of the power must be consistent with the object of the delegation." Later, Mr. Dawson declared that the treaty power was insufficiently guarded. Mr. Grayson reiterated his prior contention that under that power the Union could be dismembered; treaties should be in the hands of three-fourths of both houses of Congress. At the close of the debate Mr. Henry, in making a final stand against ratification, said: "Another thing which they have not mentioned, is the power of treaties. Two thirds of the senators present can make treaties; and they are, when made, to be the supreme law of the land, and are to be paramount to the state constitutions. We wish to guard against the temporary suspension of our great national rights. We wish some qualification of this dangerous power. We wish to modify it. One amendment which has been wished for, in this respect is, that no treaty should be made without the consent of a considerable majority of both houses." Mr. Henry, however, was a patriot, and after the Constitution was adopted as the law of the land became one of its loyal supporters.5 § 223. Constitution finally ratified by Virginia; amendments suggested.-The Constitution was finally ratified in the manner above stated; an additional resolution was also § 222. 1Elliot's Debates, vol. III, pp. wish not to go to violence, but will system in a constitutional way. I 514, et seq. 2 Idem, p. 610. 3 Idem, p. 613. * Idem, p. 650. wait with hopes that the spirit which predominated in the Revolution is not yet gone, nor the cause of those who are attached to the 5" The conduct of Mr. Henry, Revolution yet lost. I shall, therewhen he saw that the adoption of fore, patiently wait in expectation the Constitution was inevitable, of seeing this government so was all that might have been ex- changed as to be compatible with pected from his patriotic and un- the safety, liberty, and happiness selfish character. If I shall be in of the people.' This noble and disthe minority,' he said, 'I shall have interested patriot lived to find the those painful sensations which Constitution all that he wished it arise from a conviction of being to be, and to enroll himself, in the overpowered in a good cause. Yet day of its first serious trial, among I will be a peaceable citizen. My head, my hand, and my heart shall be free to retrieve the loss of liberty, and remove the defects of this its most vigorous and earnest defenders." Curtis' Constitutional History of the United States, p. 682. adopted recommending certain amendments, which were to be transmitted by the President of the convention with the ratification to the United States in Congress assembled.1 Number Seven of the proposed amendments was: “That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty, ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively." Certainly no one will contend for a moment that the full extent of the treaty-making power, as vested in the Central Government of the United States, was not thoroughly understood in the State of Virginia before the Constitution was ratified. § 224. Ratification by New Hampshire; action of Rhode Island; Convention in New York.-While the convention in Virginia was in progress, the convention in New York commenced; the delegates assembled at Poughkeepsie on the 17th of June. During the sessions of this convention the Constitu-" tion was ratified in Virginia on June 25th, and in New Hampshire on June 21st; on the 26th of July, 1788, the ratification of the Constitution by the State of New York made it binding upon all the States except North Carolina and Rhode Island. The former did not ratify the Constitution in its first Convention as we shall see, and the other rejected it by an alleged popular vote but one which could hardly be considered as binding upon the State, as the Federalists practically refused § 223. the adoption of the Federal Consti 1 Elliot's Debates, vol. III, p. 659. tution by the State of New Hamp2 Idem, p. 660. § 224. 1 Elliot's Debates, vol. II, p. 205; Curtis' Constitutional History of the United States, vol. I, p. 674. 2 Idem, p. 677; see also "A brief view of the influences that moved shire;" an address delivered before the Grafton and Coos Counties (N. H.) Bar Association, by Albert Stillman Batchelor, at the meeting held at Berlin, N. H., January 27, 1899 (N. H. Bar Association Pamphlets, vol. 141). to participate therein; subsequently, however, better counsel prevailed and both States recognizing the impossibility of remaining outside of the Union united with their sister States, North Carolina on November 21, 1789, and Rhode Island on May 29, 1790.3 § 225. Personnel of New York Convention.-The list of 65 delegates composing the New York convention contains the names of John Jay, Alexander Hamilton, Robert R. Livingston, Governor George Clinton, Lewis Morris, Peter Van Ness, as well as those of many other prominent men who met and discussed the Constitution in its every aspect. The report in Elliot's Debates shows that the laboring oar in this convention was handled by Alexander Hamilton, who had to meet the weight of all the opposing forces which were marshaled by Governor Clinton, who was violently opposed to the Constitution, and who having been elected President of the convention, did everything within his to defeat the ratification.1 power § 226. Treaty-making power referred to. The same practical fear in regard to the navigation of the Mississippi which to so great an extent had animated the opposition in Virginia did not exist in the State of New York, and, therefore, there was less discussion in regard to the treaty-making power in that convention than there had been in Virginia. Mr. G. Livingston, however, expressed his fear that the Senate might become a dangerous body as the Senators possessed 8 See U. S. Statutes at Large, vol. I, pp. 99 and 126, for the statutes declaring North Carolina and Rhode Island to be States of the Union. As to North Carolina see §§ 227-230, pp. 366 et seq., post. RATIFICATION OF RHODE ISLAND. On pp. 334-336, vol. I, of Elliot's Debates will be found a lengthy ratification of the Constitution by Rhode Island which contains the Constitution at length, a declaration of rights, a long list of proposed amendments, the ratification of which the senators and repre sentatives are urged to procure; 1 Elliot's Debates, vol. II, pp. 205414; Curtis' Constitutional History of the United States, vol. 1, p. 674 et seq., and see p. 691 for "Honors paid to Hamilton." too much power in their capacity as counsel to the President and in the formation of treaties,1 and urged an amendment against reëlections. Mr. Lansing took the same view,2 and Mr. R. R. Livingston spoke against the proposed change.3 On the 7th of July, while the Convention was in Committee of the Whole, Mr. Lansing, who had been one of the delegates to the Federal Convention, but who had withdrawn therefrom, proposed the following amendments: "Resolved, as the opinion of this Committee that no treaty ought to operate so as to alter the constitution of any state; nor ought any commercial treaty to operate so as to abrogate any law of the United States." It does not appear what action was taken on this particular recommendation as the reports are very brief; subsequently the Constitution was unconditionally ratified, but a circular letter was written to the Governors of all the other States urging the adoption of certain amendments although it does not appear exactly what the amendments were. To a great extent, however, they were the same as those submitted by some of the other States and in the list thereof Mr. Lansing's amendment as to the effect of treaties does not appear; the fact that it was offered shows that the effect of treaties upon State laws was one of the points considered by the convention. $227. North Carolina rejects the Constitution; Judge Iredell's views on treaty-making.-On July 21, 1788, the constitutional convention met in North Carolina, and on August 24, after a protracted debate, refused to ratify the Constitution. One of the principal subjects of discussion at this convention was the treaty-making power vested in Federal Government; amongst the delegates was James Iredell, afterwards an Associate Justice of the Supreme Court, and who delivered an opinion in regard to the treaty-making power in the case of Ware vs. Hylton, hereafter referred to.2 It is said that President Washington derived his conviction of Iredell's fitness for the Supreme Court bench from a perusal of the debates in the North Carolina convention and of his reply to George Mason's "Objection to the Constitution," which will also be referred to hereafter. Mr. Iredell threw some light on the discussion as to the treaty-making power in the Federal Convention during his remarks, when he said: "Suppose there had been such a council as was proposed (evidently referring to some such suggestion made. at the Federal Convention), consisting of thirteen, one from each state, to assist the President in making of treaties, etc.; more general alarm would have been excited, and stronger opposition made to this Constitution, than even at present.1 8228. Views of other delegates. In the course of the debates it was urged that as "treaties were the supreme law of the land the House of Representatives ought to have a vote in making them as well as in passing them.” Mr. J. M'Dowall dwelt at great length upon the small number of legislators, who, acting with the President, might make a treaty. He declared; "These ten men who constitute a quorum may make treaties and alliances. They may involve us in any difficulties, and dispose of us in any manner, they please. Nay," he continued, "eight is a majority of a quorum, and can do everything but make treaties. How unsafe are we, when we have no power of bringing those to an account! it is absurd to try them before their own body. Our lives and property are in the hands of eight or nine men. gentlemen entrust their rights in this manner?" replied that "although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. A due observance of treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities which tend to depopulate and ruin contending nations. It extends and facilitates 1796, 3 Dallas, 199; see also § 324, Vol. II, pp. 6, et seq. 3 See §§ 252-253, post. Will these Mr. Davie 4 Elliot's Debates, vol. IV, p. 128. § 228. 1 Elliot's Debates, vol. IV, p. 119. |