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than to afford the means of carrying on that intercourse to the extent which the president and senate hold to be required for the national interest, and of furnishing the means of effectuating treaties constitutionally made, when, as has been seen, their intervention is absolutely necessary. It is true that there is no express direction to this effect, neither is there as to many other applications of the public revenue. But wherever there is a duty pointed out in general terms, and adequate powers given to any department of government for performing it, common sense indicates the course to be pursued, and those who are thus authorized, must be considered as bound to perform the duty. If it is refused, the general operations of government will be affected with greater or less injury according to circumstances; and the remedies can only be subsequently and perhaps tardily applied. These remedies must be a constitutional change of the public agents. But this is not peculiar to the American constitution. Short of actual violence, it never is effected but by the mild, yet firm, exhibition of the sovereign power, if, as with us, it still remains in the people, by the substitution of others for those whose conduct has occasioned a diminution of public confidence.
The effect of a treaty on state constitutions and state laws cannot be questioned. Without considering whether it operates directly as a repeal of them, we are warranted in saying that an act done under a state law, in opposition to a treaty, cannot be set up as a legal bar to a proceeding founded on a treaty.
The inability of the confederation to enforce the treaties made by them was severely felt. Many state laws which had been passed, during or shortly after the war of the revolution were inconsistent with some of the articles of the treaty of peace with Great Britain,
and that power, complaining of injuries sustained in consequence thereof, postponed the fulfilment of the treaty in some points on their part. The inadequacy of the powers of congress to enforce it were then sensibly felt, and a serious declaration that a treaty, in virtue of the confederation, was part of the law of the land and obligatory on the several legislatures, was transmitted to all the states, with an urgent recommendation that the states themselves would repeal all those acts and parts of acts that were repugnant to the treaty. (20) In this respect the want of a judicial
power was strongly perceived. After the adoption of the constitution, its retrospective effect upon the opposing laws of a state, passed even before the treaty, was speedily and fully established by the Supreme Court of the United States (21)
As a law, the president enforces a treaty by his executive power when necessary. This took place in several instances during the war between France and Great Britain, after the president, in a legitimate execution of the duties of his high office, had issued a proclamation of neutrality. Some of the belligerent captures and other acts, so far as they occasionally interfered with the obligations of our treaties with either nation, were ratified by his intervention. (22)
The wisdom, impartiality, and firmness manifested on the part of our government, during the whole of that difficult period, entitled it to the highest applause,
(20) See the journal of congress, March 21, and April 13, 1787. The letter from congress prepared by Mr. Jay, then secretary for foreign affairs, is admirable in style and reasoning.
(21) Calder v. Bull, 3d Dallas, 386, and Brailsford v. Meade, ib. 1. The Supreme Court of Pennsylvania, in the case of Gordon, affirmed the same principle, 1 Dall. 233. (22) See Sergeant on Constitutional Law, p. 216. 397.
and there could be no better proof of its merits, than the dissatisfaction alternately expressed by each of the great contending powers. It is also due to the executives of the several states to declare, that although there were at the time strong popular impressions in favour of one, and to the prejudice of the other nation, all considerations of that kind were suppressed in a prompt and efficient compliance with the directions emanating from the president. An accurate and comprehensive collection of the acts of our government during the whole of that war, would be an useful addition to the stock of public information, and would afford precedents which no foreign cabinet could justly disdain to follow.
Of Laws Enacted by Congress.
LAWS enacted by congress form the third rule of obligation. The
power of legislation vested in congress, is conformable to the high objects of its formation, some of which are expressly enumerated, and some included in the extensive authority to provide for the common defence and general welfare; but this broad declaration has been considered by some as restrained by an amendment which has since become part of the constitution to the following effect: “ The powers not dele"gated to the United States by the constitution, nor “prohibited by it to the states, are reserved to the "states respectively or to the people.” The question is not completely settled by this article. The nature of a constitution requires that only its great outlines should be marked, its important objects designated, and the minor ingredients, which compose those objects, be deduced from the nature of the objects them. selves. If it contained an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, it would partake of the prolixity of a legal code, and rather tend to embarrass than to elucidate. Whether any particular power is delegated to the general government or prohibited to the states, must depend on a fair construction of the whole instrument. (23)
(23) See M'Culloch v. Maryland, 4 Wh. 316. Anderson r. Dunn, 6 Wh. 225,
The amendment does not speak of powers expressly delegated, and is in fact to be considered rather in the light of a cautious and special reservation of what is not granted, conceived in terms as general as the grant itself. But whatever is already granted, either generally or by express words, is not intended to be abridg. ed, and therefore, in effect, this clause has no opera. tion on the grant itself.
In a variety of instances, the legislative power is not left to depend on general inferences. Express enumeration removes the difficulty as to the subject, and it is only in respect to what may be termed the excess of practical legislation, beyond the subject expressed, that any doubt can arise.
The style and composition of statutes in modern times, have frequently been complained of; it has been observed that they sometimes obscure the sense by a multiplicity of words intended to produce the opposite effect, and the brevity and simplicity of ancient times have been held up as examples to be followed. But perhaps the peculiar character of our government may justify more minuteness in its legislative acts, than in those of a government not under similar limitations. Although verboseness, productive of perplexity, should be scrupulously avoided, yet the enactments of a law framed under a limited authority, should clearly appear to be confined to that authority, and as little as possible be left for general construction. The acts hitherto passed by congress have not often created doubts as to their true meaning.