“A” (Thomas Jefferson) to the Washington Daily National Intelligencer
Mar. 13. 1816.
A writer in the National Intelligencer of Feb. 24., who signs himself B, is endeavoring to shelter under the cloak of Genl Washington, the present enterprise of the Senate to wrest from the H. of Representatives the power, given them by the constitution, of participating with the Senate in the establishment & continuance of laws on specified subjects. their aim is, by associating an Indian chief, or foreign government in form of a treaty to possess themselves of the power of repealing laws become obnoxious to them, without the assent of the 3d branch, altho’ that assent was necessary to make it a law. we are then to depend for the secure possession of our laws, not on our immediate representatives chosen by ourselves, and amenable to ourselves1 every other year, but on Senators chosen by the legislatures, amenable to them only, & that but at intervals of 6. years, which is nearly the common estimate of a term for life. but no act of that sainted worthy, no thought of Genl Washington ever countenanced a change of our constitution so vital as would be the rendering insignificant the popular, and giving to the aristocratical, branch of our government the power of depriving us of our laws.
The case for which Genl W. is quoted is that of his treaty with the Creeks, wherein was a stipulation that their supplies of goods should continue to be imported duty-free. the writer of this article was then a member of the legislature, as he was of that which afterwards discussed the British treaty, and recollects the facts of the day, and the ideas which were afloat. the goods for the supplies of the Creeks were always imported into the Spanish ports of St Augustine, Pensacola, Mobile, New Orleans Etc (the US. not owning then one foot of coast on the gulf of Mexico, or South of St Mary’s) and from these ports they were carried directly into the Creek country, without ever entering the jurisdiction of the US. in that country their laws pretended to no more force than in Florida or Canada. no officer of their customs could go to levy duties in the Spanish or Creek countries, out of which these goods never came. Gl Washington’s stipulation in that treaty therefore was nothing more than that our laws should not levy duties where we have no right to levy them, that is, in foreign ports, or foreign countries. these transactions took place while the Creek deputation was in New York in the month of July 1790. and in March preceding we had passed a law2 delineating specifically the line between their country and ours. the only subject of curiosity is how so nugatory a stipulation should have been placed in a treaty? it was from the fears of McGillivray, who was the head of the deputation, who possessed from the Creeks themselves the exclusive right to supply them with goods, and to whom this monopoly was the principal source of income.
The same writer quotes from a note in Marshal’s history an opinion of mr Jefferson, given to Gl Washington on the same occasion of the Creek treaty. two or three little lines only of that opinion are given us, which do indeed express the doctrine in broad and general terms. yet we know how often a few words withdrawn from their place may seem to bear a general meaning, when their context would shew that their meaning must have been limited to the subject with respect to which they were used. if we could see the whole opinion, it might probably appear that it’s foundation was the peculiar circumstances of the Creek nation. we may say too, on this opinion, as on that of a judge whose positions beyond the limits of the case before him are considered as obiter sayings, never to be relied on as authority.
In July 90. moreover the government was but just getting under way. the duty law was not passed until the succeeding month of August. this question of the effect of a treaty was then of the first impression; and none of us, I suppose, will pretend that on our first reading of the constitution, we saw at once all it’s intentions, all the bearings of every word of it, as fully & as correctly as we have since understood them, after they have become subjects of public investigation and discussion: and I well remember the fact that, altho’ mr Jefferson had retired from office before mr Jay’s mission, and the question on the British treaty yet during it’s discussion we were well assured of his entire concurrence in opinion with mr Madison & others who maintained the rights of the H. of R. so that, if on a primâ facie view of the question, his opinion had been too general, on stricter investigation, and more mature consideration, his ultimate opinion was with those who thought that the subjects which were confided to the H. of R. in conjunction with the President & Senate, were exceptions to the general treaty3 power given to the President and Senate alone; (according to the general rule that an instrument is to be so construed as to reconcile and give meaning & effect to all it’s parts:) that whenever a treaty stipulation interferes with a law of the 3. branches, the consent of the 3d branch is necessary to give it effect; and that there is to this but the single exception of the question of war and peace. there the constitution expressly requires the concurrence of the three branches to commit us to the state of war, but permits two of them, the President & Senate, to change it to that of peace, for reasons as obvious as they are wise. I think then I may affirm, in contradiction to B. that the present attempt of the Senate is not sanctioned by the opinion either of Gl Washington or mr Jefferson.
I meant to confine myself to the case of the Creek treaty and not to go into the general reasoning: for after the logical and demonstrative arguments of mr Wilde of Georgia, & others on the floor of Congress, if any man remains unconvinced I pretend not to the powers of convincing him.
Dft (DLC); with wide margins typical of TJ’s drafts; unrelated opening of an unaddressed letter in TJ’s hand on verso of last page, dated Monticello, 29 Feb. 1816, and stating only “Your favor of the 16th.” Recorded in SJL at 13 Mar. 1816, in the column of letters by TJ, simply as “A.” Printed without dateline in Washington Daily National Intelligencer, 18 Mar. 1816.
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).
1. Preceding four words not in Daily National Intelligencer.
2. Reworked from “a law had passed.”
3. Daily National Intelligencer here adds “-making.”
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