of the Constitution, expressed his views under the title of "The Federal Farmer" in regard to treaties as follows: "4th. There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption of the new constitution in its present form, will be left unsecured. By article 6, the proposed constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the constitution or laws of any state to the contrary notwithstanding. "It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, etc., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away. "By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution-nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it is practicable to set any bounds to those who make treaties, I am not able to say; if not, it proves that this power ought to be more safely lodged." 991 § 252. George Mason's protest.-George Mason, who was also a bitter opponent of the Constitution published a violent pamphlet attacking it in many respects; he considered that by declaring all treaties supreme laws of the land the Executive and the Senate had in many instances an exclusive power of legislation which might have been avoided by proper distinction with respect to treaties, by requiring the assent of the House of Representatives.1 § 253. Judge Iredell's answer; "Marcus."-Judge Iredell of North Carolina to whose able work in the convention of that State we have already alluded1 and to whom we shall allude in a later chapter, in regard to his opinion in the great case of Ware vs. Hylton in which the treaty-making power under the Constitution was discussed and construed, answered Colonel Mason under the name of "Marcus," in one of the best pamphlets published during the period. In regard to the treaty-making power Judge Iredell argued that it was already the law of the land and had been so determined by Congress in unanimously resolving to adopt the very sensible letter of Mr. Jay's to the effect "that a treaty when once made pursuant to the sovereign authority, ex vi termini became immediately the law of the land." Continuing, Judge Iredell said: "It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a little rational confidence in our own government, we might be obliged to submit to a master in an enemy. Mr. Mason wishes § 251. 1 Ford's Pamphlets on the Constitution, p. 311. The punctuation is so in the original. § 252. 1 Ford's Pamphlets on the Constitution, pp. 327, et seq., see p. 331. § 253. 1See § 227, p. 366, ante. For an extended reference to Jay's report, or letter, see note under § 156, pp. 268, et seq., ante. the House of Representatives to have some share in this business, but he is immediately sensible of the impropriety of it, and adds 'where it can be done with safety.' And how is it to be known whether it can be done with safety or not, but during the pendency of a negotiation? Must not the President and Senate judge whether it can be done with safety or not? If they are of opinion it is unsafe, and the House of Representatives of course not consulted, what becomes of this boasted check, since, if it amounts to no more than the President and Senate may consult the House of Representatives if they please, they may do this as well without such a provision as with it. Nothing would be more easy than to assign plausible reasons, after the negotiation was over, to show that a communication was unsafe, and therefore surely a precaution that could be so easily eluded, if it was not impolitic to the greatest degree, must be thought trifling indeed. It is also to be observed, that this authority, so obnoxious in the new Constitution (which is unfortunate in having little power to please some persons, either as containing new things or old), is vested indefinitely and without restriction in our present Congress, who are a body constituted in the same manner as the Senate is to be, but there is this material difference in the two cases, that we shall have an additional check, under the new system of a President of high personal character chosen by the immediate body of the people." 4 § 254. David Ramsay's letters; "Civis."-David Ramsay of South Carolina, who had also been a delegate to his own State convention, issued an address to his friends, countrymen, and fellow citizens under the title of "Civis" in which he disposed of the objections as to the treaty-making power as follows: "It has been objected, that the president, and two-thirds of the senate, though not of your election, may make treaties binding on the state. Ask these objectors-do you wish to have any treaties? They will say yes. Ask then who can be more properly trusted with the power of making them, than they to whom the convention have referred it? Can the state legislatures? They would consult their local 4 Ford's Pamphlets on the Constitution, pp. 333, et seq., see p. 355. interests. Can the Continental House of Representatives? When sixty-five men can keep a secret, they may.—Observe the cautious guards which are placed round your interests. Neither the senate nor president can make treaties by their separate authority. They must both concur.—This is more in your favour than the footing on which you now stand. The delegates in Congress of nine states, without your consent, can now bind you; by the new constitution there must be two-thirds of the members present, and also the president, in whose election you have a vote. Two-thirds are to the whole, nearly as nine to thirteen. If you are not wanting to yourselves by neglecting to keep up the state's compliment of senators, your situation with regard to preventing the controul of your local interests by the Northern States, will be better under the proposed constitution than it is now under the existing confederation." 1 § 255. Public knowledge as to the treaty-making power and its effects.-Any one, therefore, who examines the records of the great contests over the adoption of the Constitution in the State conventions, and in the country at large, must inevitably reach the conclusion, that Article VI, making treaties the supreme law of the land and paramount to all State legislation, was based upon the acknowledged weakness of the Confederation, not only as to the making of treaties, but also as to enforcement and fulfilment of treaty obligations. It is also apparent that a majority of the people, including many who were opposed to the Constitution on other grounds, considered that in our relations with foreign powers, whether the subject-matter related to national affairs, or those within the control of the States, or even of individuals, the Central Government must be clothed with the absolute and exclusive power to negotiate and conclude treaties of every class; that it had been effectually demonstrated that the policy adopted by the Confederation, in regard to the treaty of peace with Great Britain, of urging legislation upon the various States to carry treaty stipulations into effect was an impracticable and unsatisfactory method of dealing with foreign powers; that the unwillingness or failure of many of the States § 254. 1 Fords' Pamphlets on the Constitution, p. 376. to act in accordance with the suggestions of Congress, or their subsequent unwillingness or inability to conform to the conditions of the treaty, had placed us in an unenviable position with all the foreign powers, many of whom had lost confidence in us, and to whom the United States were fast becoming objects of ridicule, rather than of the great respect 'to which, as a nation, they were entitled; that under the new Constitution, and in a large measure owing to the additional powers with which Article VI clothed the Central Government, this confidence and respect were immediately regained, and have ever since been retained, as they undoubtedly always will be if we continue to recognize that those powers rightfully exist and that they should be exercised on every proper occasion. Nor can the position ever be taken that the various clauses in regard to treaties and the treaty-making power in the Constitution were not appreciated, or were in any way disregarded, by the people in the discussions upon the ratifi-, cation of that instrument; the reverse of this proposition was indeed the fact. § 256. Importance of treaty-making power appreciated by the people, and by the delegates to State conventions. -The records of the State conventions show that the delegates were fully alive to the importance, and the far-reaching extent, of the power; and that the possibility of its being used to the detriment of the States formed an important factor in the discussions in the conventions; the extracts quoted from the pamphlets of the day show that it was not only discussed in the State conventions, but that it was also discussed and considered by the people themselves. In the next chapter we will refer to the opinions expressed by some writers since the Constitution became the supreme law of the land, and which will show what they thought in regard to the extent of, and limitations upon, the treatymaking power of the United States. $ 255. 1 The use of were instead of was in this instance is intentional as under the Confederation, after the close of the war, the States were drifting so far from union that they were regarded as separate entities by foreign powers rather than as the component parts of a single entity, as they should have been, and have been since the adoption of the Constitution. |