University of Virginia Library

8554. TREATIES, Power to make.—[further continued]

A writer in the National
Intelligencer of Feb. 24, 1816, 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. * * * General Washington's
stipulation in that treaty 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.
* * * The same writer quotes from a note in
Marshall'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often a few words withdrawn from their place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.—
Jefferson MSS. Washington ed. vi, 557.
(March. 1816)