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of Walpole and Scrope.212 Scrope was the Secretary of the Treasury and a conduit of the money to Walpole. -13 Consider in the light of Albert Fall's derelictions, which lay at the root of the Daugherty and Sinclair investigations, our reaction today to a refusal to account for such a sum in the teeth of a horrid suspicion that it had come to rest in executive breeches.214 Only the protection given by the King to his favorite made concealment possible; a Scrope would receive short shrift today.

Viewed most favorably to Jefferson's claim, the Scrope citation reveals at best a refusal to make known the disposition of "secret funds” appropriated for hidden purposes, scarcely the sort of incident which will bottom "uncontrolled discretion” to withhold anything and everything. Moreover, it rests on a claim of royal prerogative that yielded to parliamentary ascendance whereunder ministerial responsibility shifted from the King to the party in power,215 and which the Continental Congress, the state constitution-makers, and the Founding Fathers rejected out of hand.

212 Id. at 37.
213 Id. at 34-36.
214 Cf. note 23 supra.

Other times, other morals. In his essay on the Earl of Chatham, Macaulay, referring to the Duke of Newcastle's “disposal of that part of the secret service money which was then employed in bribing members of Parliament" during Pitt's own regime, remarks that Pitt was "himself incorruptible,” but “hating the practice, yet despairing of putting it down, and doubting whether, in those times, any ministry could stand without it, he determined to be blind to it.” 2 MACAULAY, Essays 790 (Trevelyan ed. 1890).

215 The "executive power is exercised under a government which is responsible to Parliament, and which is formed by and actually a part of the Parliamentary majority." TAYLOR 285. When, thercfore, Pbilos 48, reminds us that "cabinet officials withhold information concerning executive operations from their Parliamentary colleagues (during a 'question period' on the floor) if they believe this action is necessary in the public interest," he neglects to notice that the majority, whose leadership is vested in the cabinet, con if it deems the issue important, compel the cabinet to furnish the information or topple it: “Ministers must answer to the Parliament for everything that they and their departments do, and must resign at once if defeated on a vote ...." WADE, TOWARDS ADMINISTRATIVE JUSTICE 4 (1963), And, says Professor Wade, “it is a firm convention of our system that Ministers shall answer all kinds of questions about everything that falls within their sphere of responsibility ...." Id. at 20.

Moreover, a Minister's refusal to answer in the hot spotlight of the floor may not deprive the Opposition of the desired information through “the usual channels' which are said to pass 'behind the Speaker's Chair'-in other words by negotiations ...." JENNIXCS, THE BRITISH CONSTITUTION 85 (3d ed. 1950). "Once it is accepted that opposition is not only legitimate but essential to the maintenance of democratic government, the need for arrangement behind tlic Speaker's Chair follows naturally.” JENNINCS, PARLIAMENT 158 (2d ed. 1957). "In matters of defence and foreign affairs, too, there is often consultation." Id. at 159. A recent news item confirms the practice. Replying to an inquiry about "Lord Denning's quasi-judicial inquiry into the security aspects of the Profumo case," Prime Minister MacMillan declared that "the report would be published after he had discussed it




2. The Jay Treaty

Next Attorney General Rogers relies on Washington's refusal in 1796 to furnish to the House correspondence, documents, and instructions to John Jay respecting negotiation of the Jay Treaty.216 From this dry recital one can scarcely sense the tumultuous disapproval, the popular outrage, that the Jay Treaty provoked.217 Washington himself was "dismayed” when the treaty reached him:

Jay had abandoned by implication two of the principles for which
America had contended ever since the outbreak of The American
Revolution—the doctrine that free ships make free goods, and that
neutrals might trade freely with belligerents in noncontraband goods.21%

The treaty failed to recognize still other smarting grievances,219 and Jay's "effectiveness as a negotiator had certainly been compromised by Hamilton's assurances” to the British Minister.220 Was the House entitled to be informed on such matters before it appropriated funds to effectuate the treaty? Vice-President Adams, who had his eye on the Presidency, and upon whom Washington now leaned after the resignations of Hamilton and Jefferson, 21 thought so, even after Washington's refusal: “I cannot deny the right of the House to ask for papers. . . . My ideas are very high of the rights and powers of the House of Representatives.” And this despite his awareness that “these powers may be abused."222

with the Leader of the Opposition and agreed on what was to be left out 'either on security or any other grounds.'” The Economist, Aug. 10, 1963, p. 491. Similarly, it was reported with respect to H. A. R. Philby, the English journalist who defected to Russia under suspicious circumstances, that: “Prime Minister MacMillan and Harold Wilson, the Opposition Leader, refuse to discuss Philby (with others) on the ground that the national interest is involved.” N.Y. Times (West. ed.), Aug. 5, 1963, p. 12.

218 Att'y Gen. Memo. 5.

217 A "storm of popular protest blew up." 2 Pace SMITH 874. Writing to Edward Rutledge, Nov. 30, 1795, Jefferson called it "an cxecrable thing." 7 JEFFERSON 40. The widow of General Richard Montgomery wrote James Monroe that she “lamented the 'infamous' treaty which John Jay had made with Great Britain, and with thousands of others, had wept over the sale of her country.” BEMIS xi.

218 2 PAGE SMITH 871. “Washington did not pretend to like the treaty. After Jay had delivered it he kept it for 4 months before he could bring himself to submit it to the Senate. He knew it would provoke a storm of protest and that the protest would have grounds to support it." BEMIS xiii.

219 2 PAGE SMITH 871.

220 lbid. BEMIS 250 states that: “From Hamilton's astonishingly gratuitous information Greenville now knew there was no danger of what he most feared, that the United States might enter another armed neutrality.”

221 2 PAGE SMITH 878-80.
222 2 ADAMS, LETTERS TO ABIGAIL ADAMS 223 (1841) (written April 19, 1796).

After his son, John Quincy Adams, left the Presidency and served in the House, John Quincy insisted on the right of the House to be given all papers respecting certain Mexican relations. See note 267 infra and accompanying toxt.

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Washington's reasons for refusing to provide the information were (1) that the success of foreign negotiations “niust often depend upon secrecy”; (2) that this was one "cogent riason for vesting the power of making Treaties in the President wi'h the advice and consent of the Senate,” thereby "confining it to a small number of members”; (3) that since this treaty-making power was thus exclusively vested in the President and Senate, “the inspection of papers asked for can [not] be relative to any purpose under the cognizance of the House ... except that of an impeachment; which the resolution has not expressed”; 223 and (4) that “in fact, all the papers affecting the negotiations ... were laid before the Senate."224

Washington does not here lay claim to a blanket power to withhold from the Congress, for disclosure had been made to the Senate; instead he based the withholding on the constitutional c.rclusion of the House from the treaty process. The issue he posed was not executive power to withhold but the absence in the narrow premises of legislative power to demand. He denied “a right in the House of Representatives to demand, and to have as a matter of course, all the papers respecting a negotiation with a foreign Power ..." and he emphasized that he had no disposition to "withhold any information ... which could be required of him by either House as a right."225 Indeed, the latter clause may be read as a disclaimer of power to withhold where there was a "right" to demand, and this is confirmed by his turnover of the disputed papers to the Senate which had a "right" to the information because its duties embraced the subject matter of treaties. That Washington should thus have attempted to limit the powers of the House rather than insist on the executive privilege to withhold at least suggests a doubt whether he could saiely invoke such an executive power.

223 5 ANNALS OF Coxo. 760-62 (1796). Jefferson had earlier counselled Washington to the contrary. In a diary note dated April 9, 1792, Jefferson refers to Senate readiness to approve the redemption of Algerian captives but mentions that it "was unwilling to have the lower House applied to previously to furnish the money" because this "would let them into a participation of the power of making treaties." Jefferson "observed, that wherever the agency of either, or both Houses would be requisite subsequent to a treaty, to carry it into effect, it would be prudent to consult them previously, if the occasion admitted. That thus it was, we were in the habit of consulting the Senate previously, when the occasion permitted, because their subsequent ratification would be necessary. That there was the same reason for consulting the lower House previously, where they were to be called on afterwards, especially in the case of money, as they held the pursestrings and would be jealous of them." PADOVER, THE COMPLETE JEFFERSON 1123-24 (1943).

224 5 AXNALS OF Conc. 761 (1796). Madison was astonished by the refusal and wrote James Monroe on April 8, 1796, that: “The prevailing belief was, that he (Washington) would send a prt is not the whole, of the papers applied for ... he not only ran into the extreme of an absolute 'refusal, but assigned reasons worse than the refusal itself.” 2 MADISON, LETTERS 96-97 (1865).

225 5 ANNALS OF CONG. 760 (1796). (Emphasis added.)




Whether or not the House is authorized to review treaties, a subject that agitated the House far more than the issue of inspection, is for present purposes of no moment; of secrecy more will be said below. Washington's view that the power of inspection is confined to instances of impeachment put the cart before the horse—it required a preliminary decision to launch impeachment proceedings before obtaining the information upon which such a decision should rest.226 It overlooked the views expressed by his Cabinet in 1792 respecting the power of the House as an “inquest" to "institute inquiries” and “call for papers generally"227 and his endorsement of those views by his direction to turn over the requested papers in the St. Clair investigation.-28 Nor did it mesh with his welcome in 1789 of a rumored investigation of Hamilton,220 and with his approval of the Act of 1789 which directed the Secretary of the Treasury to furnish information required by the Congress.230 And it was the more offensive because on prior occasions Washington had forwarded "confidential” information, even respecting pending treaty negotiations, to both Senate and House.-31 Insofar as Washington undertook to define the powers of the House, therefore, he was plainly wrong and tactically unwise; and were no more involved the incident could be left to moulder in the dusty tomes. But the Jay Treaty touched off the first full-dress examination of the legislative power to require information from the Executive.

There is a little-noticed statement made by Madison on the floor of the House after the receipt of Washington's message, per

m. even -31 Inso thereforeived

226 In the House, Mr. Lyman said that the "power of impeachment . . . certainly implied the right to inspect every paper and transaction in any department, otherwise the power of impeachment could never be exercised with any effect.” 5 ANNALS OF CONG. 601 (1796).

Proceeding from the acknowledged power to demand papers for impeachment purposes, a House Committee asserted in 1843: “The right of the House to information in possession of the Executive, if it exists at all, is an original right, and not acquired by asserting that it is about to resolve itself into a court of impeachment ....

"[T]he right of the House to demand information from the Executive is possessed by it in the character of grand inquest of the nation (a fact earlier conceded by the Washington cabinet) ... it is in this character it acts, whether engaged in the investigation of a petty fraud committed by some inferior officer of the Government, or in the impeachment of the President for the crime of high treason. It does not acquire the power necessary to pursue investigations by the act of proceeding to investigate .... The right to demand and compel information is not merely an accidental right, but an original one, inberent in it, and not an incident of some particular duty ...." H.R. REP. No. 271, 27th Cong., 3d Sess. 13 (1843).

227 See text accompanying note 191 supra. 228 Sce note 195 supra. 229 See note 200 supra. 230 See text accompanying note 79 supra. 231 See text accompanying notes 241-43 infra.



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haps the most telling piece of evidence that can be invoked for executive privilege:

He thought it clear that the House must have a right, in all cases, to ask for information which might assist their deliberations. ... He was as ready to admit that the Executive had a right, under a due responsibility, also, to withhold information, when of a nature that did not permit a disclosure at the time. ...

If the Executive conceived that, in relation to his own department, papers could not be safely communicated, he might, on that ground, refuse them, because he was the competent though a responsible judge within his own department.232

This is a surprising remark; 233 it outran Washington's claim, for he had challenged only the right of the House to information in the treaty area without asserting a blanket right to withhold from the Congress. In any event, Madison, by his own testimony on this occasion, did not purport to represent the views of the Constitutional Convention,234 and still less did his remark represent the

232 5 ANNALS OF Conc. 773 (1796). Contrast this with his statement in the Congress of 1789 with respect to who should "determine the limits of the constitutional division of power between the branches of the Government'.... I cannot imagine it will be less safe, that the exposition should issue from the legislative authority than from any other; and the more so, because it involves in the decision the opinion of both those departments, whose powers are supposed to be affected by it .... [T]he decision may be made with the most advantage by the Legislature itself." 1 ANNALS OF CONG. 520, 521 (1789-1791). (Emphasis added.) Here it was the Congress which was to determine where the line was to be drawn under the Constitution between the legislative and executive branches, although in this instance Madison was conceding a power to the President.

233 In his comment of April 24, 1796, to Jefferson on Washington's refusal, Madison said: "I think there will be sufficient firmness to face it with resolutions declaring the constitutional powers of the House as to treaties, and that, in applying for papers, they are not obliged to state their reasons to the Executive. In order to preserve this firmness, however, it is necessary to avoid, as much as possible an overt recontre with the Exccutive." 2 MADISON, LETTERS 90 (1867). See also note 224 supra. An inference that this was mere political expediency, i.e., surrender of plenary power to papers in order freely to assert a claim to Treaty power, appears to be precluded by Edmund Randolph's letter of Feb. 24, 1796, to Washington: "[T]he message of to-day (this cannot be the Jay Treaty message which is dated March 30, 1796), appears to have given general satisfaction. Mr. M-d-n (Madison ?) in particular thinks it will have a good effect. He asked me, whether an extract could not have been given from Mr. Morris' letter; upon my answering, that there were some things interwoven with the main subject, which ought not be promulgated, he admitted that the discretion of the President was always to be the guide.” 33 WRITINGS OF WASHINGTON 282 (1940).

234 He stated that “neither himself nor the other members who had belonged to the Federal Convention, could be under any particular obligation to rise in answer to a few gentlemen, with information, not merely of their own ideas at that period, but of the intention of the whole body; many members of which, too, had probably never entered into discussions of the subject. He might have further remarked, that there would not be much delicacy in the undertaking, as it appeared that a sense had been put on the Constitution by some who were members of the Convention, different from that which must have been entertained by others,

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