of the House of Representatives and of the democratic society; 3rd, for his reserve towards the Senate, previous to Mr. Jay’s departure; 4th, for his reserve towards the people; and 5th, for having evaded a new treaty with France, while he courted one with Great Britain.
The first of these, the appointing of Mr. Jay as Envoy Extraordinary, is declared to be unconstitutional.
“The man of the people,” says Franklin, “it was believed, would not have consented to, much less have originated a mission, hostile to the constitution, unfriendly to the functions of the legislature, and insulting to a great people struggling against tyrants. The appointment of the Chief Justice of the United States as Envoy Extraordinary to the Court of Great Britain put to defiance the compact under which we have associated, and made the will of the executive paramount to the general will of the people. The principle laid down by this appointment, strikes at the root of our civil security; nay, it aims a deadly blow at liberty itself.”
The word unconstitutional is with the opposers of the government a word of vast import: it means any thing they please to have it mean. In their acceptation of the word, therefore, I cannot pretend to say that the conduct of the President, in appointing Mr. Jay, was not unconstitutional; but if unconstitutional be allowed to mean something contrary to the constitution, I think it would be very difficult to prove that the appointment was unconstitutional; for certain it is there is no article in the Constitution that forbids, either literally or by implication, the employing of a Chief Justice of the United States on an extraordinary embassy.
“The constitution,” says Franklin, “has provided that the different departments of government should be kept distinct, and, consequently, to unite them is a violation of it, and an encroachment on the liberties of the people, guaranteed by that instrument.—The appointment of John Jay, Chief Justice of the United States, as Envoy Extraordinary to the Court of Great Britain, is contrary to the spirit and meaning of the constitution; as it unites in the same person judicial and legislative functions.”
If, as it is here asserted, the President had united the judicial with the legislative functions, it must be confessed that he would have departed from the spirit and meaning of the constitution; but has the mere negotiation of a treaty anything to do with the legislative functions? It appears to me not. Treaties are the supreme law of the land, and therefore the sanctioning of them, the making of them laws, is a legislative act; but the mere drawing of them up, the preparing of them for the discussion of the legislature, is no legislative act at all.
If negotiating be a legislative act, it naturally follows that nobody but the legislature, or some member or members of it, could be employed in a negotiation; and the constitution expressly provides that
“No member of Congress shall, during the time for which he was elected, be appointed to any civil office, under the authority of the United States, which shall have been created during such time.”
Thus, then, if the spirit of the constitution makes negotiating a legislative act, and consequently requires a legislator to negotiate a treaty, and the letter positively forbids it, the whole clause respecting treaties is superfluous, for there ought never to be any such thing as treaties.
When the secretary of either department brings forward a plan for the consideration of Congress, does he act in a legislative capacity? And what more is an unratified treaty? In short, if a negotiator acts in a legislative capacity, so does every petitioner; nay, every clerk and printer employed by Congress.
The Chief Justice is further objected to as an Envoy Extraordinary on this occasion, because
“Treaties being the supreme law of the land, it becomes the duty of the judiciary to expound and apply them; and therefore, to permit an officer in that department to share in their formation, is to unite distinct functions, tends to level the barriers of our freedom, and to establish precedents pregnant with danger.”
If the mere formation of laws by gentlemen of the bar tends to level the barriers of your freedom, I am afraid the barriers of your freedom are already levelled; for I believe there are very few laws that do not pass through their hands, or concerning which their advice is not asked, before they are sanctioned, Franklin (perhaps through ignorance) confounds the formation with the making of a law; how essentially they differ I leave you to determine.
If it be unsafe to trust the expounding and applying of a law to him who has assisted in framing it, must it not be much more unsafe to trust the expounding and application of it to those who have assisted in making it? And, is it not, then, unsafe to admit gentlemen of the law into Congress, without incapacitating them from pleading at the bar, or, at least, from becoming judges for ever after? Suppose, for instance, that one of the present senators were to be appointed Chief Justice in the room of Mr. Jay, would he not have to expound and apply the treaty which he has just assisted in making? And should some of the gentlemen of the other House be, at a future period, appointed judges of the supreme court, would they not have to apply the laws, which, as legislators, they have assisted in making?
But, at any rate, had this objection been well founded; had there been cause to fear the consequences of leaving the treaty to be expounded and applied by him who had assisted in framing it, the danger is now over: Mr. Jay is no more Chief Justice; Ref 040 the freemen of the State of New York knew how to estimate his merit rather better than Franklin. Fortune seems to have lent a hand in depriving the enemies of the government of all grounds of complaint, and yet they make a shift to keep the union in an uproar.
Another objection to sending the Chief Justice on this mission, is, that a President might thereby escape from the hands of justice, or, at least, elude a trial.
“From the nature,” says Franklin, “and terms of an impeachment against a President of the United States, it is not only necessary that the Chief Justice of the United States should preside in the Senate, but that he should be above the bias which the honour and emolument in the gift of the Executive might create.”
Tis true, the Constitution says, that,
“When the President of the United States is tried, the Chief Justice shall preside.”
But, waiving the insolence and most patriotic ingratitude of this insinuation; admitting your President to be what Franklin would make you believe he is, and that the necessity of impeaching him was a thing to be expected, I cannot perceive any great inconvenience that could arise from the absence of the Chief Justice. The President could not be impeached before the opening of Congress, and by that time it was reasonable to suppose, that the object of the extraordinary mission would be accomplished, and the Envoy ready to return. An impeachment against the President could hardly be hurried on in such a manner as not to leave an interval of four months between his accusation and trial, a space quite sufficient for recalling the Chief Justice.
Franklin, conscious that Mr. Jay’s character for wisdom and integrity was unimpeachable, has conjured up against him an opinion, which he gave some time ago, concerning the Western Posts. He says:—
“After the declaration made by John Jay, that Great Britain was justifiable in her detention of the Western Posts, it was a sacrifice of the interest and peace of the United States to commit a negotiation to him in which the evacuation of those posts ought to form an essential part.”
This unqualified declaration,
“That Great Britain was justifiable in her detention of the Western Posts,”
Is a most shameful misrepresentation of Mr. Jay’s opinion on the subject. By this declaration Franklin insinuates, that Mr. Jay had given it as his opinion that Great Britain would be justifiable in her detention of the Western Posts for ever; whereas
