340 BURR— THE TREATY-MAKING POWER [April 20, 



" I am sorry to say it, that in order to prevent the payment of British 

 debts, and from other causes, our treaties have been violated, and violated too 

 by the express laws of several States in the Union. . . . This clause, sir, will 

 show the world that we make the faith of treaties a constitutional part of 

 the character of the United States ; that we secure its performance no longer 

 nominally, for the judges of the United States will be enabled to carry into 

 effect, let the legislatures of the different states do what they may."^'^ 



In the Virginia debates, Governor Randolph had likewise expressly 

 adverted to this concrete cause to be subserved directly by the adop- 

 tion of the Constitution. 



" I come now to what will be agitated by the judiciary. They are to 

 enforce the performance of private contracts. The British debts, which are 

 withheld contrary to treaty, ought to be paid.""^ 



The Constitution was adopted, a British creditor brought suit, 

 and on appeal the case was argued in the Supreme Court by John 

 Marshall on behalf of the debtor. In a volume of reports com- 

 prising 519 pages and covering a period of over five years the report 

 of this case is allotted 87 pages; the opinions of the court cover 

 over 64 pages. This is conclusive evidence of the contemporary 

 estimate of its importance. The suit arose on a bond given by 

 Virginian citizens, and was brought in the Federal court for the 

 District of Virginia. The facts material in the present discussion, 

 in addition to the citizenship of the parties and the notorious fact 

 of war, were these. In 1774, the bond was dated. In 1777, an Act 

 of Virginia was passed entitled " An Act for Sequestering British 

 Property," and providing that full discharge of the debt should be 

 created by the payment of the sum due to the commonwealth. In 

 1780, payment in accordance with the act was made by the defend- 

 ant. In 1783, the treaty of peace was made. In 1788, the Consti- 

 tution was declared operative by Congress. Marshall thus divided 

 his argument. I. That the Virginia Act was effective as a bar (ig- 

 noring for the moment the treaty) because (a) the State had the 

 power to create a bar; and (b) the State had by the Act exercised 

 its power; II. That the treaty did not remove the bar. Marshall 

 argued (a) that the Act had operated in 1780 to extinguish the debt, 

 that therefore in 1783 there was no debt and no creditor upon whom 



"- Elliott's Debates, Vol. III., pp. 280-1. 



