1934 consider the situation of the United States, and "to devise such further provisions as shall appear to them necessary, to render the Constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled, as when agreed to by them, and afterward confirmed by the legislature of every state, will effectually provide for the same. While Virginia passed an act for the appointment of delegates, no progress was made until Congress, pursuant to a request from the legislature of New York, adopted on February 21, 1787, a resolution recommending that a convention meet in Philadelphia on the second Monday in May, 1788, "for the purpose of revising the articles of confederation, and reporting to Congress, and the several legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the states, render the federal constitution adequate to the exigencies of the government, and the preservation of the Union."' 35 § 19. Organization of constitutional convention. It was not before May 25th that seven states were represented, and on that day the convention organized by unanimously electing George Washington president. A serious dispute arose over the method of representation, whether it should be by states or in proportion to population, which finally resulted in a compromise of the antagonistic interests by allowing proportional representation in one branch of Congress and representation by states in the other. On July 26th, the various resolutions to which assent had been given were submitted to a Committee of Detail, of five members, consisting of Rutledge, Randolph, Gorham, Ellsworth and Wilson, and an adjournment was taken to August 6th, to enable the committee to prepare the form of a constitution. The Committee on Detail reported to the convention, and after many acrimonious debates on the various propositions advanced, the convention finally, on September 8th, appointed a committee of five, consisting of Johnson, Hamilton, Gouverneur Morris, Madison and King, to make a revision of the language and arrangement of the articles 4 5 Marshall's Life of Washington, 97; 1 Amer. Museum, 267, 268. 25 5 Marshall's Life of Washington, 124, 125; 2 Pitk. Hist., 219, 220; 12 Journals of Congress, 12. adopted. This Committee on Style reported to the convention on September 12th of that year, after which a number of unimportant amendments were made, but àmong others, after this report had been submitted, the convention adopted an amendment authorizing one representative for every thousand people, and another that no state should, unless it consented, lose its equal representation in the Senate. Congress received the report of the convention on September 28, 1787, and unanimously adopted a resolution declaring "that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof; in conformity to the resolves of the convention, made and provided in that case. 36 § 20. Address to Congress.-The letter referred to in the resolution quoted above, addressed to Congress, stated that it was impracticable to provide for the interest and safety of all the states, and at the same time to secure all the rights of independent sovereignty to each. "Individuals entering into society," said the address, "must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance as on the object to be attained. It is at all times difficult to draw with precision the line between these rights and those which may be reserved; and on the present occasion, the difficulty was increased, by a difference among the several states, as to their situation, extent, habits, and particular interests. In all our deliberations on the subject, we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the convention to be less rigid on points of inferior magnitude than might have been otherwise expected. And thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situa 30 5 Marshall's Life of Washington, 128; 12 Journal of Congress, 99, 110. See, also, Spark's Gouverneur Morris, III, 323; Elliott, V, 191; Conway's tion rendered indispensable." 37 The Constitution having been ratified by the requisite number of states, a resolution was passed by Congress on September 13, 1788, fixing the first Wednesday in January, 1789, for the assembling of electors to choose a President, and designating the first Wednesday in March of that year for the inauguration of the government under the Constitution. § 21. Comments of John Jay.—With reference to the clause of the Constitution relating to the negotiation and ratification of treaties, he said: "Some are displeased with the Constitution, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name may be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judiciary. It surely does not follow that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties, like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country; but new errors as well as new truths often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us which would be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, 12 Journal of Congress, 99, 110; 5 Marshall's Life of Washington, 128. without doubt, amend or repeal them, and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not only by one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterward be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding and just as far beyond the lawful reach of legislative acts now as they will be at any future period or under any form of government." 38 But, as we shall see on a subsequent page, Jay was mistaken as to the immutability of treaties, because it is settled that a treaty may be repealed or rendered inoperative by a later act of Congress. 35 1 Lodge, Federalist, 403, 404. CHAPTER II. PROHIBITION ON STATES. § 22. Prohibitory clauses. 23. History of this clause. § 24. Confederate states had no legal existence. § 25. Constitutional objections to statute. § 26. Surrender of treaty power to general government. § 27. Investment by guardian in Confederate bonds. § 28. Discharge of executor investing in Confederate bonds. § 29. Confederacy an organized treason. §30. Contracts to aid the confederacy void. § 31. Ordinance of secession a nullity. § 32. Sale of property of loyal owners. 33. Laws in aid of insurrection void. $34. Judgments of courts, when void. 35. No general rule to be applied. § 36. State cannot negotiate for extradition. $37. Holmes case. § 38. Treaties now govern. § 22. Prohibitory clauses.-The Constitution contains two clauses prohibiting the states of the Union from entering into treaties with foreign powers or entering into any agreement or compact with another state or with a foreign power. The first clause provides that "No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility." The other clause will be noticed in the following chapter. § 23. History of this clause.-This provision originated in the Committee on Detail, who reported among other prohibitions to be placed on the states that "No state shall coin money, nor grant letters of marque and reprisal, nor enter into any treaty, alliance or confederation, nor grant any title of nobility." The clause was amended by the convention by prohibiting the emission of bills of credit, or the making of anything but gold and silver |