interests.-Can the Continental House of Representatives? When sixty-five men can keep a secret, they may.—Observe the cautious guards which are placed round your interests. Neither the senate nor president can make treaties by their separate authority.-They must both concur. This is more in your favour than the footing on which you now stand. The delegates in Congress of nine states, without your consent, can now bind you; by the new constitution there must be two-thirds of the members present, and also the president, in whose election you have a vote. Two-thirds are to the whole, nearly as nine to thirteen. If you are not wanting to yourselves by neglecting to keep up the state's compliment of senators, your situation with regard to preventing the controul of your local interests by the Northern States, will be better under the proposed constitution than it is now under the existing confederation." 1 § 255. Public knowledge as to the treaty-making power and its effects.-Any one, therefore, who examines the records of the great contests over the adoption of the Constitution in the State conventions, and in the country at large, must inevitably reach the conclusion, that Article VI, making treaties the supreme law of the land and paramount to all State legislation, was based upon the acknowledged weakness of the Confederation, not only as to the making of treaties, but also as to enforcement and fulfilment of treaty obligations. It is also apparent that a majority of the people, including many who were opposed to the Constitution on other grounds, considered that in our relations with foreign powers, whether the subject-matter related to national affairs, or those within the control of the States, or even of individuals, the Central Government must be clothed with the absolute and exclusive power to negotiate and conclude treaties of every class; that it had been effectually demonstrated that the policy adopted by the Confederation, in regard to the treaty of peace with Great Britain, of urging legislation upon the various States to carry treaty stipulations into effect was an impracticable and unsatisfactory method of dealing with foreign powers; that the unwillingness or failure of many of the States § 254. 1 Fords' Pamphlets on the Constitution, p. 376. to act in accordance with the suggestions of Congress, or their subsequent unwillingness or inability to conform to the conditions of the treaty, had placed us in an unenviable position with all the foreign powers, many of whom had lost confidence in us, and to whom the United States were1 fast becoming objects of ridicule, rather than of the great respect to which, as a nation, they were entitled; that under the new Constitution, and in a large measure owing to the additional powers with which Article VI clothed the Central Government, this confidence and respect were immediately regained, and have ever since been retained, as they undoubtedly always will be if we continue to recognize that those powers rightfully exist and that they should be exercised on every proper occasion. Nor can the position ever be taken that the various clauses in regard to treaties and the treaty-making power in the Constitution were not appreciated, or were in any way disregarded, by the people in the discussions upon the ratification of that instrument; the reverse of this proposition was indeed the fact. § 256. Importance of treaty-making power appreciated by the people, and by the delegates to State conventions. -The records of the State conventions show that the delegates were fully alive to the importance, and the far-reaching extent, of the power; and that the possibility of its being used to the detriment of the States formed an important factor in the discussions in the conventions; the extracts quoted from the pamphlets of the day show that it was not only discussed in the State conventions, but that it was also discussed and considered by the people themselves. In the next chapter we will refer to the opinions expressed by some writers since the Constitution became the supreme law of the land, and which will show what they thought in regard to the extent of, and limitations upon, the treatymaking power of the United States. $255. The use of were instead of was in this instance is intentional as under the Confederation, after the close of the war, the States were drifting so far from union that they were regarded as separate entities by foreign powers rather than as the component parts of a single entity, as they should have been, and have been since the adoption of the Constitution. CHAPTER IX. OPINIONS OF PUBLICISTS, HISTORIANS AND EXPOUNDERS OF THE CONSTITUTION IN REGARD TO THE EXTENT AND SCOPE OF THE TREATY-MAKING POWER OF THE UNITED STATES. SECTION 257-Pre-ratification literature necessarily academic. 258-Different status of post-rati- 260- Opinions of publicists-not 261 Views of William Rawle; 1825. 262—Mr. Rawle's acquaintance with members of Constitu- SECTION 269-Professor Pomeroy's broad views in regard to the Executive and foreign relations. 270-Professor Pomeroy on State statutes and treaty stipulations. 271-Views of Story, Iredell and Pomeroy identical as to State statutes and treaty stipulations. 272-Chancellor Kent's opinion. 273-Numerous other opinions in support of broadest pow ers. 263 Views of William A. Duer; 274-Narrower views of some § 257. Pre-ratification literature necessarily academic. -The extracts in the preceding chapter are all taken from pamphlets published for or against the Constitution before it was ratified, and when the effect and extent of its provisions could only be treated in a prophetic manner and from an academic standpoint. Written in the abstract, and based upon hypothetical conditions, they were, therefore, necessarily largely theoretical and did not relate to the application of the provisions of the Constitution to any concrete conditions; with the exception of the Federalist, few of them, if any, have ever been regarded by the courts as affording any basis for the construction of any of the clauses of the Constitution; in this volume they have been referred to, as evidence of the fact that the treaty. making power was thoroughly understood by the people be fore the constitution was adopted, rather than as legal authority for the extent of the power.1 § 258. Different status of post-ratification literature.— The moment, however, that the Constitution became the fundamental basis of the Government of the United States, practical questions, as to the interpretation and application of its provisions, arose, and from that time the literature regarding the Constitution can be divided into two classes: First, views of expounders who have discussed it in commentaries and text-books from legal and political standpoints in connection with the adjudicated law of this and other countries; second, decisions of the courts upon constitutional points which have arisen in actions at law and required the judicial construction and interpretation of the instrument itself, and in which the judges, delivering their opinions in regard thereto, have expressed their views as to the nature, scope and extent of the provisions of the Constitution involved in the actions, as well as to the general nature and powers of the Government of the United States. 259. Treaty-making power furnishes many questions for discussion.-It will readily be seen that the nature and extent of the treaty-making power vested in the General Government by the Constitution, and of the effects of treaties upon the laws of the United States, and of the various States, have continuously afforded opportunities, both for the expounders of the Constitution in treatises, and for the judges in decisions, to express their views on constitutional questions; in fact, as will be seen in the next chapter, one of the first great constitutional controversies in which the power of the Union was asserted, and was upheld by the Supreme Court as superior to the law of any of the States, related to § 257. 1See § 255, p. 391, ante. the treaty-making power. In the case of Ware vs. Hylton1 this question was discussed in an action submitted to, and decided by, the Supreme Court, and the provisions of the Constitution in regard to treaties were judicially construed and determined. § 260. Opinions of publicists-not judicial decisions-discussed in this chapter.-The judicial decisions will be reserved for subsequent chapters,' and the balance of this chapter will be devoted to referring briefly to the opinions of some of the ablest writers upon the Constitution, and giving a summary of their views in regard to the nature and extent of the treaty-making power as it is vested in the Central Government of the United States. It will only be possible to give extracts from a few of the many eminent writers upon constitutional law and treaties.2 $261. Views of William Rawle; 1825.-One of the earliest expounders of the Constitution was William Rawle, whose book, published in 1825, was immediately recognized, and has ever since retained its position, as an able exposition of the subject, notwithstanding some of the extreme views of the author.1 Mr. Rawle was an ardent exponent of the States' rights school in fact, he believed in the right of secession; he gave, however, the widest possible scope to the treaty-making power. The following extract shows that he realized how fully the framers and ratifiers of the Constitution appreciated the nature and extent of this power when they vested it in the Central Government of the United States. "The nature and extent of this constitutional power underwent full examination, in the state conventions. The most general terms are used in the Constitution. The powers of $259. 1 See § 324, Vol. II, pp. 6 et seq. § 260. 1 Chaps. XI-XIV, post. the United States, and the other in Paul Leicester Ford's collections of Pamphlets on the Constitution. See also list of authorities referred to, at commencement of this volume. § 261. 2 The student who desires to further investigate this subject will find two very complete bibliogra- 1A view of the Constitution of the phies of the subject. One, as the United States by William Rawle, Appendix to the second volume of 1st edition, Philadelphia, 1825, Curtis' Constitutional History of 2d edition, 1829. |