public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations. and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals."

1

§ 249. Authorship of the Federalist.-The author of this volume does not intend to enter into any discussion as to the authorship of the various numbers of the Federalist; there can be no doubt that in the various extracts given the views expressed on the treaty-making power represented the opinions of Madison, Hamilton and Jay, all of whom were thoroughly conversant with the history of confederated governments, and the general rules of political science connected therewith; the most casual examination of the records of the Federal and State Constitutional Conventions, and of the Federalist, will show that no men were better qualified to

2

express opinions upon the subjects than the three authors of the Federalist. No. LXIV which was devoted entirely to a discussion of treaty-making power, was undoubtedly the work of John Jay, who had been Secretary of Foreign Relations under the Confederation, and had represented the United States in foreign countries, and who subsequently performed the duties of Secretary of State for a brief period under President Washington, was Minister to England, and negotiated the treaty with that country, which has always borne his name, and who was also the first Chief Justice of the United States. Surely no one could be better qualified to speak upon the subject of treaty-making than that eminent jurist who had devoted so much of his life thereto and whose utterances in that regard have always been rightly considered as entitled to the greatest weight and respect.3

§ 250. Other publications prior to ratification.-Even at the risk of devoting too much space to this class of literature, a few other extracts from pamphlets published during the ratification contest will be given, and in order to show that it was by no means a one-sided affair some will be selected from pamphlets published with the hope, and for the purpose-fortunately unsuccessful-of defeating the ratification of the Constitution.1

§ 251. Richard Henry Lee's opposition; the "Federal Farmer."-Richard Henry Lee of Virginia, a bitter opponent

2 See §§ 244-5, pp. 381, et seq., | both so peculiarly needed, and so ante. especially advantageous to the See note 4, § 156, pp. 268, et seq., State of Massachusetts, that its ante. § 250.

adoption was only endangered by certain questions of local politics, 1 A number of letters which will which could not even enter into be found in Ford's Essays and the discussion. They were noPamphlets were written in op- ticed, or replied to, in the Massachuposition to the adoption of the setts Gazette, December 21, 1787, Constitution in Massachusetts; of by "Charles James Fox;" Dethese, Mr. Ford states (p. 51, Essays) cember 27, 1787, and January 4, that the letters of Agrippa" | 1788, by "Kempis O'Flannigan," were the ablest anti-federal pub- January 22 and January 25, 1788, lications printed in Massachusetts, by "Junius," and in the letters of and showed especial ability in ar- Cassius," printed in the same guing the dangers and defects of a volume. plan of government which was

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of the Constitution, expressed his views under the title of "The Federal Farmer" in regard to treaties as follows: "4th. There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption of the new constitution in its present form, will be left unsecured. By article 6, the proposed 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.

"It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New Hampshire, Massachusetts, etc., but by the people of the United States; and wherever this constitution, or any part of it, shall be incompatible with the ancient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and wherever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.

"By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution-nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it is practicable to set any bounds to those who make treaties, I am not able to

say; if not, it proves that this power ought to be more safely lodged." 1

§ 252. George Mason's protest.-George Mason, who was also a bitter opponent of the Constitution published a violent pamphlet attacking it in many respects; he considered that by declaring all treaties supreme laws of the land the Executive and the Senate had in many instances an exclusive power of legislation which might have been avoided by proper distinction with respect to treaties, by requiring the assent of the House of Representatives.1

§ 253. Judge Iredell's answer; "Marcus."-Judge Iredell of North Carolina to whose able work in the convention of that State we have already alluded1 and to whom we shall allude in a later chapter, in regard to his opinion in the great case of Ware vs. Hylton in which the treaty-making power under the Constitution was discussed and construed,2 answered Colonel Mason under the name of "Marcus," in one of the best pamphlets published during the period. In regard to the treaty-making power Judge Iredell argued that it was already the law of the land and had been so determined by Congress in unanimously resolving to adopt the very sensible. letter of Mr. Jay's to the effect "that a treaty when once made pursuant to the sovereign authority, ex vi termini became immediately the law of the land." Continuing, Judge Iredell said: "It seems to result unavoidably from the nature of the thing, that when the constitutional right to make treaties is exercised, the treaty so made should be binding upon those who delegated authority for that purpose. If it was not, what foreign power would trust us? And if this right was restricted by any such fine checks as Mr. Mason has in his imagination, but has not thought proper to disclose, a critical occasion might arise, when for want of a little rational confidence in our own government, we might be obliged to submit to a master in an enemy. Mr. Mason wishes § 251.

1 Ford's Pamphlets on the Constitution, p. 311. The punctuation is so in the original.

§ 252.

1 Ford's Pamphlets on the Constitution, pp. 327, et seq., see p. 331.

§ 253.

1See § 227, p. 366, ante.

2 See § 328, Vol. II, p. 9.

8 For an extended reference to Jay's report, or letter, see note under § 156, pp. 268, et seq., ante.

the House of Representatives to have some share in this business, but he is immediately sensible of the impropriety of it, and adds 'where it can be done with safety.' And how is it to be known whether it can be done with safety or not, but during the pendency of a negotiation? Must not the President and Senate judge whether it can be done with safety or not? If they are of opinion it is unsafe, and the House of Representatives of course not consulted, what becomes of this boasted check, since, if it amounts to no more than the President and Senate may consult the House of Representatives if they please, they may do this as well without such a provision as with it. Nothing would be more easy than to assign plausible reasons, after the negotiation was over, to show that a communication was unsafe, and therefore surely a precaution that could be so easily eluded, if it was not impolitic to the greatest degree, must be thought trifling indeed. It is also to be observed, that this authority, so obnoxious in the new Constitution (which is unfortunate in having little power to please some persons, either as containing new things or old), is vested indefinitely and without restriction in our present Congress, who are a body constituted in the same manner as the Senate is to be, but there is this material difference in the two cases, that we shall have an additional check, under the new system of a President of high personal character chosen by the immediate body of the people." 4

$254. David Ramsay's letters; "Civis."-David Ramsay of South Carolina, who had also been a delegate to his own State convention, issued an address to his friends, countrymen, and fellow citizens under the title of "Civis" in which he disposed of the objections as to the treaty-making power as follows: "It has been objected, that the president, and two-thirds of the senate, though not of your election, may make treaties binding on the state. Ask these objectors-do you wish to have any treaties? They will say yes. Ask then who can be more properly trusted with the power of making them, than they to whom the convention have referred it? Can the state legislatures? They would consult their local

4 Ford's Pamphlets on the Constitution, pp. 333, et seq., see p. 355.