The Life of Albert Gallatin

Of all portions of our national history none has been more often or more carefully described and discussed than the struggle over Mr. Jay’s treaty. No candid man can deny that there was at the time ample room for honest difference of opinion in regard to the national policy. That Mr. Jay’s treaty was a bad one few persons even then ventured to dispute; no one would venture on its merits to defend it now. There has been no moment since 1810 when the United States would have hesitated to prefer war rather than peace on such terms. No excuse in the temporary advantages which the treaty gained can wholly palliate the concessions of principle which it yielded, and no considerations of a possible war with England averted or postponed can blind history to the fact that this blessing of peace was obtained by the sacrifice of national consistency and by the violation of neutrality towards France. The treaty recognized the right of Great Britain to capture French property in American vessels, whilst British property in the same situation was protected from capture by our previous treaty with France; and, what was yet worse, the acknowledgment that provisions might be treated as contraband not only contradicted all our principles, but subjected the United States government to the charge of a mean connivance in the British effort to famish France, while securing America from pecuniary loss.

Nevertheless, for good and solid reasons, the Senate at the time approved, and President Washington, after long deliberation, signed, the treaty. The fear of a war with Great Britain, the desire to gain possession of the Western posts, and the commercial interests involved in a neutral trade daily becoming more lucrative, were the chief motives to this course. So far as Mr. Gallatin’s private opinions were concerned, it is probable that no one felt much more aversion to the treaty than he did; but before he took his seat in Congress the Senate had approved and the President had signed it; a strong feeling in its favor existed among his own constituents, always in dread of Indian difficulties; the treaty, in short, was law, and the House had only to consider the legislation necessary to carry it into effect.

Bad as the treaty was, both in its omissions and in its admissions, as a matter of foreign relations, these defects were almost trifles when compared with its mischievous results at home. It thrust a sword into the body politic. So far as it went, and it went no small distance, it tended to overturn the established balance of our neutrality and to throw the country into the arms of England. Nothing could have so effectually arrayed the two great domestic parties in sharply defined opposition to each other, and nothing could have aroused more bitterness of personal feeling. In recent times there has been a general disposition to explain away and to soften down the opinions and passions of that day; to throw a veil over their violence; to imagine a possible middle ground, from which the acts and motives of all parties will appear patriotic and wise, and their extravagance a mere misunderstanding. Such treatment of history makes both parties ridiculous. The two brilliant men who led the two great divisions of national thought were not mere declaimers; they never for a moment misunderstood each other; they were in deadly earnest, and no compromise between them ever was or ever will be possible. Mr. Jefferson meant that the American system should be a democracy, and he would rather have let the world perish than that this principle, which to him represented all that man was worth, should fail. Mr. Hamilton considered democracy a fatal curse, and meant to stop its progress. The partial truce which the first Administration of Washington had imposed on both parties, although really closed by the retirement of Mr. Jefferson from the Cabinet, was finally broken only by the arrival of Mr. Jay’s treaty. From that moment repose was impossible until one party or the other had triumphed beyond hope of resistance; and it was easy to see which of the two parties must triumph in the end.

One of the immediate and most dangerous results of the British treaty was to put the new Constitution to a very serious test. The theory which divides our government into departments, executive, legislative, and judicial, and which makes each department supreme in its own sphere, could not be worked out with even theoretical perfection; the framers of the Constitution were themselves obliged to admit exceptions in this arrangement of powers, and one of the most serious exceptions related to treaties. The Constitution begins by saying, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” and proceeds to give Congress the express power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.” But on the other hand the Constitution also says that the President “shall have power, by and with the advice and consent of the Senate, to make treaties,” and finally it declares that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land,” State laws or constitutions to the contrary notwithstanding.

Here was an obvious conflict of powers, resulting from an equally obvious divergence of theory. Congress possessed all legislative powers. The President and Senate possessed the power to make treaties, which were, like the Constitution and the laws of Congress, the supreme law of the land. Congress, then, did not possess all legislative powers. The President alone, with two-thirds of the Senate, could legislate.

The British treaty contained provisions which could only be carried into execution by act of Congress; it was, therefore, within the power of the House of Representatives to refuse legislation and thus practically break the treaty. The House was so evenly divided that no one could foresee the result, when Edward Livingston began this famous debate by moving to call on the President for papers, in order that the House might deliberate with official knowledge of the conditions under which the treaty was negotiated.

The Federalists met this motion by asserting that under the Constitution the House had no right to the papers, no right to deliberate on the merits of the treaty, no right to refuse legislation. In Mr. Griswold’s words, “The House of Representatives have nothing to do with the treaty but provide for its execution.” Untenable as this ground obviously was, and one which no respectable legislative body could possibly accept, it was boldly taken by the Federalists, who plunged into the contest with their characteristic audacity and indomitable courage, traits that compel respect even for their blunders.

The debate began on March 7, 1796, and on the 10th Mr. Gallatin spoke, attacking the constitutional doctrine of the Federalists and laying down his own. He claimed for the House, not a power to make treaties, but a check upon the treaty-making power when clashing with the special powers expressly vested in Congress by the Constitution; he showed the existence of this check in the British constitution, and he showed its necessity in our own, for, “if the treaty-making power is not limited by existing laws, or if it repeals the laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the legislative power in fact resides in the President and Senate, and they can, by employing an Indian tribe, pass any law under the color of treaty.”

The argument was irresistible; it was never answered; and indeed the mere statement is enough to leave only a sense of surprise that the Federalists should have hazarded themselves on such preposterous ground. Some seventy years later, when the purchase of Alaska brought this subject again before the House on the question of appropriating the purchase-money stipulated by the treaty, the Administration abandoned the old Federalist position; the right of the House to call for papers, to deliberate on the merits of the treaty, even to refuse appropriations if the treaty was inconsistent with the Constitution or with the established policy of the country, was fully conceded. The Administration only made the reasonable claim that if, upon just consideration, a treaty was found to be clearly within the constitutional powers of the government, and consistent with the national policy, then it was the duty of each co-ordinate branch of the government to shape its action accordingly.31 This claim was recognized; the House voted the money, and the controversy may be considered at an end. In 1796, on the contrary, Mr. Griswold, whose reply to Mr. Gallatin’s argument was considered the most effective, and who never shrank from a logical conclusion however extreme, admitted and asserted that the legislative power did reside in the President and Senate to the exclusion of the House, and added, “Allowing this to be the case, what follows? – that the people have clothed the President and Senate with a very important power.”

On this theme the debate was continued for several weeks; but the Federalists were in a false position, and were consequently overmatched in argument. Madison, W. C. Nicholas, Edward Livingston, and many other members of the opposition, in speeches of marked ability, supported the claim of their House. The speakers on the other side were obliged to take the attitude of betraying the rights of their own body in order to exaggerate the powers of the Executive, and as this practice was entirely in accordance with the aristocratic theory of government, they subjected themselves to the suspicion at least of acting with ulterior motives.

On the 23d March, Mr. Gallatin closed the debate for his side of the House by a second speech, in which he took more advanced ground. He had before devoted his strength to overthrowing the constitutional theory of his opponents; he now undertook the far more difficult task of establishing one of his own. The Federalist side of the House was not the temperate side in this debate, and Mr. Gallatin had more than one personal attack to complain of, but he paid no attention to personalities, and went on to complete his argument. Inasmuch as the Federalists characterized their opponents on this question as disorganizers, disunionists, and traitors, and even to this day numbers of intelligent persons still labor under strong prejudice against the Republican opposition to Washington’s Administration, a few sentences from Mr. Gallatin’s second speech shall be inserted here to show precisely how far he and his party did in fact go:

“The power claimed by the House is not that of negotiating and proposing treaties; it is not an active and operative power of making and repealing treaties; it is not a power which absorbs and destroys the constitutional right of the President and Senate to make treaties; it is only a negative, a restraining power on those subjects over which Congress has the right to legislate. On the contrary, the power claimed for the President and Senate is that, under color of making treaties, of proposing and originating laws; it is an active and operative power of making laws and of repealing laws; it is a power which supersedes and annihilates the constitutional powers vested in Congress.

“If it is asked, in what situation a treaty is which has been made by the President and Senate, but which contains stipulations on legislative objects, until Congress has carried them into effect? whether it is the law of the land and binding upon the two nations? I might answer that such a treaty is precisely in the same situation with a similar one concluded by Great Britain before Parliament has carried it into effect.

“But if a direct answer is insisted on, I would say that it is in some respects an inchoate act. It is the law of the land and binding upon the American nation in all its parts, except so far as relates to those stipulations. Its final fate, in case of refusal on the part of Congress to carry those stipulations into effect, would depend on the will of the other nation.”

The Federalists had in this debate failed to hold well together; the ground assumed by Mr. Griswold was too extreme for some even among the leaders, and concessions were made on that side which fatally shook their position; but among the Republicans there was concurrence almost, if not quite, universal in the statements of the argument by Mr. Madison and Mr. Gallatin, and this closing authoritative position of Mr. Gallatin was on the same day adopted by the House on a vote of 62 to 37, only five members not voting.

The Administration might perhaps have contented itself with refusing the papers called for by the House, and left the matter as it stood, seeing that the resolution calling for the papers said not a word about the treaty-making power, and the journals of the House contained no allusion to the subject; or the President might have contented himself with simply asserting his own powers and the rights of his own Department; but, as has been already seen, there was at this time an absence of fixed precedent which occasionally led executive officers to take liberties with the Legislature such as would never afterwards have been tolerated. The President sent a message to the House which was far from calculated to soothe angry feeling. Two passages were especially invidious. In one the President adverted to the debates held in the House. In the other he assumed a position in curious contrast to his generally cautious tone: “Having been a member of the general convention, and knowing the principles on which the Constitution was formed, I have, &c., &c.” For the President of the United States on such an occasion to appeal to his personal knowledge of the intentions of a body of men who gave him no authority for that purpose, and whose intentions were not a matter of paramount importance, seeing that by universal consent it was not their intentions which interpreted the Constitution, but the intentions of the people who adopted it; and for him to use this language to a body of which Mr. Madison was leader, and which had adopted Mr. Madison’s views, was a step not likely to diminish the perils of the situation. Had the President been any other than Washington, or perhaps had the House been led by another than Madison, the opportunity for a ferocious retort would probably have been irresistible. As it was, the House acted with great forbearance; it left unnoticed this very vulnerable part of the message, and in reply to the implication that the House claimed to make its assent “necessary to the validity of a treaty,” it contented itself with passing a resolution defining its own precise claim. On this resolution Mr. Madison spoke at some length and with perfect temper in reply to what could only be considered as the personal challenge contained in the message, while Mr. Gallatin did not speak at all. The resolutions were adopted by 57 to 35, and the House then turned to the merits of the treaty.

On this subject Mr. Gallatin spoke at considerable length on the 26th April, a few days before the close of the debate. The situation was extremely difficult. In the country at large opinion was as closely divided as it was in the House itself. Even at the present moment it is not easy to decide in favor of either party. Nothing but the personal authority of General Washington carried the hesitating assent of great masses of Federalists. Nothing but fear of war made approval even remotely possible. Whether the danger of war was really so great as the friends of the treaty averred may be doubted. No Federalist Administration would have made war on England, for it was a cardinal principle with the Hamiltonian wing of the party that only through peace with England could their ascendency be preserved, while war with England avowedly meant a dissolution of the Union by their own act.32 The Republicans wanted no war with England, as they afterwards proved by enduring insults that would in our day rouse to madness every intelligent human being within the national borders. Nevertheless war appeared or was represented as inevitable in 1796; the eloquent speech of Fisher Ames contained no other argument of any weight; it was abject fear to which he appealed: “You are a father: the blood of your sons shall fatten your corn-field. You are a mother: the war-whoop shall wake the sleep of the cradle.”

It was the truth of this reproach on the weakness of the argument for the treaty that made the sting of Mr. Gallatin’s closing remarks:

“I cannot help considering the cry of war, the threats of a dissolution of government, and the present alarm, as designed for the same purpose, that of making an impression on the fears of this House. It was through the fear of being involved in a war that the negotiation with Great Britain originated; under the impression of fear the treaty has been negotiated and signed; a fear of the same danger, that of war, promoted its ratification: and now every imaginary mischief which can alarm our fears is conjured up, in order to deprive us of that discretion which this House thinks it has a right to exercise, and in order to force us to carry the treaty into effect.”

Nevertheless Mr. Gallatin carefully abstained from advocating a refusal to carry the treaty into effect. With his usual caution he held his party back from any violent step; he even went so far as to avow his wish that the treaty might not now be defeated:

“The further detention of our posts, the national stain that would result from receiving no reparation for the spoliations on our trade, and the uncertainty of a final adjustment of our differences with Great Britain, are the three evils which strike me as resulting from a rejection of the treaty; and when to these considerations I add that of the present situation of the country, of the agitation of the public mind, and of the advantages that would arise from a union of sentiments; however injurious and unequal I conceive the treaty to be, however repugnant it may be to my feelings and, perhaps, to my prejudices, I feel induced to vote for it, and will not give my assent to any proposition which would imply its rejection.”

He also carefully avoided taking the ground which was undoubtedly first in his anxieties, that of the bearing which the treaty would have on our relations with France. This was a subject which his semi-Gallican origin debarred him from dwelling upon. The position he took was a new one, and for his party perfectly safe and proper; it was that, in view of the conduct of Great Britain since the treaty was signed, her impressment of our seamen, her uninterrupted spoliations on our trade, especially in the seizure of provision vessels, “a proceeding which they might perhaps justify by one of the articles of the treaty,” a postponement of action was advisable until assurances were received from Great Britain that she meant in future to conduct herself as a friend.

This was the ground on which the party recorded their vote against the resolution declaring it expedient to make appropriations for carrying the treaty into effect. In committee the division was 49 to 49, – Muhlenberg, the chairman, throwing his vote in favor of the resolution, and thus carrying it to the House. There the appropriation was voted by 51 to 48.

Perhaps the only individual in any branch of the government who was immediately and greatly benefited by the British treaty was Mr. Gallatin; he had by common consent distinguished himself in debate and in counsel; bolder and more active than Mr. Madison, he was followed by his party with instinctive confidence; henceforth his leadership was recognized by the entire country.

Absorbing as the treaty debate was, it did not prevent other and very weighty legislation. One Act, adopted in the midst of the excitement of the treaty, was peculiarly important, and, although the idea itself was not new, Mr. Gallatin was the first to embody it in law, so far as any single individual can lay claim to that distinction. This Act created the land-system of the United States government; it applied only to lands north-west of the Ohio River, in which the Indian titles had been extinguished, and it provided for laying these out in townships, six miles square, and for selling the land in sections, under certain reservations. This land-system, always a subject of special interest to Mr. Gallatin, and owing its existence primarily to his efforts while a legislator, took afterwards an immense development in his hands while he was Secretary of the Treasury, and, had he been allowed to carry out his schemes, would probably have been made by him the foundation of a magnificent system of internal improvement. Circumstances prevented him from realizing his plan; only the land-system itself and the Cumberland Road remained to testify the breadth and accuracy of his views; but even these were achievements of the highest national importance.

Deeply as these two subjects interested him, his permanent and peculiar task was a different one. To Mr. Gallatin finance was an instinct. He knew well, as Mr. Hamilton had equally clearly understood before him, that the heart of the government was the Treasury; like many another man of high financial reputation, he had little talent for money-making, and never was, or cared to be, rich; but he had one great advantage over most Americans of his time, even over Mr. Hamilton and Mr. Jefferson; he was an economist as well as a statesman; he was exact not merely in the details but in the morality of affairs; he held debt in horror; punctilious exactness in avoiding debt was his final axiom in finance; the discharge of debt was his first principle in statesmanship; searching and rigid economy was his invariable demand whether in or out of office, and he made this demand imperative upon himself as upon others.

Mr. Hamilton, to whom the organization of the financial system was due, and who left public life just as Gallatin began his Congressional career, had belonged to a different school and had acted on different principles. Adhering more or less closely to the English financial and economical theories then in vogue, he had intentionally constructed a somewhat elaborate fabric, of which a considerable national debt was the foundation. Had Mr. Hamilton foreseen in 1790 the course public affairs would take during the next ten years, he would perhaps have modified his plan and would have guarded more carefully against overloading the Treasury; but at that moment it was not unreasonable to suppose that what the country wanted was centralization, and that a national debt was one means of consolidating divergent local interests. Mr. Hamilton, therefore, accepted as much debt as he thought the country could reasonably bear, and allowed the rest to be expunged. In forming this debt he had at least in one respect permitted an unnecessary and very mischievous addition to be made to the acknowledged and existing national burden. In order to settle the accounts between the States, he had permitted Congress – perhaps forced Congress – to assume a large proportion of the State debts. The balance to be adjusted by payment of the debtor to the creditor States was ultimately ascertained to be a little more than $8,000,000. To settle this account as nearly as it was settled in fact, required an assumption of State debts to the amount of $11,609,000; but, instead of waiting for a settlement of accounts, Congress had, in 1790, voted to assume a certain amount of State debts at once and to charge each State in the ultimate settlement with the amount assumed on her account. A sum of over $18,000,000 was thus funded, and so much debt transferred from the States to the national government. In addition to this sum a further amount of about $3,500,000 was funded in order to get rid of the balances in favor of the creditor States. Altogether, including back interest from 1790 to 1795, a debt of $22,500,000 was imposed on the new government, where half that sum would have answered the purpose, and of this about $2,000,000 was actually new debt, created for the occasion.

The entire amount of the national debt when fairly funded was about $78,000,000. Had no political complications in its foreign relations embarrassed the government, this burden might have been easily carried in spite of Indian wars and even in spite of the whiskey rebellion, though these troubles steadily tended to increase the sum. The annual charge was in 1796 nearly $4,000,000, but after the year 1800 an additional charge of $1,100,000 on deferred stock was to be provided for by taxation, and this future addition to the annual charge hung over the government during all these years as a perpetual anxiety. The population of the country in 1791 was not quite 4,000,000 souls, of whom 700,000 were slaves. The expenditures, including the charge on the debt, amounted in 1796 to about $7,000,000 a year, and the receipts nearly balanced the expenditures. Considering the poverty of the country, taxation was high; so high as to make any increase dangerous. Thus the new government was not in a condition to hazard experiments, and needed five or ten years of careful management in order to give the country time for expansion.