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ing it, and in the vote that followed Pennsylvania stood alone in the affirmative, with North Carolina divided. Subsequently to the vote, Madison raised the query whether a distinction might not be made between different kinds of treaties, allowing to the President and Senate the making of "treaties eventual and of alliance," but requiring the concurrence in other treaties of the whole legislature. The section was then referred to the Committee of Five.' The significance of the discussion lies especially in the expressions of an idea existing with the members, that the negotiating and ratifying powers should be united in the same body.

In opposing the "dangerous tendency to aristocracy" in the Senate, Wilson, on September 6, 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, the clause "and the House of Representatives," arguing in favor of his motion that, as treaties were to have the operation of laws, they ought to have the sanction of laws. Against the amendment the necessity of secrecy was advanced, and in the vote Pennsylvania alone supported it. Later, it was also suggested, but without effect, that no rights acquired by the treaty of peace should be ceded without legislative sanction.' The House was thus, not without knowledge of the infra-territorial operation of treaties by virtue of another article of the proposed Constitution, excluded from the treaty-making power by the framers.

Upon one provision, there seemed to be unity of senti

'Documentary History of the Constitution, vol. iii, pp. 604-606. 'Ibid., pp. 686, 687, 704.

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ment 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 which he submitted, 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 well as with the power to coerce a disobedient State. On May 31, on motion of Dr. Franklin, the clause "or any treaties subsisting under the authority of the Union" was inserted after the word "Union." As thus amended, the section was agreed to in the committee of the whole, without debate or dissent. William Paterson, who represented 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 authorized to use the power of the confederated States to enforce and compel obedience.3 On July 17, Paterson's resolu

1Documentary History of the Constitution, vol. iii, p. 16.

'Ibid., p. 33.

3

3 Ibid., vol. i, p. 325; vol. iii, p. 127. As there seems to be unmistakable evidence that the plan of a Constitution, delivered by Charles Pinckney to the Department of State, December 30, 1818, and to which so much credit has been given, was written subsequently to the Convention and differs from the original draft presented on May 29 to the Convention, 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 the State, communicating the draft, he remarked "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

tion was substituted for the direct negative by the national legislature; and, with this substitution, the power to negative was transferred from the legislative to the judicial branch of the central government. On August 23, the provision, as reported by the Committee of Detail, was slightly modified 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 bound thereby in their decisions, anything 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," the purpose being to remove any possible doubt as to the force of pre-existing treaties and more especially of the treaty of peace. With the words inserted referring to future treaties, the words "all treaties made" would refer to those already concluded.3 In the Committee on Style and Arrangement, composed of Johnson, Hamilton, Gouverneur Morris, Madison and King, the article was moulded into the form in which it appears in the Constitution, the committee, without the direction of the Convention, 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.".

and judges of the Supreme Court was given to the Senate after numerous debates and considerations of the subjects both in committee of the whole and in the house." Ibid., vol. i, p. 310.

'Documentary History of the Constitution, vol. iii, p. 353.

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Down to August 23, specific power had been given to the central government to use the military force for the enforcement of treaties. At the suggestion of Gouverneur Morris, who observed that the provision was superfluous since treaties were to be laws, it was stricken out.' The judicial power of the United States was extended to all cases arising under "treaties made, or which shall be made, under their authority," by an amendment on August 27.1

The necessity of a more extensive control by the central government in the making and execution of treaties, will always be closely associated with the formation of the closer union as established by the Constitution. In resolutions prepared by Hamilton, and, according to his indorsement, intended to be presented to Congress in 1783, providing for the calling of a convention to revise the Articles of Confederation, the limitation on the power of making treaties with foreign powers is mentioned as a principal defect.3 Attempts were made in March, 1785, to secure amendments to Article IX of the Articles of Confederation, by which exclusive power to regulate trade should be given to Congress, and in the letter prepared to be addressed to the States, the necessity of an exclusive control by Congress in the execution and interpretation of treaties formed the main reason for the request. The Convention in commending the new instrument to the consideration of the United States in Congress assembled, defended its radical action on the ground that the friends of this country had "long seen

'Documentary History of the Constitution, vol. iii,
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'See Art. iii, sec. 2 of the Constitution. Ibid., p. 626.
MSS. Hamilton Papers, vol. vi, p. 38a.

MSS. Cont. Cong. Papers, vol. xxiv, p. 125.

and desired, that power of making war, peace, and treaties, that of levying money and regulating commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union."

In the discussion on the proposed Constitution that followed, the provisions concerning treaties received full consideration. In the Virginia convention Patrick Henry was especially bitter towards them. "The power of making treaties," he said, "by this Constitution, illguarded as it is, extended farther than it did in any country in the world." To say that treaties were to operate as municipal laws was to him "a doctrine totally novel. To make them paramount to the constitution and laws of the States, unprecedented." The excited speculations at the time as to the possibilities of the treaty-making power, need not now be considered. Suffice it to say that the provisions were fully weighed by those who adopted them. In the Maryland convention an attempt was made to insert an amendment that no treaty should be effectual to repeal or abrogate any part of the constitutions or bills of rights of the States. Mr. Lansing in the New York convention proposed in committee that no treaty should abrogate the constitution of any State or a law of the Union. The seventh of the amendments to the body of the Constitution proposed by the Virginia convention, provided that no commercial treaty should be ratified without the concurrence 'The President's letter transmitting the proposed Constitution to Congress. Ibid., vol. ii, p. 1.

'See Writings of Madison, vol. i, p. 423.

'Elliot's Debates, (2nd ed.), vol. iii, p. 500.

MSS. Jefferson Papers, series 2; vol. xiv, no. 87, p. 6.
MSS. Hamilton Papers, vol. vi, p. 83a.

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