Notes on Debates
The subject of yesterday Resumed.
Mr. Yates was now satisfied with the Resolutions as they stood. The words, “constitutionally made” as applied to the Treaty seemed to him on consideration to qualify sufficiently the doctrine on which the Resolution was founded.
The 1st. Resolution declaring the Treaty to have the force of a law & denying the Right of any State to contravene it was agreed to without dissent & almost without observation.
The 2d & 3d Resolutions urging on the States a repeal of all laws contravening the Treaty, (1st. that they might not continue to operate, as violations of it. 2d. that questions might be avoided touching their validity) underwent some criticisms & discussions.1
Mr. Varnum & Mr. Mitchel thought they did not consist with the first which declared such laws to be void, in which case they cd. not operate as violations.
Mr. Madison observed that a Repeal of those contravening laws was expedient & even necessary to free the Courts from the bias of their oaths which bound the Judges more strongly to the State than the federal authority. The distinction too he said might be started possibly between laws prior & laws subsequent to the Treaty: a Repealing effect of the Treaty on the former, not necessarily implying the nullity of the latter. Supposing the Treaty to have the validity of a law only, it would repeal all antecedent laws. To render succeeding laws void, it must have more than the mere authority of a law. In case these succeeding laws contrary to the Treaty should come into discussion before the Courts, it would be necessary to examine the foundation of the federal authority, and to determine whether it had the validity of a Constitution, paramount to the legislative authority in each State. This was a delicate question, and studiously to be avoided as it was notorious that although in some of the States the Confederation was incorporated with & had the sanction of their respective Constitutions, yet in others it recd. a legislative ratification only and rested on no other basis. He admitted however that the word operate might be changed for the better & proposed in its place, the words “be regarded” as violations of the Treaty which was agreed to without objection.
Mr. King in the course of the business observed that a question had been raised in N. York, whether stipulations as they might affect Citizens only and not foreigners could, restrain the States from legislating with respect to the former, and supposed that such stipulations could not.
The Resolutions passed unanimously.2
1. The second resolution of Jay’s report declared “that all such Acts or parts of Acts as may be now existing in either of the States, repugnant to the treaty of peace, ought to be forthwith repealed; as well to prevent their continuing to operate 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 rather by describing than reciting the said Acts; and for that purpose to pass an Act, declaring in general terms, that all such Acts and parts of acts repugnant to the treaty of peace between the United States and his britannic Majesty, or any Article thereof, shall be and thereby are repealed: and that the Courts of law and equity in all Causes and questions cognizable by them respectively, and arising from or touching the said treaty, shall decide and adjudge according to the true intent and meaning of the same, any thing in the said Acts or parts of Acts to the contrary thereof in any wise notwithstanding” (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXI, 870).
2. The resolutions as passed were identical with those recommended by Jay, except for the change in the second resolution suggested by JM (JCC description begins Worthington Chauncey Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 124–25).