known as the New Jersey Plan; in presenting it, he described it as being "more purely federal" than the one suggested by the Committee.2 The proposition consisted of a series of resolutions which were presented on the following day, June 15th; the first resolution was to the effect "that the Articles of Confederation ought to be so revised, corrected and enlarged, as to render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union;" he proposed to give the Federal judiciary jurisdiction in all cases involving the construction of treaties. The sixth resolution was as follows: 4 "6. Resolved, that all acts of the United States in Congress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far forth as those acts or treaties shall relate to the said States or their citizens; and that the Judiciary of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding: and that if any State, or any body of men in any State, shall oppose or prevent the carrying into execution such acts or treaties, the Federal Executive shall be authorized to call forth the power of the confederated States, or so much thereof as may be necessary, to enforce and compel an obedience to such acts or an observance of such treaties." 5 It will be seen that, so far as the treaty-making power was concerned, the only change suggested by Mr. Paterson was to enlarge the authority of the United States and to make treaties, not as Mr. Pinckney had suggested, "the supreme law of the land," but the "supreme law of the respective States;" in fact, so important did he consider this treatymaking power that he considered it to be necessary not only but we would sooner submit to | States." " Madison Papers, vol. II, foreign power, than submit to be p. 862, note. deprived in both branches of the legislature, of an equality of suffrage, and thereby be thrown under the domination of the larger 2 Idem, p. 862. 8 Idem, p. 863. to clothe the United States with power to enforce, and compel, obedience to the acts of Congress, but also to enforce the observance of all treaties made by the United States. $176. Power to make and enforce treaties a practical matter in 1787.-In this respect it must be remembered that the discussion in the Constitutional Convention in regard to the supervisory powers of the Federal Government over the States in regard to the enforcement, and the prevention of violations, of treaty stipulations, was by no means either academic, or confined to mere future possibilities; at that time the country was in a great state of excitement over the proper enforcement of the provisions of the treaty of peace regarding the collection of debts owing by Americans to citizens of Great Britain,' and also in regard to the navigation of the Mississippi River as it would be affected by the then proposed treaty with Spain, which, as the owner of Louisiana and New Orleans country, controlled the mouth of that river. It was therefore, in view of actually existing circumstances that the Constitutional Convention not only declined to place any limitations upon the treaty-making power, but also expressly provided that all treaties made, or which should be made, under the authority of the United States were paramount to the laws and the constitutions of the several States; in fact, some of the burning questions of the day and hour were the treatment to be accorded to British creditors and American debtors, and the relative effect of treaty provisions providing for the payment of the debts to British citizens, and of the laws which had been passed by some of the States confiscating the identical debts for State use." Professor McMaster, in the Third Chapter of the First Volume of his able and interesting "History of the People of the United States," has given a detailed account of the conditions of the mercantile relations between this country and Great Britain as they were affected by the treaty stipu § 176. 1 See pp. 268, et seq., ante. 2 For the effect of this particular element upon the ratification of the Constitution see § 222, post, relating to the Convention in Virginia. 8 See Ware vs. Hylton, U. S. Supreme Ct., 1796, 2 Dallas, 199, and other cases collated in §§ 324 et seq., Vol. II, pp. 6, et seq. lations, and the construction and misconstruction thereof, and the confusion which had resulted from the efforts made by some of the legislatures and courts to evade the provisions of the treaties in regard thereto.4 177. Work of Convention continued; Alexander Hamilton's views, June 18th. Mr. Madison's views, June 19th. The Convention again resolved itself into a Committee of the Whole to consider jointly the plans proposed by Governor Randolph, Mr. Pinckney and Mr. Paterson. We cannot refer to all the differences between these various plans, or the discussions in the Convention in regard thereto, as we must necessarily confine ourselves exclusively to the proceedings relating to the treaty-making power. 1 On June 18th, Alexander Hamilton is reported as having taken part in the debate of the Convention for the first time on this subject. Before offering his resolution he made some remarks, prefacing them with the statement that he had hitherto kept silent "partly from respect to others whose superior abilities, age and experience, rendered him unwilling to bring forward ideas dissimilar to theirs, and partly from his delicate situation with respect to his own State, to whose sentiments, as expressed by his colleagues, he could by no means accede." After this modest disclaimer, the man who above all others was to aid and assist in the final ratification of the Constitution, when framed and submitted to the people, and to the State conventions, gave his reasons for dissenting to some extent from the plans before the Convention, and urged that the strongest power possible be given to the Central Government. He then offered a series of resolutions in regard to the legislative and executive powers, one of which provided that the Executive should "with the advice and approbation of the Senate, have the power of making all treaties." During the debate which followed and extended through several succeeding sessions, Mr. Madison stated, on June 19th, that he did not think Mr. Pater 4 Chapter III, The Low State of Trade and Commerce, John Bach McMaster's History of the People of the United States, New York, 1893, vol. I, p. 221. $ 177. 1 Madison Papers, vol. II, p. 878. 2 Idem, p. 891. son's plan went far enough in the general surrender of power to the Confederation; in the course of his remarks, he said: 3 "Will it prevent the violations of the law of nations and of treaties which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congress contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shown us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is the greatest of calamities. It ought, therefore, to be effectually provided, that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to it does not supply the omission. It leaves the will of the States as uncontrolled as ever." The views of some of the other members of the Convention as they were expressed in this debate are included in the notes to this section.5 Madison Papers, vol. II, p. 896; | risdictions. As examples, he men(the italics are the author's.) tioned Persia, Rome, and particularly the divisions and subdivisions of England by Alfred. For the complaints to which Mr. Madison alluded see §§ 157, 164, ante. 5 Tuesday, June 19th, In Committee of the Whole. "The first Resolution, that a national Government ought to be established, consisting, etc.,' being taken up, "Mr. Wilson observed that, by a national Government, he did not mean one that would swallow up the State Governments, as seemed to be wished by some gentlemen. He was tenacious of the idea of preserving the latter. He thought, contrary to the opinion of Colonel Hamilton, that they might not only subsist, but subsist on friendly terms with the former. They were absolutely necessary for certain purposes, which the former could not reach. All large governments must be subdivided into lesser ju "Colonel Hamilton coincided with the proposition as it stood in the Report. He had not been understood yesterday. By an abolition of the States, he meant that no boundary could be drawn between the National and State Legislatures; that the former must therefore have indefinite authority. If it were limited at all, the rivalship of the States would gradually subvert it. Even as corporations, the extent of some of them, as Virginia, Massachusetts, etc., would be formidable. As States, he thought they ought to be abolished. But he admitted the necessity of leaving them in subordinate jurisdictions. The examples of Persia and the Roman Empire, cited by Mr. Wilson, were, he thought, in § 178. Mr. Paterson's views contrasted with those of Mr. Madison and Mr. Hamilton.-The great difference be der the Federal Articles. And could not Congress propose, by virtue of the last Article, a change in any article whatever, and as well that relating to the equality of suffrage, as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them. favor of his doctrine, the great retained some portion of their sovpowers delegated to the Satraps ereignty, they had certainly diand Proconsuls having frequently vested themselves of essential produced revolts and schemes of portions of it. If they formed a independence. confederacy in some respects, they "Mr. King wished, as everything formed a nation in others. The depended on this proposition, that Convention could clearly deliberno objection might be improperly ate on and propose any alterations indulged against the phraseology that Congress could have done unof it. He conceived that the import of the term 'States,' 'sovereignty,' 'national,' 'federal,' had often been used and implied in the discussions inaccurately and delusively. The States were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty,-they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops or equip vessels, for war. On the other side, if the union of the States comprises the idea of a confederation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States; they can "Mr. Wilson could not admit the act, and their acts will be binding, doctrine that when the colonies against the instructions of the became independent of Great BritStates. If they declare war, war ain, they became independent also is de jure declared; captures made of each other. He read the Decin pursuance of it are lawful; no laration of Independence, observacts of the States can vary the sit-ing thereon, that the United Colouation, or prevent the judicial con-nies were declared to be free and sequences. If the States, therefore, independent States; and inferring, "Mr. Martin said, he considered that the separation from Great Britain placed the thirteen States in a state of nature towards each other; that they would have remained in that state till this time, but for the Confederation; that they entered into the Confederation on the footing of equality; that they met now to amend it, on the same footing; and that he could never accede to a plan that would introduce an inequality, and lay ten States at the mercy of Virginia, Massachusetts and Pennsylvania. |