government that of emitting bills of credit. There is no trace in the recorded debates of the belief of a single member that under the power" to borrow money" the Congress could exercise the power of making their bills a legal tender for private debts. There is rather the contrary indication, that they considered this authority non-existent, unless it should be enumerated among the express powers granted. The authority as assumed in later years appears to have been an unwarranted deduction from the general power to provide for carrying into effect other powers which were granted. The Convention, while prohibiting the power to the States, supposed it sufficient to simply withhold the authority from the Congress of the United States.

TREATIES AND THEIR FORCE.

In distributing the powers to the various branches of the government, the Committee of Detail assigned to the Senate the power to make treaties, with the correlative power to appoint ambassadors. Mr. Hamilton's plan had proposed to invest this body with the power to declare war, while he associated it with the President in advising and consenting to treaties. But neither this nor any other plan, except that of Virginia, was made the basis of action, although traces of their provisions

are seen in the motions made for amendment of the plan always under debate. It is doubtless true that some of the propositions made by Mr. Charles Pinckney and Mr. Hamilton, as well as of those in the New Jersey and Connecticut schemes, found adoption in the various amendments made to the original plan.

But this provision, giving the Senate the sole power over treaties, appears to have been accepted in the first instance by common consent. On August 15, Mr. Mason, while opposing another power of the Senate, observed they "could already sell the whole country by means of treaties." Mr. Mercer in reply said, "The Senate ought not to have the power of treaties. This power belonged to the executive ,department;" and added that treaties would not be final, so as to alter the laws of the land, till ratified by legislative authority, as was the case in Great Britain. Mr. Mason rejoined, that he "did not say a treaty would repeal a law, but that the Senate might by means of treaties alienate territory, etc., without legislative sanction; an example was found in the British cession of West India Islands by treaty alone. If Spain should take possession of Georgia, the Senate might by treaty dismember the Union."

Upon the direct consideration of this article, Mr. Madison observed that, as the Senate represented the States, and for other reasons as well,

"it was proper that the President should be an agent in treaties." Gouverneur Morris doubted about referring to the Senate the making of treaties in any degree; but for the present would only move as an amendment, "but no treaty shall be binding on the United States which is not ratified by law." Mr. Madison spoke of the inconvenience of requiring a legal ratification of treaties of alliance in case of war, and in many other cases. Mr. Gorham called attention to "many other disadvantages if treaties of peace and all negotiations are to be previously ratified; and if not previously, the ministers would be at a loss how to proceed. American ministers must go abroad not instructed by the same authority which is to ratify their proceedings." Mr. Morris answered that the result would be that foreign governments must send their ministers here (for an alliance), which he desired. Mr. Wilson was inclined for the amendment. Without it "the Senate could by treaty require all the rice of South Carolina to be sent to one particular port." Mr. Dickinson concurred.

Dr. Johnson thought it a solecism "that the acts of a minister with plenipotentiary powers from one body should depend for ratification upon another body. The British king had full authority to make treaties and ratify them; and if Parliament refused to provide for carrying

them into effect it was a violation of the treaty." Mr. Randolph thought best to postpone its further consideration, in view of the objections to the clause; but on this motion the vote was equally divided.

The question was then put on the amendment requiring ratification of treaties by law; and only Pennsylvania voted for it, North Carolina being divided, and eight States voted against it.

After adding "other public ministers" to ambassadors, the whole clause was postponed for further consideration and referred to the committee of five before appointed. Mr. Madison suggested a possible distinction in the mode of ratification between treaties eventual, or of alliance for limited terms, and other treaties; the former to depend alone on the President and Senate.

From another committee, charged with resolutions respecting the executive, on the 4th of September, came a report in which this proposal was made: "The President, by and with the advice and consent of the Senate, shall have power to make treaties; " and in the same manner the appointment of ambassadors and other public ministers was transferred to him. But upon this power to make treaties was put the following limitation: "But no treaty shall be made without the consent of two thirds of the members present."

Mr. Wilson, seconded by Mr. Fitzsimons, recalling the provision already adopted, that this Constitution, the laws under it, and treaties "shall be the supreme law of the land," moved to add to" the Senate " the words " and House of Representatives," so as to involve the whole law-making power as necessary to validate a treaty. "As treaties," he said, "are to have the operation of laws, they ought to have the sanction of laws also." He thought this outweighed the reasonable objection that secrecy was necessary in the business of making treaties.

Mr. Sherman averred "that the necessity of secrecy in the case of treaties forbade a reference of them to the whole legislature. The only question was, whether the power could be safely trusted to the Senate, and he thought it could be."

Then the vote was taken, and Pennsylvania alone supported Mr. Wilson. The other ten States voted for excluding the House of Representatives from participation in the making or ratification of treaties.

The clause requiring two thirds of the Senate for ratification was opposed by Mr. Wilson, as enabling a minority to overrule a majority. Mr. King concurred, because here was added the element of consent of the executive power as a security. Mr. Madison thought treaties of peace should be facilitated, and moved that