Page:Sketches of the life and character of Patrick Henry.djvu/386

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and national law; that the constitution therefore, hj referring all cases arising under treaties, to the judi- ciary, had of necessity invested them with the power of appealing to that code of laws, by which alone the construction, the operation, the efficacy, the legal ex- istence or non-existence of treaties, must be tested: and by this code, they were told in the most emphatic terms, that he who violates one article of a treaty, releases the other party from the performance of any part of it; that the reference of all cases arising under treaties, to the judicial department, carried with it every power near or remote, direct or collateral, which was essential to a fair and just decision of those cases; — that in every such case, the very first question was, is there a treaty or not? — not whether there has been a treaty — ^but whether there is an existing, obligatory* operative treaty. To decide this question, the court must bring the facts to the standard of the laws of nations; and by this standard it had been shown, that in the case at bar, there existed no treaty, from which a British sub- ject could claim any benefit. That if the judicial de- partment had not the power of deciding this question, there was no department in the American government which did possess it: the state governments have no- thing to do with it — congress cannot touch the sub- ject — they may indeed, declare war for a violation; but a nation was not to be forced to this extremity, on every occasion; there were other modes of redress, short of a declaration of war, to which nations had a right to resort; and one of them, as he had shown, was the power of withholding from the perfidious violator of a treaty,, those benefits which he claimed under it. Now, con- gress could not by a law declare a treaty void — it is not among those grants of power which the constitution

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