Article 6, Clause 2
James Madison to Edmund Pendleton2 Jan. 1791Papers 13:342--44
"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such impediments?"--As well as I recollect, the Act of Congress on that occasion, supposed the impediments to be repealed by the Treaty, and recommended a repeal by the States, merely as declaratory and in order to obviate doubts and discussions. 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 pre-existing 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.
The Founders' Constitution
Volume 4, Article 6, Clause 2, Document 20
The University of Chicago Press
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).