By this, he ought to mean, that the Senate was not informed of the particular objects to be obtained by Mr. Jay’s mission; for, if he means (which is possible) that their advice was not taken on the subject of the mission itself, and of the person to be employed on it, he wishes to impose on the unwary what he knows to be untrue. On these subjects their advice was taken, and any further it was not necessary, either in a constitutional or prudential point of view.
“By the Constitution,” says Franklin, “all treaties are to be made by and with the advice and consent of the Senate. The term advice has a natural and obvious reference to the negotiation; that no negotiation shall be entered into but with the advice of the Senate.”
Before I take the liberty of contradicting here, give me leave to make Franklin contradict himself.
“The President,” says he, in another place, “has power by and with the advice and consent of the Senate to conclude treaties; that is, the Senate has the power to accept or reject any treaty negotiated by the President; but this power has not gone to prevent him from opening a negotiation with any nation he thought proper.”
This patriot was determined no one should triumph in confuting him. A disputant that thus contradicts himself point blank without any kind of ceremony or apology, sets his adversary at defiance.
Reserving myself till by-and-by to account for these contradictory expositions of the same text, I am ready to allow, that the latter of them exactly meets my sentiments: that is, that the share of power, in making treaties, allotted to the Senate, does not go to prevent the President from opening a negotiation with any nation he may think proper. This is so clearly pointed out by the Constitution, that one is astonished to hear it controverted by persons capable of reading.
“He shall,” says that instrument, “have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur: and he shall nominate, and, by and with the advice of the Senate, shall appoint ambassadors,” &c.
And yet Franklin, in one place, insists that the term advice has a natural and obvious reference to the negotiation only;
“For,” says he, “it would be the extremity of absurdity to say, that advice was necessary after the thing was done.”
The natural and obvious sense, and, indeed, the only sense of the clause of the Constitution just quoted, is, in my opinion, that the Senate is to be consulted in making treaties, but not in opening negotiations.
Franklin has had the ingenuity to give to the words advice and consent an application, that most certainly never entered into the thoughts of those who framed the Constitution. Can he be serious in confining advice to what precedes the negotiation, and consent to what follows it? If this were correct, the Senate ought never to give their consent to a negotiation, nor their advice concerning a ratification.
To me the sense of the Constitution is extremely clear, as to this point. The words advice and consent have both a reference to what follows the negotiation; and this will fully appear, if their import in the latter part of the above clause be well weighed. “The President shall nominate, and, by and with the advice and consent of the Senate, appoint ambassadors,” &c. Now, if advice in the making of treaties, has a natural and obvious reference to negotiation, so, in the appointment of ambassadors, it must have reference to nomination. I leave any one to judge how nonsensical it would have been to authorize the Senate to consent to the appointment of a person, whose nomination they had before advised; and yet it would not be more so than to give them the power of consenting to the terms of a treaty formed by their advice.
Indeed, it would be slandering the Constitution, to suppose that it contained any thing approaching so near to the anarchical, as to subject the particular objects of a negotiation to an assembly, not obliged to secrecy, before the negotiation is opened. Were this ever to be the case, it is easy to foresee that it would be impossible to conclude any treaty of moment, or, at least, to conclude it with advantage. Suppose, for instance, that the threatened rupture with Great Britain had rendered it necessary for you to form a close alliance with some power in Europe, and that the President had been obliged to make known every stipulation to be made on your part, before the departure of the Envoy; can you believe that the affair would have been kept secret till concluded? or even till it was begun? No; I’ll be hanged if it would. It would have been known in London long before the Envoy’s arrival in Europe, and you would have had an English fleet upon your coast, before he could possibly have fulfilled his mission.
4. The President ought to be impeached, according to Franklin, for his reserve towards the people.
When ignorance or factiousness, or both together, have led a man beyond the bounds of truth and candour, they never let him go, till they have plunged him into an abyss of absurdity. Thus has it happened to Franklin. After having persuaded himself that the President ought to withhold nothing from the knowledge of the other branches of the legislature, it was natural for him to pursue the error, till he found, that,
“To withhold the contents of a treaty from the people, till it was ratified, indicated a contempt for public opinion, and a monarchical supremacy.”
“In the compact,” says Franklin, “entered into by the citizens of the United States, certain concessions were made by them, and these concessions are specified in the Constitution; but have they conceded a right to an acquaintance with their own affairs?”
Yes, if his question applies, as it evidently does, to the terms of an unratified treaty, the people have conceded a right to an acquaintance with their own affairs; for, in the right of making treaties is necessarily included the right of observing a prudent secrecy concerning them, and, as the former is expressly conceded to the President and the Senate, so is the latter. The people have conceded the right of making treaties, and the concession is unconditional; they have made it without reserving to themselves the right of demanding their promulgation, before they become the law of the land; without reserving to themselves the right of advising, disputing, and caballing about their contents, before they are known, or of tormenting and reviling the Executive, and burning the negotiators in effigy, when their contents are known.
5. Franklin would advise the impeachment of the President, for having evaded a new treaty with France, while he courted one with Great Britain.
This is the great offence; to bring this home to the President seems to have been the chief object of Franklin, who is affected by nothing that does not concern the French Republic.
“We have,” says Franklin, “treated the overtures of France for a treaty with neglect. The nation that has barbarously insulted us, and plundered us, we have courted, meanly courted, and the nation on whom our political existence depends, and who has treated us with affection, we have treated with indifference bordering on contempt. Citizen Genet was empowered to propose a treaty with us on liberal principles, sch as might strengthen the bonds of goodwill which unite the two nations.”
How your government has courted Great Britain, how your political existence depends on France, and how she has treated you with affection, we have already seen; it only remains for us to see what were the “liberal principles” which citizen Genet was authorized to treat upon, and whether it was prudent on your part to refuse to treat upon those “liberal principles,” or not.
But previously it is necessary to observe, that let these “liberal principles” be what they might, the President’s conduct in refusing or evading to treat on them could amount to no more than imprudence. The President, I agree, has power to open negotiations with any nation he thinks proper, and then, says Franklin, “Why did he not treat with citizen Genet?” To which I answer, that the Constitution, in authorizing the President to open negotiations with any nation whom he thinks proper to treat with, has not obliged him to open negotiations with every nation that thinks proper to treat with him. It has not obliged him to open negotiations with a nation so circumstanced as not to be depended on for the value of a cargo of flour, with a nation in jeopardy, with an assembly who had declared themselves a committee of insurrection against every