this power would be more safely lodged where they had finally vested it, than anywhere else. It was a power that must necessarily be lodged somewhere: political caution and republican jealousy rendered it improper for us to vest it in the President alone; the nature of negotiation, and the frequent recess of the House of Representatives, rendered that body an improper depository of this prerogative. The President and Senate joined were, therefore, after much deliberation, deemed the most eligible corps in whom we could with safety vest the diplomatic authority of the Union."4

General Pinckney spoke frequently during the debate and on more than one occasion gave particular attention to the treaty-making power and the propriety of vesting it in the President and Senate.5

* Elliot's Debates, vol. IV, p. 265. edged it was binding on the nation. 5 On Thursday, January 17th, (Here the general read extracts Charles Cotesworth Pinckney made from the parliamentary debates of his strongest address in the Legis- the 17th and 21st of February, lature on the subject of the treaty- 1784.) Indeed, the doctrine that making power in the course of the king of Great Britain may make which he "observed that the hon- a treaty with a foreign state, which orable gentleman (Mr. Lowndes) shall irrevocably bind his subjects, who opposed the new Constitu- is asserted by the best writers on tion had asserted that treaties the laws and constitution of Engmade under the old Confederation land-particularly by Judge Blackwere not deemed paramount to stone, who, in the first book of his the laws of the land, and that Commentaries, (ch. 7, p. 257), detreaties made by the king of Great clares that it is the king's preBritain required the ratification of rogative to make treaties, leagues, Parliament to render them valid. and alliances, with foreign states The honorable gentleman is surely and princes, and that no other mistaken in his assertion. His power in the kingdom can legally honorable friend (Chancellor Rut- delay, resist, or annul them.' If ledge) had clearly shown that, by treaties entered into by Congress the 6th, 9th, and 13th Articles of are not to be held in the same the old Confederation, Congress sacred light in America, what forhave a power to make treaties, and eign nation will have any confidence each state is pledged to observe in us? Shall we not be stigmatized them; and it appears, from the de- as a faithless, unworthy people, if bates of the English Parliament, each member of the Union may, that the House of Commons did with impunity, violate the engagenot ratify, but actually censure, the ments entered into by the federal peace made by the king of Great government? Who will confide in Britain with America; yet the very us? Who will treat with us if our members who censured it acknowl-practice should be conformable to

66

§ 208. Rawlin, Lowndes' opposition; Mr. Pringle's views. -Replying to Mr. Pinckney, Rawlin, Lowndes declared this doctrine?) Have we not been | lity, happiness, and prosperity, of deceiving all nations, by holding the human race, depend on inviolaforth to the world, in the 9th Arti- bly preserving the faith of treaties. cle of the old Confederation, that Congress may make treaties, if we, at the same time, entertain this improper tenet, that each state may violate them? I contend that the article in the new Constitution, which says that treaties shall be paramount to the laws of the land, is only declaratory of what treaties were, in fact, under the old compact. They were as much the law of the land under that Confederation, as they are under this Constitution; and we shall be unworthy to be ranked among civilized nations if we do not consider treaties in this view. Vattel, one of the best writers on the law of nations, says, 'There would be no more security, no longer any commerce between mankind, did they not believe themselves obliged to preserve their faith, and to keep their word. Nations, and their conductors, ought, then, to keep their promises and their treaties inviolable. This great truth is acknowledged by all nations. Nothing adds so great a glory to a prince and the nation he governs, as the reputation of an inviolable fidelity to his engagements. By this, and their bravery, the Swiss have rendered themselves respectable throughout Europe. This national greatness of soul is the source of immortal glory; upon it is founded the confidence of nations, and it thus becomes a certain instrument of power and splendor.' Surely this doctrine is right; it speaks to the heart, it impresses itself on the feelings of mankind, and convinces us that the tranquil

'Burlamaqui, another writer of great reputation on political law, says 'that treaties are obligatory on the subjects of the powers who enter into treaties; they are obligatory as conventions between the contracting powers; but they have the force of law with respect to their subjects.' These are his very words: 'Ils ont force de loi a l'égard des sujets, considérés comme tels; and it is very manifest,' continues he, that two sovereigns, who enter into a treaty, impose, by such treaty, an obligation on their subjects to conform to it, and in no manner to contravene it.' It is remarkable that the words made use of by Burlamaqui establish the doctrine, recognized by the Constitution, that treaties shall be considered as the law of the land; and happy will it be for America if they shall be always so considered: we shall then avoid the disputes, the tumults, the frequent wars, we must inevitably be engaged in, if we violate treaties. By our treaty with France, we declare she shall have all the privileges, in matters of commerce, with the most favored nation. Suppose a particular state should think proper to grant a particular privilege to Holland, which she refuses to France; would not this be a violation of the treaty with France? It certainly would; and we in this state would be answerable for the consequences attending such violation by another State; for we do not enter into treaties as separate states, but as united states; and all the members of the Union are an

that in no case in the history of the known world was there an instance of the rulers of a republic being allowed to go

"Now let us consider whether the power of making treaties is not as securely placed as it was before. It was formerly vested in Congress, who were a body constituted by the legislatures of the different states

swerable for the breach of a treaty | their members attended or not. by any one of them. South Caro- But now that the senators vote inlina, therefore, considering its sit-dividually, and not by states, each uation, and the valuable produce it state will be anxious to keep a full has to export, is particularly inter- representation in the Senate; and ested in maintaining the sacredness the Senate has now power to comof treaties, and the good faith with pel the attendance of its own memwhich they should be observed by bers. We shall thus have no deevery member of the Union. But lay, and business will be conducted the honorable gentleman complains in a fuller representation of the that the power of making treaties states than it hitherto has been. is vested in the President and Sen- All the members of the Convention, ate, and thinks it is not placed so who had served in Congress, were safely with them as with the Con- so sensible of the advantage attendgress under the old Confederation. ing this mode of voting, that the Let us examine this objection. By measure was adopted unanimously. the old Confederation, each state For my own part, I think it infihad an equal vote in Congress, and nitely preferable to the old method. no treaty could be made without So much for the manner of voting. the assent of the delegates from nine states. By the present Constitution, each state sends two members to the Senate, who vote per capita; and the President has power, with advice and consent of the Senate, to make treaties, pro-in equal proportions. At present, vided two-thirds of the Senate pres- it is vested in a President, who is ent concur. This inconvenience chosen by the people of America, attended the old method: it was and in a Senate, whose members frequently difficult to obtain a rep-are chosen by the state legislatures, resentation from nine states; and if only nine states were present, they must all concur in making a treaty. A single member would frequently prevent the business from being concluded; and if he absented himself, Congress had no power to compel his attendance. This actually happened when a treaty of importance was about to be concluded with the Indians; and several states, being satisfied, at particular junctures, that the nine states present would not concur in sentiments on the subject of a treaty, were indifferent whether members? The idea is absurd.

each legislature choosing two members. Surely there is greater security in vesting this power as the present Constitution has vested it, than in any other body. Would the gentleman vest it in the President alone? If he would, his assertion that the power we have granted was as dangerous as the power vested by Parliament in the proclamations of Henry VIII, might have been, perhaps, warranted. Would he vest it in the House of Representatives? Can secrecy be expected in sixty-five

so far and that even the most arbitrary kings possessed nothing like the treaty-making power vested in the Executive and Senate.1 The records of the South Carolina discussions, as they have been preserved in Elliot's debates, show that the treaty-making power was one of the principal causes of objection to calling a State constitutional convention. Mr. Pringle (the Speaker) spoke of the great power that the President and Senate might have, declaring that it gave scope to a great deal of declamation upon the danger, but he conceived that there must be mistakes and stated that the making of treaties is justly a part of the prerogative of the Executive as they must be conducted with despatch and secrecy, nor did he think that the apprehended dangers could ensue from vesting the treaty-making power with the President and the Senate.

He took a different view from the other gentlemen in regard to the effect of treaties upon laws; in regard to this he said: "Although the treaties they make may have the force of laws when made, they have not, therefore, legislative power. It would be dangerous, indeed, to trust them with the power of making laws to affect the rights of individuals; for this might tend to the oppression of individuals, who could not obtain redress. All the evils would, in that case, flow from blending the legislative, executive, and judicial powers. This would violate the soundest principles of policy and gov ernment. It is not with regard to the power of making treaties as of legislation in general. The treaties will affect all the individuals equally of all the states. If the President and Senate make such as violate the fundamental laws, and subvert the Constitution, or tend to the destruction of the Besides, their sessions will proba- themselves or constituents, joined bly last only two or three months with the president, who is the fedin the year; therefore, on that ac-eral head of the United States, form count, they would be a very unfit together a body in whom can be body for negotiation whereas the best and most safely vested the Senate, from the smallness of its diplomatic power of the Union." numbers, from the equality of Elliot's Debates, vol. IV, pp. 277power which each state has in it, 281. from the length of time for which its members are elected, from the long sessions they may have without any great inconvenience to

§ 208.

1 Elliot's Debates, vol. IV, p. 266; this was in reply to General Pinckney's first speech.

happiness and liberty of the states, the evils, equally oppressing all, will be removed as soon as felt, as those who are oppressed have the power and means of redress. Such treaties, not being made with good faith, and on the broad basis of reciprocal interest and convenience, but by treachery and a betraying of trust, and by exceeding the powers with which the makers were intrusted, ought to be annulled. No nations would keep treaties thus made. Indeed, it is too much the practice for them to make mutual interest and convenience the rule of observation, or period of duration. As for the danger of repealing the instalment law, the gentleman has forgot that one article ordains that there shall be no retrospective law. The President and Senate will, therefore, hardly ever make a treaty that would be of this kind."2

§ 209. Other views expressed on treaty-making power. -Dr. David Ramsay asked during the discussion some very pertinent questions and inquired, whether "the gentleman meant us ever to have any treaties at all. If not superior to local laws, who will trust them? Would not the question naturally be, 'Did you mean, when you made treaties, to fulfill them?' Establish once such a doctrine, and where will you find ambassadors? If gentlemen had been in the situation of receiving similar information with himself, they would have heard letters read from our ambassadors abroad, in which loud complaints were made that America had become faithless and dishonest. Was it not full time that such conduct as this should be amended?"1

There were many other views expressed during the addresses in this debate, on both sides of the question, some of the members taking very extreme views. The result of the debate in the Legislature foreshadowed the result in the convention.

§ 210. Constitution ratified by South Carolina.-The convention which met at Charleston on May 12th, 1788,' on May 21st, ratified the Constitution by a vote of 149 to 73.2 The records of the debate in the Legislature are much fuller than those of the proceedings of the constitutional

2 Elliot's Debates, vol. IV, p. 269. § 209.

1 Idem, p. 270.

§ 210.

1 Elliot's Debates, vol. IV, p. 317. 2 Idem, p. 340.