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curt machinery and executive power, had greatly disturbed the public mind and made a deep impression upon the statesmen and publicists of that day, both in our country and in foreign countries, and it was one of the controlling reasons for calling the Constitutional Convention.
Time does not permit me to cite the numerous authorities establishing beyond question the opinions of public men at this time and their determination to correct this, one of the greatest defects of the confederation. These opinions were held by substantially all of the leading men: Washington, Jefferson, Hamilton, Madison, Randolph, Pinckney, Adams, Wilson, and others.
There is no question about the determination of the great majority of the convention to place the exclusive right of making treaties in the federal government and to confer on that government the power to enforce their provisions through the machinery of the federal government, exclusive of the states. Every proposition to limit this power was voted down, and there was evidenced the greatest solicitude for the adoption of adequate means for the enforcement of treaty stipulations. It was first proposed to vest the treaty-making power in the Senate, but afterwards it was vested in the President by and with the approval of the Senate, two-thirds of its members present voting therefor.
But the most important thing was to adopt means whereby the acts of the states in violation of treaties could be annulled. Various plans were discussed. The sixth resolution offered by Governor Randolph proposed to give Congress the right "to negative all laws passed by the several states, contravening, in the opinion of the national legislature, the articles of union."" This, in substance, was contained in Pinckney's first draft of the Constitution. It was, however, considered by the convention cumbersome and inadequate. It would require the Congress to affirmatively act upon and set aside each legislative or constitutional provision of the states violating our treaties, instead of declaring and making them invalid and creating a department of the government to enforce the treaty stipulations. This point
'Elliot's Debates, Vol. 1, p. 144.
is made very clear by the debates in the Constitutional Convention.
Speaking upon the Paterson resolutions, Mr. Madison expressed the opinion that they did not go far enough in the general surrender of power to the central government. He said':
"Will it prevent the violations of the law of nations and of treaties which, if not prevented, must involve us in the calamities of foreign wars? The tendency of the states to these violations has been manifested in sundry instances. The files of Congress contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shown us.. This cannot be the permanent disposition of foreign nations. A rupture with other powers is the greatest of calamities. It ought, therefore, to be effectually provided, that no part of a nation shall have it in its power to bring them on the whole. The existing Confederacy does not sufficiently provide against this evil. The proposed amendment to its does not supply the omission. It leaves the will of the states as uncontrolled as
Paterson had proposed a resolution creating a federal judiciary with jurisdiction in all cases" in which foreigners may be interested, in the construction of any treaty or treaties,” and making such treaties the supreme law of the respective states, in the following language*:
"Resolved, That all acts of the United States in Congress assembled, made by virtue and in pursuance of the powers hereby vested in them, and by the Articles of Confederation, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states as far as those acts or treaties shall relate to the said states, or their citizens; and that the judiciaries 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 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
Butler's Treaty-Making Power, Vol. 1, Sec. 177.
powers 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."
This was the basis of Luther Martin's resolution, which was finally adopted, with some modification, as Article VI of the Constitution. A federal judiciary was created, consisting of one Supreme Court and such inferior courts as Congress might from time to time ordain and establish, and the judicial power was extended to all cases arising under the Constitution and treaties made.
'Butler's Treaty-Making Power, Vol. 1, Sec. 181. 'Butler's Treaty-Making Power, Vol. 1, Sec. 216.
Thus it will be seen that under this constitutional provision any constitution or law of a state in violation of a treaty was made void and the state judges were bound so to declare, and a federal judiciary was created having jurisdiction over all questions arising under such treaty, with full power and authority to enforce its decrees. The federal convention had accomplished its purpose to correct one of the greatest weaknesses of the confederated government. It adopted these provisions in the light of the usage of nations, the history of the times, and with full knowledge of the evil, to be remedied. While men differed as to the wisdom of this central power, none differed as to its nature. It was deliberately adopted in order that we might be a nation and fulfill our obligations to foreign powers.
In the various state conventions called for the ratification of the Constitution the meaning of these provisions was not doubted; only their wisdom was questioned. It was claimed that too great a power was conferred upon the President and the Senate; if treaties were to be the supreme law of the land, the House of Representatives ought to have a voice in making them; they ought not to be made so as to alter the constitution or the laws of any state, and a resolution to this effect was proposed in the New York convention by Mr. Lansing. Patrick Henry, in the Virginia convention, was particularly strenuous in his opposition to the treaty-making power and the supremacy of the treaties over the laws and constitutions of the states. He stated":
"Treaties rest on the laws and usages of nations. To say that they are municipal, is, to me, a doctrine totally novel. To make them paramount to the Constitution and laws of the states, is unprecedented. . .
"We are told that the state rights are preserved. Suppose the state right to territory be preserved; I ask and demand, How do the rights of persons stand, when they have power to make any treaty, and that treaty is paramount to constitutions, laws, and everything?"
Mr. Madison, speaking in the Virginia convention, said:
"The confederation is so notoriously feeble, that foreign nations are unwilling to form any treaties with us; they are apprised that our general government cannot perform any of its engagements, but that they may be violated at pleasure by any of the states. Our violation of treaties already entered into proves this truth unequivocally."
The most remarkable discussion of the Constitution was by Hamilton, Madison and Jay, in the "Federalist," a discussion which excited the admiration of statesmen the world over and compares favorably with the writings of such great students of government as Vattel, Montesquieu, Burke, Machiavelli, and Rousseau.
In the 22d number of the " Federalist" Hamilton discusses the defects of the confederation in its want of power to enforce treaties in the several states. He said:
"A circumstance which crowns the defects of the confederation remains yet to be mentioned,-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one supreme tribunal. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing
from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.
"The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputa tion, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?"
In discussing the subject of limitations upon the power of the federal government, he says that such power "ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them."
It was in the light of history and with the full knowledge of the condition of the treaty-making power, and of the violation of treaties by the states, that the Constitution was adopted by the convention of every state after the widest discussion and deliberate consideration. It was a momentous step in human government. It was to be a trial of constitutional representative democracy. While preserving the widest field consistent with liberty in the individual, it was an attempt to confer upon the central government sufficient power to stand among the nations of the earth. It attempted to remedy the evils and instabilities of pure democracies and loose confederations on the one hand, and the oppressions and tyrannies of pure monarchies on the other. While protecting the person and the property of the citizen against the abuses of government, it gave to the central government the power to make treaties with foreign nations necessary to the preservation of the Union, to the extension of its commerce, to the protection of its citizens in foreign lands, and