§ 193. Constitution signed; Convention adjourns; September 17th.-The Constitution was ordered to be engrossed, the Convention adjourned to meet again on September 17th, when the engrossed copy was presented for signature by Dr. Franklin, but was read by Mr. Wilson. At the last moment there was one change made, and the only occasion occurred on which the President of the Convention is reported as taking actual part in the debates, although there is abundant evidence that the part taken by him in controlling the feelings of the members, and thus preventing any final rupture, was an all important element in the success of the Convention. This change simply made thirty thousand, instead of forty thousand, the minimum basis of Congressional representation. The members then proceeded to sign the Constitution as engrossed, and containing all the provisions as to the treaty-making power above referred to, after which the Convention was dissolved by an adjournment sine die.

§ 194. What the Records of the Convention demonstrate. -The records of the Constitutional Convention, and the provisions adopted, and incorporated in the Constitution, conclusively demonstrate, as to the treaty-making power:

First: That the unfortunate condition of the Union when the convention convened was largely due to the fact, that, although the Central Government possessed power to make treaties, it did not possess sufficient power to enforce them, and that the Convention unanimously agreed that it would only be by giving to, or vesting in, the Central Government the most exclusive powers, both as to the making and enforcing of treaties, and also by entirely debarring the States from any participation therein, that the foreign relations of the Union could be preserved, and the nation strengthened in its commercial relations which were then assuming larger proportions every year.

Second: That the treaty-making power was lodged in the Central Government, as a matter of course, and that as to that element there was unanimity in the Convention.

§ 193.

appear at p. 1623.) For Constitu

1 Madison Papers, vol. III, p. 1596. tion in full see pp. 519, et seq., post. 2 Idem, p. 1599.

3 Idem, p. 1605. (Their names

4 Idem, p. 1624.

Third: That the States were absolutely prohibited from exercising any treaty-making power or entering into foreign relations of any kind, and that the Convention was also a unit on this point.

Fourth: That the treaty-making power was vested in the Central Government without any limitation whatever, and not only were no limitations suggested, but the wide scope of the power was fully appreciated even to the extent of selling the Union."1

Fifth That the only restraints placed upon the treatymaking power were as to the method in which treaties must be made and ratified, and that those restrictions related only to the method of exercising the power, and not to its scope or its supremacy.

Sixth That the Convention was unanimous on the point that all provisions of treaties must be enforced for the sake of the national honor, and that the Central Government must have the power to enforce them, and to such end all treaties, as well as the appropriate legislation to make them effectual, must be superior to the constitutions and laws of the several States, and binding upon all the judges, as was expressed in Article VI of the Constitution.

195. Ratification of the Constitution by the people; Madison's views. During the debates the question of the method of ratification of the Constitution-whether by the State Legislatures or by the people—had been several times discussed. Mr. Madison declared as early as July 23d that the State Legislatures were incompetent to ratify the proposed changes in the Articles of Confederation as they would make essential inroads on the State Constitutions; and that although the Constitutions of some of the States might have given the power to concur in confederations, certainly some of the States had not done so, and in those cases the ratification must necessarily be obtained from the people themselves. He considered the difference between a system founded on Legislatures only, and one founded on the consent of the people, to be the true difference between a league, or treaty, and a Constitution; he urged, by all means, that the States $194.

1 See § 185, p. 317, ante.

by Conventions, and not by their Legislatures, should ratify the Constitution in order to make it binding upon all the people.1

Mr. Madison's wise and prudent counsel prevailed; the § 195.

ferring the plan to the Legisla

1 Monday, July 23d, In Conven- tures. tion.

"Mr. Ellsworth

The Legislatures were con

The nineteenth Resolution (of more was to be expected from the Committee of the Whole) refer- the Legislatures than the people. ring the new Constitution to Assemblies to be chosen by the people, sidered as competent. for the express purpose of ratifying it, was next taken into consideration.

"Mr. Ellsworth moved that it be referred to the Legislatures of the States for ratification. Mr. Paterson seconded the motion.

"Mr. Williamson thought the Resolution (the nineteenth) so expressed, as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought, too, that Conventions were to be preferred, as more likely to be composed of the ablest men in the States.

"Colonel Mason considered a reference of the plan to the authority of the people, as one of the most important and essential of the Resolutions. Mr. Randolph; It is of great importance, therefore, that the consideration of this subject should be transferred from the Legislatures, where this class of men (local demagogues) have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of consideration, that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon, to refer the question to the Federal compact would to the people.

"Mr. Gerry

"Mr. Gouverneur Morris considered the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable

clearly not be valid. The Judges considered would consider them as null and the Confederation to be paramount void. Whereas, in case of an apto any State Constitution. The last peal to the people of the United Article of it, authorizing altera- States, the supreme authority, the tions, must consequently be so as Federal compact may be altered by well as the others; and every thing a majority of them, in like manner done in pursuance of the article, as the Constitution of a particular must have the same high authority State may be altered by a majority with the article. of the people of the State. The "Mr. Gorham was against re-amendment moved by Mr. Ells

Constitution was sent to the Federal Congress with the request to have it ratified by Conventions of delegates chosen by the people of each State, but to be called by the respec

worth erroneously supposes, that | dangerous doctrine, that a Legislawe are proceeding on the basis of ture could change the Constitution the Confederation. This Conven- under which it held its existence. tion is unknown to the Confedera- There might indeed be some Contion. stitutions within the Union, which "Mr. King thought with Mr. Ells- had given a power to the Legisworth that the Legislatures had a lature to concur in alterations of competent authority, the acquies- the Federal compact. But there cence of the people of America in were certainly some which had not; the Confederation being equivalent and in the case of these, a ratificato a formal ratification by the tion must of necessity be obtained people. He thought with Mr. Ells- from the people. He considered worth, also, that the plea of neces- the difference between a system sity was as valid in the one case, as founded on the Legislatures only, the other. At the same time, he and one founded on the people, to preferred a reference to the author-be the true difference between a ity of the people expressly dele-league or treaty, and a Constitution. gated to Conventions, as the most The former, in point of moral oblicertain means of obviating all dis- gation, might be as inviolable as the putes and doubts concerning the latter. In point of political operalegitimacy of the new Constitution, tion, there were two important disas well as the most likely means of tinctions in favor of the latter. drawing forth the best men in the First, a law violating a treaty ratiStates to decide on it. He re-fied by a pre-existing law might be marked that among other objec-respected by the Judges as a law, tions, made in the State of New though an unwise or perfidious one. York to granting powers to Con- A law violating a Constitution esgress, one had been, that such pow-tablished by the people themselves, ers as would operate within the would be considered by the Judges States could not be reconciled to as null and void. Secondly, the the Constitution, and therefore doctrine laid down by the law of were not grantable by the Legis- nations in the case of treaties is, lative authority. He considered it | as of some consequence, also, to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support and maintain the existing Constitutions.

that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpre"Mr. Madison thought it clear tation. Comparing the two modes, that the Legislatures were incompe- in point of expediency, he thought tent to the proposed changes. all the considerations which recomThese changes would make essen-mended this Convention, in prefertial inroads on the State Constitu- ence to Congress, for proposing the tions; and it would be a novel and reform, were in favor of State Con

tive State Legislatures. The ratification, therefore, of the perfected work of the Constitutional Convention not only ventions, in preference to the Legis- | way be the deed of both. The forlatures for examining and adopting mer method, that the people of the

it.

United States should ordain, and "On the question on Mr. Ells- the States ratify, was adopted. worth's motion to refer the plan to For if it should be alleged at any the Legislatures of the States, future period that the American Connecticut, Delaware, Maryland, people had no national or organic aye-3; New Hampshire, Massa- existence, and that the States were chusetts, Pennsylvania, Virginia, the sole authors of the ConstituNorth Carolina, South Carolina, tion, and might undo what they Georgia, no-7.

had done, it would still be obvious "Mr. Gouverneur Morris moved, that the States mutually agreed that the reference of the plan be that such a people should be remade to one General Convention, garded as existing, and that the chosen and authorized by the peo- government should be treated as ple, to consider, amend, and estab-its handiwork, they would, on a lish the same. Not seconded. well-known and familiar principle

"On the question for agreeing to which the law has derived from the nineteenth Resolution, touch-ethics, be precluded for all the puring the mode of ratification as re- poses of that government, from deported from the Committee of the nying what they had solemnly adWhole, viz., to refer the Constitu- mitted. I refer to the doctrine of tion, after the approbation of Con- estoppel, that what is held forth gress, to assemblies chosen by the as an inducement to others, shall people,-New Hampshire, Massa- not be retracted after they have chusetts, Connecticut, Pennsyl- | acted on the faith of the assurance. vania, Maryland, Virginia, North The effect was to place the soverCarolina, South Carolina, Georgia, eignty of the new government on aye-9; Delaware, no--1." Madi- a basis which was as unalterable as son Papers, Vol. II, pp. 1177-1185. if the Conventions of the various 2 In his American Constitutional States had publicly proclaimed and Law, already referred to, Mr. Hare crowned a king. There are, as says, vol. I, pp. 89-91: "When the Mr. Madison contended in the reConvention met at Philadelphia, marks already cited, and as Jackthe people of the United States, not son insisted in his proclamation less than the people of the States, against nullification, grants which came through their agents, and must be irrevocable in order to atbeing present in both capacities, tain their object; and the establishmight determine in which they ment of a government is one of would act in framing the Consti- them. Whether the newly created tution. Whether it should be made sovereignty was vested in a comby the people of the United States monwealth or in a monarchy, it and sanctioned by the States, or would on every principle of namade by the States and sanctioned tional and public law have a claim by the people, might seem imma- to the allegiance of its subjects terial, because it would in either which it might enforce by arms.