like Charles Lamb's Chinaman, burn down the barn to roast the pig? We have an early precedent, so we don't have to speculate about that. The St. Clair case in 1797 was cited, you will remember in McGrain v. Daugherty. That was a disastrous expedition. The Congress appointed a committee to inquire into the failure of the expedition led by General St. Clair, with power "to call for such persons, papers as may be necessary to assist their inquiries."

***

Much has been made by the Attorney General of a vest pocket memorandum by Jefferson that was found in his private papers in what he called unofficial notes. I treated it at length in my study, and if there were time I would be happy to discuss it. We don't need to pause, because regardless of the views there expressed, there is no record of a claim made by Washington to the Congress of a plenery power to withhold. Quite the contrary. Every document was turned over. And Douglas Freeman, the great biographer of Washington said: "Not even the ugliest line on the flight of the beaten troops was eliminated."

So here in military affairs, you have another construction by George Washington: of course Congress is entitled to the papers. And he wrote St. Clair, you ought to be happy, you will now have a chance to exonerate yourself.

And yet this case is cited by the Attorney General's memorandum to illustrate a Presidential refusal of information, when in fact all the information was turned over.

Now, we will turn to foreign affairs. And it is no more profitable to spin general theories out of the concept of foreign affairs, than it is out of the concept of separation of powers. In this area, as elsewhere, what Holmes said ought to be our guide: "A page of history is worth a volume of logic."

Let me sketch briefly a few historical matters at the very beginning of the Constitution. In matters of constitutional interpretation, that is the important period. What did men think who knew the Constitution at first hand. I am worried about constructions 60, 70, or 80 years later. To me, that is bootstrap lifting.

There is one bit of history that may on first blush look as if it reads against plenary investigation of foreign affairs. I went to meet it head-on. That was the investigation of Robert Walpole, in 1742 by Parliament. The House of Commons had asked for all correspondence with the King of Prussia, "relating to the state of war in the Empire." The King didn't make an outright refusal, he temporized. He said the request would be "carefully examined in order to see how far the same may be complied without prejudice to the public, and consistently with the confidence reposed in him by other Princes."

Immediately the House requested all correspondence with the States General about the same subject. William Pitt, Walpole's great successor derided the claim that "by this inquiry, we shall be in danger of discovering (disclosing) the secrets of our government to our enemies. We have had many parliamentary inquiries into the conduct of Ministers of State, and yet I defy anyone to show that our public affairs, either abroad or at home suffered by any such discovery."

This royal temporizing was canceled out, in my view, by the ascendency the House of Commons before long achieved. They no

longer had to ask the King, the Prime Minister was their Man Friday. They could topple him if they didn't get the information.

More importantly, the Continental Congress didn't look to what the King said; it looked to the claims that the Parliament made. When they set up a Secretary of State in 1776, they provided that every document of foreign affairs should be available to Members of Congress. The Attorney General argued that the failure of the First Congress to make a similar provision bespeaks an intention to withhold from Congress a similar right of inspection. But he overlooked the fact that the First Congress required the Secretary of the Treasury to furnish information to either House respecting "all matters" pertaining to his office, a measure drafted by Hamilton and confirmed by Washington. There isn't the time to explain why this was only drafted with respect to the Secretary of the Treasury and not Foreign Affairs and the other departments. But if you choose to ask me later, I shall be happy to respond.

Remember to that Attorney General Cushing later advised the President that all branches of the executive department were by legal implication under the same duty as the Secretary of the Treasury.

Now we come to the Attorney General's memorandum, which places great stress on Washington's refusal in 1796 to furnish information respecting the Jay Treaty. And I observed that Mr. Acheson repeated that here today. That wasn't a refusal to the Congress for all the documents were turned over to the Senate, though withheld from the House. But the House had access to them, because, as was said on the floor of the House in the debate, all you have got to do is walk over and you will find them on the Clerk's desk, and you can look at anything you want.

But Washington did refuse the documents to the House, not on the ground of executive privilege, but on the ground that the House did not have a right to the treaty documents because it had no part to play in making treaties, because that is exclusively a prerogative of the Senate and the President.

That blew up a storm. Madison criticized it very severely; Washington's reasons for withholding, he said, were the worst possible

reasons.

What is interesting for our purposes, Mr. Chairman-and I beg you to focus on this-Washington emphasized that he had no disposition to withhold any information which could be required by either House as a right. He indicated that such a right would have existed, for example, had the House required the papers for the purposes of impeachment. In a word, he recognized that the power to impeach didn't necessarily mean that the House had to impeach before it investigated. It could ask the President for papers bearing on impeachment for purposes of inquiry.

In sum, given a relevant legislative function, Washington indicated that the House had the right which he would honor, to see executive documents, even respecting foreign affairs.

I want to put in the next 3 minutes to counter Mr. Acheson's citation of an 1816 Senate committee report, in connection with which I should say that that committee was at least in cautious. No committee was entitled, against the historical background, to disclaim congressional powers.

I beg you to remember, I am only going to give you several highlights. In my study, I cite four or five instances. And I am confident that were your Legislative Reference Bureau to bend its efforts on the Annals of Congress for the first 10 or 15 years of our Government, they would find other instances. But let's begin with a very early one. In the debate preceding the House request for the Jay papers, Edward Livingston, perhaps one of the most learned lawyers that ever sat in the Congress, pointed out that "from the establishment of the Constitution *** the Executive had been in the habit of free communication with the Legislature as to our external relations." Let me spell that out. Instead of invoking executive privileges, instead of withholding information from Congress, the President freely furnished it.

I checked Livingston's citations as well as those of two of his confreres in the Congress. And they fully confirm the citations as your Staff will find, if you will have them check further.

On December 5, 1793, Washington wrote to both the Senate and the House that negotiations between this country and Spain were pending. There, Senator Mathias, Washington was talking about pending negotiations before a treaty was submitted. And he gave them all the confidential information, and said that the negotiations would be made known to the Legislature in confidence, meaning, don't publish it to the public.

In 1793, he also transmitted to Congress documents of a "confidential" nature respecting the Proclamation of Neutrality-not a treaty, but still foreign affairs.

Jefferson recorded in November 1973 that he had urged Washington with respect to certain matters concerning France and England to "lay before the Legislature and the public what had passed on inexecution of the treaty," and that the President decided without reserve to do so.

Later, Jefferson as Vice President, wrote a "Manual of Procedure," in 1801, as you know, sir, which is probably still in use by the Senate. And in section 52 he says "it has been the usage for the executive, when it communicates a treaty to the Senate for their ratification, to communicate also the correspondence of the negotiators."

At the time of the Jay episode John Adams was Vice President; Jefferson and Hamilton were out of the cabinet; and Washington now leaned on Adams. John Adams commented on Washington's refusal of the Jay papers to the House (not to the Senate), "I cannot deny the right of the House to ask for papers. My ideas are very high of the rights of the House of Representatives." And his son, John Quincy Adams, after moving from the Presidency to the House, said that, "the House had the right to demand and receive all the papers" respecting President Polk's instructions to our Minister to Mexico. Now, here were two great men who had been great diplomats. You will recall John Adams was a negotiator of our treaties when he had been in France. John Quincy Adams served in Russia and elsewhere, and here were two men who knew where all the bones were buried, and yet they said, the House-not the Senate, mind you, had a right to know about foreign affairs. It was a foregone conclusion that the Senate had a right to know.

Now, we turn to something important that was raised by Mr. Acheson. For the purposes of the Senate's "consent" function, it may possibly suffice to have all documents after negotiations have been completed. I say it may possibly suffice. And certainly you ought to have all the documents. No joker's wild. For you can't really consent intelligently to a treaty without full disclosure. The SEC wants full disclosure about securities which will be sold to the public. And when the Executive is selling a Vietnam strategy, he too should put all the cards on the table.

The Constitution says that the Senate shall advise and consent with respect to making the treaties. We are not in the dark about that. Hamilton said in "The Federalist" that the Senate participates in making treaties. And James Wilson (the greatest American lawyer of his time said Professor McCloskey) said that the Senate and the President make treaties. It seems to me the constitutional language requires that. How can you help "make" a treaty if you don't know a thing about how it is being negotiated? How can the Senate “advise" as to the "making" of a treaty if it is kept in the dark? That doesn't mean that you have to play strip poker in full view of the public. The alternative to operation in a gold fish bowl is not necessarily a darkroom. The Secretary of State can come up and talk to the Analogue of Vandenburg, George, and Connally, as Mr. Acheson did. He can confide in two or three leading members. That is how the atomic secret was kept. As a matter of fact, it isn't in great matters of state, generally, that secrecy is maintained, because the Senate was told about the Bay of Pigs, the Senate was told about the Khrushchev crisis. It is the little man that would withhold evidence on little things, very often things that the President doesn't even know about. When Eisenhower found out that the Government had employed Adolph Wenzell in the Dixon-Yates case who was also on the private side, he said, how can that be? When he found out, he said this was no good. But how did he find out. There was an investigation on the Hill.

I would not be so presumptuous as to lecture this committee on how to participate in the conduct of foreign relations. But I submit to you, don't too quickly surrender your right to participate in making treaties, a right which both Hamilton and James Wilson confirmed.

The costliness of a President's neglect to take the Senate into his confidence during negotiations was illustrated by the crashing rejection of the League of Nations brought back by Wilson from Paris. You can't do business that way. You have to recognize the Senate as a partner in the making of treaties.

And I am with Senator Fulbright: The House Members are subject to being voted out of office every 2 years. They have constituents that constantly ring their phones. It is a good thing for the country and for the Senate to know what is being negotiated.

And in reply to Mr. Acheson, Sir Ivor Jennings, a wise observer stated:

Negotiations with foreign powers are difficult to conduct when a lynx-eyed opposition sits suspiciously on watch. We might have a better foreign policy if we had no parliament, but we might have a worse. We are a free people because we can criticize fully.

Without full information, there can be no effective criticism.

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I may add about the English practice: the opposition is kept fully aware of what is going on. The English have a practice they call, "Behind the chair of the speaker," whereby matters that are of the utmost secrecy are conveyed to the leaders of the opposition. You can't satisfactorily conduct a government any other way.

Against Congress' need to know if it is to participate intelligently in the process of government is pitted what Professor Wade of Cambridge has justly described as the civil servants' occupational love of secrecy, the official instinct of hiding as much as possible from the public gaze. You have just seen an exhibition of that failing on a grand scale in the publication of the Pentagon papers, how far little men can go in keeping secrets, 99 percent of it weren't worth keeping

secret.

Now, I beg your indulgence to make a few comments about the Attorney General's memorandum. This is truly an extraordinary document. In it for the first time in our history, the very first time (this was in recoil from the McCarthy-Stevens hearings) the Attorney General made a claim of "uncontrolled discretion," an absolute power, to withhold information as the President sees fit. It is entitled "Power of the President to Withhold Information From the Congress." And it is almost a verbatim reproduction of a series of articles published in 1949 in the Federal Bar Journal by Herman Wolkinson, a subordinate attorney in the Department of Justice, almost in haec verba. Once, when Justice Jackson was confronted with an Attorney General's opinion rendered to Stimson he found it hard to believe that the nominal signer of the opinion read it. I am even tempted to disbelieve that the Deputy Attorney General, or the Assistant Solictor General, or anybody that was really a fine lawyer read it, because there are the most amazing contradictions and inconsistencies in the memorandum.

Let me give you just one example. The Attorney General says: "Courts have unformly held that the Presidents and heads of departments have an uncontrolled discretion to withhold." To begin with, all of the citations were in the perspective of private litigation, and not one of them had to do with a congressional request, which is worlds apart, a different realm of analysis. Indeed, the Attorney General concedes in this very memorandum that the legal problems presented by congressional request were never presented to the courts. The quoted statement was dismissed out of hand by one of the ablest proponents of executive privilege, former Defense General Counsel, Professor Joseph Bishop, as a "remarkable and inexact assertion." Professor Bernard Schwartz said, it is "utterly unsupported by any case." Well, I couldn't content myself with that. After all, here is an opinion offered to the Congress by the highest law officer of the Government on one of the greatest controversies in constitutional law. I felt that opinion carries great weight, prima facie. And I didn't take Bishop's word or Schwartz's word. I followed footstep by footstep for the first 50 years in almost every case cited in the memorandum.

When Justice Jackson wrote about advocacy in the Supreme Court, he said of a row of citations, when I read one miscitation I stop reading. For me, he said, that fellow has a blunderbuss mind. I went on and read many citations and I have analyzed them all for you.