Washington’s Response to a Congressional Request for Documents, 30 March 1796

This document, which will be published in a forthcoming volume, is considered an important precedent for presidential claims of executive privilege.

The 1794 treaty with Great Britain negotiated by John Jay was one of the most controversial events of GW’s presidency. Opponents claimed that the treaty conceded too much to Great Britain with little benefit to the United States. It failed to address the impressment of seamen or compensation for the slaves carried off by Great Britain at the end of the Revolutionary War; it guaranteed to British fur traders access to posts within the United States, but failed to give American traders the same access to Canada; it abandoned the principle that free ships make free goods; and yet it obtained very limited access to British colonial ports for American vessels. Moreover, the treaty, by strengthening Great Britain, showed base ingratitude toward France and risked a possible war with that erstwhile ally. After the Senate approved the treaty in June 1795 (with a condition that article XII concerning trade with the West Indies be renegotiated), citizens meetings from around the country urged GW to withhold ratification.

Ultimately GW decided that while some provisions of the treaty were not favorable, its acceptance was preferable to a continuation of the disputes with Great Britain, and he ratified the treaty in August 1795.

Having failed to persuade GW to reject the treaty, opponents argued that although the Constitution placed responsibility for treaties in the president and the Senate, the House of Representatives had “a discretionary power of carrying the Treaty into effect, or refusing it their sanction” (Annals of Congress, 4th Cong., 1st sess., 427-28). The Constitution vested Congress with the power to regulate commerce, to lay taxes and duties, and to make appropriations. If, however, the Senate and the president could, by making a treaty, obligate the House to accept commercial regulations or make appropriations, then in effect, they could legislate without the sanction of the people’s representatives. Pursuant to that theory, in March 1796 Edward Livingston introduced a resolution calling on GW to provide the House with a copy of the instructions given to Jay and other documents relative to the treaty. The House extensively debated the resolution from 7 March until the resolution was agreed to on 24 March.

GW consulted with his cabinet and with Alexander Hamilton (who submitted a draft that was not used) before replying to the House. This reply categorically denied that the House has any veto over a treaty approved by the Senate and the president, and it characterized the House demand as a “dangerous precedent” that would violate the proper separation of powers within the government. GW would not comply.

The House then debated GW’s message for another 7 days. These important debates, both before the resolution’s passage and after GW’s message, are gathered in Annals of Congress, 4th Cong., 1st sess., 424-783, which can be found online at “A Century of Lawmaking For a New Nation,” hosted by the Library of Congress: http://memory.loc.gov/ammem/amlaw/lwaclink.html

_____________________________________________________________________

To the United States House of Representatives

United States March 30th 1796.

Gentlemen of the House of Representatives.

With the utmost attention, I have considered your resolution of the twenty fourth instant, requesting me to lay before your House, a copy of the instructions to the Minister of the United States, who negociated the treaty with the king of Great Britain,[1] together with the correspondence and other documents relative to that treaty, excepting such of the said papers, as any existing negociation may render improper to be disclosed.

In deliberating upon this subject, it was impossible for me to lose sight of the principle, which some have avowed in its discussion, or to avoid extending my views to the consequences, which must flow from the admission of that principle.

I trust, that no part of my conduct has ever indicated a disposition to withhold any information, which the constitution has enjoined upon the President, as a duty, to give, or which could be required of him by either House of Congress, as a right; and with truth, I affirm, that it has been, as it will continue to be, while I have the honor to preside in the government, my constant endeavor to harmonize with the other branches thereof; so far as the trust, delegated to me by the people of the United States, and my sense of the obligation it imposes “to preserve, protect and defend the Constitution,” will permit.[2]

The nature of foreign negociations requires caution; and their success must often depend on secrecy: and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions, which may have been proposed or contemplated, would be deemed[3] impolitic; for this might have a pernicious influence on future negociations, or produce immediate inconveniences, perhaps danger and mischief, in relation to the other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties, in the President, with the advice and consent of the Senate; the principle, on which that body was formed, confining it to a small number of members. To admit, then, a right in the House of Representatives, to demand, and to have, as a matter of course,[4]all the papers respecting a negociation with a foreign power, would be,[5] to establish a dangerous precedent.

It does not occur, that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.[6] I repeat, that I have no disposition to withhold any information, which the duty of my station will permit, or the public good will require to be disclosed;[7]and, in fact, all the papers affecting the negociation with Great Britain were laid before the Senate, when the treaty itself was communicated for their consideration and advice.

The course, which the debate has taken, on the resolution of the House, leads to some observations on the mode of making treaties under the constitution of the United States.

Having been a member of the general convention, and knowing the principles, on which, the constitution was formed, I have ever entertained but one opinion on this subject; and from the first establishment of the government, to this moment, my conduct has exemplified that opinion, that the power of making treaties is exclusively vested in the President, by and with the advice and consent of the Senate; provided two thirds of the Senators present concur; and that every treaty so made, and promulgated, thenceforward became the law of the land. It is thus, that the treaty-making power has been understood by foreign nations; and in all the treaties made with them, we have declared, and they have believed, that, when ratified by the President, with the advice and consent of the Senate, they became obligatory. In this construction of the constitution, every House of Representatives has heretofore acquiesced, and, until the present time, not a doubt or suspicion has appeared to my knowledge, that this construction was not the true one. Nay, they have more than acquiesced; for, till now, without controverting the obligation of such treaties, they have made all the requisite provisions for carrying them into effect.

There is also reason to believe, that this construction agrees with the opinion entertained by the State conventions, when they were deliberating on the constitution, especially by those who objected to it;[8]because there was not required, in commercial treaties, the consent of two thirds of the whole number of the members of the Senate, instead of two thirds of the Senators present; and because, in treaties respecting territorial and certain other rights and claims, the concurrence of three fourths of the whole number of the members of both Houses, respectively, was not made necessary.[9]

It is a fact declared by the General Convention, and universally understood, that the constitution of the United States was the result of a spirit of amity and mutual concession. And it is well known, that under this influence, the smaller States were admitted to an equal representation in the Senate, with the larger States; and that this branch of the government was invested with great powers: for, on the equal participation of those powers, the sovereignty and political safety of the smaller States were deemed essentially to depend.[10]

If other proofs than these, and the plain letter of the constitution itself, be necessary to ascertain the point under consideration, they may be found in the journals of the General Convention, which I have deposited in the office of the department of State. In these journals, it will appear, that a proposition was made, “that no treaty should be binding on the United States, which was not ratified by a law”: and that the proposition was explicitly rejected.

As, therefore, it is perfectly clear to my understanding, that the assent of the House of Representatives is not n[e]cessary to the validity of a treaty: as the treaty with Great Britain exhibits, in itself, all the objects requiring legislative provision, and on these, the papers called for can throw no light; and as it is essential to the due administration of the government, that the boundaries, fixed by the constitution between the different departments, should be preserved:[11] a just regard to the constitution, and to the duty of my office, under all the circumstances of this case, forbid a compliance with your request.

Go. Washington.

Notes

Copy, DNA: RG 233, entry 28, Journals; copy, DLC:GW; Df, in the writing of Timothy Pickering, DLC:GW. The draft has a few minor alterations in the writing of Charles Lee. With the draft are two pages containing corrections to it by Lee and Pickering. GW docketed the correction document as “First Draft altered.” The message was published by order of the House, and it also appeared in the newspapers and in numerous unofficial broadsides.

1.At this point in Pickering’s draft, he wrote in parentheses “communicated by my message of the first instant.”[back]
2.At this point in Pickering’s draft the sentence continued with “for this is superior to all other obligations.”[back]
3.Instead of this word, Pickering’s draft used the word “extremely.”[back]
4.At this point Pickering’s draft continued with the words, “& without a specification of any object.”[back]
5.Pickering’s draft concluded this paragraph with a more detailed explication: “hazardous; & according to my view of the Constitution, repugnant to my duty. A discretion in the Executive department, when & how far to comply with such demands, is essential to the due conduct of foreign negociations. The resolution of the House now before me, contains a demand for all the papers that respect past negotiations relative to the treaty with Great Britain: while it exhibits no reason, no object, by which I may judge of the propriety of a compliance: and therefore I cannot comply, without establishing a dangerous precedent.”
The final version of this paragraph uses the language submitted on the correction document by Charles Lee, except that Lee retained Pickering’s sentence about executive discretion, placing it at the end of the paragraph, while the final version does not.[back]
6.At this point Pickering’s draft contains the following additional text: “But in the case of a treaty, if there be any grounds for an impeachment, they will probably be found in the instrument itself. If at any time a treaty should present such grounds; and it should have been so pronounced by the House of Representatives; and a further enquiry should be necessary to discover the culpable person, or the degree of his offence; there being then a declared and ascertained object; I should deem it to be the duty of the President to furnish all the evidence which could be derived from the papers in his possession. Or if information to any other point should be judged necessary, and that point were specified, the President would know what communications it would be proper to make.”[back]
7.The remainder of this sentence does not appear in Pickering’s initial draft, but the addition was suggested in one of his corrections.[back]
8.Instead of the preceding text, Pickering wrote in his draft, “It is the construction which perfectly agrees with the numerous declarations of the framers of the constitution, in the several State Conventions, when these were deliberating on its adoption; and with the opinions of the Conventions themselves, some of whom objected to the Constitution.”[back]
9.Pickering’s draft adds at this point “for such were the amendments proposed in some Conventions to this part of the Constitution.”[back]
10.The preceding sentence was phrased quite differently in Pickering’s initial draft, but the content was essentially the same. The final language was taken from one of Pickering’s corrections to the draft.[back]
11.The preceding part of this paragraph alters the phrasing but not the meaning of Pickering’s original draft. It follows the language suggested in one of Pickering’s corrections but omits two clauses that were placed after “no light” in that correction: “As the resolution of the House assigns no reason for the call: As the papers respecting the negociation of treaties ordinarily pertain only to the President & Senate, by whom they are made.”[back]
The remaining text of the paragraph replaces Pickering’s initial conclusion, which read: “and as no object for the call is expressed in the Resolution of the House: I feel the obligation I am under, to preserve the Constitution in its purity, too strongly to yield to your request.” Lee wrote on the draft an alternative: “it becomes impossible for me to comply with your request.” Pickering’s correction offered a third unused alternative: “A sense of duty compels me to withhold the papers which are the subject of your request.”