Article 2, Section 2, Clauses 2 and 3
[Volume 4, Page 49]
Debate in Virginia Ratifying Convention18--19 June 1788Elliot 3:499--515
Mr. George Mason thought this a most dangerous clause, as thereby five states might make a treaty; ten senators--the representatives of five states--being two thirds of a quorum. These ten might come from the five smallest states. By the Confederation, nine states were necessary to concur in a treaty. This secured justice and moderation. His principal fear, however, was not that five, but that seven, states--a bare majority--would make treaties to bind the Union.
Mr. George Nicholas, in answer to Mr. Mason, insisted that we were on a safer footing in this Constitution than in the Confederation. The possibility of five states making treaties was founded on a supposition of the non-attendance of the senators from the other states. This non-attendance, he observed, might be reciprocated. It was presumable that, on such important occasions, they would attend from all the states, and then there must be a concurrence of nine states. The approbation of the President, who had no local views, being elected by no particular state, but the people at large, was an additional security.
Mr. Mason differed widely from the gentleman. He conceived that the contiguity of some states, and remoteness of others, would prevent that reciprocity which he had mentioned. Some states were near the seat of government; others far from it; for instance, Georgia was eight or nine hundred miles from it. Suppose, says he, a partial treaty is made by the President, and is to be ratified by the Senate. They do not always sit. Who is to convene them? The President. Is it presumable that he would call distant states to make the ratification, or those states whose interest he knew to be injured by the treaty he had proposed? This, I conceive, will have a contrary effect from what the gentleman says.
A desultory conversation took place.
Mr. Nicholas asked if it was presumable that the President, who depended on the people for his political existence, would sacrifice the interest of the eight largest states, to accommodate the five smallest. The gentleman had said once that the Senate would be always sitting, and yet five states were now to effect the business, because the rest were away.
Mr. Lee compared the possibility of non-attendance of the senators to that in our state legislature. It consisted of one hundred and seventy members: a majority of these was forty-four, which were competent to pass any law. He demanded if all our laws were bad because forty-four might pass them. The case was similar. Although two thirds of the senators present could form a treaty, it was not presumable it could often happen that there should be but a bare quorum present on so important an occasion, when the consequence of non-attendance was so well known.
Mr. Madison thought it astonishing that gentlemen should think that a treaty could be got up with surprise, or that foreign nations should be solicitous to get a treaty only ratified by the senators of a few states. Were the President to commit any thing so atrocious as to summon only a few states, he would be impeached and convicted, as a majority of the states would be affected by his misdemeanor.
Mr. Henry begged gentlemen to consider the condition this country would be in if two thirds of a quorum should be empowered to make a treaty: they might relinquish and alienate territorial rights, and our most valuable commercial advantages. In short, if any thing should be left us, it would be because the President and senators were pleased to admit it. The power of making treaties, by this Constitution, ill-guarded as it is, extended farther than it did in any country in the world. Treaties were to have more force here than in any part of Christendom; for he defied any gentleman to show any thing so extensive in any strong, energetic government in Europe. Treaties rest, says he, 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. I would give them the same force and obligation they have in Great Britain, or any other country in Europe. Gentlemen are going on in a fatal career; but I hope they will stop before they concede this power unguarded and unaltered.
Mr. Madison, instead of being alarmed, had no doubt but the Constitution would increase, rather than decrease, the security of territorial rights and commercial advantages, as it would augment the strength and respectability of the country. The honorable gentleman, says he, has said we are making great innovations in extending the force of treaties. Are not treaties the law of the land in England? I will refer you to a book which is in every man's hand--Blackstone's Commentaries. It will inform you that the treaties made by the king are to be the supreme law of the land. If they are to have any efficacy, they must be the law of the land: they are so in every country. He thinks that, by the power of making treaties, the empire may be dismembered in time of peace. The king of Great Britain has the power of making peace, but he has no power of dismembering the empire, or alienating any part of it. Nay, the king of France has no right of alienating part of his dominions to any power whatsoever. The power of making treaties does not involve a right of dismembering the Union.
Mr. Henry asked how the power of the king of Great Britain, with respect to dismembering the empire, would stand, if the constitution had declared that treaties would be effectual, notwithstanding any thing in the constitution or laws of the country. He would confess his error, if the gentleman could prove that the power of the king of Great Britain, and that of Congress, in making treaties, were similar.
Mr. Madison conceived that, as far as the king of Great [Volume 4, Page 50] Britain had a constitutional power of making a treaty, such a treaty was binding. He did not say that his power was unlimited. One exception was, that he could not dismember the empire.
Mr. Grayson, after discriminating the difference of what was called the law of nations in different countries, and its different operations, said he was exceedingly alarmed about this clause. His apprehensions were increased from what he had seen. He went over the grounds which had been before developed, of the dangers to which the right of navigating the Mississippi would be exposed, if two thirds of the senators present had a right to make a treaty to bind the Union. Seven states had already discovered a determined resolution of yielding it to Spain. There was every reason, in his opinion, to believe they would avail themselves of the power as soon as it was given them. The prevention of emigrations to the westward, and consequent superiority of the southern power and influence, would be a powerful motive to impel them to relinquish that river. He warmly expatiated on the utility of that navigation, and the impolicy of surrendering it up. The consent of the President he considered as a trivial check, if, indeed, it was any; for the election would be so managed that he would always come from a particular place, and he would pursue the interest of such place. Gentlemen had said that the senators would attend from all the states. This, says he, is impracticable, if they be not nailed to the floor. If the senators of the Southern States be gone but one hour, a treaty may be made by the rest, yielding that inestimable right. This paper will be called the law of nations in America; it will be the Great Charter of America; it will be paramount to every thing. After having once consented to it, we cannot recede from it. Such is my repugnance to the alienation of a right which I esteem so important to the happiness of my country, that I would object to this Constitution if it contained no other defect.
Mr. Nicholas, in answer to the observations of the gentleman last up, on the law of nations, said he thought it was dictated by no particular nation; that there was no such thing as a particular law of nations, but that the law of nations was permanent and general. It was superior to any act or law of any nation; it implied the consent of all, and was mutually binding on all, being acquiesced in for the common benefit of all. Gentlemen recurred to their favorite business again--their scuffle for Kentucky votes. He compared the king of England's power to make treaties to that given by this clause. He insisted they resembled each other. If a treaty was to be the supreme law of the land here, it was so in England. The power was as unlimited in England as it was here. Let gentlemen, says he, show me that the king can go so far, and no farther, and I will show them a like limitation in America. But, say they, the President has no check. The worthy member says the weight of power ought to be in this part of the continent, because the number of inhabitants will be greater here. If so, every freeholder having a right to vote for the President, by the interposition of electors, will attend to his interests. This is a sufficient check.
Mr. Henry. Mr. Chairman, gentlemen say that the king of Great Britain has the same right of making treaties that our President has here. I will have no objection to this, if you make your president a king. But I will adduce a difference between an American treaty and an English treaty. Recollect the case of the Russian ambassador: he was arrested contrary to the rights of his master. The Russian emperor demanded the man, at whose instance his ambassador was arrested, to be given up to him, to be put to instant death. What did the queen say? She wrote him that that was something paramount to what she could do; that it exceeded her power to comply with his demand, because it was contrary to the constitution and laws. But how is it here? Treaties are binding, notwithstanding our laws and constitutions. Let us illustrate this fatal instance. Suppose the case of the Russian ambassador to happen here. The President can settle it by a treaty, and have the man arrested, and punished according to the Russian manner. The constitutions of these states may be most flagrantly violated without remedy. And still will gentlemen compare the two cases? So great was the anxiety of Queen Anne, that she wrote a letter to the Russian prince with her own hand, apologizing for her inability to comply with his demands. The Parliament was consulted, and a law made to prevent such arrests for the future. I say again that, if you consent to this power, you depend on the justice and equity of those in power. We may be told that we shall find ample refuge in the law of nations. When you yourselves have your necks so low that the President may dispose of your rights as he pleases, the law of nations cannot be applied to relieve you. Sure I am, if treaties are made infringing our liberties, it will be too late to say that our constitutional rights are violated. We are in contact with two powers--Great Britain and Spain. They may claim our most valuable territories, and treaties may be made to yield them. It is easy on our part to define our unalienable rights, and expressly secure them, so as to prevent future claims and disputes. Suppose you be arraigned as offenders and violators of a treaty made by this government. Will you have that fair trial which offenders are entitled to in your own government? Will you plead a right to appeal to the trial by jury? You will have no right to appeal to your own Constitution. You must appeal to your Continental Constitution. A treaty may be made giving away your rights, and inflicting unusual punishments on its violators. It is contended that, if the king of Great Britain makes a treaty within the line of his prerogative, it is the law of the land. I agree that this is proper, and, if I could see the same checks in that paper which I see in the British government, I would consent to it. Can the English monarch make a treaty which shall subvert the common law of England, and the constitution? Dare he make a treaty that shall violate Magna Charta, or the bill of rights? Dare he do any thing derogatory to the honor, or subversive of the great privileges, of his people? No, sir. If he did, it would be nugatory, and the attempt would endanger his existence.
The king of France calls his Parliament to give him power to make what regulations, with regard to treaties, they may think conducive to the interest of the nation. In the time of Henry IV., a treaty with Sigismund, king of Poland, was ratified by the Parliament. You have not even [Volume 4, Page 51] as much security as that. You prostrate your rights to the President and Senate. This power is therefore dangerous and destructive.
Gov. Randolph. Mr. Chairman, I conceive that neither the life nor property of any citizen, nor the particular right of any state, can be affected by a treaty. The lives and properties of European subjects are not affected by treaties, which are binding on the aggregate community in its political, social capacity.
The honorable gentleman says that, if you place treaties on the same footing here as they are in England, he will consent to the power, because the king is restrained in making treaties. Will not the President and Senate be restrained? Being creatures of that Constitution, can they destroy it? Can any particular body, instituted for a particular purpose, destroy the existence of the society for whose benefit it is created? It is said there is no limitation of treaties. I defy the wisdom of that gentleman to show how they ought to be limited. When the Constitution marks out the powers to be exercised by particular departments, I say no innovation can take place. An honorable gentlemen says that this is the Great Charter of America. If so, will not the last clause of the 4th article of the Constitution secure against dismemberment? It provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." And if this did not constitute security, it follows, from the nature of civil association, that no particular part shall sacrifice the whole.
Mr. Grayson, after recapitulating the dangers of losing the Mississippi, if the power of making treaties, as delineated in the Constitution, were granted, insisted, most strenuously, that the clause which the honorable gentleman had cited as a security against a dismemberment of the empire was no real security; because it related solely to the back lands claimed by the United States and different states. This clause was inserted for the purpose of enabling Congress to dispose of, and make all needful rules and regulations respecting, the territory, or other property, belonging to the United States, and to ascertain clearly that the claims of particular states, respecting territory, should not be prejudiced by the alteration of government, but be on the same footing as before; that it could not be construed to be a limitation of the power of making treaties. Its sole intention was to obviate all the doubts and disputes which existed, under the Confederation, concerning the western territory and other places in controversy in the United States. He defended his former position with respect to a particular law of nations. I insist, says he, that the law of nations is founded on particular laws of different nations. I have mentioned some instances: I will mention some more. It is the part of the laws of several Oriental nations to receive no ambassadors, and to burn their prisoners. It is a custom with the grand seignior to receive, but not to send ambassadors. It is a particular custom with him, in time of war with Russia, to put the Russian ambassador in the Seven Towers. But the worthy member said that it was odd there should be a particular law of nations. I beg leave to tell him that the United States are entering into a particular law of nations now. I do not deny the existence of a general law of nations; but I contend that, in different nations, there are certain laws or customs, regulating their conduct towards other nations, which are as permanently and immutably observed as the general law of nations. Of course there was a law of nations incident to the Confederation. Any person may renounce a right secured to him by any particular law or custom of a nation. If Congress have no right, by the law of nations, to give away a part of the empire, yet, by this compact, they may give it up. I look on that compact to be a part of the law of nations. The treaty of Munster formed a great part of the law of nations. How is the Scheldt given up? By that treaty, though contrary to the law of nations. Cannot Congress give the Mississippi also by treaty, though such cession would deprive us of a right to which, by the law of nations, we are inalienably and indefeasibly entitled? I lay it down as a principle that nations can, as well as individuals, renounce any particular right. Nations who inhabit on the sources of rivers have a right to navigate them, and go down, as well as the waters themselves.
Mr. George Nicholas again drew a parallel between the power of the king of Great Britain and that of Congress, with respect to making treaties. He contended that they were on the same foundation, and that every possible security which existed in the one instance was to be found in the other. To prove that there was no constitutional limit to the king's power of making treaties, and that treaties, when once by him made, were the supreme law of the land, he quoted the following lines in Blackstone's Commentaries, vol. i. page 257: "It is also the king's prerogative to make treaties, leagues, and alliances, with foreign states and princes; for it is, by the law of nations, essential to the goodness of a league, that it be made by the sovereign power; and then it is binding upon the whole community; and in England the sovereign power, quoad hoc, is vested in the person of the king. Whatever contracts, therefore, he engages in, no other power in the kingdom can legally delay, resist, or annul." A further proof, says Mr. Nicholas, that there is no limitation in this respect, is afforded by what he adds: "And yet, lest this plenitude of authority should be abused, to the detriment of the public, the constitution has interposed a check, by the means of parliamentary impeachment, for the punishment of such ministers as, from criminal motives, advise or conclude any treaty which shall afterwards be judged to derogate from the honor and interest of the nation." How does this apply to this Constitution? The President and Senate have the same power of making treaties; and when made, they are to have the same force and validity. They are to be the supreme law of the land here. This book shows us they are so in England.
Have we not seen, in America, that treaties were violated, though they are, in all countries, considered as the supreme law of the land? Was it not, therefore, necessary to declare, in explicit terms, that they should be so here? How, then, is this Constitution on a different footing from the government of Britain? The worthy member says, that they can make a treaty relinquishing our rights, and inflicting [Volume 4, Page 52] punishments; because all treaties are declared paramount to the constitutions and laws of the states. An attentive consideration of this will show the committee that they can do no such thing. The provision of the 6th article is, that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. They can, by this, make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers. The treaties they make must be under the authority of the United States, to be within their province. It is sufficiently secured, because it only declares that, in pursuance of the powers given, they shall be the supreme law of the land, notwithstanding any thing in the constitution or laws of particular states.
The fact which he has adduced from the English history respecting the Russian ambassador, does not apply to this part of the Constitution. The arrest of that ambassador was an offence against the law of nations. There was no tribunal to punish it before. An act was therefore made to prevent such offences for the future; appointing a court to try offenders against it, and pointing out their punishment. That act acknowledges the arrest to have been a violation of the law of nations, and that it was a defect in their laws that no remedy had been provided against such violations before. I think it must appear, to the satisfaction of the committee, that this power is similar to what it is in England.
Mr. George Mason. Mr. Chairman, it is true that this is one of the greatest acts of sovereignty, and therefore ought to be most strongly guarded. The cession of such a power, without such checks and guards, cannot be justified: yet I acknowledge such a power must rest somewhere. It is so in all governments. If, in the course of an unsuccessful war, we should be compelled to give up part of our territories, or undergo subjugation if the general government could not make a treaty to give up such a part for the preservation of the residue, the government itself, and consequently the rights of the people, must fall. Such a power must, therefore, rest somewhere. For my own part, I never heard it denied that such a power must be vested in the government. Our complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system. It is more guarded in England. Will any gentleman undertake to say that the king, by his prerogative, can dismember the British empire? Could the king give Portsmouth to France? He could not do this without an express act of Parliament--without the consent of the legislature in all its branches. There are other things which the king cannot do, which may be done by the President and Senate in this case. Could the king, by his prerogative, enable foreign subjects to purchase lands, and have an hereditary indefeasible title? This would require an express act of Parliament.
Though the king can make treaties, yet he cannot make a treaty contrary to the constitution of his country. Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable. Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better condition--in a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire.
Will any gentleman say that they may not make a treaty, whereby the subjects of France, England, and other powers, may buy what lands they please in this country? This would violate those principles which we have received from the mother country. The indiscriminate admission of all foreigners to the first rights of citizenship, without any permanent security for their attachment to the country, is repugnant to every principle of prudence and good policy. The President and Senate can make any treaty whatsoever. We wish not to refuse, but to guard, this power, as it is done in England. The empire there cannot be dismembered without the consent of the national Parliament. We wish an express and explicit declaration, in that paper, that the power which can make other treaties cannot, without the consent of the national Parliament--the national legislature--dismember the empire. The Senate alone ought not to have this power; much less ought a few states to have it. No treaty to dismember the empire ought to be made without the consent of three fourths of the legislature in all its branches. Nor ought such a treaty to be made but in case of the most urgent and unavoidable necessity. When such necessity exists, there is no doubt but there will be a general and uniform vote of the Continental Parliament.
Mr. Corbin largely expatiated on the propriety of vesting this power in the general government, in the manner proposed by the plan of the Convention. He also contended that the empire could not be dismembered without the consent of the part dismembered. To obviate the force of the observations made by an honorable gentleman respecting the relinquishment of the Scheldt, he adduced the late complaints and efforts of the emperor of Germany respecting that river. He insisted that no part of the Constitution was less exceptionable than this. If, says he, there be any sound part in this Constitution, it is in this clause. The representatives are excluded from interposing in making treaties, because large popular assemblies are very improper to transact such business, from the impossibility of their acting with sufficient secrecy, despatch, and decision, which can only be found in small bodies, and because such numerous bodies are ever subject to factions and [Volume 4, Page 53] party animosities. It would be dangerous to give this power to the President alone, as the concession of such power to one individual is repugnant to republican principles. It is, therefore, given to the President and the Senate (who represent the states in their individual capacities) conjointly. In this it differs from every government we know. It steers with admirable dexterity between the two extremes, neither leaving it to the executive, as in most other governments, nor to the legislative, which would too much retard such negotiation.
The honorable gentleman said that treaties are not the supreme law of the land in England. My honorable friend proved the contrary by the Commentaries of Blackstone. Let me confirm it by a circumstance fresh in the memory of every body. When the treaty was made by us with England, it was disapproved of by the English Parliament, and the administration was turned out: yet the treaty was good. Does not this prove that it was binding on the nation, and that the king has such a power? What other proof do gentlemen wish? In England, it is a maxim that the king can do no wrong, yet they have sufficient responsibility, as the ministry can do wrong; for if they advise him to make a treaty derogatory to the honor and interest of the nation, they do it at the risk of their heads. If the king were to make such a treaty himself, contrary to the advice of his ministry, an honest or prudent minister would resign. The President of the United States is responsible in person himself, as well as the senators.
But, say gentlemen, all treaties made under this Constitution are to be the supreme law of nations; that is, in their way of construction, paramount to the constitution itself, and the laws of Congress. It is as clear as that two and two make four, that the treaties made are to be binding on the states only. Is it not necessary that they should be binding on the states? Fatal experience has proved that treaties would never be complied with, if their observance depended on the will of the states; and the consequences would be constant war. For if any one state could counteract any treaty, how could the United States avoid hostility with foreign nations? Do not gentlemen see the infinite dangers that would result from it, if a small part of the community could drag the whole confederacy into war?
The honorable gentleman on the other side tells us that this doctrine is not founded, because, in England, it is declared that the consent of Parliament is necessary. Had the honorable gentleman used his usual discernment and penetration, he would see the difference between a commercial treaty and other treaties. A commercial treaty must be submitted to the consideration of Parliament, because such treaties will render it necessary to alter some laws, add new clauses to some, and repeal others. If this be not done, the treaty is void, quoad hoc. The Mississippi cannot be dismembered but in two ways--by a common treaty, or a commercial treaty. If the interest of Congress will lead them to yield it by the first, the law of nations would justify the people of Kentucky to resist, and the cession would be nugatory. It cannot, then, be surrendered by a common treaty. Can it be done by a commercial treaty? If it should, the consent of the House of Representatives would be requisite, because of the correspondent alterations that must be made in the laws.
This, continues he, secures legislative interference. Some of the most extraordinary calculations that ever were made have been adduced to prove that the navigation of the Mississippi is on a worse ground than it was before. We are told that five states can make a treaty. This is on a supposition that the senators from the other states will be absent, which is wild and extravagant. On this ground, three states can prevent it; and if Kentucky become a state, two other states, with it, can prevent the making such a treaty. I wish not to assert, but to prove. Suppose there be fourteen members, and the members from Kentucky be of the number. Two thirds, which are ten, are necessary to make a treaty. Three members, together with the two members from Kentucky, will be sufficient to prevent its being made. But suppose all the other states to be present, (which is the fair conclusion, for it is fair to conclude that men will be attentive to their own interest;) what would be the consequence? There would be twenty-eight; two thirds of which are nineteen, which is one member more than the senators of nine states; so that, in such a case, ten states must concur in the treaty; whereas, by the old Confederation, only nine states were necessary. I defy any man to confute this doctrine. The argument of gentlemen is therefore disingenuous. I am more forcibly led to this conclusion when I hear gentlemen go to barbarous nations to adduce proofs of the requisites of a social government.
Mr. Henry. Mr. Chairman, this great national concern is handled in a manner quite new to me. When arguments are used which are calculated in their nature to mislead men,--when I reflect on the subject, I dread that our rights are about to be given away, though I may possibly be mistaken. I said yesterday, and not without thinking much on the subject, that my mind would be at ease were we on the same grounds, in this respect, as the English are. Gentlemen think that Great Britain was adduced by me, in this instance, unfortunately for myself, because the learned Judge Blackstone says that treaties are binding on the nation, and the king can make treaties. That learned judge says there is one thing which operates as a guard. That thing we have not in this paper--it is responsibility. He tells you that the minister who will sacrifice the interest of the nation is subject to parliamentary impeachment. This has been ever found to be effectual. But I beg gentlemen to consider the American impeachment. What is it? It is a mere sham--a mere farce. When they do any thing derogatory to the honor or interest of their country, they are to try themselves. Is it so in England? The history of that country shows that they have blocks and gibbets. The violators of the public interest have been tried justly and impartially, and perished by those necessary instruments [Volume 4, Page 54] of justice. Can there be any security where offenders mutually try one another? I hope gentlemen will consider the necessity of amendment in this clause.
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 every thing? When a person shall be treated in the most horrid manner, and most cruelly and inhumanly tortured, will the security of territorial rights grant him redress? Suppose an unusual punishment in consequence of an arrest similar to that of the Russian ambassador; can it be said to be contrary to the state rights?
I might go on in this discrimination; but it is too obvious that the security of territory is no security of individual safety. I ask, How are the state rights, individual rights, and national rights, secured? Not as in England; for the authority quoted from Blackstone would, if stated right, prove, in a thousand instances, that, if the king of England attempted to take away the rights of individuals, the law would stand against him. The acts of Parliament would stand in his way. The bill and declaration of rights would be against him. The common law is fortified by the bill of rights. The rights of the people cannot be destroyed, even by the paramount operation of the law of nations, as the case of the Russian ambassador evinces. If you look for a similar security in the paper on your table, you look in vain. That paper is defective without such a declaration of rights. It is unbounded without such restrictions. If the Constitution be paramount, how are the constitutions and laws of the states to stand? Their operation will be totally controlled by it; for it is paramount to every thing, unless you can show some guard against it. The rights of persons are exposed as it stands now.
The calculation of the honorable gentleman (Mr. Corbin) was wrong. I am sure he spoke from the best of his recollection, when he referred to our treaty of peace with Great Britain, and said that it was binding on the nation, though disapproved of by Parliament. Did not an act of Parliament pass, acknowledging the independence of America? If the king of England wished to dismember the empire, would he dare to attempt it without the advice of Parliament? The most hardy minister would not dare to advise him to attempt it without a previous consultation of Parliament. No cession of territory is binding on the nation unless it be fortified by an act of Parliament. Will it be so in your American government? No. They will tell you that they are omnipotent as to this point.
We are so used to speak of enormity of powers, that we are familiarized with it. To me this power appears still destructive; for they can make any treaty. If Congress forbears to exercise it, you may thank them; but they may exercise it if they please, and as they please. They have a right, from the paramount power given them, to do so. Will the gentleman say that this power is paramount to the state laws only? Is it not paramount to the Constitution and every thing? Can any thing be paramount to what is paramount? Will not the laws of Congress be binding on Congress, as well as on any particular state? Will they not be bound by their own acts? The worthy gentleman must see the impropriety of his assertion. To render this safe, I conceive we must adopt my honorable friend's amendment. The component part of this supreme power are the President, senators, and House of Representatives. The latter is the most material part. They ought to interpose in the formation of treaties. When their consent is necessary, there will be a certainty of attending to the public interests.
Mr. Henry then contended that there was real responsibility in the British government, and sufficient security arising from the common law, declaration of rights, &c.; whereas, in this government, there was no barrier to stop their mad career. He hoped to obtain the amendments which his honorable friend had proposed.
Mr. Madison. Mr. Chairman, I am persuaded that, when this power comes to be thoroughly and candidly viewed, it will be found right and proper. As to its extent, perhaps it will be satisfactory to the committee that the power is, precisely, in the new Constitution as it is in the Confederation. In the existing confederacy, Congress are authorized indefinitely to make treaties. Many of the states have recognized the treaties of Congress to be the supreme law of the land. Acts have passed, within a year, declaring this to be the case. I have seen many of them. Does it follow, because this power is given to Congress, that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.
One objection against the amendment proposed is this, that, by implication, it would give power to the legislative authority to dismember the empire--a power that ought not to be given, but by the necessity that would force assent from every man. I think it rests on the safest foundation as it is. The object of treaties is the regulation of intercourse with foreign nations, and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might, and probably would, be defective. They might be restrained, by such a definition, from exercising the authority where it would be essential to the interest and safety of the community. It is most safe, therefore, to leave it to be exercised as contingencies may arise.
It is to be presumed that, in transactions with foreign countries, those who regulate them will feel the whole force of national attachment to their country. The contrast being between their own nation and a foreign nation, is it not presumable they will, as far as possible, advance the interest of their own country? Would it not be considered as a dangerous principle in the British government were the king to have the same power in internal regulations as he has in the external business of treaties? Yet as, among other reasons, it is natural to suppose he will prefer the interest of his own to that of another country, it is thought proper to give him this external power of making treaties. [Volume 4, Page 55] This distinction is well worth the consideration of gentlemen. I think the argument of the gentleman who restrained the supremacy of these to the laws of particular states, and not to Congress, is rational. Here the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme. If it does not supersede their existing laws, as far as they contravene its operation, it cannot be of any effect. To counteract it by the supremacy of the state laws, would bring on the Union the just charge of national perfidy, and involve us in war.
Suppose the king of Great Britain should make a treaty with France, where he had a constitutional right; if the treaty should require an internal regulation, and the Parliament should make a law to that effect, that law would be binding on the one, though not on the other nation. Suppose there should be a violation of right by the exercise of this power by the President and Senate; if there was apparent merit in it, it would be binding on the people; for where there is a power for any particular purpose, it must supersede what may oppose it, or else it can be no power. For instance, where there is a power of declaring war, that power, as to declaring war, supersedes every thing. This would be an unfortunate case, should it happen; but should it happen, there is a remedy; and there being a remedy, they will be restrained against abuses.
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
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