§ 186. Treaties the supreme law; resolutions regarding same; August 23d.-When Article VIII of the draft was reached on August 23d there does not appear to have been any discussion in regard to it; a resolution offered by Mr. Rutledge was adopted nem. con. amending it but practically without any change so as to read as follows: "This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several States and of their citizens and inhabitants; and the Judges of the several States shall be bound thereby in their decisions, anything in the Constitutions or laws of the several States to the contrary notwithstanding."1 Mr. Morris then offered a resolution which was also agreed to nem. con., to strike out of the eighteenth clause of Section 1 of Article VII of the draft, the power of the United States "to enforce treaties," as being superfluous, for since the treaties were to be laws, the power to enforce them already existed.? A motion was also similarly adopted to alter that part of the same clause of Section 1, Article VII, which authorized Congress to call forth the aid of the militia to enforce treaties after the words "laws of the Union," on the ground that by the adoption of Article VIII the words treaties were superfluous, inasmuch as they were to be the laws of the Union.3 In the second draft some of the provisions were so transposed that Article VIII subsequently became and remained Article VI. Mr. Pinckney also moved to amend Section 1 of Article VII, by adding that Congress should not only have the right to make all laws necessary and proper for carrying into execution the foregoing powers, as well as all other powers vested by the Constitution in the government of the United States, or in any department or office thereof, but that Congress should also have the additional power to "negative all laws passed by the several States interfering, in the vania, Delaware, Maryland, no—5." Madison Papers, vol. III, pp. 1330– 1332. § 186. 1 Madison Papers, vol. III, p. 1408. 2 Idem, p. 1409. 3 Idem, p. 1409. opinion of the Legislature, with the general interests and harmony of the Union." Mr. Roger Sherman expressed his opinion that this was unnecessary, because the laws (which, as we have already seen, include treaties) of the Central Government were supreme and paramount to the State laws according to the plan as it then stood; a motion to commit was lost, and Mr. Pinckney's resolution was voted down.5 Article IX giving the Senate power to make treaties and appoint ambassadors and Judges of the Supreme Court was then taken up; the convention disagreed in several respects, and after an equally divided vote its consideration was postponed; subsequently it was referred to the Committee of Eleven." § 187. Debate as to ratification of treaties; August 23d. The debate of August 23d as to the ratification. of treaties continued, Messrs. Madison, Morris, Gorham, Wilson, Dickinson, Randolph and Dr. Johnson taking part therein; Mr. Morris wished a saving clause inserted to the effect that "no treaty should be binding on the United States which is not ratified by law." It became apparent 4 Idem, p. 1409. Idem, p. 1410. * Idem, pp. 1412 et seq., and see quotation at length under § 187, post. § 187. 1 Thursday, August 23d, In Convention. at all, but for the present would move to add, as an amendment to the section, after 'treaties,' the following: 'but no treaty shall be binding on the United States which is not ratified by law.' "Mr. Madison suggested the inconvenience of requiring a legal ratification of treaties of alliance, for the purposes of war, etc., etc. "Mr. Gorham. Many other dis "Article 9, Sec. 1, being resumed, to wit: The Senate of the United States shall have power to make treaties, and to appoint Ambassa- | advantages must be experienced, dors, and Judges of the Supreme Court' "Mr. Madison observed, that the Senate represented the States alone; and that for this as well as other obvious reasons, it was proper that the President should be an agent in treaties. "Mr. Gouverneur Morris did not know that he should agree to refer the making of treaties to the Senate if treaties of peace and all negotiations are to be previously ratified; and if not previously, the ministers would be at a loss how to proceed. What would be the case in Great Britain, if the King were to proceed in this manner? American ministers must go abroad not instructed by the same authority (as will be the case with other ministers) which is to ratify their proceedings. that the Convention was not satisfied that the Senate should make treaties; it was, therefore, referred back to a Com "Mr. Gouverneur Morris. As to | necessary means of execution, the treaties of alliance, they will oblige treaty would be violated. foreign powers to send their ministers here, the very thing we should wish for. Such treaties could not be otherwise made, if his amendment should succeed. In general he was not solicitous to multiply and facilitate treaties. He wished none to be made with Great Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty in making treaties, the more value will be set on them. "Mr. Wilson. In the most important treaties, the King of Great Britain, being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris's will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause without the amendment, the Senate alone can make a treaty requiring all the rice of South Carolina to be sent to some one particular port. "Mr. Dickinson concurred in the amendment, as most safe and proper, though he was sensible it was unfavorable to the little States, which would otherwise have an equal share in making treaties. "Mr. Gorham, in answer to Mr. Gouverneur Morris, said, that negotiations on the spot were not to be desired by us; especially if the whole Legislature is to have anything to do with treaties. It will be generally influenced by two or three men, who will be corrupted by the ambassadors here. In such a government as ours, it is necessary to guard against the Government itself being seduced. "Mr. Randolph, observing that almost every speaker had made objections to the clause as it stood, moved, in order to a further consideration of the subject, that the motion of Mr. Gouverneur Morris should be postponed; and on this question, it was lost, the States being equally divided, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye-5; Massachusetts, Connecticut, North Carolina, South Carolina, Georgia, no-5. "On Mr. Gouverneur Morris's motion, "Pennsylvania, aye-1; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, Georgia, no-8; North Carolina, divided. "The several clauses of Article 9, Sec. 1, were then separately postponed, after inserting, and other public ministers,' next after 'ambassadors.' "Doctor Johnson thought there was something of solecism in saying, that the acts of a minister with plenipotentiary powers from one body should depend for ratification on another body. The example of the King of Great Britain was not parallel. Full and complete power was vested in him. If the Parliament should fail to provide the ties eventual, and of alliance for "Mr. Madison hinted for consideration whether a distinction might not be made between different sorts of treaties; allowing the President and Senate to make trea mittee of Five; it was, however, apparently finally intrusted to the Committee of Eleven, which included certain modifications as to this subject in its report on September 4th, which will be hereafter alluded to.2 § 188. Amendments to draft as to treaties; August 25th. -On August 25th, several days after Article VIII of the draft, afterwards Article VI of the Constitution, had been unanimously adopted, Mr. Madison, seconded by Mr. Morris, offered a resolution, which was adopted nem. con., that the article should be reconsidered by the insertion of the words, For which shall be made;" this was done so as to obviate all doubt concerning pre-existing treaties, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. The attention of the Convention was thus again especially called to the power which Mr. Mason had already said was great enough "to sell the Union," and the delegates were fully advised that no matter how great the power might be, it related not only to the treaties already made by the Congress of the Confederation, but to every one that might thereafter be made and ratified. § 189. Jurisdiction of Supreme Court over treaty cases; Senate to ratify treaties; September 4th-10th.-When the articles relating to the power of the Supreme Court were discussed, on motion of Mr. Rutledge, an amendment was unanimously adopted giving that Court jurisdiction in regard to all treaties made by the United States, that branch of its jurisdiction having apparently been overlooked by the Committee of Detail.1 On September 4th the Committee of Eleven, consisting of one member for every State then represented, made a report in which a number of matters on which the Convention had disagreed were disposed of by modified clauses to be inserted at their proper place in the Constitution as already framed. limited terms, and requiring the| concurrence of the whole Legislature in other treaties. 2 See § 189, note 2 on p. 322, post. 1 Madison Papers, vol. III, p. 1430. "The first Section of Article 9, was finally referred, nem. con., to the Committee of five, and the House then adjourned." Madison 1439. Papers, vol. III, pp. 1412-1415. Madison Papers, Vol. III., p. The seventh recommendation provided, that the President, by and with the advice and consent of the Senate, should make treaties, thus returning to Mr. Hamilton's original suggestion, with the limitation, however, that no treaty should be made without the consent of two thirds of the members present. Some of the members thought that the negotiation of treaties should be intrusted to the executive alone. After some discussion, on September 6th, as to the 4 sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of twothirds of the Senators present necessary to the ratification of a treaty." Curtis' Constitutional History of the United States, vol. I, p. 468. 2 Tuesday, September 4th, In | undertake to dismember a state of Convention. "Mr. Brearly, from part of its territory, or might otherthe Committee of eleven, made a wise affect its individual interests; further partial Report as follows: and even where it concerned only "The Committee of eleven, to the general interests of all the whom sundry resolutions, etc., states, there was a great unwillingwere referred on the thirty-first of ness to intrust the treaty-making August, report, that in their opin-power exclusively to the president. ion the following additions and Here the states, as equal political alterations should be made to the Report before the Convention, viz: "1. The first clause of Article 7, Section 1, to read as follows: The Legislature shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.' 7. Section 4. The President, by and with the advice and consent of the Senate, shall have power to make treaties; and "Mr. Wilson said, that he had he shall nominate, and, by and with weighed carefully, the Report of the advice and consent of the the Committee for remodelling Senate, shall appoint ambassadors, the constitution of the Executive; and other public ministers, Judges and on combining it with other of the Supreme Court, and all other parts of the plan, he was obliged officers of the United States whose to consider the whole as having appointments are not otherwise a dangerous tendency to aristocherein provided for. But no treaty racy; as throwing a dangerous shall be made without the consent power into the 'hands of the Senof two-thirds of the members pres-ate. They will have, in fact, the ent.'" Madison Papers, Vol. III, appointment of the President, and pp. 1485-1488. through his dependence on them, 4 Thursday, September 6th, In Convention. "The negotiation of treaties the virtual appointment to of was obviously a function that fices; among others, the officers of should be committed to the execu- the Judiciary department. They tive alone. But a treaty might are to make treaties; and they are |