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CHAPTER IX.

OPINIONS OF PUBLICISTS, HISTORIANS AND EXPOUNDERS OF THE CONSTITUTION IN REGARD TO THE EXTENT AND SCOPE OF THE TREATY-MAKING POWER OF THE UNITED STATES.

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263-Views of William A. Duer;| 274-Narrower views of some

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§ 257. Pre-ratification literature necessarily academic. -The extracts in the preceding chapter are all taken from pamphlets published for or against the Constitution before it was ratified, and when the effect and extent of its provisions could only be treated in a prophetic manner and from an academic standpoint.

Written in the abstract, and based upon hypothetical conditions, they were, therefore, necessarily largely theoretical

and did not relate to the application of the provisions of the Constitution to any concrete conditions; with the exception of the Federalist, few of them, if any, have ever been regarded by the courts as affording any basis for the construction of any of the clauses of the Constitution; in this volume they have been referred to, as evidence of the fact that the treatymaking power was thoroughly understood by the people before the constitution was adopted, rather than as legal authority for the extent of the power.1

§ 258. Different status of post-ratification literature.— The moment, however, that the Constitution became the fundamental basis of the Government of the United States, practical questions, as to the interpretation and application of its provisions, arose, and from that time the literature regarding the Constitution can be divided into two classes: First, views of expounders who have discussed it in commentaries and text-books from legal and political standpoints in connection with the adjudicated law of this and other countries; second, decisions of the courts upon constitutional points which have arisen in actions at law and required the judicial construction and interpretation of the instrument itself, and in which the judges, delivering their opinions in regard thereto, have expressed their views as to the nature, scope and extent of the provisions of the Constitution involved in the actions, as well as to the general nature and powers of the Government of the United States.

$259. Treaty-making power furnishes many questions for discussion. It will readily be seen that the nature and extent of the treaty-making power vested in the General Government by the Constitution, and of the effects of treaties upon the laws of the United States, and of the various States, have continuously afforded opportunities, both for the expounders of the Constitution in treatises, and for the judges in decisions, to express their views on constitutional questions; in fact, as will be seen in the next chapter, one of the first great constitutional controversies in which the power of the Union was asserted, and was upheld by the Supreme Court as superior to the law of any of the States, related to § 257.

1 See § 255, p. 391, ante.

the treaty-making power. In the case of Ware vs. Hylton1 this question was discussed in an action submitted to, and decided by, the Supreme Court, and the provisions of the Constitution in regard to treaties were judicially construed and determined.

§ 260. Opinions of publicists-not judicial decisionsdiscussed in this chapter.-The judicial decisions will be reserved for subsequent chapters,1 and the balance of this chapter will be devoted to referring briefly to the opinions of some of the ablest writers upon the Constitution, and giving a summary of their views in regard to the nature and extent of the treaty-making power as it is vested in the Central Government of the United States. It will only be possible to give extracts from a few of the many eminent writers upon constitutional law and treaties.

261. Views of William Rawle; 1825.-One of the earliest expounders of the Constitution was William Rawle, whose book, published in 1825, was immediately recognized, and has ever since retained its position, as an able exposition of the subject, notwithstanding some of the extreme views of the author.1

Mr. Rawle was an ardent exponent of the States' rights school in fact, he believed in the right of secession; he gave, however, the widest possible scope to the treaty-making power. The following extract shows that he realized how fully the framers and ratifiers of the Constitution appreciated the nature and extent of this power when they vested it in the Central Government of the United States.

"The nature and extent of this constitutional power underwent full examination, in the state conventions. The most general terms are used in the Constitution. The powers of

§ 259.

1 See § 324, Vol. II, pp. 6 et seq. § 260.

1 Chaps. XI-XIV, post.

the United States, and the other in Paul Leicester Ford's collections of Pamphlets on the Constitution. See also list of authorities referred to, at commencement of this volume. § 261.

2 The student who desires to further investigate this subject will find two very complete bibliogra- 1 A view of the Constitution of the phies of the subject. One, as the United States by William Rawle, Appendix to the second volume of 1st edition, Philadelphia, 1825, Curtis' Constitutional History of 2d edition, 1829.

congress in respect to making laws we shall find are laid under several restrictions. There are none in respect to treaties. Although the acts of public ministers, less immediately delegated by the people than the house of representatives; the president constitutionally and the senate, both constitutionally and practically, two removes from the people, are by the treaty making power, invested with the high and sole control over all those subjects which properly arise from intercourse with foreign nations, and may eventually effect important interests at home. To define them in the Constitution would have been impossible, and therefore a general term could alone be made use of, which is, however, to be scrupulously confined to its legitimate interpretation. Whatever is wanting in an authority expressed, must be sought for in principle, and to ascertain whether the execution of the treaty making power can be supported, we must carefully apply to it the principles of the Constitution from which alone the power proceeds.

"In its general sense, we can be at no loss to understand the meaning of the word treaty. It is a compact entered into with a foreign power, and it extends to all those matters which are generally the subjects of compact between independent nations. Such subjects are peace, alliance, commerce, neutrality, and others of a similar nature. To make treaties is an essential attribute of a nation. One which disabled itself from the power of making, and the capacity of observing and enforcing them when made, would exclude itself from the international equality which its own interests require it to preserve, and thus in many respects commit an injury on itself. In modern times and among civilized nations, we have no instances of such absurdity. The power must then reside somewhere. Under the articles of confederation it was given with some restrictions, proceeding from the nature of that imperfect compact, to congress, which then nominally exercised both the legislative and executive powers of general government. In our present Constitution no limitations were held necessary. The only question was where to deposit it. Now this must be either in congress generally, in the two houses exclusive of the president, in the president

conjunctly with them or one of them, or in the president alone.

"There is a variance in the words descriptive of laws and those of treaties-in the former it is said those which shall be made in pursuance of the Constitution, but treaties are described as having been made, or which shall be made under the authority of the United States.

"The explanation is, that at the time of adopting the Constitution, certain treaties existed, which had been made by congress under the confederation, the continuing obligations of which it was proper to declare. The words 'under the authority of the United States,' were considered as extending equally to those previously made, and to those which should subsequently be effected. But although the former could not be considered as made pursuant to a Constitution which was not then in existence, the latter would not be unless they are conformable to its Constitution.

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Having felt the necessity of the treaty-making power, and having fixed on the department in which it shall be vested, the people of course excluded from all interference. with it, those parts of the government which are not described as partaking of it. The representation held out by our Constitution to foreign powers, was, that the president with the advice and consent of the senate, could bind the nation in all legitimate compacts: but if pre-existent acts, contrary to the treaty, could only be removed by Congress, this representation would be fallacious; it would be a just subject of reproach, and would destroy all future confidence in our public stipulations. The immediate operation of the treaty must therefore be to overrule all existing legislative acts inconsistent with its provisions."?

§ 262. Mr. Rawle's acquaintance with members of Constitutional Convention. Mr. Rawle had the advantage of personal acquaintance with members of the Constitutional Convention, and with the Judges of the Supreme Court who had been called upon to construe it, and he was well able to write upon the subject, having full knowledge of the circumstances under which the instrument itself was framed and ratified. In another part of his work, in which he discussed 2 Idem, p. 57–61, 1st edition; pp. 64–67, 2d edition.

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