States should extend to "all cases, both in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Article VI composed of a single section, was divided into three clauses, the second of which related to treaties and was as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The power of Congress, by Section 8 of Article I, included the right "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Section 10 of the same Article provided that without the consent of Congress no State should "enter into any agreement or compact with another State, or with any foreign power."8

In his Constitutional History, Mr. George Ticknor Curtis has summarized the reasons for vesting the treaty-making power in the President, with the limitations thereover involved in the necessary two thirds ratification; they are quoted in the notes to this section.'

5 Idem, p. 1556.

Idem, p. 1559. 7 Idem, p. 1551. Idem, p. 1552.

9"The power to make treaties, which had been given to the Senate by the committee of detail, and which was afterwards transferred to the president, to be exercised with the advice and consent of two thirds of the senators present, was thus modified on account of the changes which the plan of government had undergone, and which have been previously explained. The power to declare war having been vested in the whole legislature, it was necessary to provide

the mode in which a war was to be terminated. As the president was to be the organ of communication with other governments, and as he would be the general guardian of the national interests, the negotiation of a treaty of peace, and of all other treaties, was necessarily confided to him. But as treaties would not only involve the general interests of the nation, but might touch the particular interests of individual states, and, whatever their effect, were to be part of the supreme law of the land, it was necessary to give to the senators, as the direct representatives of the states, a concurrent authority with

§ 191. Letter to Congress, accompanying Constitution as to ratification by the people, instead of by legislatures of the States.-This draft of the Committee on Style and Arrangement was accompanied by a letter submitting the Constitution to the consideration of the people of the United

the president over the relations to be affected by them. The rule of ratification suggested by the committee to whom this subject was last confided was, that a treaty might be sanctioned by two thirds of the senators present, but not by a smaller number. A question was made, however, and much considered, whether treaties of peace ought not to be subjected to a different rule. One suggestion was, that the Senate ought to have power to make treaties of peace without the concurrence of the president, on account of his possible interest in the continuance of a war from which he might derive power and importance. But an objection, strenuously urged, was that, if the power to make a treaty of peace were confided to the Senate alone, and a majority of two thirds of the whole Senate were to be required to make such a treaty, the difficulty of obtaining peace would be so great that the legislature would be unwilling to make war on account of the fisheries, the navigation of the Mississippi, and other important objects of the Union. On the other hand, it was said that a majority of the states might be a minority of the people of the United States, and that the representatives of a minority of the nation ought not to have power to decide the conditions of peace.

an exception to the rule, but to provide a uniform rule for the ratification of all treaties. The rule of the Confederation, which had required the assent of nine states in Congress to every treaty or alliance, had been found to work great inconvenience; as any rule must do which should give to a minority of states power to control the foreign relations of the country. The rule established by the Constitution, while it gives to every state an opportunity to be present and to vote, requires no positive quorum of the Senate for the ratification of a treaty; it simply demands that the treaty shall receive the assent of two thirds of all the members who may be present. The theory of the Constitution undoubtedly is, that the president represents the people of the United States generally, and the senators represent their respective states; so that, by the concurrence which the rule thus requires, the necessity for a fixed quorum of the states is avoided, and the operations of this function of the government are greatly facilitated and simplified. The adoption, also, of that part of the rule which provides that the Senate may either advise or consent,' enables that body so far to initiate a treaty as to propose one for the consideration of the president although such is not the gen"The result of these various ob-eral practice." Curtis' Constitujections was a determination on tional History of the United States, the part of a large majority of the vol. I, pp. 579-581. states not to make treaties of peace

States, and stating, in the following words, that the question of the governmental powers which the States should surrender to, and vest in, the General Government had been the object of great consideration :

"The friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union. It is obviously impracticable, in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. . . In all our deliberations on this subject, we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of our union, in which is involved our pros perity, felicity, safety, perhaps our national existence."

§ 192. Constitution adopted; September 15th.-Even after the Committee on Style and Arrangement had submitted what was supposed to be the final draft, there were several meetings, in which the report was discussed. It does not appear, however, that any of the alterations suggested related to the treaty-making power; on September 15th the Constitution, as amended, was adopted by all the State delegations, although some of the individual members, including Mr. Gerry, Colonel Mason and Mr. Randolph,' stated that they would withhold their names, their objections as stated did not relate to the fact that the treaty-making power was vested in the Central Government. In fact, Mr. Randolph in his opening remarks had referred to the centralization of the treaty-making power, and the enforcement of treaty stipulations, as some of the chief grounds for lodging more extensive powers in the Central Government.3

§ 191.

in the State Convention of Virginia.

1 Madison Papers, vol. III, pp. See § 213, post.

1560-1561.

§ 192.

1 Mr. Randolph, however, afterwards supported the Constitution

2 Madison Papers, vol. III, pp. 1600-1603.

3 See § 171, p. 300, ante.

§ 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.

4

Idem, p. 1624.

Idem, p. 1605. (Their names

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.