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and finally produced, as the result of their labors, patience, skill, ability, and, above all, patriotism, the Constitution of the United States. In this volume we can only refer to those proceedings in so far as they relate to the treaty-making power; the object of this chapter is to examine the proceedings and note the gradual evolution of Article VI by which treaties are made the supreme law of the land, from the form in which it first appeared until the perfected form in which it was finally incorporated into the Constitution, and adopted as a part of the fundamental written law of the United States. The method in which the Convention was called and the status of the delegates is the subject of a note to this section.1

3 Clause 2 of article VI of the Constitution is quoted at length in § 6, p. 7, ante.

4 Chapter XV of vol. I, of Curtis' Constitutional History of the United States, pp. 221-256, contains a very interesting account of the origin of the Federal Convention.

nia, Rufus King of Massachusetts, | dence of the people whom they Charles Cotesworth Pinckney of represented." South Carolina, and Edmund Randolph of Virginia as the nine persons who were the most important members of the Constitutional Convention, and who exercised the largest influence upon its decision; after giving an account of the life and work of those nine persons in the same order as they are mentioned The best detailed history, howabove, he says on page 313, that ever, can be found in Volume I all of the fifty-five members of the of Elliot's Debates, where the recConvention were able and distin-ords are collected. Pages 108, et guished men; in regard to certain seq., Volume I, contain the report of them he says as follows: "But of the States on the Regulations the entire list embraced other men of great distinction and ability, celebrated, before and since the Convention, in that period of the political history of America which commenced with the Revolution and closed with the eighteenth century. Such were Roger Sherman of Connecticut, Robert Morris of Pennsylvania, John Dickinson of Delaware, John Rutledge and Charles Pinckney of South Carolina, and George Mason of Virginia. Of the rest, all were men of note and influence in their respective of Virginia, and the proposition of states, possessing the full confi- the General Assembly of Virginia,

of Commerce; there is also on page 112 a copy of a letter to be sent to the Legislatures of the several States, showing the principles on which the alterations enlarging the powers of Congress had been proposed, and in which the difficulties are pointed out of allowing the different States to legislate in regard to commerce and at the same time of preserving treaty relations with foreign countries. On page 114 is the resolution proposed by Mr. Madison, in the House of Delegates

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169. Convention a unit in lodging treaty-making power in Central Government. The proceedings of the Convention, as they have been preserved by Madison, Yates and Elliot,' show that the Convention recognized that in some cases

"Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday of May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confedera tion, and reporting to Congress

for a meeting of commissioners of the different States in regard to the regulation of commerce by the Central Government. A meeting of commissioners took place September 11, 1876, at Annapolis; New York, New Jersey, Pennsylvania, Delaware, and Virginia were the only States represented. (Elliot, vol. I, p. 116.) The commissioners and the several legislatures such prepared a report which they submitted to their own legislatures, and also to the Congress of the United States.

On February 21, 1787, a committee in Congress passed a resolution as follows (Elliot, vol. I, p. 120):

"Whereas, there is provision, in the Articles of Confederation and Perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several states; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the states, and particularly the state of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these states a firm national government,§ 169.

alterations and provisions therein as shall, when agreed to in Congress and confirmed by the states, render the federal Constitution adequate to the exigencies of government and the preservation of the Union."

When the Convention met it was found that sixty-five delegates had been appointed. Of these ten never attended; thirty-nine attended, took part in the debates, and signed the Constitution; sixteen attended, and did not sign.

A complete list of the delegates and the names of those who attended will be found on pages 124125, Elliot, vol. I. Each State adopted its own form for the credentials of its delegates. They are printed in full, pages 126-139, Elliot, vol. I.

Bancroft, McMaster, Fiske, and the other authorities referred to in note 1, § 169, page 297, post, also have interesting accounts of the calling of this Convention.

NOTE ON AUTHORITIES ON FEDERAL AND STATE CONSTITUTIONAL CON

VENTIONS.

1 The authorities on the Federal Convention of 1787, which framed the Constitution of the United States, and the State Conventions to which the Constitution was submitted for ratification are limited in number;

the power of the Central Government must be widely extended and that of the States narrowly restricted; this was pecu

for, although much has been written upon the subject nearly all the commentators and historians base their statements upon the documents which have been collected and published by direction of Congress. The principal sources from which all writers on Constitutional history have drawn are as follows; viz:

ELLIOT'S DEBATES.

"The debates in the several State Conventions, on the adoption of the Federal Constitution, as recommended by the General Convention at Philadelphia in 1787. Together with the Journal of the Federal Convention, Luther Martin's Letter, Yates' Minutes, Congressional Opinion, Virginia and Kentucky Resolutions of 1798-99 and other illustrations of the Constitution in five volumes. Collected and revised from contemporary publications by Jonathan Elliot," 1st edition, 1830; 2d edition, 1836. Republished under the sanction of Congress, Philadelphia, 1866. The contents of the five volumes are as follows:

Volume I contains the Constitution, Declaration of Independence, Articles of Confederation, proceedings prior to, and which led to the adoption of the Federal Constitution, Proceedings and Journal of the Federal Convention, Dates and Forms of Ratifications by the States, Amendments to the Constitution, Luther Martin's Letter, Yates' Minutes of the Convention, and certain other papers expressive of views of individual members of the Convention.

Volume II contains proceedings of the State Conventions of Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania and Maryland.

Volume III is devoted exclusively to the proceedings of the State Convention of Virginia.

Volume IV contains the proceedings of the State Conventions of North Carolina and South Carolina, and a number of other documents relating to the construction of the Constitution, including the Virginia and Kentucky Resolutions, Mr. Madison's letters on Tariff and Banks, and a digest of decisions of the courts involving Constitutional Principles.

Volume V contains the Diary kept by Mr. Madison of the debates of the Congress of the Confederation from November, 1782, to April, 1787, and which are known as the Madison Papers.

THE JOURNALS OF CONGRESS.

The records of the Congress under the Confederation are not as complete as the records of Congress since the adoption of the Constitution. There are, however, a number of volumes which contain valuable data as to the action of Congress in regard to the Constitution and its adoption. The author has used the edition published in 1821 under the direction of the President of the United States conformably to the Resolution of Congress of March 27, 1818, and April 21, 1820, volume IV. of which

liarly the case in regard to the treaty-making power; in fact, the Convention was almost a unit in lodging it absolutely and exclusively in the Central Government without any express

contains some valuable data in regard to the Constitution. Other editions were published in Philadelphia in 1801, and in Washington in 1823.

THE MADISON PAPERS.

"The papers of James Madison, purchased by order of Congress; being his Correspondence and Reports of Debates during the Congress of the Confederation, and his Report of Debates in the Federal Convention, now published from the original manuscripts, deposited in the Department of State, by direction of the Joint Library Committee of Congress, under the superintendence of Henry D. Gilpin; " three volumes, Washington, 1840.

Volume I contains the Debates in 1776 on the Declaration of Independence, and on a few of the Articles of Confederation, preserved by Thomas Jefferson; Letters of Mr. Madison preceding the Debates of 1783.

Volume II contains the Debates of Congress of the Confederation from February 19, 1787, to April 25, 1787, Correspondence of Mr. Madison during and subsequent to the Debates in the Congress of the Confederation, from February 15, 1787, to December 2, 1788; Debates in the Federal Convention from Monday, May 14, 1787, to Monday, August 6, 1787. Volume III contains Debates in the Federal Convention from Tuesday August 7, 1787, until its final adjournment Monday September 17, 1789, and notes and references to the Journal of Conventions. The references in the subsequent sections of this chapter are all made to the Madison Papers as they are official; the citations, however, can be found in Elliot's Debates and other editions of Madison's Journal by reference to the dates.

MADISON'S JOURNAL.

"Journal of the Federal Convention kept by James Madison, reprinted from the edition of 1840, which was published under direction of the United States Government from the original manuscripts with a complete index;" edited by E. H. Scott, Chicago, Albert Scott & Co., 1893; although the author refers in the notes only to the Madison Papers the citations can easily be found in this edition of Madison's Journal by reference to the dates, which are given in all cases.

YATES' SECRET PROCEEDINGS.

"Secret Proceedings and Debates of the Convention assembled at Philadelphia in the year 1787, for the purpose of forming the Constitution of the United States of America, from the notes taken by the late Robert Yates, Esq., Chief Justice of New York, and copied by John Lansing, Jun. Esq., late Chancellor of that State, members of that Convention, (and other documents enumerated, relating to the Constitution)." Albany, N. Y., 1821.

limitation whatever; it is apparent on the record that the delegates unanimously appreciated the important bearing which our foreign relations had upon the welfare of the country even at that early period in American history.

§ 170. Organization of Convention; Washington chosen President. The first business of the Convention was to organize and to elect a President. No better choice could have been made than the one who had already received the title of "Father of his Country," and to whom the sentence, "First in war, first in peace, first in the hearts of his countrymen," was to be not only a perpetual but an appropriate tribute of affection. It was fitting, indeed, that the man who had led the armies of the united Colonies, through a war which had resulted in their independence, against a common foe, should

$ 170.

1In the resolution presented to the House of Representatives on December 26, 1799, on the death of

Washington, Henry Lee of Virginia thus described him. Madison's Papers, vol. II, p. 722,

BANCROFT, CURTIS, MCMASTER, FISKE, MEIGS.

History of the Formation of the Constitution of the United States of America, by George Bancroft. In two volumes.

1893.

6th edition, New York,

Constitutional History of the United States, by George Ticknor Curtis, two volumes, 2d edition; volume I, History of the Convention; volume II, Subsequent History of the United States as to constitutional points.

History of the People of the United States from the Revolution to the Civil War, by John Bach McMaster. In five volumes, New York, 1893, volume 1, chapters II to V, inclusive, relate to the "breaking up" of the Confederation and the adoption of the Constitution.

The Critical Period of American History, 1783-1789, by John Fiske, Boston and New York, 1888, 1899.

"The Growth of the Constitution in the Federal Convention of 1787, an effort to trace the origin and development of each separate clause from its first suggestion in that body to the form finally approved; containing also a fac-simile of a heretofore unpublished manuscript of the first draft of the tribunal made for use in the Committee of Details," by William M. Meigs. Second edition, Philadelphia and London, 1900.

There are numerous other able and interesting histories of, and commentaries on, the Constitution which give detailed accounts of the Federal and State Conventions, but the author considers that in consulting, and referring to those enumerated in this note, the student of Constitutional history will obtain a thorough knowledge of all the known history of the formation and adoption of the Constitution.

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