gress by the Confederation, and, moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union, or any treaty subsisting under the authority of the Union; and to call forth the force of the Union against any member of the Union failing to fulfill its duty under the Articles thereof."8 Mr. Randolph concluded with an exhortation not to suffer the present opportunity of establishing general peace, harmony, happiness and liberty in the United States to pass away unimproved.* § 172. Pinckney's plan; treaties to be made by Senate; May 29th.-Mr. Charles Pinckney, of South Carolina, also submitted a plan of government, in which he proposed that the source of authority should be changed from the States, as it was described in the Articles of Confederation, to We, The People of the States of (enumerating them by name), as well as many other changes which were afterwards incorporated in the Constitution. This draft contained a proposition for a Senate, some of whose exclusive powers were, "to declare war; and to make treaties; and to appoint ambassadors and other ministers to foreign nations, and judges of the Supreme Court." It also contained prohibitions against any state entering into any treaty or alliance, or confederation, or compact with other States. Article VI, as proposed in his draft, contained a clause which is almost identical in wording with the corresponding clause which was finally incorporated in the Constitution: "All acts made by the Legislature of the United States pursuant to this Constitution, and all treaties х made under the authority of the United States, shall be the supreme law of the land; and all judges shall be bound to consider them as such in their decisions." It is well to note that, although nearly every paragraph of this plan, including the one just quoted, were subsequently changed as to some of Madison Papers, vol. II, p. 732. $172. 1 Idem, p. 735, et seq. 4 2 Idem, p. 742. 3 Idem, p. 744. 4 Idem, p. 741. their details, and many of the great principles at first proposed were altered or modified, the expression that treaties made by the United States should be the supreme law of the land, and that all judges should be bound to so consider them, remained intact, until it was finally adopted in the finished instrument, with the exception of a few words inserted to make the principle established somewhat stronger and broader. Mr. Pinckney's plan was referred to the Committee of the Whole, together with Governor Randolph's resolutions, and they were afterwards discussed in that committee, article by article; not, however, until after there had been a discussion as to the nature of the proposed government, the details of which appear in the notes to this section." 5 Madison Papers, vol. II, p. 746. "The motion for postponing was 6 Wednesday May 30 In Commit-seconded by Mr. G. Morris, and tee of Whole. unanimously agreed to. "Some verbal criticisms were raised against the first proposition, and it was agreed, on motion of Mr. Butler, seconded by Mr. Randolph, to pass on to the third, which underwent a discussion, less, however, on its general merits than on the force and extent of the particular terms national and supreme. "Mr. Charles Pinckney wished to know of Mr. Randolph, whether he meant to abolish the State governments altogether. Mr. Randolph replied, that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view. "Mr. Butler said, he had not made up his mind on the subject, and was open to the light which discussion might throw on it. After some general observations, he concluded with saying, that he had opposed the grant of powers to Congress heretofore, because the whole power was vested in one body. The proposed distribution of the powers § 173. Pinckney's plan to negative State laws; Madison's views; June 8th.—In discussing the policy of giving the national legislature authority to negative State laws, Mr. Pinckney said, on June 8th, that unless such power were given, however extensive the national prerogatives might be on paper, it would be impossible to defend them; that already acts of Congress had been defeated by this means, and that foreign treaties had frequently been violated. He contended that "this universal negative was, in fact, the corner-stone of an efficient National Government; and that, as it had existed under the British Government, the negative of the Crown had been found beneficial;" and he added, "the States are more one nation now, than the colonies were then." with different bodies changed the | Articles of Union, or treaties with case, and would induce him to go foreign nations: great lengths. "Mr. Pinckney moved, 'that the "General Pinckney expressed a National Legislature should have doubt whether the act of Congress authority to negative all laws which recommending the Convention, or they should judge to be improper.' the commissions of the Deputies to He urged that such a universality it, would authorize a discussion of of the power was indispensably a system founded on different prin- necessary to render it effectual; ciples from the Federal Constitu- that the States must be kept in tion. due subordination to the nation; "Mr. Gerry seemed to entertain that if the States were left to act the same doubt. of themselves in any case, it would ex-be impossible to defend the national prerogatives, however extensive they might be, on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the cornerstone of an efficient national Government; that under the British Government the "Mr. Gouverneur Morris plained the distinction between a federal and a national, supreme government; the former being a mere compact resting on the good faith of the parties; the latter having a complete and compulsive operation. He contended that in all communities there must be one supreme power, and one only." Madison Papers, vol. II, pp. 746-negative of the Crown had been 748. § 173. found beneficial; and the States are more one nation now, than the 1 Friday, June 8th, In Committee colonies were then. of the Whole. "Mr. Madison seconded the mo "On a reconsideration of the tion. He could not but regard an clause giving the National Legisla- | indefinite power to negative legisture a negative on such laws of the lative acts of the States as absoStates as might be contrary to the lutely necessary to a perfect system. The power of negativing state legislation was not vested in the National Government in so many words, for eventually Mr. Pinckney's motion was lost, although it was supported by some of the strongest men in the Convention, including Mr. Madison; in fact, at one time it was adopted in Committee of the Whole. So far as treaties are concerned, however, the object of his motion was practically, although indirectly, attained by the clause which he, himself, had framed and which, when it was subsequently incorporated in Article VI of the Constitution, made treaties the supreme law of the land, and under which the Supreme Court of the United States has held that the stipulations in a treaty, as well as the appropriate legislation enforcing it, override all Experience had evinced a constant the government of Congress. The tendency in the States to encroach negative would render the use of on the Federal authority; to violate force unnecessary. The States national treaties; to infringe the could of themselves pass no operarights and interests of each other; tive act, any more than one branch to oppress the weaker party within of a legislature, where there are their respective jurisdictions. A two branches, can proceed without negative was the mildest expedient the other. But in order to give that could be devised for prevent- the negative this efficacy, it must ing these mischiefs. The existence extend to all cases. A discriminaof such a check would prevent at- tion would only be a fresh source tempts to commit them. Should of contention between the two auno such precaution be engrafted, thorities. In a word, to recur to the only remedy would be in an the illustrations borrowed from appeal to coercion. Was such a the planetary system, this prerogaremedy eligible? Was it practica- tive of the General Government is ble? Could the national resources, the great pervading principle that if exerted to the utmost, enforce a must control the centrifugal tennational decree against Massachu- dency of the States; which, withsetts, abetted, perhaps, by several out it, will continually fly out of of her neighbors? It would not be their proper orbits, and destroy possible. A small proportion of the order and harmony of the the community, in a compact situ- political system. ation, acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority. Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as II, pp. 821-823. "Mr. Williamson was against giving a power that might restrain the States from regulating their internal police. "Mr. Gerry could not see the extent of such a power, and was against every power that was not necessary." Madison Papers, vol. State legislation, thus practically negativing any that may be in conflict therewith." § 174. Consideration of treaty-making power; June 13th. -The method of exercising the treaty-making power appears to have been considered for the first time on June 13th, on which day the Committee rose, after making a report, the sixth paragraph of which was as follows: "Resolved, That the National Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the National Legislature the Articles of Union, or any treaties subsisting under the authority of the Union."1 § 175. Mr. Paterson's "New Jersey" plan submitted; June 14th and 15th.-On June 14th, Mr. Paterson of New Jersey, on behalf of an element of the Convention from Connecticut, New Jersey, New York, Delaware, and which possibly included Mr. Martin of Maryland, and which was to some extent dissatisfied with the report of the Committee of the Whole,' asked leave to submit a form of government 2 See chap. XI, §§ 324, et seq. Vol. II, and cases there collated, on relative effect of State laws and treaty stipulations. $174. 1 Madison Papers, vol. II, p. 859; (italics in quotation are the author's.) $175. add a few new powers to Congress than to substitute a National Government. The States of New Jersey and Delaware were opposed to a National Government, because its patrons considered a proportional representation of the States as the basis of it. The eagerness displayed by the members opposed 1" This plan had been concerted to a National Government, from among the Deputation, or mem- these different motives, began now bers thereof, from Connecticut, to produce serious anxiety for the New York, New Jersey, Dela- result of the Convention. Mr. ware, and perhaps Mr. Martin, Dickinson said to Mr. Madison, from Maryland, who made with 'You see the consequence of pushthem a common cause, though ing things too far. Some of the on different principles. Connecti- members from the small States cut and New York were against a wish for two branches in the Gendeparture from the principle of the eral Legislature, and are friends Confederation, wishing rather to to a good National Government; |