Washington

by Douglas Southall Freeman

  Washington’s birthday was as auspicious as festive, and for a particular reason. Pinckney’s treaty with Spain reached Philadelphia sometime on February 22. Probably Washington found no chance to read it that day, but he was highly gratified when he studied its terms. The agreement of October 27, 1795, signed at San Lorenzo by Pinckney and Foreign Minister Manuel de Godoy, gave American citizens unrestricted use of the Mississippi waterway, granted the right of tax-free deposit of goods brought to New Orleans for export, acknowledged the thirty-first parallel as the southwest boundary, and pledged to restrain Indian violations of the frontier. Whatever Godoy’s reason for these sweeping concessions, Spain now relinquished a position which her agents had sought desperately for more than a decade to maintain. Pinckney’s mission had produced a diplomatic achievement of first importance to the United States, one in which men of both parties could rejoice equally. Washington delivered the treaty to the Senate February 26. Unanimous approval on March 3 presaged an enthusiastic reception in all quarters.

  Another occasion for rejoicing, though qualified by certain conditions, was the President’s promulgation of a treaty with the Dey of Algiers. This agreement, concluded the previous September, committed the Barbary tyrant to release Americans held in captivity and in future to spare American vessels in the Mediterranean. These concessions would prove “enormously expensive” said Wolcott, because the Dey was to receive a ransom of $800,000 and a yearly tribute of $24,000. The achievement was worth the price and the humiliation, everyone agreed, but Secretary of War McHenry wondered if this treaty did not abrogate a Naval Construction Act of 1794. Despite a recommendation of the House that work be suspended on four of six heavy frigates that had been ordered, the keel of each ship already was laid and the framework going up. Washington now asked Congress to consider the inexpediency of “derangement in the whole system” on which the nation’s maritime security was predicated. If an American fleet once could be put to sea, the degrading practice of diplomatic bribery could be forsaken.

  When no official mail from England arrived in the last week of February, the felicity of Federalists changed to chagrin. Deas was under instructions to send attested copies of Jay’s treaty to Philadelphia as soon as ratifications were exchanged, but evidently he had failed to do so. To his mortification, Washington learned that a ratified copy had been received at Charleston and published there. The President could maintain official silence no longer. Sympathy for the treaty had gained remarkably since December. Even so ardent a Republican as Dr. Benjamin Rush was ready by mid-January to admit: “General Washington is still much esteemed . . . and his treaty with Great Britain becomes less unpopular in proportion as it is understood.” Six weeks later he earnestly lamented that Jay’s treaty “once reprobated by 19/20 of our citizens” now was “approved of, or peaceably acquiesced in, by the same proportion of the people.” The Charleston publication might create a belief that the administration possessed a ratified copy which was being withheld; such speculation would harm the popularity of the treaty. Washington felt free to do what was imperative at the moment. On February 29 he proclaimed the treaty in effect, and on March 1 the document was transmitted to Congress.

  Now that the British treaty was in their hands, Republican members of the House might be expected to dissect it in debate. On March 2 Edward Livingston of New York arose to declare that “some important constitutional questions” surely would develop in discussion of the treaty, and that “every document which might throw light on the subject should be before the House.” He moved that the President be requested to submit copies of Jay’s instructions and all connected correspondence. Washington was shocked by the implications of the motion. The position of Republicans was marked unmistakably by Jefferson: “On the precedent now to be set will depend the future construction of our Constitution, and whether the powers of legislation shall be transferred from the President, Senate and House of Representatives to the President, Senate, Piarningo or any other Indian, Algerine or other chief.” If Livingston’s motion should succeed, what could the President do? Must he deliver the papers and thereby acknowledge the right of the House to request them, or could he refuse? Chief Justice Ellsworth advised him privately that Livingston’s presumption “to participate in or control the treaty-making power” was “as unwarranted as it is dangerous.”

  On March 7, and for two weeks and four days thereafter, Livingston’s resolution held the stage in a verbal spectacle that called forth the talents and pretensions of dozens of Congressmen. Excitement deepened and tempers shortened. In expectation of a vote after the weekend recess, Livingston held the floor most of Friday March 18 with remarks he hoped would counter every Federalist objection. Republicans who expected a roll call on Monday were unduly optimistic. Not until the House had heard the last determined or loquacious Federalist could there be a count. When Speaker Jonathan Dayton put Livingston’s proposal to test late on March 24, Republican control of the House assured its passage by vote of 62 to 37.

  In anticipation of the success of Livingston’s motion, Washington wrote to Hamilton for advice on March 22. He scheduled a meeting of the Cabinet on the twenty-sixth and posed three questions: Did the House have a constitutional right to call for documents of a diplomatic negotiation? If not, would it be “expedient under the circumstances of this particular case to furnish them?” What tone and language might be most appropriate in a compliance or a refusal? Pickering, Wolcott, McHenry and Attorney General Lee answered unanimously that the Constitution did not authorize the House to demand such documents, but Lee counseled the President to submit the papers for the sake of accommodation. Wolcott and McHenry vigorously opposed this as a sacrifice of important principles. On March 29 Washington made his decision and the draft of a message was supplied by Pickering: The President would refuse to deliver all or any part of the material the House had requested. A letter from Hamilton, received that day or the next, reinforced Washington’s determination.

  An atmosphere of expectancy gripped Philadelphia, and tensions were building in Congress. “Anxiety is on the tiptoe . . . our galleries have been crowded,” wrote Representative Francis Preston of Virginia, who felt with many Republicans that the documents would be surrendered gracefully. When the President’s message was delivered March 30, it turned expectancy to angry disappointment. These were Washington’s words:

  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 . . . The nature of foreign negotiations requires caution and their success must often depend on secrecy . . . a full disclosure of all the measures, demands or eventual concessions, which may have been proposed or contemplated, would be extremely impolitic . . . To admit, then, a right in the House of Representatives to demand, and to have as a matter of course, all the papers respecting a negotiation with a foreign power, would be to establish a dangerous precedent . . . it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty . . . A just regard to the Constitution and to the duty of my Office . . . forbids a compliance with your request.

  Republicans professed amazement at the President’s positive declination. The message, said Senator Henry Tazewell, was “couched in terms to bring on a contest between the Executive and the House of Representatives of a more serious nature than has ever yet taken place in the political affairs of the Union.” Federalists were ecstatic in their praise of Washington’s stand. According to William Plumer, enthusiasm in New Hampshire was boundless: “The incomparable answer of our great Chieftain . . . is very popular with the sovereign people. More than nineteen-twentieths approve it.”

  Explicit as Washington’s declaration had been—no assent of the House was required by the Constitution to validate a treaty—the Constitution left a powerful tool in the hands of the Representatives. The majority could invalidate the treaty simply by refusing to vote money for its i
mplementation. Washington had experienced enough of politics to foresee a desperate effort by Republicans and a furious debate in the days ahead. It was in this expectation that he made two significant gestures in the last week of March. On the day before his reply to Livingston’s resolution the President forwarded Pinckney’s popular Spanish Treaty to the House with a suggestion that necessary funds be legislated at once. Endorsement of Pinckney’s treaty might stimulate new sympathies for Jay’s. Then, on March 31, he evinced a firm intention of carrying out the articles of that agreement which specified Anglo-American arbitration of boundaries and claims by announcing the nomination of commissioners. As debate resumed in the House Washington’s expectations were substantiated, his fears justified. Republicans launched their attack with a demand by Thomas Blount that the President’s message be referred to a Committee of the Whole. This, said the North Carolinian, would enable the House to enter in the Journal its various reasons for endorsement of Livingston’s resolution. Blount’s motion carried 55 to 37, but the business was postponed until April 6.

  To Washington, nothing could have been more welcome at the moment than this pause. Unanswered personal correspondence was accumulating and now two visitors, Lear and young Lafayette, were expected daily. Before either appeared the President received sad news that was not altogether a surprise: Lear’s wife, Fanny, had succumbed to a lingering illness. “To say how much we loved and esteemed our departed friend is unnecessary. . . . but she must be happy because her virtue has a claim to it,” he wrote Lear in a note of condolence that Martha also signed. Another letter congratulated Elizabeth Parke Custis on her recent marriage to Thomas Law of Georgetown. Once Lear arrived he doubtless gave some secretarial assistance, but the bereaved man’s motherless children were with him and the President had to arrange for their care. By April 11 the household was crowded; George Washington Lafayette and his tutor, who had been waiting eight months to visit, were at last in Philadelphia, and entertainment had to be provided.

  The next day the President sat for his portrait by the celebrated artist, Gilbert Stuart; but whatever his preoccupations, Washington could not remain oblivious to the renewal of activity in the House on the sixth. Federalist Nathaniel Smith of Connecticut opened the day with a plea to set aside Blount’s motion, but it was reaffirmed by the consistent party vote of 57 to 36. As soon as the House had resolved into a Committee of the Whole, Blount was on his feet to deliver the preconceived reply of Republicans to the declination of their call for the treaty papers. Blount’s rebuttal took the form of two motions, the more significant of which declared the House to have “the Constitutional right and duty . . . to deliberate on the expediency” of execution of any treaty. Madison’s dispassionate and well ordered speech in support of this was so long as to prevent any rejoinder that day, and without difficulty on April 7 the majority recorded their viewpoint in the Journal of the House. Federalists regarded their position with diminishing cheer. Republicans had it in their power to wreck Jay’s treaty if they really wished to do so. So long as their majority was firm, they could reject the necessary appropriation.

  A Federalist campaign to rally public opinion was in motion everywhere. The prospect of failure of the treaty so frightened merchants in New York that business came to a standstill; underwriters refused to issue maritime insurance; Federalists were certain their petition would be signed “by almost every decent man in the city.” Even in Virginia, Marshall observed, clamor for the treaty all but equalled the noise against it. But nowhere were Federalist efforts more successful than in the Northeast; Bostonians endorsed the treaty by mock vote of 2400 to 100 in a public meeting.

  In Philadelphia apprehensions grew as each day’s discussion in the House seemed to place the treaty in greater hazard. Theodore Sedgwick moved to vote common funds for all four treaties under consideration. By amendment to Sedgwick’s motion, Albert Gallatin led his Republican colleagues into a successful vote for consideration of the Spanish, Indian, and Algerine treaties in that order, and three separate appropriations were passed on April 14.

  April 18 opened a week of pyrotechnics that brought men to their feet in every corner of the House. Then on Friday April 22 Republican Samuel Smith of Maryland stood to say that he would accept the treaty, much as he despised it, because the people of his state had petitioned in its favor—and because acquiescence might “restore harmony and unanimity to our public measures.” Here was the crack in the dike for which Federalists had worked assiduously. Isaac Smith of New Jersey seized the opportunity for conciliation and possible conversion of other Republicans. In like theme, and saying scarcely a word for the merits of the treaty, Thomas Henderson of New Jersey finished the day with an earnest reminder that the Constitution would suffer if the House refused this appropriation. Washington must have been encouraged by this time. The majority was breaking down.

  Then, on the twenty-sixth, the leader of the irreconcilables, Gallatin, asked for the floor. Silent for two weeks while he listened to lesser colleagues argue with the Federalists, Gallatin had saved himself for this crisis. Now he brought forth the heaviest artillery in the arsenal of the opposition. He cut sure and deep into the sinews of Federalist logic. He displayed the commercial articles of the treaty in full and merciless light, mocked as ridiculous the probability of war with England, and then slashed with sarcasm the contention of many Federalists that the national government would collapse if the appropriation was refused in this session.

  If Gallatin’s powerful speech accomplished its purpose, it would draw wavering Republicans back into opposition. Its effect must be counteracted. On April 27 two Federalists held the floor, morning and afternoon, and both used to a limit that technique of last resort, personal abuse. Ezekiel Gilbert contrasted Gallatin’s Swiss nativity against his own American background. After the New Yorker had emphasized that real American patriots were demanding “redress for all the injuries, outrages, insults and depredations received from the British nation” and that, short of a war for national honor, the treaty alone could offer satisfactory balm, Uriah Tracy of Connecticut repeated this theme in language still more disparaging to Gallatin. He for one, Tracy declared, “[could not] feel thankful” to Gallatin “for coming all the way from Geneva to give Americans a character of pusillanimity!” This attack upon their leader and Tracy’s insulting reference to their Western constituents were too much for certain Republicans—on their feet with calls to order. When Chairman Frederick Muhlenberg declined to repress Tracy, the Connecticut Federalist apologized briefly for his warmth and continued in the same strain. He wished it to be remembered, he said, that Gallatin had placed the stamp and stigma of fear upon the President’s negotiation with Britain. He would say, again and again, “it [is] madness or worse to suppose we [can] defeat this treaty and avoid a war!”

  Whatever the effect of ridicule of Gallatin, the debate was drawing to a close. Now that the most talented spokesmen of the House, and some not so gifted, had been heard, for or against the treaty, a decisive vote seemed imminent. Indeed, both sides were all but exhausted. Republican opposition had reached its crescendo in Gallatin’s delivery; Federalist defenders were at the bottom of their store of logic and words. On April 28 a Republican hitherto silent, Francis Preston, asked the indulgence of weary colleagues while he recited the weaknesses of certain articles. As Preston went on, expectancy was in the air. The galleries suddenly filled. The whisper was that Fisher Ames would arise next. Until now, the most eloquent of Federalists, the greatest speaker in Congress, had been perfectly still—either because his talent was saved, strategically, for this climax, or because poor health would not permit the effort of oration. When Preston ended his remarks, Ames stood. “Mr. Chairman,” he said, “I entertain the hope, perhaps a rash one, that my strength will hold me out to speak a few minutes.”

  Ames spoke for an hour and a half. Without notes he proceeded in brilliant style from the broad to the particular, from a rational consideration of the Constitutional role of the
House to a stirring portrayal of the consequences of rejection of the treaty. First, he insisted, his colleagues must cast aside the hypocritical concept that they could weigh any great issue objectively and without heat. Even the bitterest enemies of the treaty, said Ames, admitted that this pact was lawfully negotiated, ratified and proclaimed—and all of this without the participation of the House. A treaty, “the promise of a nation,” had been made. There remained, then, only one point of real dispute—”the naked question,” he called it: “Shall we break the treaty? . . . Shall we break our faith?” Conceivably it could be wise and right to do so, if indeed the agreement with Britain was “really so very fatal” to the welfare of the United States, “bad not merely in the petty details, but in its character, principle and mass . . . evil to a fatal extreme . . . intolerably and fatally pernicious” to American interests. But who among the critics had lodged so sweeping an indictment? Not even “loose and ignorant declaimers” had taken this ground; no, every criticism of the treaty had been in small points, not in total. Would public opinion, Ames asked, allow the nation to break its faith on a tiny wheel? He thought not. Republican objections to certain articles served only to mask a fundamental objection, a deep horror—this was a treaty with the enemy of France. No treaty with England, neither Jay’s nor another more favorable in parts, would suit Anglophobes. It might be well, Ames conceded, if “Britain was sunk in the sea,” but Americans need never fear the return of English influence to their councils. Finally a masterful summation: “Let us not hesitate . . . to agree to the appropriation to carry it into faithful execution. Thus we shall save the faith of our nation, secure its peace, and diffuse the spirit of confidence and enterprise . . . The vast crop of our neutrality is all seed wheat, and is sown again to swell . . . the future harvest of prosperity.”