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lamation enjoined all bodies of magistracy, legislative, executive and judiciary, and citizens of the States to "carry into effect," while the proclamations of the treaties with France, the Netherlands and Sweden had directly enjoined the citizens and inhabitants, and more especially the military and naval officers of the United States, “to govern themselves strictly in all things” according to the provisions of the treaty.' At times it was even suggested in Congress that treaties of commerce should be submitted to the several States for approval. Fruitless propositions were introduced for the leasing from the States of the control over commerce. The impossibility of obtaining the latter, and the impracticability of the former, led to the advancement of a national doctrine. Jefferson, whose later conservatism in such matters entitles his opinion to much consideration, wrote to Monroe, June 17, 1785, at a time when the commercial independence of the States had become intolerable: “Congress by the Confederation have no original and inherent power over the commerce of the States. But by the ninth article they are authorized to enter into treaties of commerce. The moment these treaties are concluded the jurisdiction of Congress over the commerce of the State springs into existence, and that of the particular States is superseded so far as the articles of the treaty may have taken up the subject.” He advised the negotiation of such treaties so as to remove foreign commerce from State interference.' It was on Article IV of the treaty of peace, in which it was stipulated that British creditors should meet with no lawful impediment to the recovery of bone fide debts
"Journals of Congress, vol. iv, p. 189. Secret Journals, vol. iii, pp. 318, 395, 444, 446.
• Writings of Jefferson (Ford ed.), vol. iv, p. 55.
that the issue was tried. The stipulation not only was odious, owing to the natural prejudice against the loyal subjects of Great Britain, but also required for its execution a repeal of State laws. Congress had not the power in its legislative capacity to execute-must the nation depend upon the action of prejudiced State legislatures? Assured by the British government of its willingness to co-operate in the execution whenever the United States should manifest a “real determination” to fulfil its part of the treaty, Jay, the Secretary for Foreign Affairs, to whom the matter was referred, made a careful investigation with the conclusion that the failures of the States could not be justified by violations on the part of Great Britain.' In his elaborate report on October 13, 1786, he made recommendations which were agreed to by Congress, without a dissenting vote, March 21, 1787. As communicated to the several States in the federal letter, prepared by Jay and adopted by Congress April 13, they read in part:
Resolved, That the legislatures of the several States cannot of right pass any act or acts for interpreting, explaining, or construing a national treaty, or any part or clause of it; nor for restraining, limiting, or in any manner impeding, retarding or counteracting the operation and execution of the same; for that on being constitutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them.
Resolved, That all such acts or parts of acts as may be now existing in any of the States, repugnant to the treaty of peace ought to be forthwith repealed; as well to prevent their con
1“ An investigation of the subject had proved that the violations on our part were not only most numerous and important, but were of earliest date.” Madison to Edmund Pendleton, April 22, 1787. Writings of Madison (Hunt ed.), vol. ii, p. 355.
tinuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation.
The third resolution recommended to the several States to make such repeal by a general declaratory act binding the courts of law and equity to decide and adjudge according to the true intent and meaning of the treaty "anything in the said acts, or parts of acts, to the contrary thereof in anywise notwithstanding.”
The requests in the second and third resolutions for repeal by the States seemed to some members of Congress unnecessary, and even inconsistent with the first. L'pon this Madison observed in the debate, that a law of repeal by the States was both expedient and necessary, since the oaths bound the judges more strongly to State than to federal authority, and even if the treaty had the validity of a law only, while it would repeal all antecedent inconsistent laws, confusion might arise as to those passed subsequently. Later, in a communication to Edmund Pendleton of January 2, 1791, in direct answer to the question whether Congress did not, in calling on the States to repeal the laws, consider Article IV of the treaty a covenant that a law of repeal should be passed rather than a law of repeal in itself, Madison said: “As well as I recollect, the act of Congress on that occasion supposed the impediments repealed by the treaty, and recommended a repeal by the States merely as declaratory, and in order to obviate doubts and discussions." 3
Again Jay was called upon to express an opinion as to the relative effect of State laws and of treaties. According
'Secret Journals, vol. iv, pp. 185, 282, 295, 329.
to his construction of the most-favored nation clause in the treaty with the Netherlands, an act of the Virginia legislature conflicted with the stipulation. In an opinion given to Congress, October 13, 1787, he said that according to the present state of our national government the act of Virginia would doubtless continue to exist till repealed by the State legislature. Congress on the same day advised the Virginia legislature to take the earliest opportunity of revising the act of which complaint had been made.'
Hamilton, in urging the New York legislature to pass a law conformably to the resolutions of Congress of March 21, 1787, replied to the objection that such a law would place too much power in the judges, that the judges were bound not less without the law of repeal than with it to recognize the treaty regardless of any law to the contrary,' Jefferson, in a communication to Mr. Hammond, the British minister, on May 29, 1792, in referring to the declarations of repeal by the several States, said, “indeed all this was supererogation. It resulted from the instrument of Confederation among the States, that treaties made by Congress according to the Confederation were superior to the laws of the States." ; State courts and State officials on various occasions recognized the treaty as a law binding on them. In the debates on the Constitution it was frequently declared that treaties were supreme laws under the Articles of Confederation. Charles Cotesworth Pinckney, in the State convention of South Carolina, said: “I contend that the article in the new Constitution which says that
Secret Journals, vol. iv, pp. 410, 413. . * Works (Lodge ed.), vol. iii, p. 508. • Am. State Papers For. Rel., vol. i, p. 209.
• Ibid., p. 237.
treaties shall be paramount to the laws of the land is only declaratory of what treaties were in fact under the old compact.”. What may have been the legal foundation of such contentions need not now be considered. The inability of the national legislature to effect a legislative execution, and the unwillingness of the local legistures to recognize the obligation, moral or otherwise, had produced another expedient which was to be incorporated in the new Constitution, i. e., the operation of the treaty proprio vigore as a law binding on the courts, any State laws to the contrary notwithstanding.
III. The FEDERAL CONVENTION AND THE PERIOD
IMMEDIATELY FOLLOWING In the sketch of government presented to the Convention by Hamilton, June 18, 1787, the “Governor," in whom was to be vested the supreme executive authority, was "to have with the advice and approbation of the Senate the power of making all treaties.". The Senate was to consist of persons elected to serve during good behavior by electors chosen for that purpose by the people in election districts, into which the States were to be divided. Although the sketch made no provision as to the apportionment of the Senators among the States, in the paper turned over to Madison, about the close of the Convention, in which Hamilton delineated the Constitution which he had wished to be proposed by the Convention, and in which the organization of the treatymaking power is retained in similar form, it is clearly indicated that the States were not to share equally in the
Elliot's Debates, vol. iv, p. 278. See opinions of Mr. Justice Chase and Mr. Justice Iredell in Ware vs. Hylton, 3 Dallas, 237, 277.
* Documentarv History of the Constitution, vol. i, p. 327.