CHAPTER III

THE SUPREMACY OF NATIONAL POWER

In this chapter I shall endeavor to trace the development during the period from 1783 to 1835 or thereabouts of certain fundamental principles of our constitutional jurisprudence, in connection particularly with the endeavor to secure the supremacy of the national treaties over State legislation; and in the following chapter I shall consider the range given the treaty-power in relation to State power during the same period, both in practice and in constitutional interpretation.

"The best keys to the true objects of all laws and constitutions," wrote Madison in 1828, with reference to the national Constitution, "are furnished by the evils which were to be cured or the benefits to be obtained." Back of the Convention of 1787 lay the period of the Confederation, during which the United States, "one nation to-day and thirteen to-morrow," were not only unable to treat with foreign nations on a footing of equality, but internally were prey to disorder of a most alarming character. The fallacy of the Articles of Confedera

"Letters and Other Writings of James Madison" (1865), III, 655.

tion was twofold: on the side of theory they thrust into the hands of the States the great bow of "Sovereignty" which those feeble entities were utterly unable to string for effective action; on the side of practice, they left the National Government dependent upon the States for the carrying out of its powers. The results for our standing as a nation were most fatal. Not only were our negotiators abroad unable to get the treaties they were instructed to obtain, but at home the treaty obligations we had already incurred, particularly those of the Treaty of Peace with Great Britain, which accorded us the recognition of our independence, went not merely disregarded but openly flouted by the States. "The files of Congress," Madison testified at the close of this era,"contain complaints (of treaty violations). from almost every nation with which treaties have been formed. Hitherto," he continued, "indulgence has been shown us," but "this cannot be the permanent disposition of foreign nations. A rupture with other powers is the greatest of 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." And the point of view of Madison was that of all those to whom fell the conduct of the foreign relations of the United States at this period. It was quite inevitable, therefore, that these men should have been among

2 Max Farrand, "Records of the Federal Convention," I,

the first to break away from extreme notions of State prerogative and to undertake the construction of a workable theory of national sovereignty.

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One of these men was John Jay, who was in 1786 "Secretary of the United States for Foreign Affairs." On October 13th of this year Jay presented a report to the Confederate Congress bearing upon a complaint from the British Government which had been transmitted some months earlier through John Adams, our minister at the Court of St. James, that the United States had failed to comply with Article IV of the Treaty of 1783, which stipulated that creditors on either side should meet "with no lawful impediment to the recovery of the full sterling money, of all bona fide debts heretofore contracted." The British complaint further recited in some detail certain acts passed at various dates,— subsequent as well as previous to the Treaty,—by the legislatures of Massachusetts, New York, Pennsylvania, Virginia, Maryland, North Carolina, South Carolina, and Georgia, which impeded the collection of said debts, by pronouncing them, in the exercise of a right which the enacting States pretended to under International Law, to be sequestrated, as enemy's property, to their several exchequers. With this statement of facts before him, Jay proceeded to raise certain questions and to return thereto certain answers that are of the greatest significance in the history of American Constitutional Law and

"Secret Journals of Congress" (1821), IV, 185-287.

particularly of that branch of it which has to do with the treaty-power.

"On considering the before recited papers," he writes, "these important questions present themselves:

“1. Whether any individual State, has a right, by acts of its own internal legislature, to explain and decide the sense and meaning in which any particular article of a national treaty shall be received and understood within the limits of that State?

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2. Whether any and which of the acts enumerated in the list of grievances do violate the Treaty of Peace between the United States and Great Britain.” 3. (Omitted) and

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4. What measures should be adopted in relation to the State or States which passed the exceptionable acts?"

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The answer that Jay returned to the second question is only in part relevant to our interest. pounding the query whether the States were competent to pass acts of sequestration before the Treaty of 1783 went into effect, he laid down the following doctrine: "the rights to make war, to make peace, and to make treaties, appertaining," by Articles VI and IX of the American Constitution,

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exclusively to the national sovereign, that is, to Congress, your secretary is of the opinion that the thirteen State legislatures have no more authority to exercise the powers, or pass acts of sovereignty on those points, than any thirteen individual citizens. To

execute the laws, or execute the rights of war against a national enemy, belongs only to the National Government, or to those to whom the National Government may constitutionally delegate such authority."

Jay thus took the position nearly three years before the Constitution went into effect that there was a national sovereignty vested with the exclusive right of determining the relations of the United States with foreign states; and from this premise issue his answers to his other questions. "Your secretary," he writes, restating his fundamental proposition,

"considers the thirteen independent sovereign States as having, by express delegation of power, formed and vested in Congress a perfect though limited sovereignty for the general and national purposes specified in the Confederation. In this sovereignty they cannot severally participate (except by their delegates) or have concurrent jurisdiction; for the ninth article of the Confederation most expressly conveys to Congress the sole and exclusive right and power of determining war and peace and of entering into treaties and alliances, etc. When therefore a treaty is constitutionally made, ratified, and published by Congress, it immediately becomes binding on the whole nation and superadded to the laws of the land, without the intervention, consent, or fiat of State legislatures. It derives its obligation from its being a compact between the sovereign of these and the sovereign of another nation. . . . Hence it is clear that treaties must be implicitly received and observed by every member of the nation; for as State legislatures are not competent to the making of such compacts or