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 both Houses respectively was not made necessary.

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.

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 those 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 necessary 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; a just regard to the constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request."

1 Washington's message occasioned a long discussion in the House of Representatives, which resulted in the adoption of the following resolutions:

"Resolved, That it being declared by the second section of the second article of the Constitution, that the President shall have power, by and with the advice [and consent] of the Senate to make treaties, provided two-thirds of the Senate [Senators] present concur,' the House of Representatives do not claim any agency in making Treaties; but, that when a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress, and it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect and to determine and act thereon, as, in their judgment, may be most conducive to the public good.

"Resolved, That it is not necessary to the propriety of any application from this House to the Executive, for information desired by them, and which may relate to any Constitutional functions of the House, that the purpose for which such information may be wanted, or to which the same may be applied, should be stated in the application."-Annals of Congress, 4th Congress, 1st Session, 771.

After the adoption of these resolutions, a long debate ensued as to whether the House would give its consent to the legislation necessary for carrying the treaty into effect. Finally, on April 30, 1796, by a vote of 51 to 48, the House ordered the preparation of the necessary measures. Since that time a number of treaties have been negotiated by the President and ratified by the Senate which could not be put into effect until supplemen

TO ALEXANDER HAMILTON

MY DEAR SIR,

[PRIVATE]

PHILADELPHIA, 31 March, 1796.

I do not know how to thank you sufficiently, for the trouble you have taken to dilate on the request of the House of Representatives for the papers relative to the British Treaty,1 or how to apologize for the trouble, (much greater than I had any idea

tary legislation had received the sanction of the House. There is no instance of refusal on the part of the House to consent to the necessary measures, but it has frequently asserted its right to refuse. The whole subject was fully discussed in connection with the bill making an appropriation for carrying out the treaty for the annexation of Alaska. See particularly the speeches of N. P. Banks, C. C. Washburn, B. F. Butler, Thaddeus Stevens, and G. S. Orth, in The Congressional Globe, 40th Congress, 2nd Session, Appendix, pp. 385, 393, 400, 421, 429. The relation of the House to the treaty-making power is still a subject of controversy, and no more conclusive statement concerning it can be made than that of the eminent jurist, Chief Justice Cooley:

"The full treaty-making power is in the President and Senate; but the House of Representatives has a restraining power upon it in that it may in its discretion at any time refuse to give assent to legislation necessary to give a treaty effect. Many treaties need no such legislation; but when moneys are to be paid by the United States, they can be appropriated by Congress alone; and in some other cases laws are needful. An unconstitutional or manifestly unwise treaty the House of Representatives may possibly refuse to aid; and this, when legislation is needful, would be equivalent to a refusal of the government, through one of its branches, to carry the treaty into effect. This would be an extreme measure, but it is conceivable that a case might arise in which a resort to it would be justified."-Cooley, Principles of Constitutional Law, 175.

1 For Hamilton's draft of a message to Congress refusing to comply with the request of the House for the papers relating to the Jay Treaty, see his Works (Lodge's edition), vii., 118.

of giving,) which you have taken to show the impropriety of that request.

From the first moment, and from the fullest conviction in my own mind, I had resolved to resist the principle, which was evidently intended to be established by the call of the Ho. of Representatives; and only deliberated on the manner in which this could be done with the least bad consequences.

To effect this, three modes presented themselves to me. 1st, a denial of the Papers in toto, assigning concise but cogent reasons for that denial; 2d, to grant them in whole; or, 3d, in part; accompanied with a pointed protest against the right of the House to controul treaties, or to call for Papers without specifying their object, and against the compliance being drawn into precedent.

I had as little hesitation in deciding, that the first was the most tenable ground; but, from the peculiar circumstances of this case, it merited consideration, if the principle could be saved, whether facility in the provisions might not result from a compliance. An attentive examination, however, of the Papers and the subject, soon convinced me that to furnish all the Papers would be highly improper, and that a partial delivery of them would leave the door open for as much calumny as the entire refusal-perhaps more so-as it might, and I have no doubt would be said, that all such as were essential to the purpose of the House were withheld.

Under these Impressions I proceeded, with the Heads of Departments and the Attorney-Gen. to

collect materials and to prepare an answer, subject however, to alteration and revision, according to circumstances. This answer was ready on Monday, and proposed to be sent in on Tuesday; but it was delayed until I should receive what was expected; not doing it definitely on that day, the delivery of my answer was further postponed till the next, notwithstanding the anxious solicitude, which was visible in all quarters to learn the result of Executive decision.

Finding that the draft, I had prepared, embraced most if not all the principles, which were detailed in the paper I received yesterday, though not the reasonings; that it would take considerable time to copy the latter; and, above all, having understood, that, if the papers were refused, a fresh demand with strictures might be expected, I sent in the answer which was ready, reserving the other as a source for reasoning, if my information proves true.

I could not be satisfied without giving you this concise account of the business, to express again my sincere thanks for the pains you have been at to investigate the subject, and to assure you, over and over, of the warmth of my friendship, and of the affectionate regard, with which I am, &c.

TO EDWARD CARRINGTON

[PRIVATE]

DEAR SIR,

PHILADELPHIA, 1 May, 1796.

Whatever my own opinion may be on