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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --Wednesday Mar. 21.
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.
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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.
Mr. Varnum & Mr. Mitchel thought they did not consist with the first which declared such laws to be void, in which case they wd. 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. A 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, paramont 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
Nothing till
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