Congress composed of deputies from each State, to whom were delegated by the Articles of Confederation, expressly, 'the sole and exclusive right and power of entering into treaties and alliances'; and being ratified and made by them, it became a complete national act and law of every State."88

As a result of the inability of Congress, and the failure of the States, to give by legislative enactment effect to treaties concluded under the authority of the Confederation, there was developed the doctrine that treaties by their own fiat, without the aid or intervention of acts of legislation, became a part of the law of the land binding the courts, laws theretofore existing to the contrary notwithstanding. This was the view so forcibly set forth in the federal letter, unanimously adopted by Congress, April 13, 1787, just one month prior to the assemblying of the delegates in convention at Philadelphia to revise the articles of union.

88 Hughes 249, 259.

CHAPTER IV.

THE FEDERAL CONVENTION.

823. The Treaty-making Power Vested in President and Senate. In the sketch of government presented to the Convention by Hamilton, June 18, 1787, the "Governor," in whom was to be vested the supreme executive authority, was to have, with the "advice and approbation of the Senate, the power of making all treaties." The Senate was to consist of persons elected to serve during good behavior by electors chosen for that purpose by the people in election districts, into which the States were to be divided. Although the sketch made no provision as to the apportionment of the Senators among the States, in the paper turned over to Madison, about the close of the Convention, in which Hamilton delineated the Constitution which he had wished to see proposed by the Convention, and in which the organization of the treaty-making power was retained in similar form, the States were not to share equally in representation in the Senate, but in general, according to population. In the draft of the Constitution as reported by the Committee of Detail, August 6, power to make treaties and to appoint ambassadors was by Article IX vested in the Senate. The executive power was to be vested in a single person, to be known as President, and to be elected by the legislature. During the discussion, August 15, on the question of restricting the power of the Senate in originating bills for raising and appropriating money, Francis Mercer, who had taken his seat in the Maryland deputation on August 6, suggested that the Senate ought not to have the power of making treaties; that this power belonged to the executive department.“ On August 23, Article IX of the draft being under consideration, Madison observed "that the Senate represented the States alone,

I Documentary History of the Constitution, I, 327.

2 Id., III, 773. On May 30, Hamilton moved that the rights of suffrage in the national legislature ought to be proportioned according to the number of free inhabitants; and on June 11, he supported a resolution providing that the same ratio of representation should be applied in both houses. Id., III, 24, 108.

3 Id., III, 451.

4 Id., III, 536.

and that for this as well as other obvious reasons it was proper that the President should be an agent in treaties." No amendment, however, was made; but the section was referred to the Committee of Five. In the report of the Committee of Eleven, September 4, to which, on August 31, the undetermined sections had been referred, it was recommended that "The President, by and with the advice and consent of the Senate," should have power to make treaties; but that no treaty should be made "without the consent of two-thirds of the members present." clause was agreed to as reported."

The

§24. Concurrence of Two-thirds of the Senators Present. Treaties of Peace, for Cession of Territory, Etc.-On September 7 and 8, the clause requiring the concurrence of twothirds of the Senators present was the subject of a protracted debate. James Wilson thought it objectionable to require the concurrence of two-thirds since a minority might thus control the will of a majority and perpetuate war against the wish of the majority. Rufus King concurred in this view. An amendment proposed by Madison was agreed to, September 7, excepting treaties of peace from the requirement of a two-thirds vote. Different views were expressed as to what proportion should be required in case of such treaties. Madison suggested the consent of two-thirds of the Senate without the concurrence of the President, since the President would derive so much power and influence from a state of war that he might be tempted to impede the conclusion of a treaty of peace. Pierce Butler concurred with Madison. Nathaniel Gorham, of Massachusetts, thought the precaution unnecessary since the means of carrying on war were in the control of the legislature. Gouverneur Morris desired the concurrence of the President and a majority only of the Senate, for, if a majority of the Senate were for peace and were not allowed to make it, they would be apt to effect their purpose in the more disagreeable mode of negativing the supplies for the

5 Id., III, 604.

6 Id., III, 669, 697, 706. The Committee of Eleven was composed of Nicholas Gilman, Rufus King, Roger Sherman, David Brearley, Gouverneur Morris, John Dickinson, Daniel Carroll, James Madison, Hugh Williamson, Pierce Butler, and Abraham Baldwin.

7 Id., III, 700, 704.

8 Id., III, 700.

9 Id., III, 700.

1

11

war.10 Elbridge Gerry thought that a greater proportion should be required in the case of treaties of peace than in case of other treaties, since in treaties of peace the dearest interests would be at stake, such "as the fisheries, territories, &c."; that in treaties of peace there was more danger of the "extremities of the continent" being sacrified, than on any other occasions. He was opposed to putting the "essential rights of the Union" in the hands of so small a number as a majority of the Senate which might represent less than one-fifth of the people. An amendment, reading "but no treaty of peace shall be entered into, whereby the United States shall be deprived of any of their present territory or rights without the concurrence of two-thirds of the members of the Senate present," was proposed.12 Roger Sherman, of Connecticut, moved to add as a proviso that no rights established by the treaty of peace should be ceded without the sanction of the legislature. Gouverneur Morris supported this amendment. 13 Upon a reconsideration of the clause the exception as to the treaties of peace was stricken out by a vote of 8 to 3.14 Motions were thereupon made, but voted down, to strike out the clause requiring the consent of two-thirds of the members present,15 to substitute for the requirement of two-thirds of the members "present," two-thirds of all the members,16 and to require a majority of the whole number of the Senate.1 An amendment offered by Madison that two-thirds of all the members should constitute a quorum likewise failed,18 as did also an amendment

10 Id., III, 700, 703.

II Id., III, 701, 704.

12 Id., I, 188. Madison gives the amendment as moved by Hugh Williamson and Richard Dobbs Spaight, both of North Carolina, as follows: "That no treaty of peace affecting territorial rights should be made without the concurrence of two-thirds of the members of the Senate present." Rufus King, of Massachusetts, moved to extend the amendment to "all present rights of the United States." Id., III, 703.

13 Id., III, 704.

14 New Jersey, Delaware, and Maryland voted in the negative. Id., III, 704.

15 Delaware voted in the affirmative. Connecticut was divided.

16 North Carolina, South Carolina and Georgia voted in the affirmative. 17 Massachusetts, Connecticut, Delaware, South Carolina, and Georgia voted in the affirmative.

18 New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania and Delaware voted in the negative; Maryland, Virginia, North Carolina, South Carolina, and Georgia, in the affirmative.

that no treaty should be made without previous notice to the members and a reasonable time for their attendance.19 The provision was finally agreed to as reported by the committee, Pennsylvania, New Jersey and Georgia, voting in the negative.20 The requirement as adopted, of two-thirds of the members "present," would, it was urged, remove the possibility of embarrassment experienced under the Articles of Confederation through the failure of delegates from nine States to attend, and would at the same time serve to insure more regular attendance.

§25. Treaties Not to be Approved by Congress.-In supporting a motion that all bills for raising or appropriating money should originate in the House of Representatives, George Mason, on August 15, said that he was extremely anxious to take this power from the Senate, which "could already sell the whole country by means of treaties." Francis Mercer, after observing that the Senate ought not to have the power of making treaties since it belonged to the exceutive department, added "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." To this observation, Mason replied that he "did not say that a treaty would repeal a law; but that the Senate by means of a treaty might alienate territory &c. without legislative sanction. The cessions of the British Islands in the W. Indies by treaty alone were an example. If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union." On August 17, during the debate on the clause vesting the power to declare war in Congress, a motion to add "and to make peace" was unanimously rejected. Elbridge Gerry in supporting the amendment urged that even eight Senators might possibly exercise the power and might consequently give up part of the United States.22 On August 23, while the treaty-making power was still vested solely in the Senate, Gouverneur Morris, after expressing doubt as to whether he would agree to confer the power to make treaties on the Senate at all, moved to amend the section by adding "but no treaty shall be binding on the United

19 North Carolina, South Carolina and Georgia voted in the affirmative. 20 Id., III, 700, 701, 703, 705, 706.

21 Id., III, 535-536.

22 Id., I, 129; III, 554.