tive. It was not until these issues had been resolved that the question of which agency of the Federal Government should exercise the treaty power was considered.

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 (2 Farrand, Records of the Federal Convention, 183). 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 legislative acts each House of Congress "have a negative on the other." Colonel 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 (2 Farrand, Records of the Federal Convention, 197). Similarly, in discussing the question whether the Senate should have power to originate money bills, Colonel 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 the legislative authority" (2 Farrand, Records of the Federal Convention, 297). 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 10-0 (2 Farrand, Records of the Federal Convention, 318-319).

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 "In general he was not solicitous to multiply & facilitate treaties." After some discussion, the whole clause was referred to a committee of five (2 Farrand, Records of the Federal Convention, 392-394). 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 (2 Farrand, Records of the Federal Convention, 481).

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 two-thirds of the Senators present should be required (2 Farrand, Records of the Federal Convention, 495). The committee had also proposed that if no candidate for President had a majority, the Senate should choose the President (id., 494). 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 (2 Farrand, Records of the Federal Convention, 522-525). Thereafter, it was decided to put the power to elect the President in the House (2 Farrand, Records of the Federal Convention, 527-529). 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 "As 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 (2 Farrand, Records of the Federal Convention, 538). The requirement of consent of twothirds 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 requirements 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." (2 Farrand, Records of the Federal Convention, 540-541). 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 Farrand, Records of the Federal Convention, 547-550).

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. (See, e. g., remarks of Oliver Elsworth, Connecticut, 2 Elliott's Debates 189; of James Wilson, Pennsylvania, 2 Elliott's Debates 431, 463, 526; see, also, 541-542 (McKean); of James Madison, Virginia, 3 Elliott's Debates 135-136; of William Dave, North Carolina, 4 Elliott's Debates 18; of Charles Pinckney, South Carolina, 4 Elliott's Debates 253-254.)

The rather fragmentary report of the debates at the Philadelphia 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. (See 2 Elliott's Debates 505-507; see, also, 466, 476-477, 513.) The convention ratified the Constitution without recommending amendments (1 Elliott's Debates 319). 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." (2 Elliott's Debates 546.)

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." (2 Elliott's Debates 553.) This proposal was rejected (id., pp. 552, 556).

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 (4 Elliott's Debates 265-267, 280; see, generally, 263-281, 293). 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 powers in relation to treaties, appointments, impeachments, etc. (2 Elliott's Debates 286-306 passim). 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" (2 Elliott's Debates 409). That amendment, however, was not included among those proposed by New York in the instrument of ratification. (See 1 Elliott's Debates 327-331.)

At the Virginia convention the treaty provisions were thoroughly discussed. (See 3 Elliott's Debates 315-316, 331, 341-365, 499-516, 609-610, 613, 650.) Patrick Henry, one of the principal opponents of the Constitution, urged that "the important right of making treaties is upon the most dangerous foundation." (3 Elliott's Debates 315–316). In particular, a number of fears were expressed that 10 senators could give up the rights of navigation to the Mississippi (See, e. g., 3 Elliott's Debates 341, 353) or could cede important territories (id., p. 610). Patrick Henry expressed fears of treaties "infringing our liberties" (id., p. 503), and urged that at a minimum the House should participate in all treaties (id., pp. 514, 650-651). Madison, Randolph, and other supporters of the Constitution, in answering these objections, urged that the combination of President and Senate afforded adequate safeguards (e. g., p. 347), that it was necessary to make treaties the supreme law (p. 507), that it was impossible to define the subjects to which treaties could relate (p. 514), but that a treaty could not destroy the Constitution (p. 504), or be repugnant to its spirit (pp. 507, 514). 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, 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 both Houses (3 Elliott's Debates 610).

At the first North Carolina convention, numerous objections to the treaty provisions were considered (e. g., 4 Elliott's Debates 27-28, 115–135, 188, 192, 215).. It was urged that the House should participate (pp. 115, 119, 125, 131), and responded that the small States insisted on giving the Senate this power (p. 120), and that the long tenure of Senators would give them more opportunity to learn about our foreign relations (p. 41). It was objected that by treaty it would be possible to infringe freedom of religious worship by establishing a particular

church (p. 192), to which Iredell responded that the treaty-making power could not be so used (p. 194). 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 (4 Elliott's Debates 246). On January 11, 1790, after the new Constitution had been established, North Carolina ratified it without condition (1 Elliott's Debates 333).

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 12 proposed amendments, of which 10 were adopted, becoming the first 10 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.

(See

1 Annals of Congress 88, 424-450, 660-665, 672, 717-764, 767-777; 2 id. 19831989.)

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 (5 Annals of Congress 394, 400-401, 424, 426–771), it was urged that any treaty which deals with a matter within the legislative powers of Congress is not law until sanctioned by Congress (5 Annals of Congress 467-470) 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 (pp. 537, 578) and absorb all legislative power (p. 467). 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 (pp. 516, 524, 662); that if a treaty exceeded their constitutional powers it was void (pp. 429, 432, 438); but that if it was within those 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 (5 Annals of Congress 760-761). 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 aproved 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" (Acts of Assembly of Virginia, 1795, p. 55). 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. (E. g., H. J. Res. 60, 79th Cong., 1st sess., passed by the House, 91 Congressional Record 4367-4368. See H. Rept. No. 139.) For earlier instances of such proposals, see Proposed Amendments to the Constitution (H. Doc. 551, 70th Cong., 1st sess., 120-122).

C. Nature and scope of certain early treaties

10

The framers clearly recognized that a constitution which is meant to endure must be cast in terms sufficiently general to be able to adapt itself to new circumstances and new needs. But even an examination of the treaties actually entered into in the eighteenth century by a nation of 13 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 with treaties by the States. Perhaps the principal source of difficulty in this respect had arisen out of the treaty of peace with Great Britain of

10 For summaries of the common subject matters of treaties in the eighteenth century generally see Fraser, Treaties and Executive Agreements (S. Doc. No. 244, 78th Cong., 2d. sess., pp. 5-13).

September 3, 1783, negotiated on behalf of the United States by John Adams, Benjamin Franklin, and John Jay (8 Stat. 80). 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 "It is agreed that creditors on either side, shall meet with 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.

11

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 (31 Journals of the Continental Congress 781-874). The report pointed out that American violations of these provisions afforded excuses to Great Britain for failure to comply with her obligations to evacuate certain posts and to refrain from carrying away Negroes (id. 867; see also 783-784). The following year the Continental Congress passed resolutions recommending to the States the repeal of such legislation and issued a circular letter to the States (32 Journals of the Continental Congress, 124–125, 178-184).

In 1796 these issues came before the Supreme Court. Ware v. Hylton (3 Dall. 199) involved wartime legislation of Virginia which had provided for the sequestration of British property, and had authorized payment to the State in Continental money of part or all of the amount of the indebtedness, providing that such payment would pro tanto discharge the debt. A British creditor brought suit to recover the amount of his debt and the American debtor pleaded that he had been discharged pro tanto by such a payment to the State. In support of that plea, John Marshall and Alexander Campbell, for the defendant, urged that the treaty was not intended to, and probably could not, revise debts which had become extinguished, and thus destroy vested rights of the debtor (3 Dall. 209-216). The plea was rejected by the Supreme Court.

Four of the five Justices-Justices Chase, Paterson, Wilson, and Cushingheld that the treaty overrode the State law and operated to revive a debt owed by an American citizen. Justice Iredell, while holding that the treaty provision in question should not be construed as having that effect and thus dissenting from the judgment, stated that he had no doubt that the treaty, if applicable, would control in such a situation. He referred at some length to the difficulties encountered in securing compliance with this treaty under the Confederation, and stated that the inclusion of treaties in the supremacy clause was, he believed, adopted "in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question" (3 Dall. 276).

Similarly, in Hopkirk v. Bell (3 Cranch 454 (1806)) this provision was held to suspend, as to a British creditor, a general State statute of limitations. And in Higginson v. Mein (4 Cranch 415 (1808)) the Court construed article V of the treaty as protecting a lien of a British mortgagee of confiscated lands and overriding State legislation which would have invalidated such a lien.

12

These questions of the treatment of debts owed by Americans to British were matters of great importance and controversy. Charles Warren states that "Political excitement over the case [Ware v. Hylton, supra] was intense," and that it was estimated that in Virginia alone there were more than $2,000,000 of British debts. (1 Warren, Supreme Court in United States History, 144.) It was well

"As examples of State laws violating the treaty, Jay listed the following: Act of Massachusetts, November 9, 1784, 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 assigned for the benefit of creditors, together with a similar act, December 23, 1784; Virginia act of June 22, 1784, continuing wartime acts inhibiting payment of British debts; acts of South Carolina postponing the right to sue for interest and 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 in bar (id., pp. 806–830).

The opinion in this case was written by Chief Justice Marshall who had been counsel for the defendant in Ware v. Hylton. Chief Justice Marshall stated: "The decisions of this Court have been uniform, that the acts of the States, confiscating debts, are repealed by the treaty" (4 Cranch at 417).

known to the framers of the Constitution that the British treaty was in conflict with a number of State laws enacted for the benefit of American debtors. And the framers, recognizing the imperative necessity that international obligations be honored, clearly intended that the rights of American citizens who owed money to Englishmen should be controlled by the treaty, and that inconsistent State legislation was invalid. Even debts which had been validly discharged under State law several years prior to the treaty were revived by the treaty.

Another area much dealt with by early treaties was the right to hold property, to inherit it, and to pass it to one's heirs. Few things are more clearly of -exclusively State concern.13 Nevertheless treaties have frequently dealt with such matters, so as to override inconsistent State law. Thus, in Orr v. Hodgson (4 Wheat. 453), the provision of article VI of the peace treaty with Great Britain against future confiscations was held to protect real property of a British subject from application of the usual common law rules of escheat for alienage, and to enable her heirs-at-law to inherit it. In Society for the Propagation of the Gospel v. New Haven (8 Wheat. 464), the same provision was held to protect property of a British corporation from escheat for alienage, and to invalidate a State law declaring that property forfeit and granting it to the town of New Haven. Fairfax's Devisee v. Hunter's Lessee (7 Cranch 602 (1813)) involved a provision of the treaty with Great Britain of 1794 (8 Stat. 116) that subjects of either nation holding land within the other could continue to hold them, and could grant, sell, or devise them as if they were natives, and neither they nor their heirs or assigns should be treated as alien in respect of such lands. This provision was held to invalidate a claim of Virginia to escheat the land.14

14

Comparable provisions appear in a number of other early treaties. Thus the treaties of friendship concluded by the Continental Congress with France (1778, 8 Stat. 12, 18, art. XI), the Netherlands (1782, 8 Stat. 32, 36, art, VI), Sweden (1783, 8 Stat. 60, 64, art. VI) and Prussia (1785, 8 Stat. 84, S8, art. X) all contain provisions in varying forms relating to the holding and transfer of property, both real and personal.15 Such provisions have been uniformly upheld as within the treaty-making power. In Chirac v. Chirac (2 Wheat. 259 (1817)) the treaty with France was held to give "to the subjects of France a right to purchase and hold lands in the United States" (p. 271). In Hauenstein v. Lynham (100 U. S. 483) a treaty of 1850 with Switzerland, worded in this respect identically with the 1785 treaty with Prussia, was held to grant to an alien the right to inherit real estate and to dispose of it and withdraw the proceeds, thereby defeating escheat to the State. The Court stated, "We have no doubt that this treaty is within the treaty-making power conferred by the Constitution" (p. 490). (See also Geofroy v. Riggs, 133 U. S. 258 (treaty of 1800 with France); Clark v. Allen, 331 U. S. 503 (treaty of 1923 with Germany).)

Such treaties of friendship frequently contained provisions by which each nation granted citizens of the other the privilege of engaging in certain busi

13 "The title and modes of disposition of real property within the State, whether inter vivos or testamentary, are not matters placed under the control of Federal authority" (United States v. Fox (94 U. S. 315, 320–321); cf. United States v. Burnison (339 U. S. 87)).

14 This case excited the greatest public attention. The Virginia Court of Appeals refused to obey the mandate of the Supreme Court, thus provoking a test of the constitutionality of the provisions of the Judiciary Act giving the Supreme Court appellate juristion over State courts (Martin v. Hunter's Lessee (1 Wheat. 304). See 1 Warren, 'Supreme Court in United States History, 443-453).

15 Some question was raised in the Continental Congress as to the propriety of including provisions giving aliens the right to hold real estate. Thus in connection with the proposed treaty with the Netherlands, a committee, consisting of James Madison, James Duane, and George Clymer, recommended that Mr. Adams, in negotiating the treaty, be instructed not to include any provision giving Dutch citizens the right to inherit or hold real estate in the United States. They pointed out that some States had objected to the grant of such rights to French subjects that "compliance of the states with a like engagement to another power will be extremely precarious," and that the proposed instruction appeared "expedient" "in order to avoid these difficulties and consequences.' The proposal was defeated, 9 States to 3 (22 Journals of the Continental Congress, 393-396). In connection with subsequent treaties, American negotiators were instructed "that no rights be stipulated for aliens to hold real property within these States, this being utterly inadmissible by their several laws and policy" but aliens were to be allowed to take title, dispose of the property, and withdraw the proceeds. This instruction, presumably, reflects, as did the proposal referred to above, a desire not to offend the States, particularly in view of the absence of any means of enforcing treaties-one of the evils which the Constitution of 1789 was intended to avert.

In 1819, Attorney General Wirt stated that the Federal Government had no power by treaty to grant an alien the power to inherit real property (1 Op. Atty. Gen. 275). À contrary view was expressed by Attorney General Cushing in 1857 (8 Op. Atty, Gen. 411). The matter would seem conclusively resolved by Fairfax's Devisee v. Hunter's Lessee, Chirac v. Chirac, and Hauenstein v. Lynham, all cited in the text.