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to his construction of the most-favored nation clause in the treaty with the Netherlands, an act of the Virginia legislature conflicted with the stipulation. In an opinion given to Congress, October 13, 1787, he said that according to the present state of our national government the act of Virginia would doubtless continue to exist till repealed by the State legislature. Congress on the same day advised the Virginia legislature to take the earliest opportunity of revising the act of which complaint had been made.'

Hamilton, in urging the New York legislature to pass a law conformably to the resolutions of Congress of March 21, 1787, replied to the objection that such a law would place too much power in the judges, that the judges were bound not less without the law of repeal than with it to recognize the treaty regardless of any law to the contrary. Jefferson, in a communication to Mr. Hammond, the British minister, on May 29, 1792, in referring to the declarations of repeal by the several States, said, "indeed all this was supererogation. It resulted from the instrument of Confederation among the States, that treaties made by Congress according to the Confederation were superior to the laws of the States."3 State courts and State officials on various occasions recognized the treaty as a law binding on them. In the debates on the Constitution it was frequently declared that treaties were supreme laws under the Articles of Confederation. Charles Cotesworth Pinckney, in the State convention of South Carolina, said: "I contend that the article in the new Constitution which says that

1 Secret Journals, vol. iv, pp. 410, 413..

'Works (Lodge ed.), vol. iii, p. 508.

3

Am. State Papers For. Rel., vol. i, p. 209.

'Ibid., p. 237.

treaties shall be paramount to the laws of the land is only declaratory of what treaties were in fact under the old compact." What may have been the legal foundation of such contentions need not now be considered. The inability of the national legislature to effect a legislative execution, and the unwillingness of the local legistures to recognize the obligation, moral or otherwise, had produced another expedient which was to be incorporated in the new Constitution, i. e., the operation of the treaty proprio vigore as a law binding on the courts, any State laws to the contrary notwithstanding.

III. THE FEDERAL CONVENTION AND THE Period
IMMEDIATELY FOLLOWING

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 be proposed by the Convention, and in which the organization of the treatymaking power is retained in similar form, it is clearly indicated that the States were not to share equally in the

'Elliot's Debates, vol. iv, p. 278. See opinions of Mr. Justice Chase and Mr. Justice Iredell in Ware vs. Hylton, 3 Dallas, 237, 277.

'Documentary History of the Constitution, vol. i, p. 327.

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. In the discussion, August 15, on the question of restricting the powers 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 power of concluding treaties 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."3 In the consideration of Article IX on August 23, Madison observed “that the Senate represented the States alone; 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 back to the Committee. 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."s The discussion that followed was confined chiefly to the

1Documentary History of the Constitution, vol. iii, p. 773. On May 30, Hamilton moved that the rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitants; and on June 11, supported a resolution providing that the same ratio of representation should be observed in both houses. Ibid., pp. 24, 108.

1Ibid., p. 451.

Ibid., p. 536.

• Ibid., p. 604.

Ibid., p. 669. 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.

proportion of the Senate required. By an amendment proposed by Madison, September 7, and agreed to nem. con., treaties of peace were excepted from the requirement of a two-thirds vote. Different opinions were expressed as to what should be required in case of such treaties. Madison wished the consent of two-thirds of the Senate without the concurrence of the President. Gouverneur Morris desired the concurrence of the President and a majority only of the Senate, while Gerry would require a greater proportion than in the case of other treaties. On the one hand, it was urged that, if two-thirds were to be required for treaties of peace, the minority might perpetuate the war against the wish of the majority, unless the majority should make its wish effective by the disagreeable means of negativing the supplies of war; on the other, that such vital interests of the country as would most likely fall within treaties of peace, such, for instance, as the fisheries and territories, should not be placed in the hands of a majority only, which might represent less than one-fifth of the people. A reconsideration of the clause resulted in striking out the exception. Motions were also entertained to strike out entirely the clause requiring the consent of two-thirds of the members present, to substitute for two-thirds of the members "present" two-thirds of all the members, and to require a majority of the whole number of the Senate. These were defeated by votes of 9 to 1, 8 to 3, and 6 to 5 respectively. A motion by Madison that two-thirds of all the members should constitute a quorum, likewise failed, as did also an amendment that no treaty should be made without previous notice to the members and a reasonable time for their attendance. The provision was finally agreed to as reported by the committee, Penn

sylvania, New Jersey and Georgia voting in the negative.' The requirement, as adopted, of two-thirds of the members "present," not only would remove the possibility of the embarrassment that had been experienced under the Articles of Confederation, through the failure of delegates from nine States to attend, but would at the same time serve as an incentive to attendance.

On August 23, while the treaty power was still vested solely in the Senate, Gouverneur Morris, after expressing doubt as to whether he would agree to confer the making of treaties on the Senate at all, moved to amend the section by adding "but no treaty shall be binding on the United States which is not ratified by a law." Nathaniel Gorham, objecting, suggested the disadvantage that must be experienced if treaties of peace and all negotiations were to be previously ratified-and if not previously, the ministers would be at a loss to know how to proceed, for they must go abroad uninstructed by the authority which was to ratify their proceedings. Samuel Johnson also thought there was "something of solecism in saying that the acts of a minister with plenipotentiary powers from one body should depend for ratification on another body." In reply to Madison's observation on the inconvenience of requiring a "legal ratification of treaties of alliance for the purposes of war, &c., &c.," Morris said 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. In the debate, several spoke against the amendment. Wilson and Dickinson are recorded as support

Documentary History of the Constitution, vol. iii, pp. 700, 701, 703, 705, 700.

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