States. Therefore, it appears to me, that a power to remedy this evil should be given to Congress, and the remedy applied as soon as possible."? Mr. Adams's scruples were no doubt removed by the adoption of the resolution suggesting the proposed amendments; he is recorded in the yeas and nays as having voted for the ratification; undoubtedly the great weight of his influence largely aided in the ratification of the Constitution by the State of Massachusetts. § 206. Ratification by Maryland; Luther Martin's protest. On April 28, 1778, Maryland ratified the Constitution; this however, was not done without a struggle, nor until after Luther Martin had thrown his powerful influence in opposition to it, and had presented to the Legislature a lengthy address embodying his reasons for refusing to sign the Constitution and for urging his own State to withhold its ratification. Some of the grounds of his views are quoted in the note to this section.1 2 Elliot's Debates, vol. II, p. 123-| ings, we adopted principles which 124. § 206. would be right and proper, only on the supposition that there were no state governments at all, but that all the inhabitants of this extensive continent were in their individual capacity, without government, and in a state of nature-That accordingly the system proposes the legislature to consist of two branches, the one to be drawn from the people at large, immediately in their individual capacity; the other to be chosen in a more select manner, as a check upon the first-It is in its very introduction declared to be a compact between the people of the United States as individuals; and it is to be ratified by the people at large in their capacity as individuals; all which it was said, would be quite right and proper, if there were no state governments, if all the people of this continent were in a state of nature, and we were form 1 "It was urged, that the government we were forming was not in reality a federal but'a national government, not founded on the principles of the preservation, but the abolition or consolidation of all state governments-That we appeared totally to have forgotten the business for which we were sent, and the situation of the country for which we were preparing our system-That we had not been sent to form a government over the inhabitants of America, considered as individuals, that as individuals they were all subject to their respective state governments, which governments would still remain, tho' the federal government should be dissolved―That the system of govern- | ment we were entrusted to prepare, was a government over these thirteen states; but that in our proceed-ing one national government for $207. The Constitution in South Carolina; Mr. Pinckney's views. A majority of the States had now ratified the Constitution, but under the terms of the instrument the ratifications of two more were required; six were still to be heard from. A fierce battle was fought in the South Carolina Legislature over the question of calling a constitutional convention,' with the result of calling one for the 12th of May, on which day it met at Charleston.2 Governor Thomas Pinckney was elected President. Charles Cotesworth Pinckney, Rawlins Lowndes and David Ramsay took prominent parts in the discussion. 3 One of the subjects of debate in the legislature was the treaty-making power; Charles Cotesworth Pinckney, who had been a delegate to the Federal Convention, explained the reasons for vesting the treaty-making power in the Executive and Senate. During his remarks he said that the subject had appeared to be of such magnitude that a committee of one member from each State had been appointed to consider and report upon it; some of the members of that committee were in favor of vesting the treaty-making power in the legislature, but the elements of secrecy and despatch, which are so frequently necessary in negotiations, evinced the impropriety of that course; the same reason showed the impropriety in placing it solely in the House of Representatives. A few of the members were desirous that the President, alone, might possess it. At last, however, it was agreed to give the President the power of proposing treaties as he was ostensibly the head of the nation, and of vesting in the Senate, where each State had an equal voice, the power of agreeing or disagreeing with the terms proposed. "On the whole," he said, "a large majority of the Convention thought them as individuals, and is nearly the same as was done in most of the states, when they formed their governments over the people who compose them." (The italics are so in the original as published by Yates.) Elliot's Debates, vol. I, p. 344; see pp. 359–360; vol. II, pp. 547-556; Yates' Secret Journal of the Federal Convention, pp. 38-39; 1 Elliot's Debates, vol. IV, pp. 253-342; Curtis' Constitutional History, vol. I, p. 658. 2 Elliot's Debates, vol. IV, p. 316. 8 Idem p. 264. this power would be more safely lodged where they had finally vested it, than anywhere else. It was a power that must necessarily be lodged somewhere: political caution and republican jealousy rendered it improper for us to vest it in the President alone; the nature of negotiation, and the frequent recess of the House of Representatives, rendered that body an improper depository of this prerogative. The President and Senate joined were, therefore, after much deliberation, deemed the most eligible corps in whom we could with safety vest the diplomatic authority of the Union.” 4 General Pinckney spoke frequently during the debate and on more than one occasion gave particular attention to the treaty-making power and the propriety of vesting it in the President and Senate.5 6 4 Elliot's Debates, vol. IV, p. 265. | edged it was binding on the nation. 5 On Thursday, January 17th, (Here the general read extracts Charles Cotesworth Pinckney made from the parliamentary debates of his strongest address in the Legis- the 17th and 21st of February, lature on the subject of the treaty- 1784.) Indeed, the doctrine that making power in the course of the king of Great Britain may make which he "observed that the hon- a treaty with a foreign state, which orable gentleman (Mr. Lowndes) shall irrevocably bind his subjects, who opposed the new Constitu- is asserted by the best writers on tion had asserted that treaties the laws and constitution of Engmade under the old Confederation | land—particularly by Judge Blackwere not deemed paramount to stone, who, in the first book of his the laws of the land, and that Commentaries, (ch. 7, p. 257), detreaties made by the king of Great clares that it is the king's preBritain required the ratification of rogative to make treaties, leagues, Parliament to render them valid. and alliances, with foreign states The honorable gentleman is surely and princes, and that no other mistaken in his assertion. His power in the kingdom can legally honorable friend (Chancellor Rut- delay, resist, or annul them.' If ledge) had clearly shown that, by treaties entered into by Congress the 6th, 9th, and 13th Articles of are not to be held in the same the old Confederation, Congress sacred light in America, what forhave a power to make treaties, and eign nation will have any confidence each state is pledged to observe in us? Shall we not be stigmatized them; and it appears, from the de- as a faithless, unworthy people, if bates of the English Parliament, each member of the Union may, that the House of Commons did with impunity, violate the engagenot ratify, but actually censure, the ments entered into by the federal peace made by the king of Great government? Who will confide in Britain with America; yet the very us? Who will treat with us if our members who censured it acknowl- practice should be conformable to § 208. Rawlin, Lowndes' opposition; Mr. Pringle's views. -Replying to Mr. Pinckney, Rawlin, Lowndes declared 66 this doctrine? Have we not been | lity, happiness, and prosperity, of deceiving all nations, by holding the human race, depend on inviolaforth to the world, in the 9th Arti- bly preserving the faith of treaties. cle of the old Confederation, that Congress may make treaties, if we, at the same time, entertain this improper tenet, that each state may violate them? I contend that the article in the new Constitution, which says that treaties shall be paramount to the laws of the land, is only declaratory of what treaties were, in fact, under the old compact. They were as much the law of the land under that Confederation, as they are under this Constitution; and we shall be unworthy to be ranked among civilized nations if we do not consider treaties in this view. Vattel, one of the best writers on the law of nations, says, 'There would be no more security, no longer any commerce between mankind, did they not believe themselves obliged to preserve their faith, and to keep their word. Nations, and their conductors, ought, then, to keep their promises and their treaties inviolable. This great truth is acknowledged by all nations. Nothing adds so great a glory to a prince and the nation he governs, as the reputation of an inviolable fidelity to his engagements. By this, and their bravery, the Swiss have rendered themselves respectable throughout Europe. This national greatness of soul is the source of immortal glory; upon it is founded the confidence of nations, and it thus becomes a certain instrument of power and splendor.' Surely this doctrine is right; it speaks to the heart, it impresses itself on the feelings of mankind, and convinces us that the tranquil Burlamaqui, another writer of great reputation on political law, says that treaties are obligatory on the subjects of the powers who enter into treaties; they are obligatory as conventions between the contracting powers; but they have the force of law with respect to their subjects.' These are his very words: Ils ont force de loi a l'égard des sujets, considérés comme tels; and it is very manifest,' continues he, that two sovereigns, who enter into a treaty, impose, by such treaty, an obligation on their subjects to conform to it, and in no manner to contravene it.' It is remarkable that the words made use of by Burlamaqui establish the doctrine, recognized by the Constitution, that treaties shall be considered as the law of the land; and happy will it be for America if they shall be always so considered: we shall then avoid the disputes, the tumults, the frequent wars, we must inevitably be engaged in, if we violate treaties. By our treaty with France, we declare she shall have all the privileges, in matters of commerce, with the most favored nation. Suppose a particular state should think proper to grant a particular privilege to Holland, which she refuses to France; would not this be a violation of the treaty with France? It certainly would; and we in this state would be answerable for the consequences attending such violation by another State; for we do not enter into treaties as separate states, but as united states; and all the members of the Union are an that in no case in the history of the known world was there an instance of the rulers of a republic being allowed to go pel the attendance of its own members. We shall thus have no delay, and business will be conducted in a fuller representation of the states than it hitherto has been. All the members of the Convention, who had served in Congress, were so sensible of the advantage attending this mode of voting, that the measure was adopted unanimously. For my own part, I think it infinitely preferable to the old method. swerable for the breach of a treaty | their members attended or not. by any one of them. South Caro- But now that the senators vote inlina, therefore, considering its sit-dividually, and not by states, each uation, and the valuable produce it state will be anxious to keep a full has to export, is particularly inter-representation in the Senate; and ested in maintaining the sacredness the Senate has now power to comof treaties, and the good faith with which they should be observed by every member of the Union. But the honorable gentleman complains that the power of making treaties is vested in the President and Senate, and thinks it is not placed so safely with them as with the Congress under the old Confederation. Let us examine this objection. By the old Confederation, each state had an equal vote in Congress, and no treaty could be made without | So much for the manner of voting. the assent of the delegates from "Now let us consider whether the nine states. By the present Con- power of making treaties is not as stitution, each state sends two securely placed as it was before. members to the Senate, who vote It was formerly vested in Congress, per capita; and the President has who were a body constituted by the power, with advice and consent of legislatures of the different states the Senate, to make treaties, pro-in equal proportions. At present, vided two-thirds of the Senate pres- it is vested in a President, who is ent concur. This inconvenience chosen by the people of America, attended the old method: it was and in a Senate, whose members frequently difficult to obtain a rep-are chosen by the state legislatures, resentation from nine states; and if only nine states were present, they must all concur in making a treaty. A single member would frequently prevent the business from being concluded; and if he absented himself, Congress had no power to compel his attendance. This actually happened when a treaty of importance was about to be concluded with the Indians; and several states, being satisfied, at particular junctures, that the nine states present would not concur in sentiments on the subject of a treaty, were indifferent whether members? The idea is absurd. each legislature choosing two members. Surely there is greater security in vesting this power as the present Constitution has vested it, than in any other body. Would the gentleman vest it in the President alone? If he would, his assertion that the power we have granted was as dangerous as the power vested by Parliament in the proclamations of Henry VIII, might have been, perhaps, warranted. Would he vest it in the House of Representatives? Can secrecy be expected in sixty-five |