subject by losing himself in the immaterial. There are great enlightening constitutional cases, and a multitude of only illustrative and cumulative value. A sense of proportion must accompany one always. Therefore in this essay, with inconsiderable exceptions, the decisions of courts other than the Supreme Court of the United States have been, although examined, passed over without mention. And detailed analysis to show the irrelevancy of certain cases in the Supreme Court, has often been omitted. There remains a great wealth of significant and conclusive material. Mingled, however, with problems of essentially legal nature are problems fundamentally political. These are, moreover, political problems of the greatest magnitude in a nation's life, arising as they do out of relations with the other powers of the world. By processes quite other than the calm slow advance of the English race toward the establishment of principles of law, will be determined the political scope of the treaty-making power of the United States. Sudden is the emergency, momentous the issues, on the executive rests primarily the decision; economic desiderata, party politics, the shrieks of journalism, the make-weight of individual temperament —one or all may influence the result; and the treaty is signed. One influence alone is not felt: the opinion of the Supreme Court of the United States. Years later that Court may be heard in explanation of the event, in support of it, in apology for it-never yet in the nation's history has the Court been heard in its undoing. It was thus when Louisiana was purchased, and Texas annexed; likewise in similar instances will it be again. So, at the beginning of this essay, and in no uncertain words, it has seemed best to endeavor to bring out in bold relief the thought that in their larger significance many of the problems involved in the exercise of the treaty-making power are political, and only subordinately and secondarily legal. Conclusions may therefore be found to lack sanction in legal reasoning while they find it in political considerations. And in attempting at times to forecast the future and suggest the line of development along which the attitude of the people of the United States toward the treaty-making power may proceed, such political considerations must necessarily have their place. Before examining, however, into the primarily political questions affecting the treaty-making power which may present themselves for solution, it will be well to excerpt the clauses of the Constitution relative to that power. They are as follows: "No State shall enter into any treaty, alliance, or confederation." Article I, Section 10, Clause 1. "No State shall, without the consent of Congress. . . enter into any agreement or compact with any State, or with a foreign power." Article I, Section 10, Clause 2. "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur." Article II, Section 2, Clause 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Article III, Section 2, Clause 1. "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Article VI, Clause 2. The history of the adoption of these clauses by the framers of the Constitution in Federal Convention is interesting and has a certain significance. It will be recalled that the Convention met in accordance with a resolution of the Congress of the Confederation adopted February 21st, 1787. The date named was May 14th, 1787, but it was not until May 25th that the Convention organized. On May 29th Governor Randolph of Virginia presented a series of resolutions to serve as leading principles in the formation of the new government. These, known as the Virginia plan, were discussed by the Convention sitting as a committee of the whole, and were severally amended, approved, or rejected. On June 15th, a series of resolutions, which became known as the New Jersey plan, was introduced. On July 26th, the Convention adjourned to August 6th, having appointed a committee of detail to prepare a constitution along the lines of the resolutions theretofore adopted. On August 6th the committee reported, and the Convention passed seriatim upon the provisions reported. On September 8th the committee of style was appointed, which, on September 12th, reported the Constitution substantially as it was afterwards adopted. On September 15th the Convention adjourned. The two clauses of Article I., Section 10, of the constitution existed in substance in the Articles of Confederation, where in the first and second paragraphs, respectively, of Article VI, it is said: "No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state. ... "No two or more states shall enter into any treaty, confederation, or alliance whatever between them, without the consent of the United States in Congress assembled, specifying accurately the purpose for which the same is to be entered into, and how long it shall continue." On August 6th the committee of detail reported the Articles XII. and XIII. as follows: "No State shall coin money; nor grant letters of marque and reprisals; nor enter into any treaty, alliance, or confederation; nor grant any title of nobility." "No State, without the consent of the Legislature of the United States, shall emit bills of credit, or make anything but specie a tender in payment of debts; nor lay imposts or duties on imports; nor keep troops or ships of war in time of peace; nor enter into any agreement or compact with another State, or with any foreign power; nor engage in any war, unless it shall be actually invaded by enemies, or the danger of invasion be so imminent, as not to admit of delay, until the Legislature of the United States can be consulted."5 The committee on style varied the expression of these provisions," and just as the Convention was about to adjourn, the wording was still further but immaterially changed." The provision for making of treaties by the President and Senate, afterwards contained in the Second Section of the Second Article of the Constitution, was the subject of some controversy. In Governor Randolph's speech presenting what became known as the Virginia plan, he referred to dangers existing on account of State violations of treaties made under the Confederation, as con 5 6 'Records of the Federal Convention, Max Farrand, Vol. II., p. 187. Ibid., p. 597. 'Ibid., p. 621. stituting one of the paramount considerations which should move the Convention to form an effective Federal government; but his fifteen resolutions do not in any way cover the subject of treaties.R The inference would seem to be that he assumed that Congress, as the treaty-making power under the Confederation, would likewise. exercise the power under the Constitution. However that may be, the first mention of the treaty-making power occurs in the New Jersey plan on June 15th, where the reference is to the extension of the judicial power to questions arising under treaties, and to the enforcement of treaties. When the committee of detail reported a draft of the Constitution on August 6th, the First Section of the Tenth Article according to the then arrangement, was as follows: 9910 "The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court." On August 15th Colonel Mason, of Virginia, seconded a motion to take the power of originating revenue bills from the Senate, and Madison's notes say: 9911 "He was extremely earnest to take this power from the Senate, who he said could already sell the whole country by means of treaties." The notes next record the speech of Mr. Mercer of Maryland: "He contended (alluding to Mr. Mason's observations), that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of treaties in great Britain; particularly the late Treaty of Commerce with France. "Col. Mason did not say that a treaty would repeal a law; but that the Senate by means of treaty might alienate territory &c., without legislative sanction. The cessions of the British Islands in W- Indies by treaty alone were an example—If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union."12 On August 23rd the provision in the form that it came from the committee of detail, giving the power of making treaties to the Senate, came before the Convention. The report of the proceedings by Madison is instructive. He urges that the president should be an agent in making treaties. Gouverneur Morris moved an amendment: "but no treaty shall be binding on the United States which is not ratified by a law." This was opposed by several on the ground of the practical difficulty it would cause in negotiations, and the amendment was defeated by a vote of 8 to 1, one State being divided. The report, given in full in the appended notes,13 concludes thus: "Mr. Madison hinted for consideration, whether a distinction might not be made between different sorts of treaties-allowing the President and Senate to make treaties eventual and of alliance for limited terms-and requiring the concurrence of the whole Legislature in other treaties.' 9914 On August 31st, a committee of one member from each State was appointed, to whom were referred the parts of the Constitution, consideration of which had been postponed.15 This committee reported. on September 4th. In this report, the clause stood: "The President by and with the advice and consent of the Senate, shall have power to make treaties. . . . But no treaty shall be made without the consent of two thirds of the members present." On September 7th this section came up for adoption. Madison's record says: and "Mr. Wilson moved to add, after the word 'Senate' the words, House of Representatives.' As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter. "Mr. Sherman thought the only question that could be made was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature. “Mr. Fitzsimmons 2ded. the motion of Mr. Wilson, and on the question Pa. ay. Del. no. Md. no. "N. H. no. Mas. no. Ct. no. N. J. no. Va. no. N. C. no. S. C. no. con: 9917 The first sentence as to 13 See note 2. 14 Geo. no. making treaties was then agreed to; nem: Farrand, Vol. II., pp. 392-4. 15 Ibid., p. 481. 18 Ibid., p. 495. 17 Ibid., p. 538. |