Far more significant were the propositions made by the ratifying conventions of Virginia and North Carolina. The convention of 1787, by a well-understood compromise had inserted no clause prohibiting the slave trade prior to 1808 in consideration that the power to tax and regulate commerce should be left free from any limitation as to navigation laws. The two States returned to the subject by urging an article prohibiting the passage of any law "regulating commerce," without the consent of two-thirds of the members present in both Houses.' A motion made in the Senate during the First Congress to add a similar proposition to the series about to be submitted to the States was defeated.2 The embargo of 1808–09, led the legislature of Massachusetts3 to present to Congress an amendment limiting the duration of an act laying an embargo within the United States. This proposition called out during the year 1809-10 resolutions of approval from Connecticut and disapproval from Vermont, New Hampshire, Pennsylvania, Maryland, New Jersey, Delaware, North Carolina, and Tennessee. The New England Federalists in the Hartford convention suggested the next and last amendment to limit the power of Congress over commerce. The proposals were presented to Congress in February, 1815, together with the others of the same series, by members from Connecticut and Massachusetts, as the resolutions of their respective State legislatures. The first of these limited the powers of Congress to lay an embargo for more than sixty days; the second provided that the concurrence of two-thirds of both Houses should be required "to interdict the commercial intercourse between the United States and any foreign nation."5 App., Nos. 33, 85. The States of Maryland, Virginia, and Georgia had supported a somewhat similar proviso, which should be in force to 1808, in the Federal Convention. Elliot, 1, 317. App., No. 278. 3 The act of 1807 was in its time unlimited in duration and could be removed only by a subsequent act of Congress. The constitutionality of this act was most seriously questioned, and its constitutionality denied in the New England States. See Story, II. pp. 170-171. Adams, U. S. IV, pp. 416. 417. App., Nos. 397a, 397b. House Journal, Eleventh Congress, second session, pp.580,626; Annals of Congress, pp. 666, 1679, 1944. House Journal, Eleventh Congress, third session, p. 17: Annals of Congress, p. 383. House Journal, Twelfth Congress, first session, p. 161. Am. Reg., 1809, p. 181. Massachusetts Archives, Misc., 6662, 6663, 6665, 6816, 6823. Text of the Massachusetts proposition: To "thirty days after the commencement of the session of Congress next succeeding that session in which said law shall have been enacted." Resolves of Massachusetts, Vol. XII, pp. 476–477. Journal of Senate of Pennsylvania (1809-10), pp. 88–89, 166–169; Ibid. (1810–11), pp. 37-41; Ibid. (1811-12), pp. 93–96. App., Nos. 427, 428, 435, 436, 443, 444. This series of resolutions also called out counter resolutions from the legislatures of several of the other States.' The proposition to submit the power over commerce to a special limitation by requiring the concurrence of two-thirds of both Houses has never since found an advocate in Congress. Any such unusual and partial restriction seems unwise. 158. BANKRUPTCY LAWS. The express power given to Congress to regulate bankruptcy has been exercised only at two different periods during the first century of the Constitution's life, and only two amendments have been proposed upon the subject. The first was proposed by the New York ratifying convention. It contemplated restricting the power given to Congress by the Constitution to the passage of bankruptcy laws which should extend only "to merchants and other traders," the States being allowed to pass laws for the relief of other insolvent debtors. The amendment was not, however, considered by the First Congress. The other amendment emanated from a Representative from New York. Mr. Walworth, in 1832, presented an amendment providing that the States may enact bankrupt or insolvent laws until Congress shall establish uniform laws on the subject. Although no similar amendment has been passed, the States, whenever the Federal Government has refrained from legislating upon the subject, have exercised this power themselves, and such State laws have been held constitutional until Congress shall see fit to supersede them by a general law." 159. PROTECTION OF TRADE-MARKS. At the time the Constitution was adopted no distinction seems to have existed in the minds of the framers between 1 House Journal, Fourteenth Congress, first session, pp. 278, 297, 672. See ante, par. 22. The New York reply declared that "the effect of these, if adopted, would be to create dis sensions among the different members of the Union, to enfeeble the National Government, and to tempt all nations to encroach upon our rights." Niles', VIII, p. 100. Pennsylvania and New Jersey replied in nearly similar words. See, also, Niles', Vol. VII, Sup., pp. 49–53. J. Q. Adams said that, if adopted, they "would not have left enough of that instrument remaining to call it a ruin." Adams, New England Federalism, pp. 315-317 Holmes of Massachusetts showed that one-third of the Senate might be less than one-fifth of the nation, and more than one-third of the House, be the Representatives of three States out of the eighteen." Niles' Register, Vol. VII, pp. 49-53. *In 1841 and in 1867 laws were passed. The last law was repealed in 1878. App., No. 64. App., No. 508. Sturges v. Crowingshield, 4 Wheaton, 122. Ogden r. Saunders, 12 Wheaton, 213. copyright or patents and trade-marks. Congress passed an act protecting trade-marks, but in 1879 the Supreme Court held that a trade-mark was not within the meaning of the clause in the Constitution which was intended to protect authors and inventors, but could be referred only to the commerce clause. Legislation, therefore, must be limited to the use of trade-marks in commerce "with foreign nations, among the several States, and the Indian tribes." The law passed by Congress was not so limited, but it embraced all commerce, therefore it was declared void for want of constitutional authority.2 Upon the reassembling of Congress in December of this year, Mr. McCoid of Iowa, in consequence of this decision, proposed an amendment conferring upon Congress the power to grant, protect, and regulate the exclusive right to adopt and use trade-marks. This resolution was first referred to the Committee on Manufactures, reported, and recommitted to the same committee; later, referred to the Committee on the Judiciary, and twice recommitted to the same. In the next Congress it was again introduced, but this time no important action was taken.* Although no amendment has been secured, Congress has gone to the limit of its power as indicated by the court. On the 3d of March, 1881, a law was passed applying to trademarks in connection with commerce between States, foreign nations, and the Indian tribes." 160. THE STATUS OF COMMERCIAL POWERS. On the whole, the Constitution confers upon Congress more sweeping power over commerce than over any other subject. The exercise of this power has in the past caused the most friction, and it is the most likely to lead to collisions with the States in the future. Hence it is remarkable that so few amendments have been offered on the essentials of this power. No proposition whatever has been made to amend the Constitution in regard to foreign or interstate commerce. The great power of chartering corporations, banks, and kindred institutions, notwithstanding frequent remonstrance, has been successfully asserted. The legal-tender notes, although I Const., Art. 1. sec. 8, cl. 8. 2 Trade-Mark Cases, 100 U. S., 82 (1879). 4 App., No. 1539. 521 Stat. L., 502. they are naturally a part of the coining power, yet practically they can be placed on a commercial basis. The last decision of the Supreme Court in regard to the legal-tender notes has been acquiesced in, although not without protest. The internal-improvement policy, which was so long considered a doubtful use of the powers of the Government, has finally been established without amendment. In addition, protective tariffs, navigation acts, and embargoes have been carried out. In conclusion, therefore, it would seem that there is little need of an amendment to secure powers already so fully exercised, and that there is no hope of obtaining any amendment restricting the powers of Congress in this sphere. 161. FOREIGN AFFAIRS-THE TREATY-MAKING POWER. Difficulties had arisen, during the Confederation, out of the obstinacy of the States in performing acts forbidden by treaties with foreign nations. The treaty power in the new Constitution was therefore very simple and explicit.' The Virginia and North Carolina ratifying conventions proposed an article providing that no commercial treaty shall be ratified without the concurrence of two-thirds of the Senate, "but no treaty dealing with the territorial rights and claims of the United States, or their rights of fishing in the American seas or navigating the American rivers, shall be made except in case of the most urgent and extreme necessity." In such cases no treaty shall be ratified without the concurrence of three-fourths of the whole number of members of both Houses. A motion to add this identical proposition to the series to be recommended to the States was negatived by the Senate in the First Congress. 3 The North Carolina convention also proposed another amend ment with reference to the validity of treaties. By its terms no treaty which was opposed to the existing laws of the United States should be valid until such laws were repealed, nor should 1 Story, II, p. 580–582. 2" He (the President) shall have power, by and with the advice of the Senate, to make treaties, provided two-thirds of the Senators present concur." Art. II, sec. 11, cl. 2. Story, II, pp. 324-337; 580-585, notes. In the Federal Convention a proposition to require the assent of two-thirds of all the members of the Senate was rejected by a vote of six States against five. Journal of Congress, 343–344. 3 App., Nos. 32, 84. App., No. 277. App., No. 100. any treaty be valid which was contradictory to the Constitution.1 The question whether the House of Representatives has the right to practically annul a treaty made in accordance with the Constitution, by withholding the appropriations necessary to carry out its provisions, has frequently given rise to very sharp and interesting debates. Although the House has sometimes threatened to withhold its cooperation, especially in the case of the Jay Treaty, it has never yet done so. As a result of the opposition to the Jay Treaty, the legislature of Virginia, before the close of the year in which it was adopted, passed resolutions recommending an amendment which provided "that no treaty containing any stipulation upon the subject of the powers vested in Congress shall become the supreme law of the land until it shall have been approved in those particulars by a majority in the House of Representatives, and that the President before he shall ratify any treaty shall submit the same to the House of Representatives."2 This amendment does not seem to have received further indorsement at this time; moreover, it is somewhat remarkable, in view of the facts previously mentioned, that no similar sug gestion to amend the Constitution was made until 1884.3 In that year there was before the Senate a series of commercial treaties of such a nature that the power of Congress to levy duties on certain merchandise would be restricted thereby. This fact undoubtedly suggested the two amendments proposed in December of this year. One of them, introduced by Mr. Townshend of Illinois, provided that treaties should be made by and with the advice of the House of Representatives as well as the Senate. The other, presented by Mr. Blanchard of Louisiana, required that the prior consent of Congress should be necessary to make reciprocity treaties affecting the revenues. Mr. Blanchard reintroduced the same amendment the following year." The courts have held when the provision of a law and a treaty conflict, the last in point of time must control. Cooley, Const`al Law, pp. 30-31, note 3. App., No. 327a. The Hawaiian reciprocity treaty of 1876 seems to acknowledge the claims of the House to pass upon treaties affecting the revenue, for it provided that it should not go into effect until the passage of an act of Congress to carry it into effect. The act was passed and approved August 15, 1878. 4 App., No 1632. The same proposition was made in the Convention of 1787, but rejected, ten States against one. Journal of Convention, 339–340. 5 App., No. 1634. 6 App., No. 1648. |