MESSAGE

FOR

WASHINGTON TO CONGRESS, IN

REPLY TO A CALL FOR PAPERS RELATING TO THE TREATY WITH GREAT BRITAIN.

Draft by Hamilton.

March 29th, 1796.

I have received your resolution of the

inst., and have con

sidered it with the attention always due to a request of the House of Representatives. I feel a consciousness (not contradicted I trust by any part of my conduct) of a sincere disposition to respect the rights, privileges, and authorities of Congress collectively, and in its separate branches-to pay just deference to their opinions and wishes-to avoid intrusion on their province -to communicate freely information pertinent to the subjects of their deliberation. But this disposition, keeping steadily in view the public good, must likewise be limited and directed by the duty incumbent upon us all, of preserving inviolate the constitutional boundary between the several departments of the government; a duty enjoined by the very nature of a Constitution, which defines the powers delegated, and distributes them among different depositories; enforced by the solemn sanction of an oath; and only to be fulfilled by a regard no less scrupulous for the rights of the Executive, than for those of every other department.

When I communicated to the House of Representatives the treaty lately made with Great Britain, I did not transmit the papers respecting its negotiation, for reasons which appeared to me decisive.

It is contrary to the general practice of governments, to promulge the intermediate transactions of a foreign negotiation, without weighty and special reasons. The motives for great delicacy and reserve on this point are powerful. There may be situations of a country, in which particular occurrences of a negotiation, though conducted with the best views to its interest, and

even to a satisfactory issue, if immediately disclosed, might tend to embarrassment and mischief in the interior affairs of that country. Confidential discussions and overtures are inseparable from the nature of certain negotiations, and frequently occur in others. Essays are occasionally made by one party to discover the views of another in reference to collateral objects; motives are sometimes assigned for what is yielded by one party to another; which, if made public, might kindle the resentment or jealousy of other powers, or might raise in them pretensions not expedient to be gratified. Hence it is a rule of mutual convenience and security among nations, that neither shall, without adequate cause and proper reserves, promulge the details of a negotiation between them; otherwise, one party might be injured by the disclosures of the other, and sometimes without being aware of the injury likely to be done.

Consequently, the general neglect of this rule in the practice of a government, would naturally tend to destroy that confidence in its prudence and delicacy-that freedom of communication. with it, which are so important in the intercourses between nation and nation, towards the accommodation of mutual differences and the adjustment of mutual interests.

Neither would it be likely to promote the advantage of a nation, that the agents of a foreign government with which it was at any time in treaty, should act under the apprehension that every expression, every step of theirs, would presently be exposed, by the promulgation of the other party, to the criticism of their political adversaries at home. The disposition to a liberal, and, perhaps, for that very reason, a wise policy in them, might be checked by the reflection, that it might afterwards appear from the disclosures on the other side, that they had not made as good bargains as they might have made. And while they might be stimulated by this to extraordinary effort and perseverance, maxims of greater secrecy and reserve in their cabinet would leave their competitors in the negotiation without the same motive to exertion. These having nothing to fear from the indiscretion of the opposite government, would only have to manage with caution their communications to their own. The

consequence of such a state of things would naturally be an increase of obstacles to the favorable close of a negotiation, and the probability of worse bargains for the nation in the habit of giving indiscreet publicity to its proceedings.

The agents of such a nation themselves would have strong inducements to extreme reserve in their communications with their own government, lest parts of their conduct might subject them in other quarters to unfriendly and uncandid constructions, which might so narrow the information they gave, as scarcely to afford sufficient light, with regard either to the fitness of their own course of proceeding, or the true state and prospects of the negotiation with which they were charged.

And thus, in different ways, the channels of information to a government might be materially obstructed by the impolitic practice of too free disclosure, in regard to its foreign negotiations.

Moreover, it is not uncommon for the instructions to negotiating agents, especially where differences are to be settled, to contain observations on the views and motives of the other party, which after an amicable termination of the business it would be contrary to decorum, unfriendly and offensive to make public. Such instructions also frequently manifest views which, if disclosed, might renew sources of jealousy and ill-will which a treaty had extinguished, might exhibit eventual plans of proceeding which had better remain unknown for future emergencies, and might even furnish occasion for suspicion, and pretext for discontent, to other powers. And in general, where more had been obtained by a treaty than the ultimata prescribed to the negotiator, it would be inexpedient to publish those ultimata; since, among other ill effects, the publication of them might prejudice the interest of the country in future negotiations with the same or with different powers.

These reasons explain the grounds of a prevailing rule of conduct among prudent governments, namely, not to promulge without weighty cause, nor without due reserves, the particulars of a foreign negotiation. It so happens indeed that many of them have no immediate application to the case of the present

treaty. And it would be unadvisable to discriminate here between such as may and such as may not so apply. But it would be very extraordinary, situated as the United States were in relation to Great Britain at the commencement of the negotiation, if some of them did not operate against a full disclosure of the papers in which it is recorded.

Connected with these general reasons against the transmission of the papers with the treaty, it was proper to consider if there were any special reasons, which recommended in the particular case a departure from the rule, and especially whether there was any purpose to which the House of Representatives is constitutionally competent which might be elucidated by those papers.

This involved a consideration of the nature of the constitutional agency of that house, in regard to treaties.

The Constitution of the United States empowers the Pesident, with the advice and consent of the Senate, two thirds concurring, to make treaties. It nowhere professes to authorize the House of Representatives or any other branch of the government to partake with the President and Senate in the making of treaties. The whole power of making treaties is therefore by the Constitution vested in the President and Senate.

To make a treaty, as applied to nations, is to conclude a contract between them obligatory on their faith: but that cannot be an obligatory contract, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Again the Constitution declares that a treaty made under the authority of the United States shall be a "supreme law of the land,”—let it be said "a law." A law is an obligatory rule of action prescribed by the competent authority, but that cannot be an obligatory rule of action or a law, to the validity and obligation of which the assent of another power in the state is constitutionally necessary.

Hence a discretionary right in the House of Representatives to assent or not to a treaty, or, what is equivalent, to execute it or not, would negative these two important provisions of our Constitution-1st, that the President and Senate shall have

power to make treaties; 2dly, that a treaty made by them shall be a law and in the room of them would establish this provision, "that the power of making treaties resides in the President, Senate, and House of Representatives." For, whatever coloring may be given, a right of discretionary assent to a contract is a right to participate in the making of it.

Is there any thing in the Constitution which by necessary implication changes the force of the express terms that regulate the deposit of the power to make treaties?

If there is, it must be found in those clauses which regulate the deposit of the legislative power. Here two questions arise:

1st. Can the power of treaty reach and embrace objects upon which the legislative power is authorized to act, as the regulation of commerce, the defining of piracy, &c.; or are these objects virtually excepted out of the operation of that power?

2dly. If it can reach and embrace those objects, is there any principle which as to them gives to Congress, or more properly, the House of Representatives, a discretionary right of assent or dissent ?

The affirmative of the first question is supported by these considerations:

1. The words which establish the power of treaty are manifestly broad enough to comprehend all treaties.

2. It is a reasonable presumption that they were meant to extend to all treaties usual among nations, and so to be commensurate with the variety of exigencies and objects of intercourse which occur between nation and nation; in other words, that they were meant to enable the organ of the power to manage with efficacy the external affairs of the country in all cases in which they must depend upon compact with another nation.

3. The treaties usual among nations are principally those of peace, alliance, and commerce. It is the office of treaties of peace to establish the cessation of hostilities and the conditions of it, including frequently indemnifications, sometimes pecuniary ones. It is the office of treaties of alliance to establish cases in which nations shall succor each other in war, stipulating a union of orces, the furnishing of troops, ships of war, pecuniary and other