mitted to prevent a war nor to support it by th[eir] own authority-Of this he cited many examples; most of whi[ch] tended to shew, that they could not cause infractions of treaties or of the law of nations, to be punished: that particular states might by their conduct provoke war without controul; and that neither militia nor draughts being fit for defence on such occasions, enlistments only could be successful, and these could not be executed without money.

Thus, it was deficiencies in the powers to conduct foreign relations, including specifically the inability to enforce treaties within the states, that were regarded by Randolph as the first of the defects in the Articles of Confederation which needed to be remedied. In subsequent discussions, there were repeated references to the fact that treaties had been violated by the states. Thus, on June 19, 1787, Mr. Madison, in commenting on the New Jersey plan, stated the considerations which he felt should be the test of any proposal, and as the first requisite stated:

1. Will it prevent those violations of the law of nations & 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 Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national 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 it does not supply the omission. It leaves the will of the States as uncontrouled as ever."

Accordingly, each of the principal plans proposed to the Convention contemplated broad and effective treaty provisions. The Virginia plan proposed that the national legislature and the national executive should enjoy, respectively, the legislative and exclusive rights vested in Congress by the Articles of Confederation, which, as we have seen, included the exclusive power to make treaties, and that in addition the national legislature should be empowered "to legislate in all cases in which the several States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation," and to negative any State Law contravening the Articles of Union. The federal judiciary was to be empowered to decide any "questions which may involve the national peace and harmony." The New Jersey plan would have given the Federal Government all the authority then vested in the Congress under the Articles of Confederation as well as authority over trade and commerce; it would have given the federal judiciary jurisdiction over the “construetion of any treaty or treaties," and would have provided that all acts of Congress "and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens." The plan submitted by Alexander Hamilton would have given the Executive power, with the advice and approbation of the Senate, to make treaties, and would have contained a supremacy clause." The Pinckney plan would apparently have added to the treaty provisions of the Articles of Confederation a provision giving a federal Supreme Court power to review state court decision involving treaties."

Thus, it was generally assumed that the Federal Government should have the full and exclusive treaty power. This assumption was made before any agreement had been reached as to what other powers the Federal Government should possess. At no time during the Convention was there any suggestion that the

1 Farrand, Records of the Federal Convention 19 (rey, ed. 1937)_(emphasis added). McHenry's notes on Randolph's speech are even more explicit. "1st. It does not provide against foreign invasion. If a State acts against a foreign power contrary to the laws of nations or violates a treaty, it cannot punish the State, or compel its obedience to the treaty. It can only leave the offending State to the operations of the offended power It therefore cannot prevent a war. None of the judges in the several States [was] under the obligation of an oath to support the confederation, in which view this writing will be made to yield to State constitutions." 1 id. at 24-25.

E, statements of Pinckney and Madison on June 8, 1787. 1 id. at 164.

1 id at 316.

1 id. at 21,

1 id. at 244-45.

1 id. at 292-93.

30 3 id. at 608.

treaty power should be limited as to scope or subject matter. The intention was plainly to give to the Federal Government in respect of foreign affairs the full power of sovereignty.

The first aspect of the treaty provisions to come up for discussion was that which ultimately became embodied in the supremacy clause." The Virginia resolutions had proposed that the legislature have power to negative state laws contravening the Articles of Union. This proposal with an amendment by Dr. Franklin to add the words "or any Treaties subsisting under the authority of the union" was initially agreed to without debate or dissent." Subsequently, the proposed power to negative state legislation was rejected. Those opposed to the provision argued that it would be offensive to the states and that a state law that could be negatived would be set aside by the judiciary or, if necessary, could be repealed by a national law. Accordingly, in place of this provision there was proposed a supremacy clause providing that all legislative acts of the United States and all treaties made and ratified under the authority of the United States should be the supreme law of the respective states in so far as they related to such states or their citizens and inhabitants and should be binding on the state judiciary. This proposal was unanimously adopted. Subsequently the supremacy clause was extended to "treaties made or which shall be made" under the authority of the United States, so as to "obviate all doubts concerning the force of treaties pre-existing." "4

It was not until the troublesome issues of the representation of the states in the national legislature and the nature, term and manner of selection of the Chief Executive were resolved that attention turned to the question of which agency of the Federal Government should exercise the treaty power. The Committee of Detail, to which the resolutions adopted by the Convention had been submitted for embodiment in a draft Constitution, reported a draft which gave the Senate the power to make treaties. During the discussion of other provisions of the draft, numerous references to the treaty power were made. Thus, in discussing a proposal that, as to all legisative acts each house of Congress "have a negative on the other," Col. Mason objected that this would subject treaties to control by the House, since treaties were to be laws. Gouverneur Morris, in supporting the proposal, urged that treaties were not laws in this sense. The proposal was defeated. Similarly, in discussing the question whether the Senate should have power to originate money bills, Col. Mason suggested that the Senate already had great power since it could "sell the whole Country by means of Treaties." Mr. Mercer said the Senate should not have the treaty power, since that power "belonged to the Executive department." He added that a treaty should not be a law "till ratified by legislative authority." " In discussing the provision giving Congress power to make war, it was urged, on the one hand, that that power should be either in the President or the Senate, and on the other that Congress should also have the power to make peace, since otherwise a few Senators could "give up part of the U. States." Except for the change of "make" to "declare," both proposals were defeated, the proposed grant to Congress of the power to make peace failing ten votes to none.'

18

When the treaty provision came on for discussion, two proposals were made. Madison urged that the President should participate in treaty-making. Gouverneur Morris, although doubting whether the treaty power should be in the Senate, proposed adding a proviso that "no Treaty shall be binding on the U. S. which is not ratified by a law," explaining that "[i]n general he was not solicitous to multiply & facilitate Treaties." After some discussion, the whole clause was

"Although the definition of the jurisdiction of the federal courts took various forms at different stages of the Convention, 1 id. at 232; 2 id. at 46, 186, the inclusion in it of an express reference to treaties occasioned no dissent. 2 id. at 431.

1 id. at 47. 54, 61. Pickney and Madison thereafter proposed to enlarge this provision to authorize the negativing of any laws which the national legislature would judge to be improper, Madison urging that the States had shown a constant tendency to encroach on the federal authority and to violate national treaties. This proposed enlargement of the power to negative laws was defeated. 1 id. at 162–73.

13 2 id. at 21-22, 27-29. The proposed power to negative state laws was revived again and extensively debated. It was objected to as unnecessary in view of the supremacy clause and as offensive to the states, and was strenuously urged as necessary. A motion to refer the question to a committee failed, six to five. 2 id. at 390–91.

As drafted Congress to call out This reference to 2 id. at 389-90.

142 id. at 417. One other matter relating to treaties deserves mention. by the Committee of Detail, the constitution would have empowered the militia "to execute the laws of the Union, enforce treaties. * treaties was deleted as "superfluous since treaties were to be 'laws.'" 15 2 id. at 183.

1 2 id. at 197.

12 id. at 297.

18 2 id. at 318, 319.

referred to a committee of five." Thereafter this provision, together with others which had been postponed, notably those relating to the selection and powers of the President, was referred to a committee of eleven.20

The Committee of Eleven proposed that the President should have power to make treaties with the advice and consent of the Senate, and that consent of twothirds of the Senators present should be required." The committee had also proposed that if no candidate for President had a majority, the Senate should choose the President. Mr. Wilson strenuously objected that thus to give the Senate power to elect the President, approve appointments, try impeachments, and to make treaties which are to be the laws of the land would make that body too powerful. Others voiced like objections." Thereafter, it was decided to put the power to elect the President in the House. When the treaty provision came on to be discussed, no objection was made to giving the President the power to make treaties. It was proposed that treaties should be made with the advice and consent of the Senate and House of Representatives, Mr. Wilson stating that “[a]s treaties... are to have the operation of laws, they ought to have the sanction of laws also." It was urged, however, that the necessity for secrecy in the case of treaties forbade reference of them to the whole legislature. The proposal was defeated, ten to one." The requirement of consent of two-thirds of the Senators present received very extensive discussion. It was objected to as putting it in the power of a minority to control the will of the majority. Madison proposed that as to peace treaties the two-thirds requirement should not apply. This proposal was first adopted unanimously, but then objected to on the ground that in peace treaties "the dearest interests will be at stake, as the fisheries, territories, etc." On further reconsideration, various proposals were made and discussed, resulting finally in agreement to the provision requiring consent in all cases by two-thirds of the Senators present."

2. Proceedings of the state ratifying conventions

At a number of the state ratifying conventions references, similar to Randolph's opening statement at the federal convention, were made to the deficiencies in the treaty provisions under the Articles of Confederation as one of the principal sources of weakness under those articles." The rather fragmentary report of the debates at the Pennsylvania convention indicates that the treaty provisions were discussed in some detail, objections being made that the power to advise and consent to treaties should have been given to both houses of Congress, or that it was improper to combine executive and legislative powers in the Senate." The convention ratified the Constitution, however, without recommending amendments. Thereafter a meeting at Harrisburg proposed a number of amendments, including a provision "that no treaty, which shall hereafter be made, shall be deemed or construed to alter or affect any law of the United States, or of any particular state, until such treaty shall have been laid before and assented to by the House of Representatives in Congress." "

At the Maryland convention a number of amendments were urged, including one providing "that no treaty shall be effectual to repeal or abrogate the constitutions or bills of rights of the states, or any part of them." This proposal was rejected."

In the South Carolina Legislature, prior to calling a convention, there was considerable discussion of the treaty provisions, particularly on the question whether a treaty should become the law of the land without the concurrence of the House; "but no amendments relating to treaties were proposed by the convention. At the New York convention, a number of delegates expressed fears of the great powers of the Senate, mentioning the long term of Senators and their special

12 id. at 392–94.

20 2 id at 481.

2 id. at 494-95. #2 id. at 522-29.

#2 id. at 538.

* 2 id. at 540-41.

2 id. at 547-50.

Eg remarks of Oliver Elsworth, Connecticut. 2 Elliot's Debates 189 (2d ed. 1STERY James Wilson, Pennsylvania, 2 id. at 431, 463, 526; Thomas McKean, Pennsylvania, id. at 541 42; James Madison, Virginia, 3 id. at 135-36: William Davie, North Carolina id at 18; Charles Pinckney, South Carolina, 4 id. at 253-54.

See 2 id. at 505-07; see also 2 id. at 466, 476-77, 513.

1 id. at 319.

2 id. at 546.

2 id at 552-53, 558.

#4 id at 265 67, 280; see generally 4 id. at 263, 281, 293.

9933

38

9 35

powers in relation to treaties, appointments and impeachments." John Lansing proposed an amendment "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." That amendment, however, was not included among those proposed by New York in the instrument of ratification.** At the Virginia convention the treaty provisions were thoroughly discussed. Patrick Henry, one of the principal opponents of the Constitution, urged that "the important right of making treaties is upon the most dangerous foundation." In particular, a number expressed the fear that a few Senators could give up the rights of navigation to the Mississippi," or could cede important territories." Patrick Henry expressed fears of treaties "infringing our liberties," 8 and urged that at a minimum the House should participate in all treaties." Madison, Randolph, and other supporters of the Constitution, in answering these objections, urged that the combination of President and Senate afforded adequate safeguards, that it was necessary to make treaties the supreme law, that it was impossible to define the subjects to which treaties could relate, but that a treaty could not destroy the Constitution or be repugnant to its spirit." Patrick Henry proposed a number of amendments, which the Convention recommended for the consideration of the First Congress; these included a provision that commercial treaties should require the concurrence of two-thirds of all the Senators, and that no treaty ceding territorial claims or claims to fishing or navigation be made except in cases of the most urgent and extreme necessity, and then only with the concurrence of three-fourths of all of the Senators."

At the first North Carolina convention, numerous objections to the treaty provisions were considered. It was urged that the House should participate and responded that the small states insisted on giving the Senate this power and that the long tenure of Senators would give them more opportunity to learn about our foreign relations. It was objected that by treaty it would be possible to infringe freedom of religious worship by establishing a particular church, to which Iredell responded that the treaty-making power could not be so used." The convention adopted a resolution proposing a number of amendments to be considered by Congress and the states prior to ratification by North Carolina. These included the treaty amendment previously proposed by Virginia, and a further provision that no treaty opposed to an existing Act of Congress should be valid until such act was repealed or made conformable to the treaty, and that no treaty contradictory to the Constitution should be valid." On January 11, 1790, after the new Constitution had been established, North Carolina ratified it without condition."

3. Subsequent proposals to amend the treaty provisions

As noted above, a number of the state ratifying conventions proposed extensive amendments to the Constitution, including several relating to the treaty provisions. In response to these proposals, the First Congress submitted to the states twelve proposed amendments, of which ten were adopted, becoming the first ten amendments. Other amendments were considered by the House but not proposed by it. None of these proposals, however, related to the treaty provisions of the Constitution.45

In 1796 in connection with the Jay Treaty with Great Britain, the House adopted a resolution requesting the President to lay before it a copy of the instructions sent to the negotiators. During the very extended debate on this resolution," it was urged that any treaty which deals with a matter within the legislative powers of Congress is not law until sanctioned by Congress and that if a commercial treaty were allowed to become effective without approval of the House, the President and the Senate could amend the Constitution and absorb all

2 id. at 286-306, passim.

32 id. at 409.

* See 1 id. at 327-31.

353 id. at 315-16; see also 3 id. at 331, 341-65, 499-516, 609-10, 613, 650.

*See, e. g., 3 id. at 341, 353.

33 id. at 610.

33 id. at 503.

3 id. at 514, 650-51.

40 3 id. at 347, 504, 507, 514.

413 id. at 609-10.

24 id. at 27-28, 41, 115, 119-20, 125, 131, 135, 188, 192, 194, 215.

43 4 id. at 246.

441 id. at 333.

45 See 1 Annals of Cong. 440-68, 685-91, 730-92, 795-808, 948 (1789). 2 id. at 203340 (1790).

45 id. at 394, 400-401, 424, 426-783 (1796).

legislative power." In response, it was contended that the treaty power was advisedly placed in the President and Senate only; that the treaty power extended to all fit subjects of negotiation; that if a treaty exceeded their constitutional powers it was void; but that if it was within these powers, participation by the House was not necessary to make it law." President Washington, however, refused to comply with the resolution, asserting that the treaty-making power was placed by the Constitution in the President and Senate and that the House had no powers of participation in the making of treaties and no right to inquire into the merits of treaties made." These events also led to a proposal by the Virginia Assembly of a constitutional amendment: "That no treaty containing any stipulation upon the subject of the powers vested in Congress by the eighth section of the first article, shall become the supreme law of the land, until it shall have been approved in those particulars by a majority of the House of Representatives; and that the President before he shall ratify any such treaty, shall submit the same to the House of Representatives." " No action was taken on this proposal.

More recently, amendments frequently have been proposed to facilitate treatymaking by eliminating the requirement that treaties be approved by two-thirds of the Senate, and substituting approval by a majority of both Houses."

B. NATURE AND SCOPE OF CERTAIN EARLY TREATIES

The framers clearly recognized that a Constitution which is meant to endure must be cast in terms sufficiently general to be adaptable to new circumstances and new needs. An examination of the treaties actually entered into in the eighteenth century by a nation of thirteen states will give some indication of the breadth which they clearly intended the treaty power should have.

It has been pointed out that one of the major defects found to have existed under the Confederation was the inability of the national government to enforce compliance by the states with treaties. Perhaps the principal source of difficulty in this respect had arisen out of the treaty of peace with Great Britain of September 3, 1783, negotiated on behalf of the United States by John Adams, Benjamin Franklin and John Jay. During the Revolution, British property had in general been sequestered or confiscated by the various states. In the peace treaty, while the United States merely undertook to recommend to the states restitution of confiscated property, it took definitive action to protect British creditors. Article IV provided that "[i]t is agreed that creditors on either side shall meet wth no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." Article V provided that "all persons who have any interest in confiscated lands . . . shall meet with no lawful impediment in the prosecution of their just rights.” And Article VI guaranteed that there should be no future confiscations or prosecutions against any person on account of the part he took in the Revolutionary War

After the adoption of this treaty, a number of states passed laws which were complained of by Great Britain as violations of its terms. An extensive report on the matter was submitted to the Continental Congress by the Secretary for Foreign Affairs (John Jay) on October 13, 1786. The report pointed out that American violations of these provisions afforded excuses to Great Britain for

5 id. at 467-70, 535, 578 (1796).

45 id. at 429, 432, 438, 316, 524, 662 (1796).

5 id. at 760-61 (1796).

50 Va. Acts of Assembly 1795, p. 55.

E. g. H. J. Res. 60, 79th Cong., 1st Sess., passed by the House, 91 Cong. Rec. 4867– 68 (1945). See H. R. Rep. No. 139, 79th Cong., 1st Sess. (1945). For earlier instances of such proposals, see Proposed Amendments to the Constitution, H. R. Doc. No. 551, 70th Cong., 1st Sess. 120-22 (1928).

52 For summaries of the common subject matters of treatles in the eighteenth century generally, see Fraser, Treaties and Executive Agreements, Sen. Doc. No. 244, 78th Cong. 2d Sess. 5-13 (1944).

28 Stat. 80 (1783).

31 Journals of the Cont. Cong. 781, 874 (1786). As examples of state laws violating the treaty. Jay listed the following: Mass. Resolves 1784, c. 77. suspending payment of interest between 1775 and 1783 in cases in which British subjects or absentees are plaintiffs or defendants; Act of Pennsylvania, "said to have been passed soon after the peace," suspending for a limited time execution on any debts, or sales on property assured for the benefit of creditors, together with a similar act. Dec, 23, 1784; Res lution of the Virginem Assembly. 11 Laws of Virginia 349 (Hening 1783), continuing wartime acts inhibiting payment of British debts; Acts of South Carolina postponing the right to sue for interest and the principal on any debt owing by American citizens, permitting the debtor to tender land in payment of his debt and permitting prior tenders in depreciated paper to be pleaded 31 id. at 806-30.

in bar.