is a notable fact, therefore, and one always to be remembered especially by those who are jealous of States' rights that one of the first results of the exercise of its treaty-making power, as an attribute of sovereignty by the Central Government of the United States, was to obtain a substantial benefit for the people of every State, and one which they could not have obtained in any other manner; and also that this benefit was obtained by simply giving a corresponding men should enjoy on their part, in all the dominions of the said States, an entire and perfect reciprocity relative to the stipulations contained in the present article.' The treaty of 1782 with the Netherlands (Art. VI) gave, in the place of this abandonment, the right to the Dutch foreigner residing in the United States, to dis title, or ab intestat, shall be exempt from all duty called droit detraction, or other duty of the same kind, saving nevertheless the local rights or duties as much and as long as similar ones are not established by the United States, or any of them. The subjects of the most Christian King shall enjoy on their part, in all the dominions of the said States, an entire and per-pose of his property there by testafect reciprocity relative to the stip- ment, donation or otherwise; the ulations contained in the present right to receive the succession ab article, but it is at the same time intestato, in case there was no will; agreed that its contents shall not and the right for a guardian or tu. affect the laws made, or that may tor to a minor, to act in his behalf be made hereafter in France against in receiving, keeping, and alienatemigrations which shall remain in ing his property. This precedent all their force and vigour, and the | was followed in the Treaty of 1783 United States on their part, or any with Sweden (Art. VI), and in of them, shall be at liberty to en- the Treaty of 1785 with Prussia act such laws, relative to that mat-(Art. X). ter as to them shall seem proper." U. S. Treaties and Conventions, edition 1889, p. 299. "In many other respects these several treaties, made before the adoption of the Constitution, and "The droit d'aubaine, a right largely upon the suggestions in the claimed by most sovereigns of that plan of Congress which was protime to confiscate to their own use mulgated before the Articles of the succession of an unnaturalized Confederation were adopted, seforeigner dying within their do- cured the assent of the contracting minions, and which Montesquieu parties to important principles, styled an absurd right,' Congress, some of which were not then uniin its plan for a treaty, asked the versally recognized as constituting king of France to abandon. Arti- part of the public law which could cle II of the Treaty of Commerce govern the intercourse of nations of 1778, as negotiated, complied with each other." Davis' Notes with this request, but accompanied to Lecture 1, Miller on the Constiit with a declaration that French-tution, pp. 50-51. concession in return therefor, and exempting citizens of France from similar burdens, if any existed, in this country; this exemption could not have been given effectually by the States themselves, as they could not exercise the treatymaking power. At the outset, therefore, there was a practical exhibition of the great benefits to be derived from vesting the treaty-making power in the Central Government and admitting it to have as far-reaching an extent as possible.' 2 The State of Virginia took a detach her from the French alliance, peculiar but effective method of or to seduce any portion of her endorsing the action of Congress people by the dangerous and deluin ratifying the Treaties with sive project of a separate arrangeFrance. It can best be described ment with the enemy, which the by quoting from an eminent Virgin- terms of the alliance expressly forian an account of the proceedings. bade, determined to silence at once "The day after Mr. Jefferson's all cavils as to the obligation of the election, a resolution of an un- treaty, so far as she was concerned, usual and anomalous character by a formal ratification of it by was adopted by the legislature of her own act and in her own name. Virginia. It served, however, Accordingly, on the 2d day of June, to evince her earnest attachment 1779, a resolution was passed by the to the common cause, and a legislature, nemine contradicente, strong determination to defeat the machinations of its adversaries, whether foreign or domestic. In the insidious efforts made, during the last year, to regain for England her lost American empire, it was frequently insinuated by the royal commissioners that the ratification of the French alliance by Congress was not binding upon the national faith, as the articles of confederation, which gave to that body authority to conclude treaties with foreign powers, had not received the confirmation of all the states, which was made necessary to their validity. Maryland had not yet given her signature to them; whereby the compact remained without full binding force upon any of the parties. "It was in this state of things that Virginia, with the view of cutting off pernicious intrigues, whether from within or without, to declaring that 'the treaties of alli- (Journal of § 154. Treaties with France concluded prior to final ratification of Articles of Confederation.-Although the Articles of Confederation had not been ratified by all the States when the treaties with France were concluded, they had been framed and submitted to all the States for adoption and had been ratified by some of the States; the necessity for vesting the treaty-making power in the Central Government had been recognized by the delegates who had been entrusted with the preparation of that instrument; the Articles were drawn in the full spirit of State sovereignty, the first and second articles expressly providing that each State should retain its sovereignty and continue to exercise every power not expressly delegated to the Congress; the necessity of not only vesting the treaty-making power exclusively in the Central Government, but also of excluding the separate States from any participation therein was evidenced by the provisions of Article VI under which the States surrendered the right to send or receive Ambassadors or to enter into any conferences, agreements or treaties of any kind with any other power or with each other except upon the consent of Congress.1 Life and Times of James Madison | into any treaty, confederation, or by William C. Rives, Boston, 1859, alliance whatever between them, vol. 1, pp. 203–205. without the consent of the United States in Congress assembled, § 154. 1 Number VI of the Articles of specifying accurately the purposes Confederation was as follows: for which the same is to be entered into, and how long it shall continue. No state shall lay any imposts or duties which may interfere with any stipulations in treaties "No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agree-entered into by the United States ment, alliance or treaty with any king, prince, or state; nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility. "No two or more states shall enter in Congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by Congress to the courts of France and Spain. . . ." (The remainder of this section restricts the states from engaging in warfare, except in case of attack, invasion, or imminent danger not admitting of delay.) The first clause of Number IX 155. Great extent of treaty-making power of Congress fully appreciated by States.-Congress was also clothed with the sole and exclusive power of sending and receiving ambassadors, and of entering into treaties and alliances, with the exception of such commercial treaties as restrained the States from imposing similar imposts and duties on foreigners as were imposed on their own people, or from prohibiting exports and imports; this reservation of customs regulations to the States was one of the chief causes for the ultimate abandonment of the Articles of Confederation and the adoption of the Constitution in which broader powers were vested in the Central Government, as to the regulation of commerce, and no limitations were expressly placed on the treaty-making power. The Articles of Confederation, and the powers therein contained as to treaty-making, were ratified by some of the States, after full notice that Congress had determined that its rights under the treaty-making power extended to internal affairs of the different States whenever the general good of the Union depended upon the establishment of mutual and reciprocal agreements with foreign powers; although the regulation of their domestic affairs had been reserved to the States by the Articles of Confederation, the treaties with France and the treaties which were negotiated with other powers by Congress under the Confederation, uniformly asserted the nationality of the Government of the United States not only as to its dealings with foreign powers, but as to its relations with the several States.2 § 156. Other treaties made by Congress. Speaking of other treaties made by Congress under the general powers of the Articles of Confederation | on foreigners as their own people contained the following provision: are subjected to, or from prohibit"The United States in Congress ing the exportation or importation assembled shall have the sole and of any species of goods or comexclusive right and power... modities whatsoever. 1 See notes to § 154, p. 265, ante. 2 See extracts from Miller's Lectures on the Constitution, already cited, and to be cited under the next and other sections of this chapter. possessed and delegated to it, Mr. Davis says, in the same notes from which we have previously cited: "The favored nation clause put Prussia on the best footing in the ports of Charleston, Boston, Philadelphia and New York, no matter what the Legislatures of South Carolina, Massachusetts, Pennsylvania, or New York might say. Aliens were permitted to hold personal property and dispose of it by testament, donation, or otherwise, and the exaction of State dues in excess of those exacted from citizens of the State in like cases were forbidden. The right was secured to aliens to frequent the coasts of each and all the States, and to reside and trade there. Resident aliens were assured against State legislation to prevent the exercise of liberty of conscience and the performance of religious worship; and when dying, they were guaranteed the right of decent burial and undisturbed rest for their bodies."1 From 1782 until the government was re-organized under the Constitution in 1789, the Articles of Confederation were the sole written authority for congressional action; during that period treaties were made by plenipotentiaries appointed by Congress with France, Great Britain, The Netherlands, Sweden and Morocco, by all of which matters otherwise. wholly within State jurisdiction were seriously affected;2 these treaties were ratified in Congress by the requisite number of States, and, as was afterwards held by the Supreme Court, modified the State laws wherever they conflicted therewith, without any further action by the States themselves, and were paramount to the adverse legislation by which some of the States endeavored to defeat the object of the treaties. During the last years of the Confederation the question of the paramountcy of treaties was discussed in the Congress, and John Jay, then Secretary of Foreign Affairs, submitted an elaborate report in regard thereto, $156. 1 Miller's Lectures on the Constitution; J. C. Bancroft Davis' Notes to Lecture I, p. 53. See also quotation from Curtis' Constitutional History of United States under § 160, p. 280, post. 2 See list of these treaties in notes under § 160, p. 278, post. 3 See decisions cited in chap. XI, §§ 324 et seq., Vol. II, pp. 6, et seq. |