§ 173. Pinckney's plan to negative State laws; Madison's views; June 8th.-In discussing the policy of giving the national legislature authority to negative State laws, Mr. Pinckney said, on June 8th, that unless such power were given, however extensive the national prerogatives might be on paper, it would be impossible to defend them; that already acts of Congress had been defeated by this means, and that foreign treaties had frequently been violated. He contended that "this universal negative was, in fact, the corner-stone of an efficient National Government; and that, as it had existed under the British Government, the negative of the Crown had been found beneficial;" and he added, "the States are more one nation now, than the colonies were then."1 with different bodies changed the | Articles of Union, or treaties with case, and would induce him to go foreign nations: great lengths. "Mr. Pinckney moved, 'that the National Legislature should have authority to negative all laws which they should judge to be improper.' He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; "General Pinckney expressed a doubt whether the act of Congress recommending the Convention, or the commissions of the Deputies to it, would authorize a discussion of a system founded on different principles from the Federal Constitution. "Mr. Gerry seemed to entertain that if the States were left to act the same doubt. of themselves in any case, it would be impossible to defend the national prerogatives, however exten "Mr. Gouverneur Morris explained the distinction between a federal and a national, supreme gov-sive they might be, on paper; that ernment; the former being a mere compact resting on the good faith of the parties; the latter having a complete and compulsive operation. He contended that in all communities there must be one supreme power, and one only." Madison Papers, vol. II, pp. 746-negative of the Crown had been 748. § 173. the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the cornerstone of an efficient national Government; that under the British Government the found beneficial; and the States are more one nation now, than the 1 Friday, June 8th, In Committee colonies were then. of the Whole. "On a reconsideration of the clause giving the National Legislature a negative on such laws of the States as might be contrary to the "Mr. Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. The power of negativing state legislation was not vested in the National Government in so many words, for eventually Mr. Pinckney's motion was lost, although it was supported by some of the strongest men in the Convention, including Mr. Madison; in fact, at one time it was adopted in Committee of the Whole. So far as treaties are concerned, however, the object of his motion was practically, although indirectly, attained by the clause which he, himself, had framed and which, when it was subsequently incorporated in Article VI of the Constitution, made treaties the supreme law of the land, and under which the Supreme Court of the United States has held that the stipulations in a treaty, as well as the appropriate legislation enforcing it, override all Experience had evinced a constant the government of Congress. The tendency in the States to encroach | negative would render the use of on the Federal authority; to violate force unnecessary. The States national treaties; to infringe the could of themselves pass no operarights and interests of each other; tive act, any more than one branch to oppress the weaker party within of a legislature, where there are their respective jurisdictions. A two branches, can proceed without negative was the mildest expedient the other. But in order to give that could be devised for prevent- the negative this efficacy, it must ing these mischiefs. The existence extend to all cases. A discriminaof such a check would prevent at- tion would only be a fresh source tempts to commit them. Should of contention between the two auno such precaution be engrafted, thorities. In a word, to recur to the only remedy would be in an the illustrations borrowed from appeal to coercion. Was such a the planetary system, this preroga remedy eligible? Was it practica- tive of the General Government is ble? Could the national resources, the great pervading principle that if exerted to the utmost, enforce a must control the centrifugal tennational decree against Massachu-dency of the States; which, withsetts, abetted, perhaps, by several of her neighbors? It would not be possible. A small proportion of the community, in a compact situation, acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority. Any government for the United States, formed on the supposed practicability of using force against the unconstitutional against every power that was not proceedings of the States, would necessary." Madison Papers, vol. prove as visionary and fallacious as | II, pp. 821-823. out it, will continually fly out of their proper orbits, and destroy the order and harmony of the political system. "Mr. Williamson was against giving a power that might restrain the States from regulating their internal police. "Mr. Gerry could not see the extent of such a power, and was State legislation, thus practically negativing any that may be in conflict therewith. § 174. Consideration of treaty-making power; June 13th. -The method of exercising the treaty-making power appears to have been considered for the first time on June 13th, on which day the Committee rose, after making a report, the sixth paragraph of which was as follows: "Resolved, That the National Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the National Legislature the Articles of Union, or any treaties subsisting under the authority of the Union."1 § 175. Mr. Paterson's "New Jersey" plan submitted; June 14th and 15th.-On June 14th, Mr. Paterson of New Jersey, on behalf of an element of the Convention from Connecticut, New Jersey, New York, Delaware, and which pos sibly included Mr. Martin of Maryland, and which was to some extent dissatisfied with the report of the Committee of the Whole, asked leave to submit a form of government 2 See chap. XI, §§ 324, et seq. Vol. II, and cases there collated, on relative effect of State laws and treaty stipulations. § 174. 1 Madison Papers, vol. II, p. 859; (italics in quotation are the author's.) $175. add a few new powers to Congress than to substitute a National Government. The States of New Jersey and Delaware were opposed to a National Government, because its patrons considered a proportional representation of the States as the basis of it. The eagerness displayed by the members opposed 1"This plan had been concerted to a National Government, from among the Deputation, or mem- these different motives, began now bers thereof, from Connecticut, to produce serious anxiety for the New York, New Jersey, Delaware, and perhaps Mr. Martin, from Maryland, who made with them a common cause, though on different principles. Connecticut and New York were against a departure from the principle of the Confederation, wishing rather to result of the Convention. Mr. Dickinson said to Mr. Madison, You see the consequence of pushing things too far. Some of the members from the small States wish for two branches in the General Legislature, and are friends to a good National Government; known as the New Jersey Plan; in presenting it, he described it as being "more purely federal" than the one suggested by the Committee.2 The proposition consisted of a series of resolutions which were presented on the following day, June 15th; the first resolution was to the effect "that the Articles of Confederation ought to be so revised, corrected and enlarged, as to render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union;" he proposed to give the Federal judiciary jurisdiction in all cases involving the construction of treaties. The sixth resolution was as follows: "6. Resolved, that all acts of the United States in Congress, made by virtue and in pursuance of the powers hereby, and by the Articles of Confederation, vested in them, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, so far forth as those acts or treaties shall relate to the said States or their citizens; and that the Judiciary of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding: and that if any State, or any body of men in any State, shall oppose or prevent the carrying into execution such acts or treaties, the Federal Executive shall be authorized to call forth the power of the confederated States, or so much thereof as may be necessary, to enforce and compel an obedience to such acts or an observance of such treaties."5 It will be seen that, so far as the treaty-making power was concerned, the only change suggested by Mr. Paterson was to enlarge the authority of the United States and to make treaties, not as Mr. Pinckney had suggested, "the supreme law of the land," but the "supreme law of the respective States;" in fact, so important did he consider this treatymaking power that he considered it to be necessary not only but we would sooner submit to | States.' Madison Papers, vol. II, foreign power, than submit to be p. 862, note. deprived in both branches of the legislature, of an equality of suffrage, and thereby be thrown under the domination of the larger 2 Idem, p. 862. 8 Idem, p. 863. to clothe the United States with power to enforce, and compel, obedience to the acts of Congress, but also to enforce the observance of all treaties made by the United States. $176. Power to make and enforce treaties a practical matter in 1787.-In this respect it must be remembered that the discussion in the Constitutional Convention in regard to the supervisory powers of the Federal Government over the States in regard to the enforcement, and the prevention of violations, of treaty stipulations, was by no means either academic, or confined to mere future possibilities; at that time the country was in a great state of excitement over the proper enforcement of the provisions of the treaty of peace regarding the collection of debts owing by Americans to citizens of Great Britain,' and also in regard to the navigation of the Mississippi River as it would be affected by the then proposed treaty with Spain, which, as the owner of Louisiana and New Orleans country, controlled the mouth of that river. It was therefore, in view of actually existing circumstances that the Constitutional Convention not only declined to place any limitations upon the treaty-making power, but also expressly provided that all treaties made, or which should be made, under the authority of the United States were paramount to the laws and the constitutions of the several States; in fact, some of the burning questions of the day and hour were the treatment to be accorded to British creditors and American debtors, and the relative effect of treaty provisions providing for the payment of the debts to British citizens, and of the laws which had been passed by some of the States confiscating the identical debts for State use.3 Professor McMaster, in the Third Chapter of the First Volume of his able and interesting "History of the People of the United States," has given a detailed account of the conditions of the mercantile relations between this country and Great Britain as they were affected by the treaty stipu § 176. 1 See pp. 268, et seq., ante. 2 For the effect of this particular element upon the ratification of the Constitution see § 222, post, relating to the Convention in Virginia. 8 See Ware vs. Hylton, U. S. Supreme Ct., 1796, 2 Dallas, 199, and other cases collated in §§ 324 et seq., Vol. II, pp. 6, et seq. |