To Edmund Pendleton
Philada. Jany. 2d. 1791.
Previous to my leaving N. Y. I recd. a letter from you1 which was not then answered, because the subject of it required more consideration than could then be spared and because an answer was not prompted by any thing agitated or proposed on the subject, in Congress. I am afraid that notwithstanding the interval which has passed I am still not sufficiently prepared to do justice to your queries, some of which are of a delicate, and all of which are of an important nature. I am however the less concerned on this account, as I am sure that your own reflections will have embraced every idea, which mine, if ever so mature, could have suggested.
‘Your first quere is, are the words of the Treaty “there shall be no legal impediment to the bona fide recovery of debts on either side” a law of repeal, or a covenant that a law of repeal shall be passed?’—As Treaties are declared to be the supreme law of the land, I should suppose that the words of the treaty are to be taken for the words of the law, unless the stipulation be expressly or necessarily executory, which does not in this instance appear to be the case.
‘Was not the contrary the sense of the Congress who made the Treaty, when they called on the States to repeal the several laws containing such impediments?’—As well as I recollect, the Act of Congress on that occasion, supposed the impediments to be repealed by the Treaty, and recommended a repeal by the States, merely as declaratory and in order to obviate doubts and discussions.2 Perhaps too, on a supposition that a legal repeal might have been necessary previous to the new Constitution, it may be rendered unnecessary by the terms of this instrument above quoted, which seem to give a legal force to the Treaty.
‘Admitting the treaty to be a law of repeal, what is the extent of it? Does it repeal all acts of limitation, & such as regulate the modes of proving debts?’—This question probably involves several very nice points, and requires a more critical knowledge of the State of the American laws, the course of legal proceedings, and the circumstances of the British debts, than I possess. Under this disadvantage, I am afraid to say more than that the probable intention of the parties, and the expression, “bona fide recovery of debts” seem to plead for a liberal & even favorable interpretation of the article. Unless there be very strong and clear objections, such an interpretation would seem to require, that the debts should be viewed as in the State, in which the original obstacles to their recovery, found them; so far at least as the nature of the case will permit.
‘What is meant by the supreme law as applied to treaties? Is it like those of the Medes & Persians unalterable? or may not the contracting powers annul it by consent? or a breach on one side discharge the other from an obligation to perform its part?’—Treaties as I understand the Constitution are made supreme over the constitutions and laws of the particular States, and, like a subsequent law of the U. S., over preexisting laws of the U. S. provided however that the Treaty be within the prerogative of making Treaties, which no doubt has certain limits.
That the contracting powers can annul the Treaty, cannot I presume, be questioned; the same authority precisely being exercised in annulling as in making a Treaty.
That a breach on one side (even of a single article, each being considered as a condition of every other article) discharges the other, is as little questionable; but with this reservation, that the other side is at liberty to take advantage or not of the breach, as dissolving the Treaty. Hence I infer that the Treaty with G. B, which has not been annulled by mutual consent, must be regarded as in full force, by all on whom its execution in the U. S. depends, until it shall be declared by the party to whom a right has accrued by the breach of the other party to declare, that advantage is taken of the breach, & the Treaty is annulled accordingly. In case it should be adviseable to take advantage of the adverse breach a question may perhaps be started, whether the power vested by the Constitution with respect to Treaties in the President & Senate, makes them the competent Judges, or whether as the Treaty is a law the whole Legislature are to judge of its annulment—or whether, in case the President & Senate be competent in ordinary Treaties, the Legislative authority be requisite to annul a Treaty of peace, as being equipollent to a Declaration of war, to which that authority alone, by our Constitution, is competent.
Mr. White tells me he has sent you a copy of Col: Hamilton’s plan of a Bank. I do not therefore inclose one. I augur that you will not be in love with some of its features. Mr. Randolphs Report on the Judiciary is not yet printed. I know that a copy is allotted for you. The report of the ways & means from the Treasury Dept. for the assumed debt, has been in the Newspapers & has I presume found its way to you thro’ that channel. There are objections of different sorts to the proposed mode of revenue. But as direct taxes wd. be still more generally obnoxious, and as imports are already loaded as far as they will bear, an excise is the only resource, and of all articles, distilled spirits are least objectionable. Indeed the duty imposed on imported rum, forces a proportional duty on Country rum, and from the latter a duty on other spirits distilled at home results of course. There is of consequence scarce an option.
The Militia bill and a plan for disposing of the public lands have been under consideration for some time, and have made some progress; but are not in a state as yet from which their final shape can be decided. The Senate have before them, the bank, the report of the Secy. of State on weights & measures, and the case of Kentucky. This last subject has experienced no other difficulties than what proceeded from some little scruples concerning punctilios in the transition from the old to the new station of the District. I understand from Col: Monroe, that the Senate are really disposed to forward the object. Vermont will probably soon follow, and may even be a member of the Union, before the period to which the law of Virginia postpones the actual admission of Kentuckey.
The Gazette of last evening3 contains the following paragraph under the Philada. head—
“By an Express which arrived this afternoon at the post-office from Lewistown, near the Capes of Delaware, we have recd. letters from London down to the 4th. of November. The following letter will convey important intelligence to the American public.
Copy of a letter recd. by the Lord Mayor of London from the Duke of Leeds.
I have the honor to acquaint your Lordship that the Messenger Dressin arrived here this morning with dispatches from Mr. Fitzherbert, ambassador at the Court of Madrid, dated Sunday 24 Octobr: containing an account that a convention for terminating the differences which had arisen with that Court, had been agreed upon, between his Excellency on the part of his Majesty, and the Ct. de Florida Blanca, on the part of the Catholic King; and that the Convention was to be signed and exchanged by those Ministers the 27 of the same month.
London 4. Novr.
From this extract it may be concluded, unless there be a forgery not to be suspected, that the question which has been so long depending between G. B. & Spain has issued in peace.
The date of my letter reminds me of the compliments which belong to the Season. I offer them with the sincerest wish that they may yet often be repeated to you, and that the state of health in which this will find you, may promise that satisfaction to all your friends, among whom no one will enjoy it in a higher degree than Your affecte. & Obedt. servt.
Js. Madison Jr
RC (DLC). Docketed by Pendleton.
2. See the resolutions of Congress of 21 Mar. 1787 and John Jay’s address of 13 Apr. 1787 (signed by President Arthur St. Clair) accompanying those resolutions (JCC description begins Worthington C. Ford et al., eds., Journals of the Continental Congress, 1774–1789 (34 vols.; Washington, 1904–37). description ends , XXXII, 124–25, 177–84; PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , IX, 326 and n. 2, 326–27 and n. 1).
3. Philadelphia Fed. Gazette, 1 Jan. 1791.