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.2 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.3 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.'

The North Carolina convention also proposed another amendment 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By its terms no treaty which was opposed to the existing laws of the United States should be valid until such laws were repealed, nor should

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. 11, sec. 11, el. 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.

4 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." 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.

2 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.

"App., No. 1648.

In the tariff act of 1890 a contrary tendency was visible. Congress authorized the President, by law, to reestablish certain duties as to particular nations, unless he could secure treaties by which these nations granted certain commercial privileges.

162. WAR POWERS-DECLARATION OF WAR.

Since the Government of the Confederation had been created with express reference to carrying on the war with Great Britain, the powers in that respect were more complete than in its powers over foreign affairs. There was no difficulty in securing a liberal clause in the Constitution as to the declaration of war, the maintenance and discipline of armies, and the raising and employment of militia. These powers have been little disputed except during the war of 1812 and the civil war, and few efforts were made in these crises to curtail them.

Two attempts have been made to place the power to declare war under a special restriction. The New York and Rhode Island ratifying conventions proposed that an amendment should be made to the Constitution, to the effect that Congress should not declare war without the concurrence of two thirds of both Houses. No similar amendment was suggested until the report of the Hartford convention was presented to Congress, in 1815. One of the amendments of this interesting series proposed a like restriction upon the powers of Congress, the only exception permitted was for the defense of the territories of the United States when actually invaded.2

Another of the propositions of the indefatigable convention of North Carolina was that Congress should not introduce foreign troops into the United States without the consent of two-thirds of the members of both Houses.3 Still another, submitted by the Rhode Island convention in 1790, stipulated that no person should be compelled to do military duty otherwise than by voluntary enlistment, except in cases of general invasion.1

163. WAR POWERS-THE ARMY.

A curious evidence of the prevalent fear that the republican government might be destroyed is seen in the amendments

'App., Nos. 54, 117.

App., Nos. 429, 437, 445. For replies of other States, see ante, pars. 22, 157. The report of the New York committee declares, if this amendment were adopted, "no nation would ever fear our power" Niles', Vol. VIII, p. 100.

3 App., No. 103.

App., No. 109.

proposed in 1788-89, relating to the war power. The ratifying conventions of five States' desired that no standing army should be kept up in time of peace without the consent of a very large majority of both Houses of Congress. Some of these placed the majority required at three-fourths of the members of each House, others at two-thirds. Two amendments of a similar character were rejected by the Senate in 1789.3

The same effect was sought by other amendments urged by the Virginia and North Carolina conventions. They would have prohibited the enlistment of soldiers for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war. Two attempts in the First Congress to secure similar amendments were defeated.

164. THE MILITIA.

Even the paragraph as to the militia" did not escape censure. The Virginia and North Carolina conventions proposed still another amendment on the war power, which conferred upon each State the power of organizing, arming, and disciplining its own militia, whenever Congress should omit to provide for the same, and in addition that the militia should not be subject to martial law except when in actual service. This amendment, also, the Senate in 1789 declined to recommend to the States. 8

The New York ratifying convention proposed an amendment providing that the militia of a State should not be compelled to serve without its limits for a longer term than six weeks without the consent of the legislature of its State."

No further amendments in regard to the militia were proposed until after the war of 1812. In that war the militia, upon which great reliance had been placed, proved inefficient,

New Hampshire, Virginia, New Jersey, North Carolina, and Rhode Island. Story, 11, 88, note. Individual liberty was guarded from the military power by the second and third amendments.

2 App., Nos. 23, 34, 52, 86, 115.

3 App., Nos. 252, 280.

4 App., Nos. 35, 87.

5 App., Nos. 252, 281.

6" Congress shall have power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." Const., Art. 1, sec. 8, cl. 16.

7 App., Nos. 36, 88.

App., No. 282. See Story, II, 112–114.

9 App., No. 74.

and the New England States had declined to send their militia outside of their own borders on the call of the Government. It is not surprising, therefore, that in 1817, and again in 1818,' General Harrison of Ohio introduced an amendment which should give Congress power, concurrently with the States, to provide for the training of the militia, and also "for teaching in the primary schools and other seminaries of learning in the several States the system of discipline prescribed for the militia," in order that the militia might become "a safe and effectual national defense."

165. MILITARY PENSIONS.

One consequence of the war and financial powers, taken together, seems to have escaped the attention of the Convention. The question of half pay to the Revolutionary officers had caused the Newburgh address of 1783. Under the new Constitution, Congress made many grants, and especially very liberal land grants to old soldiers. As the arable lands were not sufficient after the civil war, a very liberal and even wasteful scale of pensions was adopted. One amendment has been proposed to prevent the repeal of the general pension laws, or the decrease of the rate of pension granted under the same It was introduced in the Fiftieth Congress, by Mr. Peters of Kansas. No such provision seems necessary; the payment once begun can hardly be withdrawn, except by the gradual dying off of the recipients.

166. POLICE POWER.

In the division of powers between the States and the General Government, it seems to have been intended that to the States should be left entire control over internal order, and the relations of man with man, except as the relations grew out of Federal law. Questions of morality, of the relation of employer and employed, of education, have wisely been committed to smaller communities. Four different questions, however, have suggested an extension of the nation's powers; they are polygamy, divorce, the traffic in intoxicating liquors, and the protection of labor.3

'App., Nos. 464, 470.

App., No. 1714.

3 The amendments on divorce are considered under Personal Relations, ante, par. 102.