The writer in the national intelligencer of feb. 24 (actually 23 Feb. 1816), who signs himself b, stated that “Your paper has been usefully employed for some weeks past, in publishing to the nation the arguments delivered in Congress on the interesting question as to the effect of a treaty on existing laws interfering therewith. The speakers on each side of this question seemed sensible of the aid to be derived from precedent, and therefore recurred to the practice of the government in similar cases. But I confess I was not a little surprised, that the gentlemen who maintained the doctrine that a treaty did repeal an opposing law, and therefore, that legislation was unnecessary, should have omitted to urge in their favor, the most decisive case which has occurred since the foundation of the government. The one to which I allude happened in 1790.—See Marshall’s life of Washington, 5th vol. note 2d, at the end of the vol. President Washington negotiated a treaty with the Creek nation; in one of the articles of which, it is said to have been stipulated, that the supplies which had formerly passed through the Spanish territory to their Chief, McGilvary, who had a monopoly of their trade, should, in future, be carried through the United States, free of imposts. The precise question, namely, whether a treaty repealed or suspended the effect of a law imposing duties, or whether such a result should be produced by legislative provision, occurred then. President Washington, with his usual caution and circumspection, submitted the subject to the consideration of his cabinet, Mr. Jefferson being at that time Secretary of State. The historian above alluded to, states that Mr. Jefferson delivered the following opinion:—‘A treaty made by the President, with the concurrence of two thirds of the Senate, was a law of the land, and a law of superior order, because it not only repeals past laws, but cannot itself be repealed by future ones. The treaty then will legally control the duty act, and the act for licensing traders in this particular.’ From this opinion, says Mr. Marshall, there is no reason to suppose that any member of the cabinet dissented. Such was the interpretation then given to the constitution, and in which, President Washington concurred. When we reflect on the time when, and the characters by whom this precedent was established, it becomes entitled to great respect.—It is submitted to your readers without comment.”

The present enterprise of the senate was a lengthy constitutional discussion provoked by the 1815 commercial treaty with Great Britain (Miller, Treaties description begins Hunter Miller, ed., Treaties and other International Acts of the United States of America, 1931–48, 8 vols. description ends , 2:595–600). On 6 Jan. 1816 the Washington Daily National Intelligencer reported that an “amicable discussion has commenced in the House of Representatives on the bill to regulate our commerce in conformity to the convention of commerce recently concluded with Great Britain. The debate turns not so much on the merits of the Treaty, as on the necessity of Legislation to carry its provisions into effect. Thus one of the questions so much agitated in the year 1795, in regard to Jay’s Treaty, is revived; the two political parties appearing, though the government has since changed hands, to maintain the same doctrines on the subject of treaty stipulations, which they then declared and supported.”

According to “An Act concerning the convention to regulate the commerce between the territories of the United States and his Britannic Majesty,” approved 1 Mar. 1816, “so much of any act as imposes a higher duty of tonnage, or of impost on vessels and articles imported in vessels of Great Britain, than on vessels and articles imported in vessels of the United States, contrary to the provisions of the convention between the United States and his Britannic majesty, the ratifications whereof were mutually exchanged the twenty-second day of December, one thousand eight hundred and fifteen, be, from and after the date of ratification of the said convention, and during the continuance thereof, deemed and taken to be of no force or effect” (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, 1845–67, 8 vols. description ends , 3:255).

The Senate received George Washington’s request for a stipulation regarding commerce with the Creek nation in the form of a secret treaty article on 4 Aug. 1790 and gave its advice and consent the same day (Linda Grant De Pauw and others, eds., Documentary History of the First Federal Congress [1972– ], 11:86–7). For the 1790 Creek Treaty with a provision delineating specifically the line between their country and ours, see U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of the United States … 1789 to March 3, 1845, 1845–67, 8 vols. description ends , 7:35–8. The 29 July 1790 opinion of mr jefferson, given to gl washington and partially quoted in John Marshall’s Life of George Washington (Philadelphia, 1804–07; Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, 1952–59, 5 vols. description ends no. 496; Poor, Jefferson’s Library description begins Nathaniel P. Poor, Catalogue. President Jefferson’s Library, 1829 description ends , 4 [no. 133]), vol. 5, 2d endnote, p. 3, is printed and discussed in PTJ description begins Julian P. Boyd, Charles T. Cullen, John Catanzariti, Barbara B. Oberg, and others, eds., The Papers of Thomas Jefferson, 1950– , 38 vols. description ends , 17:288–91.

In congressional debate on 12 Jan. 1816, Representative Richard Henry wilde cited an example from the Louisiana Purchase treaty when congressional enabling legislation was passed; remarked that this took place during TJ’s administration, which Wilde remembered as “a period of what he had been accustomed to consider as correct principles”; observed that the example was “stronger, because Mr. Jefferson, when Secretary of State, is said to have maintained the opinion now supported by the gentlemen on the opposite side of the House”; argued that “If a treaty could repeal one law, it can repeal another; if it could repeal some, it can repeal all”; and insisted rather that the President and Senate lacked any such authority to use the treaty-making power to expand their authority beyond constitutional limits (Annals description begins Annals of the Congress of the United States: The Debates and Proceedings in the Congress of the United States … Compiled from Authentic Materials, Washington, D.C., Gales & Seaton, 1834–56, 42 vols. (All editions are undependable and pagination varies from one printing to another. Citations given below are to the edition mounted on the American Memory website of the Library of Congress and give the date of the debate as well as page numbers) description ends , 14th Cong., 1st sess., 623–31).