States which is not ratified by a law." Madison suggested the inconvenience of requiring a "legal" ratification of treaties of alliance for purposes of war. Nathaniel Gorham pointed out the disadvantages which must be experienced if treaties of peace and all negotiations were previously to be ratified by Congress. If they were not previously so ratified, the ministers, he observed, would be at a loss to know how to proceed, for they must go abroad without instructions from the authority by which their proceedings were ultimately to be ratified. To Madison's suggestion as to the inconvenience of requiring a legal ratification of treaties of alliance, Gouverneur Morris replied that in general he was not "solicitous to multiply and facilitate treaties," and that as to treaties of alliance his amendment would necessitate their negotiation at our own seat of government, which he considered desirable. James Wilson in supporting the amendment observed that in the case of the most important treaties the king of Great Britain was obliged to resort to Parliament for their execution and was therefore under the same fetters as the proposed amendment would impose on the Senate; that under the clause, without the amendment, the Senate could make a treaty requiring all the rice of South Carolina to be sent to some particular port, although the legislature was not permitted to lay any duties on exports. John Dickinson, of Delaware, favored the amendment although the smaller States would otherwise share equally in the making of treaties. William Samuel Johnson, of Connecticut, thought that there was something of a "solecism in saying that the acts of a minister with plenipotentiary powers from one body, should depend for ratification on another body." The example of the king of Great Britain was not, he said, parallel, since the full and complete power was in the king, and if Parliament should fail to provide the necessary means for the execution of a treaty, the treaty would be violated. In the vote on the proposed amendment, Pennsylvania was alone in the affirmative with North Carolina divided.23 Subsequently to the vote, Madison raised the question whether a distinction might not be made between different kinds of treaties, allowing the President and Senate the power to make "treaties eventual and of alliance for limited terms," but requiring the concurrence in other treaties of the whole legisla

23 New York and New Hampshire were not represented.

ture. The section was then referred to the Committee of Five.24 On September 6, James Wilson, in opposing the organization and powers of the Senate as tending toward aristocracy, observed that treaties were to be "laws of the land" and that the power to make treaties involved "the case of subsidies." On the following day he moved to add after the word "Senate" in the section as reported by the Committee of Eleven, vesting the treaty power in the President and Senate, the clause "and the House of Representatives." "As treaties," he said, "are to have the operation of laws, they ought to have the sanction of laws also." Roger Sherman, of Connecticut, replied that it was solely a question as to whether the power could be safely entrusted to the Senate. He added: "The necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature." In the vote, Pennsylvania alone supported the amendment. Later, September 8, Roger Sherman suggested that no rights acquired by the treaty of peace should be ceded without the sanction of the legislature. The proposition was supported by Gouverneur Morris but was not brought to a vote.25 From these debates it appears that the House was excluded from participation in the making of treaties by the framers of the Constitution with the understanding that treaties were to have the force of laws.26

§26. States Expressly Prohibited From Entering into Treaties. By the Articles of Confederation the States were expressly prohibited, without the consent of Congress, from entering into any "conference, agreement, alliance or treaty" with a foreign power, or any "treaty, confederation or alliance" with another State of

24 Id., III, 604-606. See also Notes of McHenry, Am. Hist. Rev., XI, 611.

25 Doc. Hist. of Const., III, 686, 697, 704. McHenry gives the argument of Wilson on September 6, as follows: "The Senate may exercise the powers of legislation, and executive and judicial powers. To make treaties legislative, to appoint officers executive for the executive has only the nomination. To try impeachments judicial." Notes, Am. Hist. Rev. XI, 615.

26 It may be noted that in the draft of the Constitution reported September 12 by the Committee on Style and Arrangement, the treasurer of the United States was to be appointed by joint ballot of Congress. Art. I, sec. 8. On September 14, by a vote of 8 to 3, on motion of John Rutledge, this provision was stricken out in order that the treasurer might be appointed in the same manner as other officers. Doc. Hist. of Const., I, 369; III, 724, 743.

the Confederation. Nevertheless, said Madison, in the debates in the Convention on June 19, Virginia and Maryland in one instance, and Pennsylvania and New Jersey in another, had entered into "compacts without previous application or subsequent apology. The draft of the Constitution as reported August 6, by the Committee of Detail, provided that no State should enter into any "treaty, alliance, or confederation,"28 or, without the consent of the national legislature, enter into any "agreement or compact" with another State or a foreign power.20 These inhibitions were agreed to August 28, and incorporated without change or debate into the Constitution.30

31

§27. Treaties a Part of the Supreme Law of the Land.-In respect of one provision there seemed to be a unity of sentiment throughout the Convention. In Randolph's enumeration on May 29 of the defects of the Articles of Confederation, under the first group, was placed the inability of Congress to prevent the infraction of treaties. In the resolutions submitted by him, it was recommended that the national legislature be invested with the power to negative all State laws which in its opinion contravened "the articles of Union," as also with the power to coerce a disobedient State. On May 31, on motion made by Franklin, the clause "or any treaties subsisting under the authority of the Union" was inserted after the word "Union."32 As thus amended the section was agreed to in the committee of the whole without debate or objection. William Paterson, of the conservative element, recommended in his resolutions, introduced June 15, that all treaties made and ratified under the authority of the United States should "be the supreme law of the respective States," and that the judiciaries of the several States should be bound thereby in their decisions "anything in the respective laws of the individual States to the contrary notwithstanding." The executive was to be authorized to use the power of the confederated States to enforce and compel obedience.33 In the debate, June 19, on

27 Doc. Hist. of Const., III, 155.

28 Art. XII.

29 Art. XIII.

30 Id., III, 632, 633, 748, 752.

31 Id., III, 16.

32 Id., 33. See also Notes by McHenry, Am. Hist. Rev., XI, 602. 33 Doc. Hist. of Const., I, 325; III, 127. As there seems to be unmistakable evidence that the copy of a plan of a Constitution, submitted

the Paterson plan of revision, Madison questioned its effectiveness to prevent those violations of the law of nations and of treaties which might involve the country in the calamities of foreign wars, and added that "it ought to be effectually provided that no part of a nation should have it in its power to bring them on the whole." On July 17, Paterson's resolution with a few verbal changes was, on the motion of Luther Martin, substituted for the direct negative by the national legislature; and, with this substitution, the power to negative was transferred from the legislative to the judiciary branch.35 On August 23, 1787, the provision, as reported by the Committee of Detail, was slightly modified on motion of John Rutledge so as to read: "This Constitution and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be found thereby in their decisions; any thing in the constitutions or laws of the several States to the contrary notwithstanding." Two days later, on the motion of Madison, seconded by Gouverneur Morris, the article was reconsidered and the clause "or which shall be made" was inserted after the words "treaties made," in order to remove any possible doubt as to the force of pre-existing treaties. With these words inserted, referring to future treaties, the words "all treaties made" would, it was observed, refer to those already concluded. In the Committee on Style and Arrangement, composed of William Samuel Johnson, Alexander Hamil

37

by Charles Pinckney to the Secretary of State, December 30, 1818, and to which so much credit has been given, was a copy made subsequently to the Convention from one of the several drafts in his possession, and that it differs from the one originally presented to the Convention on May 29, 1787, it has been entirely passed over in this discussion. It may, however, be noted that in his letter of December 30, 1818, to the Secretary of State, communicating the plan, he said: "I can assure you as a fact that for more than four months and a half out of five, the power of exclusively making treaties, appointing public ministers and judges of the Supreme Court was given to the Senate after numerous debates and considerations of the subject both in committee of the whole and in the house.” Id., I, 310.

34 Id., III, 154.

35 Id., III, 353.

36 Id., I, 148; III, 600.

37 Id., III, 619.

ton, Gouverneur Morris, James Madison and Rufus King, the article was moulded into the form in which it appears in the Constitution, the committee having modified the expression "supreme law of the several States and of their citizens and inhabitants" so as to read "the supreme law of the land."38 In the draft of the Constitution as reported by the Committee of Detail, it was expressly provided that the national legislature should have the power to call forth the aid of the militia "to execute the laws of the Union, enforce treaties, suppress insurrections and repel invasions." On August 23, the words "enforce treaties" were stricken out on the suggestion of Gouverneur Morris that they were superfluous, since treaties were to be laws.39

§28. Jurisdiction of Federal Courts.-In the New Jersey resolutions, submitted by William Paterson, June 15, the establishment of a Federal judiciary was recommended, which should have on appeal final jurisdiction in certain cases. Included in these were "all cases in which foreigners may be interested in the construction of any treaty or treaties." In Article XI of the draft of the Constitution, as reported by the Committee of Detail, August 6, in which the jurisdiction of the Federal courts was defined, no reference was made to treaties. By an amendment adopted August 27, the judicial power of the United States was expressly extended to all cases in law and equity arising under "treaties made or which shall be made under their authority."41

$29. Treaty Making and the Formation of the New Union. -The recognition of the necessity of a more effective control by the central government over the enforcement of treaties is closely associated with the formation of the new Union as established by the Constitution. In resolutions prepared by Hamilton, and which, according to his indorsement, were intended for presentation to Congress in 1783, providing for the assembling of a convention to revise the Articles of Confederation, the defect in the power to give effect to treaties was mentioned as one of the reasons for the need of a revision.12 Attempts were made in March, 1785, to secure amendments to the Articles of Confederation, by

38 Id., III, 733.

39 Id., III, 601.

40 Id., I, 324; III, 127.

41 Id., III, 626.

42 MSS. Hamilton Papers, V.