From Wilson Cary Nicholas
I have reflected much upon the conversation that I had with you, when I had last the pleasure of seeing you, about the power of the government of the U.S. to acquire territory, and to admit new States into the union. Upon an examination of the constitution, I find the power as broad as it cou’d well be made, 3d. sec. art. 4th. except that new States cannot be formed out of the old ones without the consent of the State to be dismembered; and the exception is a proof, to my mind that it was not intended to confine the congress in the admission of new States to what was then the territory of the U.S. Nor do I see any thing in the constitution, that limits the treaty making power, except the general limitations of the powers given to the government, and the evident objects for which the government was instituted. If it is determined that congress possess exclusively, all the powers that are to be found in the enumeration of powers given to that body, it will be deciding that there does not exist in the U.S. a power competent to make a treaty, for I will venture to assert, that a treaty cannot be formed, without the exercise of one or more of those powers by the President and the Senate, particularly a commercial treaty—nor does it seem to me that the sanction of Congress wou’d cure the defect, & that wou’d be to give them substantially the power of ratification, or rejection. Nor do I believe that we cou’d ever expect any Nation to form a treaty with us under such a construction of our constitution; for I do not see what wou’d prevent subsequent legislatures from repealing the laws upon which the validity of a treaty depended; and indeed making laws in direct violation of such a treaty, if it was admited that it derived all its force from a law. I am aware that this is to us delicate ground, and perhaps my opinions may clash with the opinions given by our friends during the discussion of the British treaty. Upon due consideration, it really appears to me that a different construction of the constitution, from that which I have given it, wou’d be to transfer the treaty making power to congress, or to deprive the govt. of the U.S. of the capacity of making treaties.
I shou’d be wanting in the sincerity and candour with which you have always permited me to give you my opinion if I was to forbear to recommend to you, to avoid giving an opinion as to the competence of the treaty making power, to make such a treaty as that lately entered into with France, by giving an opinion before the Senate act upon it, you wou’d take the whole responsibility of that opinion upon yourself in the public estimation, whereas if the Senate act before your opinion is known they will at least divide the responsibility with you. I shou’d think it very probable if the treaty shou’d be declared by you to exceed the constitutional authority of the treaty making power, that it wou’d be rejected by the Senate, and if that shou’d not happen, that great use wou’d be made with the people, of a wilful breach of the constitution. If you shou’d not think these observations merit the weight that I have given them, I flatter myself you will pardon the liberty that I have taken in suggesting them to you. I have a letter from J Breckinridge, written soon after he received an account of the treaty. he seems to think it will be next to impossible to keep our people from crossing the river, and conjectures (what I think is very probable) that large tracts of land have been granted, perhaps after the cession was contemplated. after stating the danger and inconvenience of spreading our population, he says “Be the consequences what they may, the acquirement of this country is the most Brilliant thing ever atchieved—to double the extent of an empire already large, without the loss of a man, and I confidently believe without the expence of dollar (for the port of Orleans will reimburse the 15 millions in the 15 years) and without for a moment effecting the ordinary operations of the fiscal concerns of the country, is an event which wisdom and good fortune have now for the first time exhibited.”
RC (DLC); endorsed by TJ as received on 5 Sep. and so recorded in SJL.
delicate ground: in 1796, TJ’s and Nicholas’s allies in the House of Representatives, unable to prevent the ratification of the Jay Treaty by the Senate, attempted to block the treaty’s implementation (Vol. 29:9-10, 42, 45-9, 51, 54-7, 62, 70-1, 93-5).