Why, then, the major proposition being such, the minor cannot be denied, for every appointment of the field is but combination and plotting of murder. Let them gild it how they list, they shall never have fairer terms of me in a place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge. It was the case of Wharton, plaintiff, against Ellekar and Acklam, defendants, where Acklam, being a follower of Ellekar's, was censured for carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree, that such challenges are to the subversion of government. These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case I would be thought not to innovate anything of my own head, but to follow the former precedents of the court, though I mean to do it more thoroughly, because the time requires it more.
Therefore now to come to that which concerneth my part, I say that by the favor of the king and the court, I will prosecute in this court in the cases following: If any man shall appoint the field, though the fight be not acted or performed. If any man shall send any challenge in writing, or any message of challenge. If any man carry or deliver any writing or message of challenge. If any man shall accept to be second in a challenge of either side. If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas. If any man shall revive a quarrel by any scandalous bruits or writings, contrary to former proclamation published by his Majesty in that behalf.
Nay I hear there be some counsel learned of duels, that tell voting men when they are beforehand, and when they are otherwise and thereby incense and incite them to the duel, and make an art of it. I hope I shall meet with some of them too; and I am sure, my lords, this course of preventing duels, in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.
To conclude, I have some petitions to make first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his Majesty's writ of ne exeat regnum to stop him, for this giant bestrideth the sea, and I would take and snare him by the foot on this side; for the combination and plotting is on this side, though it should be acted beyond the sea. And your lordship said notably the last time I made a motion in this business, that a man may be as well fur de se as felo de se, if he steal out of the realm for a bad purpose. As for the satisfying of the words of the writ, no man will doubt but he does machinari contra coronam, as the words of the writ be, seeking to murder a subject; for that is ever contra coronam et dignitatem. I have also a suit to your lordships all in general, that for justice's sake, and for true honor's sake, honor of religion, law, and the King our master, against this fond and false disguise or puppetry of honor. I may, in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, I may, I say, be countenanced and assisted from your lordships. Lastly, I have a petition to the nobles and gentlemen of England, that they would learn to esteem themselves at a just price. Non hos quaesitim munus in usus—their blood is not to be spilt like water or a vile thing; therefore, that they would rest persuaded there cannot be a form of honor, except it be upon a worthy matter. But this, ipsi viderunt, I am resolved.
JAMES BARBOUR (1775-1842)
Senator James Barbour's speech on the treaty-making power, made in the United States Senate in January 1816, is one of the ablest and most concise presentations of the Virginia view of the Federal constitution represented by Madison before he came under Jefferson's influence. The speech itself, here reproduced from Benton's 'Debates,' sufficiently explains all that is of permanent importance in the question presented to the Senate, If, under the Federal constitution, it was necessary after the ratification of a treaty to specially repeal laws in conflict with it, then such laws and "municipal regulations" as remained unrepealed by special act would be in force in spite of the treaty. Arguing against this as it affected the treaty-making power of the Senate from which the House of Representatives was excluded by the constitution, Senator Barbour declared the treaty-making power supreme over commerce, and incidentally asserted that unless there is such a supremacy lodged somewhere in the government, the condition would be as anomalous as that of Christendom when it had three Popes.
Mr. Barbour was born in 1775 and educated for the bar. He served in the Virginia legislature, was twice governor of the State, and twice elected to represent it in the United States Senate. He was Secretary of War in 1825 under John Quincy Adams, who sent him as minister to England—a post from which he was recalled by President Jackson. He presided over the national convention which nominated William Henry Harrison for the presidency, dying in 1842.
TREATIES AS SUPREME LAWS
Mr. President, as it seems to be the wish of the Senate to pass upon this subject without debate, it adds to the reluctance I always feel when compelled, even by a sense of duty, to intrude on their attention. Yet, as I feel myself obliged, under the solemn responsibility attached to the station I hold here, to vote against the bill under consideration—as I think, also, it is but a due respect to the other branch of the legislature, from whom it is my misfortune to differ, and but an act of justice to myself to state the grounds of my opinion, I must be pardoned for departing from the course which seemed to be desired by the Senate.
In the exercise of this privilege, with a view to promote the wishes of the Senate as far as a sense of duty will permit, I will confine myself to a succinct view of the most prominent objections which lie against its passage, rather than indulge in the extensive range of which the subject is susceptible. Before I enter into the discussion of the merits of the question, I beg leave to call the attention of the Senate to the course which was adopted by us in relation to this subject. A bill, brought in by the Committee on Foreign Relations, passed the Senate unanimously, declaring that all laws in opposition to the convention between the United States and Great Britain, concluded on the third of July last, should be held as null and void. The principle on which this body acted was, that the treaty, upon the exchange of its ratification, did, of itself, repeal any commercial regulation, incompatible with its provisions, existing in our municipal code; it being by us believed at the time that such a bill was not necessary, but by a declaratory act, it was supposed, all doubts and difficulties, should any exist, might be removed. This bill is sent to the House of Representatives, who, without acting thereon, send us the one under consideration, but differing materially from ours. Far from pretending an intimate knowledge of the course of business pursued by the two houses, I do not say that the mode adopted in this particular case is irregular, but if it has not the sanction of precedent, it appears to me to be wanting in that courtesy which should be perpetually cherished between the two houses. It would have been more decorous to have acted on our bill, to have agreed to it if it were approved, to reject or amend it. In the latter case, upon its being returned to the Senate, the views of the other body would have been contrasted with our own, and we might then have regularly passed upon the subject. A different course, however, has been adopted; and if a regard to etiquette had been the only obstacle to my support to the bill, it would have been readily given; for it is the substance, and not the shadow, which weighs with me. The difference between the two bills is rendered important by its involving a constitutional question.