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Colonial and State Records of North Carolina
Circular letter from the Continental Congress to the state governors
United States. Continental Congress
April 13, 1787
Volume 20, Pages 668-673

(From Executive Letter Book.)

In Congress, April 13th, 1787.


Our Secretary for Foreign Affairs has transmitted to you Copies of a Letter to him from our Minister at the Court of London of the 4th Day of March, 1786, And of the Papers mentioned to have been enclosed with it. We have deliberately and dispassionately examined and Considered the several facts & Matters urged by Britain as infractions of the Treaty of Peace on the Part of America, and we regret that in some of the States too little attention appears to have been paid to the Public Faith Pledged by that Treaty.

Not only the obvious dictates of Religion, Morality, and National Honor, but also the first principles of good policy demand a Candid and punctual Compliance with engagements Constitutionally and fairly made.

Our National Constitution having committed to us the management of the National concerns with foreign States and Powers, it is our duty to take care that all the rights which they ought to enjoy within our Jurisdiction by the Laws of Nations, and the faith of Treaties remain inviolate, and it is also our duty to provide that the

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essential interest and peace of the whole Confederacy be not impaired or endangered by deviations from the line of public faith into which any of its Members may from whatever cause be unadvisedly drawn. Let it be remembered that the thirteen Sovereign States have by express delegation of power formed & vested in us a General, though limited Sovereignty, for the General & National purposes Specified in the Confederation.

In this Sovereignty they cannot severally participate except by their Delegates nor with it have concurrent jurisdiction, for the 9th Article of Confederation most expressly conveys to us the Sole and exclusive right & power of determining war & peace and of entering into Treaties and alliances, &c.

When therefore a Treaty is Constitutionally made, Ratified and Published by us, it immediately becomes binding on the whole Nation and Superadded to the Laws of the Land without the intervention of State Legislatures. Treaties derive their obligation from being Compacts between the Sovereignty of this, and the Sovereignty of another Nation; whereas, the Laws or Statutes derive their force from being Acts of a Legislature Competent to the passing of them. Hence it is clear that Treaties must be implicitly received and observed by every member of the Nation, for as State Legislatures are not competent to the making of such compacts or Treaties, so neither are they competent in that capacity Authoritatively to decide on, or ascertain the construction or the sense of them. When doubt arises respecting the Construction of State Laws it is not unusual nor improper for the State Legislatures by explanatory or declaratory Acts to remove those doubts, but the case between Laws & Compacts or Treaties is in this widely different for when doubts arise respecting the sense and meaning of a Treaty they are so far from being Cognisable by a State Legislature that the United States in Congress Assembled, have no authority to settle & determine them. For as the Legislature only which constitutionally passes a Law has power to revise and amend it, so only the Sovereigns who are parties to the Treaty have power by mutual consent & posterior Articles to correct or explain it. In Cases between Individuals all doubts respecting the meaning of a law are in the first instance mere judicial Questions and are to be heard and decided in the Courts of Justice having cognizance of the Causes in which they arise, & whose duty

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it is to determine them according to the Rules and Maxims established by the Laws of Nations for the interpretation of treaties. From these principles it follows of necessary consequence that no individual State has a right by Legislative Acts to decide and point out the sense in which their particular Citizens and Courts shall understand this or that Article of a Treaty. It is evident that a contrary doctrine would not only Militate against the Common & Established Maxims and ideas relative to this subject, but would prove no less inconvenient in practice, than it is irrational in Theory; for in that Case the same Article of the same Treaty might by law be made to mean one thing in New Hampshire, another thing in New York, and neither the one nor the other of them in Georgia. How far such Legislative Acts would be Valid and obligatory even within the Limits of the State passing them, is a question which we hope never to have occasion to discuss. Certain however, it is, that such Acts cannot bind either of the Contracting Sovereigns, and consequently cannot be obligatory on their respective Nations. But if treaties & every Article in them be binding, as they are and ought to be on the whole Nation, if Individual States have no right to accept some Articles and reject others, and if the impropriety of State Acts to interpret and decide the same and Construction of them be apparent; still more manifest must be the impropriety of State Acts to control delay or modify the operation and execution of these National Compacts. When it is considered that the several States Assembled by their Delegates in Congress have express powers to form Treaties.

Surely the Treaties so formed are not afterwards to be Subject to such Alterations as this or that State Legislature may think expedient to make and that too without the Consent of either of the parties to it, that is in the present Case without the Consent of all the United States who Collectively are parties to this treaty on the one side, & his Brittanic Majesty on the other; were the Legislatures to pass and exercise such powers we should soon be involved as a Nation in Anarchy & Confusion at home, and in disputes which would probably terminate in hostilities and war with the Nations with whom we may have formed treaties; instances would then be frequent of Treaties fully executed in one State and only partly executed in another one of the same Article being executed in one Manner in one State and in a different manner or not at all in another

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State. History furnishes no precedent of such liberties taken with Treaties under form of Law in any Nation. Contracts between Nations like Contracts between Individuals should be faithfully executed, even though the Sword in the one Case and the Law in the other did not Compel it. Honest Nations like honest men require no constraints to do Justice; and though impunity and necessity of affairs may sometimes afford temptations to pare down Contracts to the measure of Convenience, yet it is never done but at the expence of that esteem and confidence and credit, which are of infinite more worth than all the momentary advantages which expediency can extort. But although contracting nations cannot be compelled like individuals, acts incompatible with it must in every point of view be improper; such acts do nevertheless exist, but we do not think it necessary either to enumerate them Particularly or to make them severally the Subjects of discussion. It appears to us sufficient to observe and insist that the Treaty ought to have free Course in its operations and execution and that all obstacles interposed by State Acts be removed.

We mean to Act with the most Scrupulous regard to Justice and Candor towards Great Britain & with an equal degree of delicacy, Moderation & decision towards the States who have given occasion to these discussions. For these reasons we have in general terms Resolved, “That all such Acts or Parts of Acts as may be now existing in” any of the States repugnant to the Treaty of Peace ought to “be forthwith repealed as well to prevent their Continuing to be regarded as Violations of that Treaty as to avoid the disagreeable Necessity there might otherwise be of raising & discussing Questions touching their Validity & obligations.” Although this Resolution applies strictly only to such of the States as have passed the exceptionable Acts alluded to, Yet to obviate all future disputes and Questions, as well as to Remove those which now exist; we think it best that every State without exception should pass a law on the subject.

We have therefore “Resolved, That it be recommended to the several States to make such repeal rather by describing than reciting the said Acts, and for that purpose to pass an Act declaring in general terms that all such Acts & parts of Acts repugnant to the treaty of Peace between the United States and His Britannic Majesty, or any article thereof shall be and thereby are repealed, and that the courts of Law & Equity in all cases and questions cognizable by them respectively, and arising from or touching the said Treaty shall decide and

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adjudge according to the true intent and meaning of the Same, any thing in the said Act or parts of Acts to the contrary thereof in any wise notwithstanding.” Such Laws would answer every purpose and be easily formed, the more they were of the like Tenor through out the States the better. They might each Recite that, ”Whereas, certain Laws or Statutes made and passed in some of the United States are regarded & complained of as repugnant to the Treaty of Peace with Great Britain, by reason whereof not only the good faith of the United States pledged by that Treaty has been drawn into question, but their essential interest under that Treaty greatly affected. And whereas, justice to Great Britain as well as regard to the Honor and Interest of the United States, require that the said treaty be faithfully executed and that all obstructions thereto, and particularly such as do or may be construed to proceed from the Laws of this State be effectually removed. Therefore be it enacted by, and it is hereby enacted by, the authority of the same, that such of the Acts or parts of the Acts of the Legislature of this State as are repugnant to the Treaty of Peace between the United States and His Britannic Majesty, or any Article thereof, shall be and hereby are repealed; and further, that the Courts of Law & Equity within this State be and they hereby are directed and required, in all Causes & Questions cognizable by them respectively, and arising from or touching the said Treaty to decide and adjudge according to the Tenor, true intent and meaning of the Same; Anything in the Acts or parts of Acts, to the Contrary thereof in any wise Notwithstanding.” Such a general law would, we think, be preferable to one that should minutely enumerate the Acts and Clauses intended to be repealed, because omissions might accidentally be made in the enumeration or questions might arise and perhaps not be satisfactorily determined respecting particular Acts or Clauses about which Contrary opinions may be entertained; by repealing in General terms all Acts & Clauses repugnant to the Treaty the business will be turned over to its Proper department, viz: the Judicial; and the Courts of Law will find no difficulty in deciding whether any particular Act or Clause is or is not contrary to the Treaty. Besides when it is considered that the Judges in General are men of Character and Learning, and fill as well as know the obligations of office and the value of Reputation, their is no reason to doubt that their conduct and Judgments relative
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to these as well as other Judicial matters will be wise and upright.

Be pleased Sir, to lay this letter before the Legislature of your State without delay. We flatter ourselves they will concur with us in opinion that Candor and justice are as necessary to true Policy as they are to sound Morality and that the most Honorable way of delivering ourselves from the embarrassment of mistakes is fairly to correct them. It certainly is time that all doubts respecting the Public faith be removed and that all questions & differences between us & Great Britain be amicably and finally settled. The States are informed of the reasons why his Britannic Majesty still continues to occupy the frontier post which by the Treaty he agreed to evacuate and we have the strongest assurances that an exact Compliance with the Treaty on our part shall be followed by a punctual performance of it on the part of Great Britain.

It is important that the Several Legislatures should, as soon as possible, take these Matters into Consideration and we request favour of you to transmit to us an Authenticated Copy of such Acts & proceedings of the Legislature of your State as may take place on the subject and in pursuance of this Letter.

By Order of Congress.