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PORCUPINE'S PAMPHLETS; WASHINGTON'S MESSAGE.

ing a number of pamphlets, entitled The Comprehensive Story of a Farmer's Bull, The Democratic Memoirs, The Democratic Principle, A Bone to Gnaw for the Democrats, A Little Plain English Addressed to the People of the United States on the Treaty, all of which made the Democrats wince. Porcupine was almost as hard on his own party, and members of his own political persuasion had little good to say of him. The Democrats assailed Porcupine with great vindictiveness and issued a large number of pamphlets in reply

to his.*

The first session of the Fourth Congress convened on December 7, 1795, and Jonathan Dayton was elected Speaker and John Beckley, Clerk.t The next day Washington

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For the arguments contained in these pamphlets, see McMaster, vol. ii., p. 251 et seq. Some of the replies were: A Pill for Porcupine, etc., containing a Vindication of the American, French and Irish Characters against his Scurrilities. By a Friend to Political Equality, 1796; A Twig of Birch for a Butting Calf; Congratulatory Epistle to the Redoubtable Peter Porcupine on his Complete Triumph," etc., a Poem. By Peter Grievous, Jr., 1796; A Rub from Snub; or, A Cursory Analytical Epistle, addressed to Peter Porcupine, etc., 1795; The Imposter Detected; or, A Review of Some of the Writings of Peter Porcupine. By T. Tickletoby; A Rooster, or, A Check to the Progress of Political Blasphemy, intended as a brief reply to Peter Porcupine, alias Billy Cobler. By Sim Sansculotte; The Vision: Dialogue between Marat and Peter Porcupine in the Infernal Regions, 1796. See also James Bowdoin, Opinions Respecting the Commercial Intercourse between the United States and Great Britain (Boston, 1797); Oliver Wolcott, British Influence on the Affairs of the United States Proved and Explained (Boston, 1804).

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Annals of Congress, 4th Congress, 1st session, p. 126.

delivered his annual address.* Regarding the British treaty, he said:

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Though not before officially disclosed to the House of Representatives, you, gentlemen, are all apprised that a treaty of amity, commerce, and navigation has been negotiated with Great Britain and that the Senate have advised and consented to its ratification upon a condition which excepts part of one article. Agreeably thereto, and to the best judgment I was able to form of the public interest after full and mature deliberation, I have added my sanction. The result on the part of his Britannic Majesty is unknown. When received, the subject will without delay be placed before Congress."

It was a hard matter for Washington to go before Congress now that the House was no longer Federalist, but contained many of those who had so vilely abused him during the last few months. The reply of the House to the President's speech was made another occasion for insulting him; it was even suggested that the customary reply be omitted and that a committee be sent to assure him that his suggestions would be attended to.† Better counsel prevailed, however, and, after a long debate, the clerk wrote an answer prepared in

Richardson, Messages and Papers, vol. i., p. 182 et seq.

† Annals of Congress, 4th Congress, 1st session, pp. 128-130, 131-132, 134-135, 144-149; Benton, Abridgment, vol. i., pp. 606-608. Writing to Jefferson, December 13, 1795, Madison says: "The answer, as it stands to be reported, contains a clause which will put the House of Representatives in a dilemma similar to that forced on the House of Delegates, and I believe will never be swallowed, because it is in part notoriously untrue. It affirms the confidence of his fellowcitizens to be undiminished, which will be denied by many who sincerely wish it to be the case.” Madison's Works (Congress ed.), vol. ii., p. 63, also p. 66.

CONGRESS CALLS FOR PAPERS.

the usual way.* Again on Washington's birthday, February 22, a new affront was offered him. It had been the custom since Washington's first inauguration to take some official notice of the day, but now when the House was asked to adjourn for a half hour for that purpose, the motion was voted down on the plea that it was the duty of the House to legislate for the country, not to pay foolish compliments.† It was in this frame of mind that the House received the Jay treaty.

In February the treaty was returned with the ratification of his, Britannic Majesty. The President then issued a proclamation requiring the observance of the treaty, a copy of it being transmitted to each House on March 1. The opposition violently attacked the treaty and those who had negotiated it. On March 2 Edward Livingston, of New York, introduced a resolution requesting

* McMaster, vol. ii., pp. 259-260; Schouler, United States, vol. i., pp. 321-322.

McMaster, vol. ii., pp. 260-263. Richardson, Messages and Papers, vol. i., p. 192; Annals of Congress, 4th Congress, 1st session, p. 394.

For full and exact information on this subject in its various ramifications, the student must consult the Debates on the Constitutional Powers of the House with Respect to Treaties and upon the British Treaty (Philadelphia, 1796), the second edition of which was published as Debates upon Questions Involved in the British Treaty of 1794 (2 vols., Philadelphia, 1808). Senator Benton has presented a fair abstract in his Abridgment of the Debates of Congress, vol. i., pp. 639-754. The full debates are in Annals of Congress, 4th Congress, 1st session, pp. 426-783 and 970-1291. See also Foster, Century of American Diplomacy, pp. 168–169.

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the President "to lay before the House a copy of the instructions to the minister of the United States who negotiated the treaty with the king of Great Britain, communicated by his message of the first of March, together with the correspondence, and other documents relative to the said treaty."'* Madison offered an amendment asking for only "so much of the said papers as, in the judgment of the President, it may be consistent with the interests of the United States at this time to disclose," but the amendment was voted down.† This immediately brought up the question as to where the treatymaking power was constitutionally lodged, and as to what were the functions of the House under the existing circumstances. For three weeks the discussion continued, Madison, Gallatin, Giles, and others, on the one hand, and Hillhouse, Murray, Tracy, Smith, of South Carolina, and Harper, on the other, exerting their utmost efforts to secure or prevent the passage of Livingston's resolution. In a speech on March 9, Gallatin presented, with great clearness and force, the Republican theory of the treaty clause of the Constitution. He declared that a treaty made by the

*Annals of Congress, 4th Congress, 1st session, p. 426; McMaster, vol. ii., p. 266; Lodge, George Washington, vol. ii., pp. 203-204; Madison's Works (Congress ed.), vol. ii., p. 87.

Madison to Monroe, April 18, 1796. Madison's Works (Congress ed.), vol. ii., p. 96. See also Hunt, Life of Madison, p. 231; Stevens, Albert Gallatin, pp. 114-115; Gay, Life of Madison, p. 226.

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WASHINGTON REFUSES TO SUBMIT PAPERS.

President with the advice and consent of the Senate did not become the law of the land until sanctioned by the House of Representatives.* He said:

"To construe the Constitution consistently, we must attend to all the sections of it. If it is attempted to be construed by referring to particular portions, and not attending to the whole, absurdities must arise. * By one section

it is declared that a treaty is the supreme law of the land, that it operates as a law; yet it is to be made by the President and Senate only. Here will be an apparent contradiction; for the Constitution declares that the legislative power shall be vested in the three branches. By this

*

construction there would appear to be two distinct legislatures. If still it is insisted that treaties are the supreme law of the land, the Constitution and laws are also; and, it may be asked, which shall have the preference? Shall a treaty repeal a law or a law a treaty? Neither can a law repeal a treaty because a treaty is made with the concurrence of another party a foreign nation that has no participation in framing the law; nor can a treaty made by the President and Senate repeal a law, because the House of Representatives have a participation in making the law. It is a sound maxim in govern

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ment that it requires the same power to repeal

a law that enacted it. If so, it follows that laws and treaties are not of the same nature [for treaties are not laws and do not become laws

until sanctioned by both Houses and Congress].

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Gentlemen had dwelt much on that part

*

of the Constitution which declared the Constitution, laws, and treaties [are] laws of the land; but they had avoided reading the whole of the clause and had not given to it its obvious meaning. The clause does not compare a treaty with the law of the United States, or either of them with the Constitution: it only compares all the acts of the Federal Government with the acts of the individual States, and declares that either of the first, whether under name of Constitution, law or treaty, shall be paramount to and supersede the Constitution and laws of the individual States. In that point of view are treaties said to be the supreme law, to wit: when standing in competition against

*See also Schouler, United States, vol. i., p. 324.

acts of the several States; but the clause by no means expresses that treaties are equal or superior to the laws of the Union, or that they shall be supreme law, when clashing with any of them." *

The advocates of the treaty claimed, on the other hand, that the Constitution clearly vested in the President, by and with the advice and consent of the Senate, the power to make treaties; and that when a treaty was thus made, it was complete and became obligatory on the United States. To refuse to comply with its stipulations was to break the treaty and to violate the pledged faith of the United States. After an animated debate, the resolution was adopted on March 24 by a vote of 62 to 37 (absentees 5).

When the President received the resolution, he said "that he would take time to consider it." He was in a peculiarly delicate position. The passions of the people were strongly excited against the treaty; in case he should refuse to submit the papers, suspicion would be aroused that during the negotiations circumstances had occurred which the President feared to publish. He was inclined also to yield to the demand of the House by reason of the large majority that favored the resolution.

*Annals of Congress, 4th Congress, 1st session, pp. 466-469; Benton, Abridgment of Debates, vol. i., pp. 644-645.

McMaster, vol. ii., p. 267 et seq.

Annals of Congress, 4th Congress, 1st session, pp. 759-760; Lodge, George Washington, vol. ii., p. 204; McMaster, vol. ii., p. 275; Hunt, Life of Madison, p. 232; Stevens, Albert Gallatin, p. 118.

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ALEXANDER HAMILTON'S LETTER CONTAINING WASHINGTON'S REFUSAL TO SUBMIT THE PAPERS

IN CONNECTION WITH THE JAY TREATY TO THE HOUSE OF REPRESENTATIVES.

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