so far and that even the most arbitrary kings possessed nothing like the treaty-making power vested in the Executive and Senate.1 The records of the South Carolina discussions, as they have been preserved in Elliot's debates, show that the treaty-making power was one of the principal causes of objection to calling a State constitutional convention. Mr. Pringle (the Speaker) spoke of the great power that the President and Senate might have, declaring that it gave scope to a great deal of declamation upon the danger, but he conceived that there must be mistakes and stated that the making of treaties is justly a part of the prerogative of the Executive as they must be conducted with despatch and secrecy, nor did he think that the apprehended dangers could ensue from vesting the treaty-making power with the President and the Senate. He took a different view from the other gentlemen in regard to the effect of treaties upon laws; in regard to this he said: "Although the treaties they make may have the force of laws when made, they have not, therefore, legislative power. It would be dangerous, indeed, to trust them with the power of making laws to affect the rights of individuals; for this might tend to the oppression of individuals, who could not obtain redress. All the evils would, in that case, flow from blending the legislative, executive, and judicial powers. This would violate the soundest principles of policy and government. It is not with regard to the power of making treaties as of legislation in general. The treaties will affect all the individuals equally of all the states. If the President and Senate make such as violate the fundamental laws, and subvert the Constitution, or tend to the destruction of the Besides, their sessions will proba- themselves or constituents, joined bly last only two or three months with the president, who is the fedin the year; therefore, on that ac-eral head of the United States, form count, they would be a very unfit together a body in whom can be body for negotiation whereas the best and most safely vested the Senate, from the smallness of its diplomatic power of the Union." numbers, from the equality of Elliot's Debates, vol. IV, pp. 277power which each state has in it, 281. from the length of time for which its members are elected, from the long sessions they may have without any great inconvenience to § 208. 1 Elliot's Debates, vol. IV, p. 266; this was in reply to General Pinckney's first speech. happiness and liberty of the states, the evils, equally oppressing all, will be removed as soon as felt, as those who are oppressed have the power and means of redress. Such treaties, not being made with good faith, and on the broad basis of reciprocal interest and convenience, but by treachery and a betraying of trust, and by exceeding the powers with which the makers were intrusted, ought to be annulled. No nations would keep treaties thus made. Indeed, it is too much the practice for them to make mutual interest and convenience the rule of observation, or period of duration. As for the danger of repealing the instalment law, the gentleman has forgot that one article ordains that there shall be no retrospective law. The President and Senate will, therefore, hardly ever make a treaty that would be of this kind." § 209. Other views expressed on treaty-making power. -Dr. David Ramsay asked during the discussion some very pertinent questions and inquired, whether "the gentleman meant us ever to have any treaties at all. If not superior to local laws, who will trust them? Would not the question naturally be, 'Did you mean, when you made treaties, to fulfill them?' Establish once such a doctrine, and where will you find ambassadors? If gentlemen had been in the situation of receiving similar information with himself, they would have heard letters read from our ambassadors abroad, in which loud complaints were made that America had become faithless and dishonest. Was it not full time that such conduct as this should be amended?"1 There were many other views expressed during the addresses in this debate, on both sides of the question, some of the members taking very extreme views. The result of the debate in the Legislature foreshadowed the result in the convention. § 210. Constitution ratified by South Carolina.—The convention which met at Charleston on May 12th, 1788,1 on May 21st, ratified the Constitution by a vote of 149 to 73.2 The records of the debate in the Legislature are much fuller than those of the proceedings of the constitutional § 210. 2 Elliot's Debates, vol. IV, p. 269. § 209. 1 Idem, p. 270. 1 Elliot's Debates, vol. IV, p. 317. 2 Idem, p. 340. convention; the records of the convention show, however, that the questions relating to the treaty-making power assumed great importance in the consideration of the Constitution, and that the people of South Carolina were fully aware of the far-reaching effect which that power might have upon the local affairs of States, and individuals. § 211. Constitutional convention meets in Virginia.— In Virginia the constitutional convention met at Richmond June 2, 1788; the Honorable Edmund Pendleton was elected President. The convention continued in session for over three weeks, the Constitution being finally ratified, on June 25th, after great opposition, by a vote of 89 to 79; although the ratification of the Constitution as proposed was unconditional, numerous amendments were suggested and recommended, and many of them were subsequently incorporated in the amendments approved by the first Congress.2 The ratification of Virginia, however, contained certain reservations as to the right of Virginia to resume the delegated powers whenever the same should be perverted to their injury or oppression.3 The proceedings of the constitutional convention of Virginia are the most elaborately reported of all of the State conventions, the record comprising an entire volume of Elliot's Debates of over 650 pages. It will, therefore, be impossible in a summary of this nature to refer at length to all the references which were made to the treaty-making power; extracts of sufficient length and number will be given from, and references made to, the speeches on both sides of the question, however, to show that the extent of the treatymaking power as vested in the Central Government was one of the principal topics of discussion, and that the Convention ratified the Constitution with full knowledge of the great power that was given by it in this respect. § 212. Opposition led by Patrick Henry.-The opposition to the ratification was led by Patrick Henry, then 52 years of age and in the height of his unbounded popularity, which § 211. 1 Elliot's Debates, vol. III, p. 1. 2 Elliot's Debates, vol. III, He, who, he used to the utmost to defeat the Constitution. when the independence of the Union was in jeopardy, had § 212. or prejudices of his auditory might lead the sober reflections of men astray. "He was at this time fifty-two years of age. Although feeling or affecting to feel himself an old and broken man, he was yet undoubtedly master of all his natural powers. Those powers he exerted to the utmost to defeat the Constitution in the convention of Virginia. He employed every art of his peculiar rhetoric, every resource 1"They were led, as I have already said they were to be, by Patrick Henry, whose reputation had suffered no abatement since the period when he blazed into the darkened skies of the Revolutionwhen his untutored eloquence electrified the heart of Virginia, and became, as has been well said, even a cause of the national independence.' He had held the highest honors of the state, but had retired, poor, and worn down by twenty of invective, of sarcasm, of appeal years of public service, to rescue to the fears of his audience for his private affairs by the practice liberty; every dictate of local preof a profession which, in some of judice and state pride. But he emits duties, he did not love, and for ployed them all with the most sinwhich he had, perhaps, a single cere conviction that the adoption qualification in his amazing orator- of the proposed Constitution would ical powers. His popularity in be a wrong and dangerous step. Virginia was unbounded. It was Nor is it surprising that he should the popularity that attends genius, have so regarded it. He had formed when thrown with heart and soul, to himself an ideal image which and with every impulse of its be- he was fond of describing as the ing, into the cause of popular free- American spirit. This national dom; and it was a popularity in spirit of liberty, erring perhaps at which reverence for the stern inde- times, but in the main true to right pendence and the self-sacrificing and justice as well as to freedom, spirit of the patriot was mingled was with him a kind of guardian with admiration for the splendid angel of the republic. He seems to gifts of oratory which Nature, and have considered it able to correct its Nature alone, had bestowed upon own errors without the aid of any him. But Mr. Henry was rightly powerful system of general governappreciated by his contemporaries. ment-capable of accomplishing in They knew that, though a wise peace all that it had unquestionably man, his wisdom lacked compre- effected for the country in war. As hensiveness, and that the mere he passed out of the troubles and intensity with which he regarded triumphs of the Revolution into the the ends of public liberty was likely calmer atmosphere of the Confederto mislead his judgment as to the ation, his reliance on this American means by which it was to be secured spirit, and his jealousy for the and upheld. The chief apprehen- maxims of public liberty, led him to sion of his opponents, on this im- regard that system as perfect, beportant occasion, was lest the power cause it had no direct legislative auof his eloquence over the feelings thority." Curtis' Constitutional declared that he was not the less a Virginian because he was an American, now took the leadership of the State's rights side of the controversy and became one of the most ardent advocates which that doctrine has ever had; he declared that he could not endure the thought of a government external to that of Virginia, and yet possessing the power of direct taxation over the people of his State; he regarded with utter abhorrence the idea of laws binding upon the people of Virginia made by other people of the United States. Opposing every element of nationality, he objected to the preamble and asked by what authority the delegates to the Constitutional Convention had used the expression, "We, the People," instead of "We, the States."" He charged and predicted that eventually the government would become a monarchy, and as expressed by Elliott, "strongly and pathet ically expatiated on the probability of the President's enslaving America and the horrible consequences that must result." 3 § 213. Governor Randolph's position. He was answered by Governor Randolph, who had declined to sign the Constitution, as a member of the Federal Convention, but having realized that the Constitution, as submitted to the States, must either be ratified, or the Union would be dissolved, patriotically waived his personal feelings and made every exertion for its ratification, and in so doing greatly aided the cause in the Virginia convention.1 § 214. Opposing forces in Virginia convention. The debate thus opened by Patrick Henry and Edmund Randolph was continued by them throughout the session, Rawlins Lowndes, Colonel Mason, Mr. Grayson and Mr. Nicholas opposing the Constitution on various grounds, while James Madison, James Monroe, John Rutledge, John Marshall and Edmund Pendleton, with the able assistance of the friends of ratification, finally overcame the tremendous tide of opposition which had been raised by these opponents to the Union, and thus achieved one of the greatest victories for rati History of the United States, vol. 1, pp. 663-664. § 213. 1 Elliot's Debates, vol. III, p. 652, 2 Elliot's Debates, vol. III, p. 22. and see also § 192, chap. VI, p. 330, 3 Idem, p. 60. ante. |