For the mischief itself, it may please your lordships to take into your consideration that, when revenge is once extorted out of the magistrate"s hands, contrary to G.o.d"s ordinance, _mihi_ _vindicta_, _ego_ _retribuam_, and every man shall bear the sword, not to defend, but to a.s.sail, and private men begin once to presume to give law to themselves and to right their own wrongs, no man can foresee the danger and inconveniences that may arise and multiply thereupon.
It may cause sudden storms in court, to the disturbance of his Majesty and unsafety of his person. It may grow from quarrels to bandying, and from bandying to trooping, and so to tumult and commotion; from particular persons to dissension of families and alliances; yea, to national quarrels, according to the infinite variety of accidents, which fall not under foresight. So that the State by this means shall be like to a distempered and imperfect body, continually subject to inflammations and convulsions.
Besides, certainly both in divinity and in policy, offenses of presumption are the greatest. Other offenses yield and consent to the law that it is good, not daring to make defense, or to justify themselves; but this offense expressly gives the law an affront, as if there were two laws, one a kind of gown law and the other a law of reputation, as they term it. So that Paul"s and Westminster, the pulpit and the courts of justice, must give place to the law, as the King speaketh in his proclamation, of ordinary tables, and such reverend a.s.semblies; the Yearbooks, and statute books must give place to some French and Italian pamphlets, which handle the doctrines of duels, which, if they be in the right, _transeamus_ _ad_ _illa_, let us receive them, and not keep the people in conflict and distraction between two laws. Again, my lords, it is a miserable effect, when young men full of towardness and hope, such as the poets call "_Aurorae_ _filii_," sons of the morning, in whom the expectation and comfort of their friends consisteth, shall be cast away and destroyed in such a vain manner. But much more it is to be deplored when so much n.o.ble and genteel blood should be spilt upon such follies, as, if it were adventured in the field in service of the King and realm, were able to make the fortune of a day and change the future of a kingdom. So your lordships see what a desperate evil this is; it troubleth peace; it disfurnisheth war; it bringeth calamity upon private men, peril upon the State, and contempt upon the law.
Touching the causes of it: the first motive, no doubt, is a false and erroneous imagination of honor and credit; and therefore the King, in his last proclamation, doth most aptly and excellently call them bewitching duels. For, if one judge of it truly, it is no better than a sorcery that enchanteth the spirits of young men, that bear great minds with a false show, _species_ _falsa_; and a kind of satanical illusion and apparition of honor against religion, against law, against moral virtue, and against the precedents and examples of the best times and valiantest nations; as I shall tell you by and by, when I shall show you that the law of England is not alone in this point. But then the seed of this mischief being such, it is nourished by vain discourses and green and unripe conceits, which, nevertheless, have so prevailed as though a man were staid and sober-minded and a right believer touching the vanity and unlawfulness of these duels; yet the stream of vulgar opinion is such, as it imposeth a necessity upon men of value to conform themselves, or else there is no living or looking upon men"s faces; so that we have not to do, in this case, so much with particular persons as with unsound and depraved opinions, like the dominations and spirits of the air which the Scripture speaketh of. Hereunto may be added that men have almost lost the true notion and understanding of fort.i.tude and valor. For fort.i.tude distinguisheth of the grounds of quarrels whether they be just; and not only so, but whether they be worthy; and setteth a better price upon men"s lives than to bestow them idly. Nay, it is weakness and disesteem of a man"s self, to put a man"s life upon such ledger performances.
A man"s life is not to be trifled away; it is to be offered up and sacrificed to honorable services, public merits, good causes, and n.o.ble adventures. It is in expense of blood as it is in expense of money. It is no liberality to make a profusion of money upon every vain occasion; nor no more is it fort.i.tude to make effusion of blood, except the cause be of worth. And thus much for the cause of this evil.
For the remedies. I hope some great and n.o.ble person will put his hand to this plough, and I wish that my labors of this day may be but forerunners to the work of a higher and better hand. But yet to deliver my opinion as may be proper for this time and place, there be four things that I have thought on, as the most effectual for the repressing of this depraved custom of particular combats.
The first is, that there do appear and be declared a constant and settled resolution in the State to abolish it. For this is a thing, my lords, must go down at once or not at all; for then every particular man will think himself acquitted in his reputation, when he sees that the State takes it to heart, as an insult against the King"s power and authority, and thereupon hath absolutely resolved to master it; like unto that which we set down in express words in the edict of Charles IX. of France, touching duels, that the King himself took upon him the honor of all that took themselves grieved or interested for not having performed the combat. So must the State do in this business; and in my conscience there is none that is but of a reasonable sober disposition, be he never so valiant, except it be some furious person that is like a firework, but will be glad of it, when he shall see the law and rule of State disinterest him of a vain and unnecessary hazard.
Secondly, care must be taken that this evil be no more c.o.c.kered, nor the humor of it fed; wherein I humbly pray your lordships, that I may speak my mind freely, and yet be understood aright. The proceedings of the great and n.o.ble commissioners martial I honor and reverence much, and of them I speak not in any sort. But I say the compounding of quarrels, which is otherwise in use by private n.o.blemen and gentlemen, is so punctual, and hath such reference and respect unto the received conceits, what is beforehand, and what is behindhand, and I cannot tell what, as without all question it doth, in a fashion, countenance and authorize this practice of duels as if it had in it somewhat of right.
Thirdly, I must acknowledge that I learned out of the King"s last proclamation, the most prudent and best applied remedy for this offense, if it shall please his Majesty to use it, that the wit of man can devise. This offense, my lords, is grounded upon a false conceit of honor; and therefore it would be punished in the same kind, in _eo_ _quis_ _rectissime_ _plect.i.tur_, _in_ _quo_ _peccat_.
The fountain of honor is the King and his aspect, and the access to his person continueth honor in life, and to be banished from his presence is one of the greatest eclipses of honor that can be. If his Majesty shall be pleased that when this court shall censure any of these offenses in persons of eminent quality, to add this out of his own power and discipline, that these persons shall be banished and excluded from his court for certain years, and the courts of his queen and prince, I think there is no man that hath any good blood in him will commit an act that shall cast him into that darkness that he may not behold his sovereign"s face.
Lastly, and that which more properly concerneth this court. We see, my lords, the root of this offense is stubborn; for it despiseth death, which is the utmost of punishments; and it were a just but a miserable severity to execute the law without all remission or mercy, where the case proveth capital. And yet the late severity in France was more, where by a kind of martial law, established by ordinance of the King and Parliament, the party that had slain another was presently had to the gibbet, insomuch as gentlemen of great quality were hanged, their wounds bleeding, lest a natural death should prevent the example of justice. But, my lords, the course which we shall take is of far greater lenity, and yet of no less efficacy; which is to punish, in this court, all the middle acts and proceedings which tend to the duel, which I will enumerate to you anon, and so to hew and vex the root in the branches, which, no doubt, in the end will kill the root, and yet prevent the extremity of law.
Now for the law of England, I see it excepted to, though ignorantly, in two points. The one, that it should make no difference between an insidious and foul murder, and the killing of a man upon fair terms, as they now call it. The other, that the law hath not provided sufficient punishment and reparations for contumely of words, as the lie, and the like. But these are no better than childish novelties against the divine law, and against all laws in effect, and against the examples of all the bravest and most virtuous nations of the world.
For first, for the law of G.o.d, there is never to be found any difference made in homicide, but between homicide voluntary and involuntary, which we term misadventure. And for the case of misadventure itself, there were cities of refuge; so that the offender was put to his flight, and that flight was subject to accident, whether the revenger of blood should overtake him before he had gotten sanctuary or no. It is true that our law hath made a more subtle distinction between the will inflamed and the will advised, between manslaughter in heat and murder upon prepensed malice or cold blood, as the soldiers call it; an indulgence not unfit for a choleric and warlike nation; for it is true, _ira_ _furor_ _brevis_, a man in fury is not himself. This privilege of pa.s.sion the ancient Roman law restrained, but to a case; that was, if the husband took the adulterer in the manner. To that rage and provocation only it gave way, that a homicide was justifiable. But for a difference to be made in killing and destroying man, upon a forethought purpose, between foul and fair, and, as it were, between single murder and vied murder, it is but a monstrous child of this latter age, and there is no shadow of it in any law, divine or human. Only it is true, I find in the Scripture that Cain enticed his brother into the field and slew him treacherously; but Lamech vaunted of his manhood, that he would kill a young man, and if it were to his hurt; so as I see no difference between an insidious murder and a braving or presumptuous murder, but the difference between Cain and Lamech. As for examples in civil states, all memory doth consent, that Graecia and Rome were the most valiant and generous nations of the world; and that, which is more to be noted, they were free estates, and not under a monarchy; whereby a man would think it a great deal the more reason that particular persons should have righted themselves. And yet they had not this practice of duels, nor anything that bare show thereof; and sure they would have had it, if there had been any virtue in it. Nay, as he saith, "_Fas_ _est_ _et_ _ab_ _hoste_ _doceri_" It is memorable, that which is reported by a counsel or amba.s.sador of the emperor, touching the censure of the Turks of these duels. There was a combat of this kind performed by two persons of quality of the Turks, wherein one of them was slain, and the other party was converted before the council of bashaws. The manner of the reprehension was in these words: "How durst you undertake to fight one with the other? Are there not Christians enough to kill? Did you not know that whether of you shall be slain, the loss would be the great seignor"s?" So, as we may see, the most warlike nations, whether generous or barbarous, have ever despised this wherein now men glory.
It is true, my lords, that I find combats of two natures authorized, how justly I will not dispute as to the latter of them. The one, when upon the approaches of armies in the face one of the other, particular persons have made challenges for trial of valors in the field upon the public quarrel. This the Romans called "_pugna_ _per_ _provocationem_." And this was never, but either between the generals themselves, who were absolute, or between particulars by license of the generals; never upon private authority. So you see David asked leave when he fought with Goliath; and Joab, when the armies were met, gave leave, and said "Let the young man play before us." And of this kind was that famous example in the wars of Naples, between twelve Spaniards and twelve Italians, where the Italians bore away the victory; besides other infinite like examples worthy and laudable, sometimes by singles, sometimes by numbers.
The second combat is a judicial trial of right, where the right is obscure, introduced by the Goths and the northern nations, but more anciently entertained in Spain. And this yet remains in some cases as a divine lot of battle, though controverted by divines, touching the lawfulness of it; so that a wise writer saith: "_Taliter_ _pugnantes_ _videntur_ _tentare_ _Deum_, _quia_ _hoc_ _volunt_ _ut_ _Deus_ _ostendat_ _et_ _faciat_ _miraculum_, _ut_ _justam_ _causam_ _habens_ _victor_ _efficiatur_, _quod_ _saepe_ _contra_ _accidit_."
But whosoever it be, this kind of fight taketh its warrant from law.
Nay, the French themselves, whence this folly seemeth chiefly to have flown, never had it but only in practice and toleration, and never as authorized by law; and yet now of late they have been fain to purge their folly with extreme rigor, in so much as many gentlemen left between death and life in the duels, as I spake before, were hastened to hanging with their wounds bleeding. For the State found it had been neglected so long, as nothing could be thought cruelty which tended to the putting of it down. As for the second defect, pretended in our law, that it hath provided no remedy for lies and fillips, it may receive like answer. It would have been thought a madness amongst the ancient lawgivers to have set a punishment upon the lie given, which in effect is but a word of denial, a negative of another"s saying. Any lawgiver, if he had been asked the question, would have made Solon"s answer: That he had not ordained any punishment for it, because he never imagined the world would have been so fantastical as to take it so highly. The civilians dispute whether an action of injury lie for it, and rather resolve the contrary. And Francis I. of France, who first set on and stamped this disgrace so deep, is taxed by the judgment of all wise writers for beginning the vanity of it; for it was he, that when he had himself given the lie and defy to the Emperor, to make it current in the world, said in a solemn a.s.sembly, "that he was no honest man that would bear the lie," which was the fountain of this new learning.
As for the words of approach and contumely, whereof the lie was esteemed none, it is not credible, but that the orations themselves are extant, what extreme and exquisite reproaches were tossed up and down in the Senate of Rome and the places of a.s.sembly, and the like in Graecia, and yet no man took himself fouled by them, but took them but for breath, and the style of an enemy, and either despised them or returned them, but no blood was spilt about them.
So of every touch or light blow of the person, they are not in themselves considerable, save that they have got them upon the stamp of a disgrace, which maketh these light things pa.s.s for great matters. The law of England and all laws hold these degrees of injury to the person, slander, battery, mayhem, death; and if there be extraordinary circ.u.mstances of despite and contumely, as in case of libels and bastinadoes and the like, this court taketh them in hand and punisheth them exemplarily. But for this apprehension of a disgrace that a fillip to the person should be a mortal wound to the reputation, it were good that men did hearken unto the saying of Gonsalvo, the great and famous commander, that was wont to say a gentleman"s honor should be _de_ _tela_ _cra.s.siore_, of a good strong warp or web, that every little thing should not catch in it; when as now it seems they are but of cobweb-lawn or such light stuff, which certainly is weakness, and not true greatness of mind, but like a sick man"s body, that is so tender that it feels everything. And so much in maintenance and demonstration of the wisdom and justice of the law of the land.
For the capacity of this court, I take this to be a ground infallible, that wheresoever an offense is capital, or matter of felony, though it be not acted, there the combination or practice tending to the offense is punishable in this court as high misdemeanor. So practice to imprison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon"s case.
Why, then, the major proposition being such, the minor cannot be denied, for every appointment of the field is but combination and plotting of murder. Let them gild it how they list, they shall never have fairer terms of me in a place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge. It was the case of Wharton, plaintiff, against Ellekar and Acklam, defendants, where Acklam, being a follower of Ellekar"s, was censured for carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree, that such challenges are to the subversion of government. These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case I would be thought not to innovate anything of my own head, but to follow the former precedents of the court, though I mean to do it more thoroughly, because the time requires it more.
Therefore now to come to that which concerneth my part, I say that by the favor of the king and the court, I will prosecute in this court in the cases following: If any man shall appoint the field, though the fight be not acted or performed. If any man shall send any challenge in writing, or any message of challenge. If any man carry or deliver any writing or message of challenge. If any man shall accept to be second in a challenge of either side. If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas. If any man shall revive a quarrel by any scandalous bruits or writings, contrary to former proclamation published by his Majesty in that behalf.
Nay I hear there be some counsel learned of duels, that tell voting men when they are beforehand, and when they are otherwise and thereby incense and incite them to the duel, and make an art of it. I hope I shall meet with some of them too; and I am sure, my lords, this course of preventing duels, in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.
To conclude, I have some pet.i.tions to make first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his Majesty"s writ of _ne_ _exeat_ _regnum_ to stop him, for this giant bestrideth the sea, and I would take and snare him by the foot on this side; for the combination and plotting is on this side, though it should be acted beyond the sea. And your lordship said notably the last time I made a motion in this business, that a man may be as well _fur_ _de_ _se_ as _felo_ _de_ _se_, if he steal out of the realm for a bad purpose. As for the satisfying of the words of the writ, no man will doubt but he does _machinari_ _contra_ _coronam_, as the words of the writ be, seeking to murder a subject; for that is ever _contra_ _coronam_ _et_ _dignitatem_. I have also a suit to your lordships all in general, that for justice"s sake, and for true honor"s sake, honor of religion, law, and the King our master, against this fond and false disguise or puppetry of honor. I may, in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, I may, I say, be countenanced and a.s.sisted from your lordships. Lastly, I have a pet.i.tion to the n.o.bles and gentlemen of England, that they would learn to esteem themselves at a just price. _Non_ _hos_ _quaesitim_ _munus_ _in_ _usus_--their blood is not to be spilt like water or a vile thing; therefore, that they would rest persuaded there cannot be a form of honor, except it be upon a worthy matter. But this, _ipsi_ _viderunt_, I am resolved.
JAMES BARBOUR (1775-1842)
Senator James Barbour"s speech on the treaty-making power, made in the United States Senate in January 1816, is one of the ablest and most concise presentations of the Virginia view of the Federal const.i.tution represented by Madison before he came under Jefferson"s influence. The speech itself, here reproduced from Benton"s "Debates," sufficiently explains all that is of permanent importance in the question presented to the Senate, If, under the Federal const.i.tution, it was necessary after the ratification of a treaty to specially repeal laws in conflict with it, then such laws and "munic.i.p.al regulations" as remained unrepealed by special act would be in force in spite of the treaty. Arguing against this as it affected the treaty-making power of the Senate from which the House of Representatives was excluded by the const.i.tution, Senator Barbour declared the treaty-making power supreme over commerce, and incidentally a.s.serted that unless there is such a supremacy lodged somewhere in the government, the condition would be as anomalous as that of Christendom when it had three Popes.
Mr. Barbour was born in 1775 and educated for the bar. He served in the Virginia legislature, was twice governor of the State, and twice elected to represent it in the United States Senate. He was Secretary of War in 1825 under John Quincy Adams, who sent him as minister to England--a post from which he was recalled by President Jackson. He presided over the national convention which nominated William Henry Harrison for the presidency, dying in 1842.
TREATIES AS SUPREME LAWS
Mr. President, as it seems to be the wish of the Senate to pa.s.s upon this subject without debate, it adds to the reluctance I always feel when compelled, even by a sense of duty, to intrude on their attention. Yet, as I feel myself obliged, under the solemn responsibility attached to the station I hold here, to vote against the bill under consideration--as I think, also, it is but a due respect to the other branch of the legislature, from whom it is my misfortune to differ, and but an act of justice to myself to state the grounds of my opinion, I must be pardoned for departing from the course which seemed to be desired by the Senate.
In the exercise of this privilege, with a view to promote the wishes of the Senate as far as a sense of duty will permit, I will confine myself to a succinct view of the most prominent objections which lie against its pa.s.sage, rather than indulge in the extensive range of which the subject is susceptible. Before I enter into the discussion of the merits of the question, I beg leave to call the attention of the Senate to the course which was adopted by us in relation to this subject. A bill, brought in by the Committee on Foreign Relations, pa.s.sed the Senate unanimously, declaring that all laws in opposition to the convention between the United States and Great Britain, concluded on the third of July last, should be held as null and void. The principle on which this body acted was, that the treaty, upon the exchange of its ratification, did, of itself, repeal any commercial regulation, incompatible with its provisions, existing in our munic.i.p.al code; it being by us believed at the time that such a bill was not necessary, but by a declaratory act, it was supposed, all doubts and difficulties, should any exist, might be removed. This bill is sent to the House of Representatives, who, without acting thereon, send us the one under consideration, but differing materially from ours. Far from pretending an intimate knowledge of the course of business pursued by the two houses, I do not say that the mode adopted in this particular case is irregular, but if it has not the sanction of precedent, it appears to me to be wanting in that courtesy which should be perpetually cherished between the two houses. It would have been more decorous to have acted on our bill, to have agreed to it if it were approved, to reject or amend it. In the latter case, upon its being returned to the Senate, the views of the other body would have been contrasted with our own, and we might then have regularly pa.s.sed upon the subject. A different course, however, has been adopted; and if a regard to etiquette had been the only obstacle to my support to the bill, it would have been readily given; for it is the substance, and not the shadow, which weighs with me. The difference between the two bills is rendered important by its involving a const.i.tutional question.
It is my misfortune, for such I certainly esteem it, to differ from the other branch of the legislature on that question; were it a difference of opinion on the expediency of a measure, it might readily be obviated, as being entirely free, or at least I hope so, from pride of opinion. My disposition is to meet, by mutual concession, those with whom I am in the habit of acting; but when a principle of the const.i.tution is involved, concession and compromise are out of the question. With one eye on the sacred charter of our liberties, and the other on the solemn sanction under which I act here, I surrender myself to the dictates of my best judgment (weak enough G.o.d knows), and fearlessly pursue the course pointed out by these guides. My regret is certainly greatly lessened by the reflection that there is no difference of opinion with any one on the propriety of executing the treaty with good faith--we differ only as to the manner in which our common purpose shall be effected.
The difference between the friends of the bill, and those opposed to it is, as I understand it, this: the former contend, that the law of Congress, discriminating between American and British tonnage, is not abrogated by the treaty, although its provisions conflict with the treaty, but that to effect its repeal, the bill in question, a mere echo of the treaty, must pa.s.s; the latter, among whom I wish to be considered, on the contrary say, that the law above alluded to was annulled upon the ratification of the treaty. I hope I have succeeded in stating the question fairly, for that certainly was my wish, and it is also my determination to discuss it in the same spirit.
This, then, is the issue which is made up between the friends and the opponents of the bill; and although in its practical effects I cannot believe it would be of consequence which way it is decided, yet, as the just interpretation of the const.i.tution is the pivot on which it turns, from that consideration alone the question becomes an interesting one.
Fortunately for us we have a written const.i.tution to recur to, dictated with the utmost precision of which our language is susceptible--it being the work of whatsoever of wisdom, of experience, and of foresight, united America possessed.
To a just understanding of this instrument, it will be essential to recur to the object of its adoption; in this there can be no difference of opinion. The old band of union had been literally dissolved in its own imbecility; to remedy this serious evil, an increase of the powers of the general government was indispensable.
To draw the line of demarcation between the powers thus granted to the general government, and those retained by the States, was the primary and predominating object. In conformity with this view, we find a general enumeration of the powers a.s.signed the former, of which Congress is made the depository; which powers, although granted to Congress in the first instance, are, in the same instrument, subsequently distributed among the other branches of the government. Various examples might be adduced in support of this position. The following for the present will suffice: Article i., section i, of the const.i.tution declares, that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Yet we find, by the seventh section of the same article, the President invested with a large share of legislative power, and, in fact, const.i.tuting an integral branch of the legislature; in addition to this, I will here barely add, that the grant of the very power to regulate the exercise of which gave birth to this bill, furnishes, by the admission of the friends of the bill, another evidence of the truth of this position, as I shall show hereafter; and, therefore, to comprehend the true meaning of the const.i.tution, an isolated view of a particular clause or section will involve you in error, while a comprehensive one, both of its spirit and letter, will conduct you to a just result; when apparent collisions will be removed, and vigor and effect will be given to every part of the instrument.
With this principle as our guide, I come directly to that part of the const.i.tution which recognizes the treaty-making power. In the second clause, second section, second article, are the following plain and emphatic words: "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Two considerations here irresistibly present themselves--first, there is no limitation to the exercise of the power, save such restrictions as arise from the const.i.tution, as to the subjects on which it is to act; nor is there any partic.i.p.ation of the power, with any other branch of the government, in any way alluded to.
Am I borne out in this declaration by the clause referred to? That I am, seems to me susceptible of demonstration. To the President and Senate has been imparted the power of making treaties. Well, what is a treaty? If a word have a known signification by the common consent of mankind, and it be used without any qualification in a law, const.i.tution, or otherwise, the fair inference is that the received import of such word is intended to be conveyed. If so, the extent of the power intended to be granted admits of no difficulty.
It reaches to those acts of courtesy and kindness, which philanthropy has established in the intercourse of nations, as well as to treaties of commerce, of boundaries, and, in fine, to every international subject whatsoever. This exposition is supported by such unequivocal authority, that it is believed it will not be questioned. I, therefore, infer that it will be readily yielded, that in regard to the treaty, in aid of which this bill is exhibited, the treaty-making power has not exceeded its just limits.
So far we have proceeded on sure ground; we now come to the pith of the question. Is the legislative sanction necessary to give it effect? I answer in the negative. Why? Because, by the second clause of the sixth article of the const.i.tution, it is declared that all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land. If this clause means anything, it is conclusive of the question.
If the treaty be a supreme law, then whatsoever munic.i.p.al regulation comes within its provisions must _ipso_ _facto_ be annulled--unless gentlemen contend there can be at the same time two supreme laws, emanating from the same authority, conflicting with each other, and still both in full vigor and effect. This would indeed produce a state of things without a parallel in human affairs, unless indeed its like might be found in the history of the Popes. In one instance, we are told, there were three at one time roaming over the Christian world, all claiming infallibility, and denouncing their anathemas against all who failed to yield implicit obedience to their respective mandates, when to comply with the one was to disobey the other. A result like this, so monstrous in its aspect, excludes the interpretation which produces it. It is a safe course in attempting to ascertain the meaning of a law or const.i.tution to connect different clauses (no matter how detached) upon the same subject together. Let us do it in this case. The President shall have power, by and with the advice and consent of the Senate, to make treaties, which treaties shall be the supreme law of the land. I seek to gain no surrept.i.tious advantage from the word supreme, because I frankly admit that it is used in the Const.i.tution, in relation to the laws and const.i.tutions of the States; but I appeal to it merely to ascertain the high authority intended to be imparted by the framers of the const.i.tution to a ratified treaty. It is cla.s.sed in point of dignity with the laws of the United States. We ask for no superiority, but equality; and as the last law made annuls a former one, where they conflict, so we contend that a subsequent treaty, as in the present case, revokes a former law in opposition thereto. But the other side contend that it is inferior to the law in point of authority, which continues in full force despite of a treaty, and to its repeal the a.s.sent of the whole legislature is necessary. Our claims rest on the expressed words of the const.i.tution--the opposite on implication; and if the latter be just, I cannot forbear to say that the framers of the const.i.tution would but ill deserve what I have heretofore thought a just tribute to their meritorious services. If they really designed to produce the effect contended for, instead of so declaring by a positive provision, they have used a language which, to my mind, operates conclusively against it. Under what clause of the const.i.tution is the right to exercise this power set up? The reply is, the third clause of eighth section, first article--Congress shall have power to regulate commerce with foreign nations, etc. I immediately inquire to what extent does the authority of Congress, in relation to commercial treaties, reach? Is the aid of the legislature necessary in all cases whatsoever, to give effect to a commercial treaty? It is readily admitted that it is not. That a treaty, whose influence is extra territorial, becomes obligatory the instant of its ratification. That, as the aid of the legislature is not necessary to its execution, the legislature has no right to interpose. It is then admitted that while a general power on the subject of commerce is given to Congress, that yet important commercial regulations may be adopted by treaty, without the co-operation of the legislature, notwithstanding the generality of the grant of power on commercial subjects to Congress. If it be true that the President and Senate have, in their treaty-making power, an exclusive control over part and not over the whole, I demand to know at what point that exclusive control censes? In the clause relied upon, there is no limitation. The fact is, sir, none exists. The treaty-making power over commerce is supreme. No legislative sanction is necessary, if the treaty be capable of self-execution, and when a legislative sanction is necessary, as I shall more at large hereafter show, such sanction, when given, adds nothing to the validity of the treaty, but enables the proper authority to execute it; and when the legislature do act in this regard, it in under such obligation as the necessity of fulfilling a moral contract imposes.
If it be inquired of me what I understand by the clause in question, in answer I refer to the principle with which I set out: that this was a grant of power to the general government of which Congress was in the first instance merely the depository, which power, had not a portion thereof been transferred to another branch of the government, would have been exclusively exercised by Congress, but that a distribution of this power has been made by the const.i.tution; as a portion thereof has been given to the treaty-making power, and that which is not transferred is left in the possession of Congress. Hence, to Congress it is competent to act in this grant in its proper character by establishing munic.i.p.al regulations. The President and the Senate, on the other hand, have the same power within their sphere, that is, by a treaty or convention with a foreign nation, to establish such regulations in regard to commerce, as to them may seem friendly to the public interest. Thus each department moves in its own proper orbit, nor do they come in collision with each other. If they have exercised their respective powers on the same subject, the last act, whether by the legislature or the treaty-making power, abrogates a former one. The legislature of the nation may, if a cause exist in their judgment sufficient to justify it, abrogate a treaty, as has been done; so the President and Senate by a treaty may abrogate a pre-existing law containing interfering provisions, as has been done heretofore (without the right being questioned), and as we say in the very case under consideration. I will endeavor to make myself understood by examples; Congress has power, under the clause in question, to lay embargoes, to pa.s.s nonintercourse, or nonimportation, or countervailing laws, and this power they have frequently exercised. On the other hand, if the nation against whom one of those laws is intended to operate is made sensible of her injustice and tenders reparation, the President and Senate have power by treaty to restore the amicable relations between the two nations, and the law directing otherwise, upon the ratification of the treaty, is forthwith annulled. Again, if Congress should be of opinion that the offending nation had not complied with their engagements, they might by law revoke the treaty, and place the relation between the two nations upon such footing as they approved. Where is the collision here? I see none. This view of the subject presents an aspect as innocent as that which is produced when a subsequent law repeals a former one. By this interpretation you reconcile one part of the const.i.tution with another, giving to each a proper effect, a result always desirable, and in rules of construction claiming a precedence to all others. Indeed, sir, I do not see how the power in question could have been otherwise arranged. The power which has been a.s.signed to Congress was indispensable; without it we should have been at the mercy of a foreign government, who, knowing the incompetency of Congress to act, would have subjected our commerce to the most injurious regulations, as was actually the case before the adoption of the const.i.tution, when it was managed by the States, by whom no regular system could be established; indeed, we all know this very subject was among the most prominent of the causes which produced the const.i.tution. Had this state of things continued, no nation which could profit by a contrary course would have treated. On the other hand, had not a power been given to some branch of the government to treat, whatever might have been the friendly dispositions of other powers, or however desirous to reciprocate beneficial arrangements, they could not, without a treaty-making power lodged somewhere, be realized.
I therefore contend, that although to Congress a power is given in the clause alluded to, to regulate commerce, yet this power is in part, as I have before endeavored to show, given to the President and Senate in their treaty-making capacity--the truth of which position is admitted by the friends of the bill to a certain extent.
The fact is, that the only difference between us is to ascertain the precise point where legislative aid is necessary to the execution of the treaty, and where not. To fix this point is to settle the question. After the most mature reflection which I have been able to give this subject, my mind has been brought to the following results; Whenever the President and Senate, within the acknowledged range of their treaty-making power, ratify a treaty upon extraterritorial subjects, then it is binding without any auxiliary law. Again, if from the nature of the treaty self-executory, no legislative aid is necessary. If on the contrary, the treaty from its nature cannot be carried into effect but by the agency of the legislature, that is, if some munic.i.p.al regulation be necessary, then the legislature must act not as partic.i.p.ating in the treaty-making power, but in its proper character as a legislative body.
BARNAVE (1761-1793)
Antoine Pierre Joseph Marie Barnave was born at Gren.o.ble, France, in 1761. He was the son of an advocate, who gave him a careful education. His first work of a public character, a pamphlet against the Feudal system, led to his election to the States-General in 1789. He advocated the Proclamation of the Rights of Man and identified himself with those enthusiastic young Republicans of whom Lafayette is the best type. The emanc.i.p.ation of the Jews from all civil and religious disabilities and the abolition of slavery throughout French territory owed much to his efforts. He also opposed the Absolute Veto and led the fight for the sequestration of the property of the Church. This course made him a popular idol and in the early days of the Revolution he was the leader of the extreme wing of the Republicans. When he saw, however, that mob law was about to usurp the place of the Republican inst.i.tutions for which he had striven, he leaned towards the court and advocated the sacrosanct.i.ty of the King"s person. Denounced as a renegade, with his life threatened and his influence lost, he retired to his native province. In August 1792 he was impeached for correspondence with the King, and on November 26th, 1793. he was guillotined. The specimens of his eloquence here given were translated for this Library from the Paris edition of his works, published in 1843.
REPRESENTATIVE DEMOCRACY AGAINST MAJORITY ABSOLUTISM (Delivered in the National a.s.sembly, August 11th, 1791)
It is not enough to desire to be free--one must know how to be free. I shall speak briefly on this subject, for after the success of our deliberations, I await with confidence the spirit and action of this a.s.sembly. I only wish to announce my opinions on a question, the rejection of which would sooner or later mean the loss of our liberties. This question leaves no doubt in the minds of those who reflect on governments and are guided by impartial judgments. Those who have combatted the committee have made a fundamental error. They have confounded democratic government with representative government; they have confounded the rights of the people with the qualifications of an elector, which society dispenses for its well understood interest. Where the government is representative, where there exists an intermediary degree of electors, society which elects them has essentially the right to determine the conditions of their eligibility. There is one right existing in our const.i.tution, that of the active citizen, but the function of an elector is not a right. I repeat, society has the right to determine its conditions. Those who misunderstand the nature as they do the advantages of representative government, remind us of the governments of Athens and Sparta, ignoring the differences that distinguish them from France, such as extent of territory, population, etc. Do they forget that they interdicted representative government? Have they forgotten that the Lacedemonians had the right to vote in the a.s.semblies only when they held helots? And only by sacrifice of individual rights did the Lacedemonians, Athenians, and Romans possess any democratic governments! I ask those who remind us of them, if it is at such government they would arrive? I ask those who profess here metaphysical ideas, because they have no practical ideas, those who envelop the question in clouds of theory, because they ignore entirely the fundamental facts of a positive government--I ask is it forgotten that the democracy of a portion of a people would exist but by the entire enslavement of the other portion of the people? A representative government has but one evil to fear, that of corruption. That such a government shall be good, there must be guaranteed the purity and incorruptibility of the electorate. This body needs the union of three eminent guarantees. First, the light of a fair education and broadened views. Second, an interest in things, and still better if each had a particular and considerable interest at stake to defend. Third, such condition of fortune as to place the elector above attack from corruption.
These advantages I do not look for in the superior cla.s.s of the rich, for they undoubtedly have too many special and individual interests, which they separate from the general interests. But if it is true that we must not look for the qualifications of the pure elector among the eminently rich, neither should I look for it among those whose lack of fortune has prevented their enlightenment; among such, unceasingly feeling the touches of want, corruption too easily can find its means. It is, then, in the middle cla.s.s that we find the qualities and advantages I have cited. And, I ask, is it the demand that they contribute five to ten francs that causes the a.s.sertion that we would throw elections into the hands of the rich?
You have established the usage that the electors receive nothing; if it were otherwise their great number would make an election most expensive. From the instant that the voter has not means enough to enable him to sacrifice a little time from his daily labor, one of three things would occur. The voter would absent himself, or insist on being paid by the State, else he would be rewarded by the one who wanted to obtain his suffrage. This does not occur when a comfortable condition is necessary to const.i.tute an elector. As soon as the government is established, when the const.i.tution is guaranteed, there is but a common interest for those who live on their property, and those who toil honestly. Then can be distinguished those who desire a stable government and those who seek but revolution and change, since they increase in importance in the midst of trouble as vermin in the midst of corruption.
If it is true, then, that under an established const.i.tutional government all its well-wishers have the same interest, the power of the same must be placed in the hands of the enlightened who can have no interest pressing on them, greater than the common interest of all the citizens. Depart from these principles and you fall into the abuses of representative government. You would have extreme poverty in the electorate and extreme opulence in the legislature. You would see soon in France what yon see now in England, the purchase of voters in the boroughs not with money even, but with pots of beer. Thus incontestably are elected many of their parliamentary members. Good representation must not be sought in either extreme, but in the middle cla.s.s. The committee have thus placed it by making it inc.u.mbent that the voter shall possess an acc.u.mulation the equivalent of, say forty days of labor. This would unite the qualities needed to make the elector exercise his privilege with an interest in the same. It is necessary that he own from one hundred and twenty to two hundred and forty livres, either in property or chattels. I do not think it can seriously be said that this qualification is fixed too high, unless we would introduce among our electors men who would beg or seek improper recompense.
If you would have liberty subsist do not hesitate because of specious arguments which will be presented to you by those who, if they reflect, will recognize the purity of our intentions and the resultant advantages of our plans. I add to what I have already said that the system will diminish many existing inconveniences, and the proposed law will not have its full effect for two years. They tell us we are taking from the citizen a right which elevated him by the only means through which he can acquire it. I reply that if it was an honor the career which you will open for them will imprint them with character greater and more in conformity with true equality. Our opponents have not failed either to magnify the inconveniences of changing the const.i.tution. Nor do I desire its change. For that reason we should not introduce imprudent discussions to create the necessity of a national convention. In one word, the advice and conclusions of the committee are the sole guarantees for the prosperity and peaceable condition of the nation.
COMMERCIAL POLITICS