a Treaty.
But the question immediately under consideration,
and which the context & spirit of the Constitution
must decide, turned on the extent of the Treaty-power
in relation to the objects specifically & expressly
submitted to the Legislative power of Congress.
It was an important & appeared to him to be
a decisive view of the subject, that if the Treaty-power
alone could perform any one act for which the
authority of Congress is required by the Constitution,
it may perform every act for which the authority
of that part of the Government is required.
Congress have power to regulate trade, to declare war, to
raise armies, to levy, borrow, and appropriate money, &c.
If by Treaty therefore, as paramount to the Legislative
power, the President & Senate can regulate Trade;
they can also declare war; they can raise armies to carry
on war; and they can procure money to support armies.
These powers, however different in their nature
or importance, are on the same footing in the
Constitution and must share the same fate.
A member from Connecticut (Mr. Griswold) had admitted
that the power of war was exclusively vested in Congress;
but he had not attempted, nor did it seem possible, to draw
any line between that & the other enumerated powers.
If any line could be drawn, it ought to be presented
to the Committee; and he should for one be ready
to give it the most impartial consideration.
He had not, however, any expectation that such an
attempt could succeed: and therefore should submit to the
serious consideration of the Committee, that although the
Constitution had carefully & jealously lodged the power of
war, of armies, of the purse &c. in Congress, of which the
immediate representatives of the people formed an integral
part; yet, according to the construction maintained on the
other side, The President & Senate by means of a Treaty of
alliance with a nation at war might make the United States
parties in the war: they might stipulate subsidies and even
borrow money to pay them: they might furnish Troops
to be carried to Europe, Asia or Africa: they might even
undertake to keep up a standing army in time of peace
for the purpose of co-operating on given contingences
with an Ally for mutual safety or other common objects.
Under this aspect the Treaty power
would be tremendous indeed.
The force of this reasoning is not obviated by
saying that the President & Senate would only
pledge the public faith & that the agency of Congress
would be necessary to carry it into operation.
For what difference does this make if the obligation
imposed be as is alleged, a constitutional one;
if Congress have no will but to obey, & if to disobey be
Treason & rebellion against the Constituted Authorities.
Under a constitutional Obligation with such sanctions to it
Congress, in case the President & Secretary should
enter into an alliance for war, would be nothing more
than the mere heralds for proclaiming it.
In fact it had been said that they must obey the injunctions
of a Treaty as implicitly as a subordinate officer in the
Executive line was bound to obey the chief Magistrate;
or as the Judges are bound to decide according to the laws.
As a further objection to the doctrine contended for,
he called the attention of the Committee
to another very serious consequence from it.
The specific powers, as vested in Congress by the
Constitution, are qualified by sundry exceptions deemed
of great importance to the safe exercise of them.
These restrictions are contained in §IX of the
Constitution, and in the articles of amendment
which have been added to it.
Thus “the migration or importation of such persons
as any of the States shall think proper to admit,
shall not be prohibited by Congress.”
He referred to several of the other restrictive
paragraphs which followed, particularly the 5th
which says that no tax shall be laid on exports,
& no preference given to ports of one
State over those of another &c.
It was Congress also he observed which was to
make no law respecting an establishment of Religion
or prohibiting the free exercise thereof or abridging
the freedom of speech or of the press; or the right
of the people peaceably to assemble, &c &c.
Now if the legislative powers specifically vested in
Congress are to be no limitation or check to the Treaty
power, it was evident that the exceptions to those powers
could be no limitation or check to the Treaty power.
Returning to the powers particularly lodged in Congress,
he took notice of those relating to war & money
or the sword & the purse as requiring a few
additional observations in order to show that the
Treaty power could not be paramount over them.
It was well known that with respect to the regulation
of Commerce, it had long remained under the jurisdiction
of the States; and that in the establishment of the present
Government the question was whether & how far
it should be transferred to the general jurisdiction.
But with respect to the power of making war,
it had from the commencement of the Revolution
been judged & exercised as a branch of the
General Authority, essential to the public safety.
The only question therefore that could arise
was whether the power should be lodged in this
or in that Department of the Federal Government.
And we find it expressly vested in the Legislative
and not in the Executive Department;
with a view no doubt to guard it against the abuses
which might be apprehended from placing the power
of declaring war in those hands which would conduct it
when declared, and which therefore in the ordinary
course of things would be most tempted to go into war.
But according to the doctrine now maintained, the
United States by means of an Alliance with a foreign
power might be driven into a State of war by the
President & Senate, contrary both to the sense of the
Legislature & to the letter & spirit of the Constitution.
On the subject also of appropriating money,
particularly to a military establishment, the provision
of the Constitution demanded the most severe attention.
To prevent the continuance of a Military force for a longer
term than might be indispensable, it is expressly declared
that no appropriation for the support of armies shall be
made for more than two years: so that at the end of
every two years the question whether a military force
ought to be continued or not must be open for
consideration, and can be decided in the negative
by either the House of Representatives or the Senate’s
refusing to concur in the requisite appropriations.
This is a most important check & security against the
danger of standing armies & against the prosecution
of a war beyond its rational objects; and the efficacy
of the precaution is the greater, as at the end of
every two years, a re-election of the House of
Representatives gives the people an opportunity
of judging on the occasion for themselves.
But if, as is contended, the House of Representatives
have no right to deliberate on appropriations pledged
by the President & Senate, and cannot refuse them
without a breach of the Constitution and of their oaths,
the case is precisely the same, and the same effects would
follow, as if the appropriation were not limited to two years,
but made for the whole period contemplated at once.
Where would be the check of a biennial appropriation
for a military establishment raised for four years, if at
the expiration of two years, the appropriation was to be
continued by a constitutional necessity for two years more?
It is evident that no real difference can exist between an
appropriation for four years at once & two appropriations
for two years each, the second of which the two Houses
would be constitutionally obliged to make.
It had been said that in all cases a law must either
be repealed, or its execution provided for.
Whatever respect might be due to this principle in general,
he denied that it could be applicable to the case in question.
By the provision of the Constitution limiting appropriations
to two years, it was clearly intended to enable either branch
of the Legislature to discontinue a military force
at the end of every two years.
If the law establishing it must be necessarily repealed
before an appropriation could be withheld,
it would be in the power of either Branch to keep up
an establishment by refusing to concur in a repeal.
The construction and reasoning therefore opposed
to the rights of the House would evidently defeat
an essential provision of the Constitution.
The Constitution of the United States is
a Constitution of limitations and checks.
The powers given up by the people for the purposes of
Government had been divided into two great classes.
One of these formed the State Governments,
the other the Federal Government.
The powers of the Government had been
further divided into three great Departments;
and the Legislative department again
subdivided into two independent branches.
Around each of these portions of power were
seen also exceptions and qualifications as additional
guards against the abuses to which power is liable.
With a view to this policy of the Constitution,
it could not be unreasonable if the clauses under discussion
were thought doubtful, to lean towards a construction
that would limit & control the Treaty-making power,
rather than towards one that would make it omnipotent.
He came next to the Fifth Construction which left with
the President & Senate the power of making Treaties,
but required at the same time the Legislative sanction
& co-operation in those cases where the Constitution
had given express & specific powers to the Legislature.
It was to be presumed that in all such cases, the
Legislature would exercise its authority with discretion,
allowing due weight to the reasons which led to the Treaty
and to the circumstance of the existence of the Treaty.
Still, however, this House in its Legislative capacity
must exercise its reason; it must deliberate;
for deliberation is implied in Legislation.
If it must carry all Treaties into effect, it would no longer
exercise a legislative power: it would be the mere
instrument of the will of another Department
and would have no will of its own.
Where the Constitution contains a specific & peremptory
injunction on Congress to do a particular act, Congress
must of course do the act, because the Constitution,
which is paramount over all the Departments, has expressly
taken away the Legislative discretion of Congress.
The case is essentially different where the act
of one Department of Government interferes
with a power expressly vested in another
and nowhere expressly taken away.
Here the latter power must be exercised according
to its nature; and if it be a Legislative power,
it must be exercised with that deliberation & discretion
which is essential to the nature of Legislative power.
It was said yesterday that a Treaty was paramount to all
other Acts of Government, because all power resided in the
people, and the President & Senate in making a Treaty,
being the Constitutional organs of the people for that
purpose, a Treaty when made was the act of the people.
The argument was as strong the other way.
Congress are as much the organs of the people in making
laws, as the President & Senate can be in making Treaties;
and laws, when made are as much the acts of the people,
as any acts whatever can be.
It had been objected that the Treaty-power
would be in fact frustrated, if Treaties were
to depend in any degree on the Legislature.
He thought there was no such danger.
The several powers vested in the several Departments
form but one Government; and the will of the nation
may be expressed through one Government,
operating under certain checks on the subject of Treaties,
as well as under other checks on other subjects.
The objection would have weight if the voluntary
cooperation of the different States was to be obtained.
Another objection was that no Treaty could be
made at all if the agency of Congress were to concur,
because Congress could not Treat,
and their Agency would not be of a Treaty nature.
He would not stop to enquire how far a loan of money
from a foreign Government under a law of Congress was
or was not of the nature of a public Contract or Treaty.
It was more proper to observe that the practice
in Great Britain was an evidence that a
Legislative Agency did not vitiate a Treaty.
Nay, if the Objection were solid, it was evident
that the Treaty lately entered into with that Nation
could never be binding on this; because it had been
laid before the Parliament for its Legislative agency
as necessary to effectuate the Treaty;
and if that agency was to vitiate & destroy the nature
of the Treaty on that side, the obligation on the principle
of all contracts would be dissolved on both sides.
He did not see the utility in this case of urging,
as had been done, a particular distrust of
the House of Representatives.
He thought the President & Senate would be
as likely to make a bad Treaty as this Branch
of the Government would be to throw obstructions
in the way of a good one, after it was made.
No construction, he said, might be
perfectly free from difficulties.
That which he had espoused was subject to the least;
as it gave signification to every part of the Constitution, was
most consistent with its general spirit and was most likely
in practice to promote the great object of it, the public good.
The construction which made the Treaty power in a
manner omnipotent he thought utterly inadmissible in a
Constitution marked throughout with limitations & checks.
He should not at present, he said,
enter any further into the subject.
It had been brought before the House rather earlier
than he had expected or than was perhaps necessary;
and his observations therefore might not have been
as full or as well digested, as they ought to have been;
such as they were, he submitted them
to the candid attention of the Committee.8
On March 30 President Washington refused to turn over
to the House documents related to the Jay Treaty.
In the last two-thirds of the second speech on Jay’s Treaty
on 6 April 1796 Madison concluded,
Mr. Madison did not mean to go into the general
merits of this question as discussed when
the former resolution was before the committee.
The message did not require it; having drawn none
of its reasoning from the text of the Constitution.
It had merely affirmed that the power of making
treaties is exclusively vested by the Constitution in
the President by and with the consent of the Senate.
Nothing more was necessary on this point,
than to observe that the Constitution had,
as expressly and exclusively vested in Congress,
the power of making laws, as it had vested in the
President and Senate the power of making treaties.
He proceeded to review the several topics
on which the message relied:
First, the intentions of the body
which framed the Constitution;
Secondly, the opinions of the state conventions
who adopted it;
Thirdly, the peculiar rights and interests
of the smaller states;
Fourthly, the manner in which the Constitution
had been understood by the executive and the
foreign nations with which treaties had been formed;
Fifthly, the acquiescence and acts
of the house on former occasions.
1. When the members on the floor, who were
Members of the general convention, particularly
a member from Georgia and himself were called
on in a former debate for the sense of that body
on the constitutional question, it was a matter of
some surprise; which was much increased by the
peculiar stress laid on the information expected.
He acknowledged his surprise also at seeing
the message of the executive appealing to
the same proceedings in the general convention,
as a clue to the meaning of the Constitution.
It had been his purpose during the late debate to make
some observations on what had fallen from the gentlemen
from Connecticut and Maryland, if the sudden termination
of the debate had not cut him off from the opportunity.
He should have reminded them that this was the ninth year
since the convention executed their trust, and that he had
not a single note in this place to assist his memory.
He should have remarked that neither himself nor the other
members who had belonged to the federal convention,
could be under any particular obligation to rise in answer
to a few gentlemen with information not merely of their own
ideas at that period, but of the intention of the whole body:
many members of which too had probably never
entered into the discussions of the subject.
He might have further remarked that there would be
the more delicacy in the undertaking, as it appeared
that a sense had been put on the Constitution by some
who were members of the convention, different from
that which must have been entertained by others,
who had concurred in ratifying the treaty.
After taking notice of the doctrine (of Judge Wilson, who
was a member of the federal convention, as quoted by
Mr. Gallatin) from the Pennsylvania debates; he proceeded
to mention that three gentlemen, who had been members
of the convention, were parties to the proceedings in
Charleston, South Carolina, which among other objections
to the treaty, represented it as violating the Constitution.
That the very respectable citizen, who presided at
the meeting in Wilmington, whose resolutions made
a similar complaint, had also been a distinguished
member of the body that formed the Constitution.
It would have been proper for him also to have recollected
what had on a former occasion happened to himself
during a debate in the house of representatives.
When the bill for establishing a national bank was under
consideration, he had opposed it as not warranted by the
Constitution and incidentally remarked that his impression
might be stronger, as he remembered that in the
convention a motion was made and negatived for giving
Congress a power to grant charters of incorporation.
This slight reference to the convention, he said was
animadverted on by several in the course of the debate,
and particularly by a gentleman from Massachusetts, who
had himself been a member of the convention, and whose
remarks were not unworthy the attention of the committee.
Here Mr. Madison read a paragraph in Mr. Gerry’s speech,
from the Gazette of the United States, p. 814, protesting in
strong terms against arguments drawn from that source.
Mr. Madison said he did not believe a single
instance could be cited in which the sense of
the convention had been required or admitted
as material in any constitutional question.
In the case of the bank the committee had seen how a
glance at that authority had been treated in this house.
When the question on the suability of the states was
depending on the supreme court, he asked whether it had
ever been understood that the members of the bench, who
had been members of the convention, were called on for
the meaning of the convention on that very important point;
although no constitutional question would be presumed
more susceptible of elucidation from that source.
He then adverted to that part of the message
which contained an extract from the journal of
the convention, showing that a proposition
“that no treaty should be binding on the United States,
which was not ratified by law,” was explicitly rejected.
He allowed this to be much more precise than
any evidence drawn from the debates in the
convention, or resting on the memory of individuals.
But admitting the case to be as stated, of which he
had no doubt, although he had no recollection of it;
and admitting the record of the convention to be the
oracle that ought to decide the true meaning of the
Constitution, what did this abstract vote amount to?
Did it condemn the doctrine of the majority?
So far from it, that as he understood their doctrine,
they must have voted as the convention did;
for they do not contend that no treaty shall be operative
without a law to sanction it; on the contrary they admit
that some treaties will operate without this sanction;
and that it is no further applicable in any case,
than where legislative objects are embraced by treaties.
The term ratify also deserved some attention,
for although of loose signification in general,
it had a technical meaning different from the agency
claimed by the house on the subject of treaties.
But after all, whatever veneration might be entertained
for the body of men who formed our Constitution,
the sense of that body could never be regarded as
the oracular guide in the expounding the Constitution.
As the instrument came from them, it was nothing more
than the draught of a plan, nothing but a dead letter,
until life and validity were breathed into it by the voice of
the people speaking through the several state conventions.
If we were to look therefore for the meaning of the
instrument beyond the face of the instrument,
we must look for it not in the general convention,
which proposed, but in the state conventions,
which accepted and ratified the Constitution.
To these also the message had referred,
and it would be proper to follow it.
2. The debates of the conventions in three states,
Pennsylvania, Virginia, and North Carolina, had been
before introduced into the discussion of this subject,
and were, he believed, the only publications of the
sort which contained any lights with respect to it.
He would not fatigue the committee with a
repetition of the passages then read to them.
He would only appeal to the committee to decide whether
it did not appear from a candid and collected view of the
debates in those conventions, and particularly in that of
Virginia that the treaty-making power was a limited power;
and that the powers in our Constitution on this subject
bore an analogy to the powers on the same subject
in the government of Great Britain.
He wished, as little as any member could,
to extend the analogies between the two governments.
But it was clear that the constituent parts
of two governments might be perfectly
heterogenous and yet the powers be similar.
At once to illustrate his meaning and give a brief
reply to some arguments on the other side,
which had heretofore been urged with ingenuity
and learning, he would mention as an example
the power of pardoning offenses.
This power was vested in the President.
It was a prerogative also of the British king.
And in order to ascertain the extent of the compound and
technical term “pardon” in our constitution; it would not be
irregular to search into the meaning and exercise of the
power in Great Britain; yet where is the general analogy
between a hereditary sovereign, not accountable for his
conduct, and a magistrate, like the President of the
United States, elected for four years with limited powers
and liable to impeachment for the abuse of them.
In referring to the debates of the state conventions
as published, he wished not to be understood as
putting entire confidence in the accuracy of them.
Even those of Virginia which had been probably
taken down by the most skillful hand,
(whose merit he wished by no means to disparage)
contained internal evidences in abundance of
chasms and misconceptions of what was said.
The amendments proposed by the several
conventions were better authority and would be
found on a general view to favor the sense of the
Constitution which had prevailed in this house.
But even here it would not be reasonable to expect a perfect
precision and system in all their votes and proceedings.
The agitations of the public mind on that occasion
with the hurry and compromise which generally
prevailed in settling the amendments to be proposed,
would at once explain and apologize for the several
apparent inconsistencies which might be discovered.
He would not undertake to say that the particular
amendment referred to in the message by which
two states required that “no commercial treaty should
be ratified without the consent of two thirds of the
whole number of Senators; and that no territorial rights &c.
should be ceded without the consent of three fourths
of the members of both houses” was digested
with an accurate attention to the whole subject.
On the other hand it was no proof that those
particular conventions in annexing these guards
to the treaty power understood it as different
from that espoused by the majority of the house.
They might consider Congress as having the
power contended for over treaties stipulating
on Legislative subjects and still very consistently
wish for the amendment they proposed.
They might not consider the territorial rights and other
objects for which they required the concurrence of
three-fourths of the members of both houses, as coming
within any of the enumerated powers of Congress, and
therefore as not protected by that control over treaties.
And although they might be sensible that
commercial treaties were under that control,
yet as they would always come before Congress
with great weight after they passed through the regular
forms and sanctions of the treaty department, it might be
deemed of real importance that the authority should be
better guarded which was to give that weight to them.
He asked whether it might not happen, even in the progress
of a treaty through the treaty department, that each
succeeding sanction might be given, more on account of
preceding sanctions than of any positive approbation?
And no one could doubt therefore that a treaty which had
received all these sanctions would be controlled with great
reluctance by the Legislature; and consequently that it might
be desirable to strengthen the barriers against making
improper treaties, rather than trust too much to the
Legislative control over carrying them into effect.
But said Mr. Madison it will be proper to attend
to other amendments proposed by the ratifying
conventions, which may throw light on their
opinions and intentions on the subject in question.
He then read from the Declaration of Rights
proposed by Virginia to be prefixed to the
Constitution, the 7th article as follows.
“That all power of suspending laws, or the execution
of laws by any authority without the consent of the
Representatives of the people in the Legislature,
is injurious to their rights and ought not to be exercised.”
The convention of North Carolina, as he showed,
had laid down the same principle in the same words.
And it was to be observed that in both conventions,
the article was under the head of a declaration of rights,
“asserting and securing from encroachment the essential
and inalienable rights of the people” according to the
language of the Virginia convention; and “asserting and
securing from encroachment the great principles of civil and
religious liberty, and the inalienable rights of the people”
as expressed by the convention of North Carolina.
It must follow that these two conventions considered
it as a fundamental and inviolable and universal
principle in free governments, that no power
could supersede a law without the consent of the
Representatives of the people in the Legislature.
In the Maryland convention also it was among
the amendments proposed, though he believed
not decided on, “that no power of suspending laws
or the execution of laws, unless derived from the
Legislature, ought to be exercised or allowed.”
The convention of North Carolina had further explained
themselves on this point by their 23rd amendment
proposed to the Constitution in the following words,
“That no treaties which shall be directly opposed to the
existing laws of the United States in Congress assembled,
shall be valid until such laws shall be repealed
or made conformable to such treaty;
nor shall any treaty be valid which is contradictory
to the Constitution of the United States.”
The latter part of the amendment was an evidence that
the amendment was intended to ascertain, rather than to
alter the meaning of the Constitution; as it could not be
supposed to have been the real intention of the
Constitution that a treaty contrary to it should be valid.
He proceeded to read the following amendments
accompanying the ratifications of state conventions.
The New York convention had proposed,
“That no standing army or regular troops shall be raised
or kept up in time of peace without the consent of two-thirds
of the Senators and Representatives in each house.”
“That no money be borrowed on the credit of the
United States without the assent of two thirds of
the Senators and Representatives in each house.”
“That the Congress shall not declare war without
the concurrence of two-thirds of the Senators and
Representatives present in each house.”
The New Hampshire convention had proposed,
“That no standing army shall be kept up in time
of peace unless with the consent of three-quarters
of the members of each branch of Congress.”
In the Maryland convention a proposition
was made in the same words.
The Virginia convention had proposed,
“That no navigation law or law regulating commerce
shall be passed without the consent of two-thirds
of the members present in both houses.”
“That no standing army or regular troops shall be raised
or kept up in time of peace without the consent of
two-thirds of the members present in both houses.”
“That no soldier shall be enlisted for any longer term
than four years, except in time of war, and then
for no longer term than the continuance of the war.”
The convention of North Carolina had proposed
the same three amendments in the same words.
On a review of these proceedings may not, said he,
the question be fairly asked, whether it ought to be
supposed that the several conventions, who showed so
much jealousy with respect to the powers of commerce,
of the sword, and of the purse, as to require for the exercise
of them, in some cases two-thirds, in others three-fourths,
of both branches of the Legislature, could have understood
that by the treaty clauses in the Constitution they had given
to the President and Senate, without any control whatever
from the House of Representatives, an absolute and
unlimited power over all those great objects?
3. It was with great reluctance, he said,
that he should touch on the third topic, the alleged
interest of the smaller states in the present question.
He was the more unwilling to enter into this delicate part
of the discussion, as he happened to be from a state
which was in one of the extremes in point of size.
He should limit himself therefore to two observations.
The first was that if the spirit of amity and mutual
concession from which the Constitution resulted,
was to be consulted on expounding it, that construction
ought to be favored, which would preserve the mutual
control between the Senate and the House of
Representatives, rather than that which gave powers
to the Senate not controllable by and paramount over
those of the House of Representatives, while the House
of Representatives could in no instance exercise their
powers without the participation and control of the Senate.
The second observation was that whatever jealousy
might have unhappily prevailed between the smaller
and larger states, as they had most weight in one or other
branch of the government, it was a fact, for which he
appealed to the journals of the old congress from its birth
to its dissolution, and to those of the Congress under the
present government, that in no instance would it appear
from the yeas and nays, that a question had been decided
by a division of the votes according to the size of the States.
He considered this truth as worthy of the most
pleasing and consoling reflection, and as one
that ought to have the most conciliating and
happy influence on the temper of all the states.
4. A fourth argument in the message was drawn from
the manner by which the treaty power had been understood
in both parties in the negotiations with foreign powers.
“In all the treaties made we have declared,
and they have believed, &c.”
By we, he remarked, was to be understood the
executive alone who had made the declaration,
and in no respect the House of Representatives.
It was certainly to be regretted as had often been expressed
that different branches of the government should disagree
in the construction of their powers; but when this could not
be avoided, each branch must judge for itself;
and the judgment of the executive could in this case
be no more an authority overruling the judgment
of the house, than the judgment of the house
could be an authority overruling that of the executive.
It was also to be regretted that any foreign
nation should at any time proceed under a
misconception of the meaning of our Constitution.
But no principle was better established in the law of nations,
as well as in common reason, than that one nation is
not to be the interpreter of the Constitution of another.
Each nation must adjust the forms and operation
of its own government: and all others are
bound to understand them accordingly.
It had before been remarked, and it would be proper
to repeat here, that of all nations Great Britain
would be least likely to object to this principle,
because the construction given to our government,
was particularly exemplified in her own.
5. In the fifth and last place, he had to take notice
of the suggestion that every House of Representatives
had concurred in the construction of the treaty power
now maintained by the Executive;
from which it followed, that the House could not
now consistently act under a different construction.
On this point it might be sufficient to remark that this was
the first instance in which a foreign treaty had been made,
since the establishment of the Constitution, and that
this was the first time the treaty-making power
had come under formal and accurate discussion.
Precedents therefore, would readily be seen
to lose much of their weight.
But whether the precedents found in the proceedings
preparatory to the Algerine treaty, or in the provisions
relative to the Indian treaties, were inconsistent with the
right which had been contended for in behalf of the House,
he should leave to be decided by the committee.
A view of these precedents had been pretty fully
presented to them by a gentleman from New York
(Mr. Livingston) with all the observations
which the subject seemed to require.
On the whole, it appeared that the rights of the House
on two great constitutional points had been denied
by a high authority in the message before the committee.
This message was entered on the journals of the House.
If nothing was entered in opposition thereto;
it would be inferred that the reasons in the message
had changed the opinion of the House, and that
their claims on those great points were relinquished.
It was proper therefore that the questions brought
fairly before the committee in the propositions of
the gentleman (Mr. Blount) from North Carolina,
should be examined and formally decided.
If the reasoning of the message should be deemed
satisfactory, it would be the duty of this branch of the
government to reject the propositions, and thus accede to
the doctrines asserted by the Executive.
If on the other hand this reasoning should not be
satisfactory, it would be equally the duty of the House,
in some such firm but very decent terms,
as are proposed, to enter their opinions on record.
In either way the meaning of the Constitution
would be established as far as depends
on a vote of the House of Representatives.9
The House of Representatives continued to debate Jay’s Treaty in April,
and after a speech by the Federalist Fisher Ames, they voted 49 to 49 on April 29.
The Republican Representative Frederick Muhlenberg, who was chairman
of the committee of the whole, finally managed to get approval of a funding bill
for the Jay Treaty with a 51 to 48 vote.
On 29 September 1796 Madison in a letter to James Monroe wrote,
Before this reaches you, you will no doubt have
received the act of the Executive which relieves
you from the dilemma of choosing between the
two evils of bearing or abandoning your public situation.
This extraordinary measure was so little apprehended
by me that I discredited it till it was lately put out of
question; still I am ignorant of the date of the recall
and know nothing more of the cause than suggestions
said to come from the heads of department that you
had not done your duty respecting the British treaty—
Beckley being on the spot has probably gained
more insight and has, I hope, written to you;
to me he has not yet written a word on the subject.
Perhaps also the valedictory address of the president which
has just appeared may furnish some materials for a key.
It shows that he is completely in the snares of the
British faction; and in pursuance of their views is
laboring totis viribus to rear every obstruction
as well as to remove every facility to an improvement
of our commercial relations with France.
It has been known that every channel has been latterly
opened, that could convey to his mind a rancor against that
country and suspicions of all who are thought to sympathize
with its revolution and who support the policy of extending
our commerce and in general of standing well with it.
But it was not easy to suppose his mind wrought up to the
tone that could dictate or rather adopt some parts of the
performance in spite of the forbidding considerations both
personal and public which ought not to have been forgotten.
I say personal with particular reference to the inconsistency
between the language used on this and on other occasions.
You know as well nearly as I
the character of your successor.
Being deemed a man of rectitude and independence
and not a votary of Britain as appeared by his being
of the Charlestown committee against the treaty,
it may be hoped he will not be a mere instrument of party
and pernicious purposes; but will be led by respect for
reputation as well as still higher motives to embrace fair
openings for advancing the solid interests of his country.
Much however will necessarily depend
on the approaching election.
I have not seen Jefferson and have thought it best
to present him no opportunity of protesting
to his friend against being embarked in the contest.
Whether he will get a majority of vote is uncertain.
I am by no means sanguine.
His enemies are as indefatigable as they are malignant.
The event will probably turn on the vote of Pennsylvania
where many circumstances are at present unfavorable
and for the meridian both the tenor and date
of the late address are particularly suited.
Mr. Jones passed two days ago on his way
from Charlottesville for Fredericksburg.
He is in the best health.
We will write to you on his arrival there.
We had much conversation on the subject of
your recall and joined in wishing you could
know it in time to be here this fall.
Were it sure to happen, some public arrangements
might occur along with preparations.
Let us know as early as possible,
the time you may be expected over.
I send two copies of this, in one of which is enclosed
the Address of the President taking leave of public life
at the expiration of his present term.10
In the presidential election from November 4 to December 7 in 1796
the Federalist Vice President John Adams got 71 electoral votes to become President
while the Republican Thomas Jefferson received
68 electoral votes and became Vice President.
In the Senate the Federalists gained one seat while Republicans lost two,
giving the Federalists a 20-10 majority.
In the House of Representatives the Republicans lost
their 59-47 majority when they lost 10 seats.
The Federalists gained those 10 seats, and that gave them a 57-49 advantage.
The Republican leader James Madison announced that he was retiring from Congress
on December 9, and he was replaced by the lawyer John Dawson.
Madison on 19 December wrote this short letter to Thomas Jefferson:
The returns from New Hampshire, Vermont,
South Carolina & Georgia are still to come in, & leave
the event of the Election in some remaining uncertainty.
It is but barely possible that
Adams may fail of the highest number.
It is highly probable, though not absolutely certain,
that Pinkney will be third only on the list.
You must prepare yourself therefore to be
summoned to the place Mr. Adams now fills.
I am aware of the objections arising from the
inadequateness of the importance of the place to the
sacrifices you would be willing to make to a greater
prospect of fulfilling the patriotic wishes of your friends;
and from the irksomeness of being at the
head of a body whose sentiments are at
present so little in unison with your own.
But it is expected that as you had made up your mind to
obey the call of your Country, you will let it decide on the
particular place where your services are to be rendered.
It may even be said, that as you submitted to the election
knowing the contingency involved in it, you are bound
to abide by the event whatever it may be.
On the whole it seems essential that you should
not refuse the station which is likely to be your lot.
There is reason to believe also that your neighborhood
to Adams may have a valuable effect on his councils
particularly in relation to our external system.
You know that his feelings will not enslave him
to the example of his predecessor.
It is certain that his censures of our paper systems
& the intrigues at New York for setting President
above him have fixed an enmity with the British faction.
Nor should it pass for nothing, that the true interest
of New England particularly requires reconciliation
with France as the road to her commerce.
Add to the whole that he is said to speak of you now
in friendly terms and will no doubt be soothed
by your acceptance of a place subordinate to him.
It must be confessed however that all these calculations,
are qualified by his political principles and prejudices.
But they add weight to the obligation from which
you must not withdraw yourself.
You will see in the answer to the
President’s speech much room for criticism.
You must for the present be content to know
that it resulted from a choice of evils.
His reply to the foreign paragraph indicates
a good effect on his mind.
Indeed he cannot but wish to avoid
entailing a war on his successor.
The danger lies in the fetters he has put on himself
& in the irritation & distrust of the French government.11
Notes
1. Commercial Discrimination, [3 January] 1794 (Online).
2. From James Madison to Thomas Jefferson, 11 January 1795 (Online).
3. From James Madison to Thomas Jefferson, 12 March 1794 (Online).
4. From James Madison to Thomas Jefferson, 21 December 1794 (Online).
5. From James Madison to Thomas Jefferson, 26 January 1795 (Online).
6. From James Madison to Robert R. Livingston, 10 August 1795 (Online).
7. Writings by James Madison, p. 553-557.
8. Ibid., p. 558-567.
9. Ibid., p. 571-580.
10. From James Madison to James Monroe, 29 September 1796 (Online).
11. Writings by James Madison, p. 581-582.