A writer in the National Intelligencer of February 24th, who signs himself B., is endeavoring to shelter under the cloak of General Washington, the present enterprise of the Senate to wrest from the House of Representatives the power, given them by the constitution, of participating with the Senate in the establishment and 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 third branch, although 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 ourselves every other year, but on Senators chosen by the legislatures, amenable to them only, and that but at intervals of six years, which is nearly the common estimate for a term for life. But no act of that sainted worthy, no thought of General 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 General Washington 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, &c., (the United States 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 United States. 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. General 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 law delineating specially 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 Mr. Gillevray, 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 principle source of income.
The same writer quotes from a note in Marshal's history, an opinion of Mr. Jefferson, given to General 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 show 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 its 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 its intentions, all the bearings of every word of it, as fully and 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, although Mr. Jefferson had retired from office before Mr. Jay's mission, and the question on the British treaty, yet during its discussion we were well assured of his entire concurrence in opinion with Mr. Madison and others who maintained the rights of the House of Representatives, 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 House of Representatives in conjunction with the President and Senate, were exceptions to the general treaty 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 and effect to all its parts;) that whenever a treaty stipulation interferes with a law of the three branches, the consent of the third 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 and 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 General Washington or of 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, and others on the floor of Congress, if any man remains unconvinced I pretend not the powers of convincing him.
TO GOVERNOR NICHOLAS.
Monticello, April 2, 1816.
Dear Sir,—Your favor of March 22d has been received. It finds me more laboriously and imperiously engaged than almost on any occasion of my life. It is not, therefore, in my power to take into immediate consideration all the subjects it proposes; they cover a broad surface, and will require some development. They respect,
I. Defence.