he considered the subject very important, and one that might require from the Legislature further protection for the frontier facing the ceded province.10

When the question came up for discussion on the following day, John Randolph of Virginia moved to commit the resolution to the Committee of the Whole on the state of the Union.11 This was opposed by Griswold, who claimed for the House all the information in the power of the Executive to give. Referring the resolution to the committee would be putting it to sleep and the Legislature would be deprived of information it ought to possess.12 Rutledge of South Carolina declared that "did he consider that the giving publicity to any information on this subject would in the least interfere with the Constitutional functions of the President, he would be the last man to support the resolution" of Griswold. He could see no impropriety, however, in asking the President for information relative to that which he had stated as a fact; that is, as much information as the president considered it expedient to give.13

Samuel Smith of Maryland turned to the case of the British Treaty of 1794 (Jay's Treaty) as a precedent. At that time, he said, one party in the House had called for the papers on the principle that the negotiations having been terminated, the House

10 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 312.

11 Ibid., 314.

12 Ibid., 314-315.

13 Ibid., 316. Compare the stand taken by Representative Shackleford of Missouri, March 7, 1916, on the McLemore resolutions when he said he favored a resolution warning citizens of the United States against traveling on ships of the belligerent powers, but if agitation for one had disturbed the President's diplomatic negotiations, he was ready to vote against it. In this connection the report of the House Committee on Foreign Affairs on these same resolutions is worth noting. In recommending that the resolutions be laid on the table (March 3), the committee said in part, "Under the Constitution the practice and precedents in this country, the conduct of diplomatic negotiations has been left to the President and with this practice the committee does not think it proper for the House of Representatives to interfere.''

had a right to obtain information before granting money under a treaty. This party, however, acknowledged a call for information to be improper during a pending negotiation.14 Huger of South Carolina did not consider the present case similar to that arising out of the British Treaty. In the latter instance, one party in the House claimed the right to demand the information of the Executive, and he was obliged to deliver it; while the other party did not acknowledge the right of the House to demand, or the obligation of the President to obey. In the present case nothing was asked except what the Executive should think proper to furnish. If proper for Congress to know the contents of the Convention he thought they ought to have the documents; if not proper, the reason should be given.15 Smilie of Pennsylvania claimed that in the debate on the British Treaty the resolution proposed had not been peremptory but had been qualified by an exception of such papers as the President might consider it improper to furnish. He confirmed his remark by quoting from the House Journals.16

Griswold said the ground of opposition in 1796, under the British Treaty, had been that the resolution had claimed the right of the House to decide upon a treaty, and to establish this point papers had been called for. On the decision of the question of granting or refusing the application, had depended the establishment of the right of the House to participate in the treaty-making power. Those who had voted against the call had denied this right. In the case of the Louisiana convention, continued Griswold, there was no difference of opinion as to the power of the House. The President having expressly stated in his message that the cession would have weight in the delibera

14 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 316.

15 Ibid., 318.

16 Ibid.

tions of the Legislature, information was necessary.1

Despite

Griswold's objection, Randolph's motion to refer the motion to a Committee of the Whole on the state of the Union carried by a vote of forty-nine to thirty-nine.18

In the debate on Randolph's motion, various views were expressed regarding the relation of the branches of the Government to one another. Dana of Connecticut held it to be not only proper but the duty of the House to request any information from the President which would assist in the proceedings. The President, he said, was designated by the Constitution as the proper person from whom information on such subjects as the one under discussion was to be obtained.19

Randolph's answer to Dana opened the way for a broader interpretation of executive powers:

But, sir, it seems that this unfortunate resolution betrays so entire an ignorance of the distribution of the powers of our Government as to clothe the Executive with an authority not only not devolved upon it by the Constitution, but which is the peculiar province of this and the other branch

17 Ibid., 319. For Washington's refusal to comply with the request of the House, see his message of March 30, 1796, in Richardson, Messages and Papers of the Presidents, I, 194–196.

Because he as President was called upon to take a stand on the question of the participation of the House in treaty-making, Jefferson's statements on the treaty-making power at the time of the Jay Treaty are of significance. In a letter to William B. Giles, December 31, 1795, he said it was "the true theory of our constitution, that when a treaty is made, involving matters confided by the constitution to the three branches of the legislature conjointly, the representatives are as free as the President & Senate were to consider whether the national interest requires or forbids their giving the forms & force of law to the articles over which they have a power. Jefferson, Writings (Ford, ed.), VII, 41.

On March 21, 1796, Jefferson wrote to Monroe that although the President and Senate had the general power of making treaties, yet all articles contained in a treaty necessitating an act of legislation must be submitted to the House, which as one branch of the Legislature "are perfectly free to pass the act or refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not. 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 P. Senate & H. of R. to P. Senate & Piarningo or any Indian, Algerine or any other chief." Ibid., VII, 67-68.

18 Annals of Congress, 7 Cong., 2 Sess. (1802-1803), 321. 19 Ibid., 353.

of the Legislature. The gentleman [Mr. Dana] denies the power of the Executive to redress injuries received from foreign nations.... Have I, indeed, so far mistaken, and, contrary to my own avowed principles, am so disposed to augment the Executive powers at the expense of the other departments of the Government? Suppose, on the representations of the Court of Spain, that Court, which is more than probable, should restore the rights of navigation and deposit, disavow the conduct of their officers in violating those rights, and, moreover, punish them for it? Would any person deny that, through the agency of the Executive, constitutionally exercised, the injury was redressed?...

By the Constitution of the United States, the Executive is the representative of the United States to foreign nations. It is furnished with organs by which to receive their propositions, and to communicate their own The Constitution, therefore, presumes that to this department may be entirely confided our negotiations with foreign States. ... Until it could be shown that some specific act of the Executive had rendered that department unworthy of our confidence, we might consistently express it: and, even if proof of such misconduct could be established, it would not alter the tenor of the Constitution, however the individual might be affected by it. For your Constitution, sir, is not of that precarious nature which depends on the fluctuating characters of particular men.20

John Randolph's phrase, "fluctuating character," might well be applied to himself for it is doubtful if a more unique man ever sat in Congress. A sturdy defender of the states' rights theory, and one strongly opposed to the centralizing tendencies of the National Government, he was at the time of this debate. one of the leaders of his party in supporting the acts of the Jefferson administration, which was now about to do so much toward strengthening the federal power. The open break with his party had not yet come and Randolph was a man whose influence was steadily growing. To be sure, he did not completely close his eyes to the dangers which he considered threatening to the rights of the states and his voice was often heard in protest against certain of the measures introduced by the administration.

The exigencies of the situation seemed to Jefferson to demand that prompt action be taken to secure the interests of the United 20 Ibid., 360–361.

States. With that object in view he nominated Robert R. Livingston to be minister plenipotentiary and James Monroe minister extraordinary and plenipotentiary, to enter into a treaty or convention with the First Consul of France for the securing of the rights of the Americans on the Mississippi. To facilitate negotiations with Spain, since the possession of the territory along the Mississippi was still in her hands, Charles Pinckney was nominated minister plenipotentiary to that country, and James Monroe was given the same position with regard to Spain as in his appointment to France. 21

There was considerable objection to the appointment of Monroe, due, Senator Plumer says, to the fact that Monroe, when recalled by Washington, was friendly with the men whom Napoleon Bonaparte considered as Jacobins and enemies to him. Good policy, in Plumer's opinion, would have dictated the sending of a man who would be well received by the government to whom he was sent. The appointment was confirmed by the close vote of fifteen to twelve.22

News of Monroe's appointment was sent to Livingston by Secretary of State Madison, January 18, 1803. The object of the negotiations was stated to be the procurement of New Orleans and the Floridas; and consequently the establishment of the Mississippi as the boundary line between the United States and Louisiana. Toward this end a sum of money would be offered the French Government; also, such regulations of the commerce

21 Richardson, Messages and Papers of the Presidents, I, 350-351, Message to the Senate, January 11, 1803. On this matter Manasseh Cutler wrote to Dr. Joseph Torrey, January 15, 1803: "The object is to make a purchase of the Province [New Orleans]. This is certainly the best thing that can be done. It will save us from the expenses, hazard, and evils of a war.... The whole business is now left with the Executive, and Monroe, late Governor of Virginia, is the minister, it is said, who is sent on this business." Cutler and Cutler, Life, Journals and Correspondence of Rev. Manasseh Cutler, II, 122.

22 Plumer to Livermore, January 13, 1803; Plumer to Daniel Plumer, January 15, 1803, in Plumer MSS. See also Plumer to John Taylor Gilman, January 18, 1803, in Plumer, Life of William Plumer, 249.