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felt by this Government and its citizens, and which were to be redressed by the proposed treaty, were the occupation by British troops of American forts along the frontiers, which they had continued to hold since the close of the war, the seizure and removal from the country of slaves and other property by the English after peace had been established, and, above all, the impressment of American seamen. After protracted negotiations with the English Government, Jay signed a treaty, which Washington laid before the Senate in June, 1794, and which that body ratified in secret session. The liveliest interest had been all along felt in the success of Jay's mission. It was generally known that a treaty had been made, that it had been received by the President, and that he had submitted it to the Senate, but up to that time not a word of information concerning its provisions had been given to the public. The people, who had been hopeful, became suspicious at what seemed to them the unnecessary delay on the part of the Government in publishing the terms of the treaty. It became known that the Senate had ratified it, but the Government still withheld the treaty from the public. Finally a Senator surreptitiously furnished a copy of it to one of the newspapers, and as fast as the swiftest couriers could carry the news, its provisions were made known from New England to Georgia. Then the storm burst. It was discovered that the treaty was silent on the subject of the impressment of our seamen; it made no provision for payment for the slaves and other property which the British had carried away; the provision for the evacuation of the forts was vague and unsatisfactory. In every section of the Union, through the press and in public meetings, it was declared that the treaty in all of its provisions discriminated against the United States and in favor of Great Britain. It even went so far, to use the

fervid language of the day, as to deny to Americans the right to carry from their own ports, cotton grown upon their own soil, and gives the right to Englishmen." Jay became the most unpopular man of the time, and the treaty, ever afterwards known by his name, was undoubtedly the most unpopular treaty that has ever been negotiated by an American minister. Before the first feelings of disappointment and anger had in any measure abated, a new Congress met. The House was Republican and hostile to the Administration, and, of course, hostile to the treaty. The leaders of that party determined that, although the treaty had been ratified, it must be practically nullified. After careful study of its provisions, they decided to attack it, among others, on constitutional grounds. The burden of attack was undertaken by Madison, Gallatin and Livingston. In order to bring the subject before the House for discussion, Mr. Livingston offered a resolution calling on the President for a copy of the instructions to Jay, the correspondence with him, and all documents relating to the treaty. The reason and necessity for the consideration of the matter by the House was declared to be, that grave constitutional questions were involved. The discussion of the resolution continued for twenty-one days. By those who disputed the validity of the treaty, it was claimed that ten of its twenty-eight articles were a regulation of commerce, which was a subject over which, by the express terms of the Constitution, Congress was given exclusive jurisdiction, and that, to that extent at least, the President in negotiating the treaty had exceeded his constitutional powers. The contention of the opponents of the treaty in the House may be summed up in the words of Madison: "It is unquestionable," he said, "that if the treaty power can, by itself, perform any one act for which the authority of Congress

is required by the Constitution, it can perform every act for which the assent of that part of the Government is necessary. Congress has power to regulate trade, to declare war, to raise armies, to lay taxes, to borrow and spend money. All these powers are on precisely the same footing in the Constitution. This treaty regulates trade. If, therefore, the President and Senate, to the exclusion of the House, can regulate trade, they can, to the exclusion of the House, declare war, raise armies to carry on the war, and collect money to support the armies. For, by a treaty of alliance with a nation at war, they might make the United States a party to the war, stipulate subsidies, or furnish troops to be sent to Europe, Asia, or the wilds of Africa."

The friends of the Administration maintained the constitutionality of the treaty with equal vigor, if not with better reason. In substance, their arguments were: - I quote from McMasters' History - "The law of nations is one thing, and municipal law is another thing. Treaties have to do with the former. Legislatures deal with the latter. Compacts, avowed or understood; customs which rest on the general consent of nations, implied from long usage; treaties which are open declarations of the consent of nations; these make up the law of nations, and, whenever they apply, treaties are supreme. A treaty is not a law, but a compact. Treaties stipulate; a law commands. A treaty may agree that such a duty shall be laid, or such a crime punished, but it cannot lay the duty nor inflict the punishment. It cannot, therefore, act as a law, nor produce the effect of legislation. It is a compact, nothing but a compact, and in the domain of compacts is supreme. The Legislature cannot make a compact, neither can the treaty power pass a law. By the Constitution the President and the Senate may make a compact, and the House

cannot interfere. Nor, when Congress undertakes to execute it, can the President and Senate interfere. Power to stipulate does not at all imply power to execute. The two are as distinct as signing a bond and paying it."

The resolution was adopted by a decisive majority, but Washington declined to furnish the documents or to disclose the nature of the instructions which had been given Jay concerning the treaty. As the weeks and months. passed, the excitement into which the country had been thrown over the first publication of the treaty gradually subsided, and conservative men came to regard the situation in a more sensible light. It was seen that the treaty as made was as favorable to this country as could be obtained from England at the time; that it was either that treaty or no treaty, while the failure to negotiate any Finally a resolution was

treaty meant almost certain war. brought in in the House that provision should be made to carry out the treaty. This precipitated another long and acrimonious debate, but in the end the resolution was carried. The controversy over this treaty in the House had led to an exhaustive discussion of the constitutional questions involved in the making of it, as affecting the legislative powers of Congress, and the treaty-making powers of the President, but it ended in nothing practical. The House did not even define its views in any formal resolutions.

It was not long, however, before an opportunity came for Congress to act in a matter, in such a way as to indicate very clearly its attitude towards treaties as the supreme law of the land. During Washington's second administration the relations between the United States and France had become decidedly strained. The somewhat hysterical friendship and admiration which was felt by the great majority of Americans for the New Republic,

born of the French Revolution, and whose shibboleth was "Liberty, Equality and Fraternity," had of late cooled somewhat, and was fast giving way to a feeling of indignation and hatred towards the French Government. The long-continued reprisals on our commerce, in violation of both the rules of international law and the treaty stipulations between the two nations, and the growing arrogance of the French ministry towards our own, Government, most offensively displayed in 1797, in the refusal of the Directory to receive Mr. Pinckney, who had just been appointed by Mr. Adams, minister to that country; and, in its order directing him to leave France, had justly incensed the mass of our people. There were at the time two treaties in force between the United States and France. A number of retaliatory measures were proposed in Congress, but none of importance upon which a majority could agree. But, in 1798, Congress passed an act declaring all existing treaties between the two governments to be abrogated. The act contained a preamble which recited the repeated violations of the treaties on the part of the French Government, from which serious injuries had resulted to the rights of the United States and her citizens, which that Government refuses to redress or recognize; therefore, it is enacted, "That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular conventions heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the Government of the United States." In this instance the power of Congress over treaties passed beyond the realm of discussion, and the right of that branch of the Government, by appropriate legislation, to annul an existing treaty was asserted in the most solemn manner.

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