The Constitution6 provides that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur."

It was not until the closing days of the Constitutional Convention that the President was associated with the Senate in the negotiation and ratification of treaties. Upon August 23d, however, Madison observed, " that the Senate represented the States alone, and for this .as well as other obvious reasons it was proper that the President should be made an agent in the treaties." September 4th, the Committee to which undetermined sections of the Constitution had been referred, reported back the treaty clause in substantially the form in which it now appears. The only discussion which the clause then received was with reference to the size of the majority that should be required in the Senate for approval of treaties, and whether treaties of peace should not, by way of exception, require only a simple majority vote.

The second clause of Article VI of the Constitution declares that "This Constitution, and the laws of the United States nations, and not expressly withheld from Congress by the Constitution; we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in the payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress."

In the foregoing it will be observed that the court find the legal tender power implied in other powers expressly given by the Constitution to Congress, but the validity of this implication it founds on the nature of sovereignty as exemplified in the political world generally.

Again in United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) with reference to its powers of eminent domain, the court say: "The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government It is an incident of sovereignty, and as said in Boom v. Patterson (98 U. S. 403; 25 L. ed. 206), requires no constitutional recognition."

6 Art. II, Sec. 2, CI. 2.

which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the Constitution and laws of any State to the contrary notwithstanding." It had been suggested in the Convention by Gouverneur Morris that no treaty should be binding on the United States until ratified by a law, but, the disadvantages of such a provision being pointed out, the suggestion was voted own. A proposal was also made, but rejected because of the often necessity of secrecy, that the House of Representatives should participate with the Senate in the ratification of treaties.

That treaties duly ratified should bind the States, and be beyond their power to change, was never questioned in the Convention. Until August 23d, it was agreed that the General Government should have an express power to enforce by arms all treaties, but this provision was then stricken out for the reason that treaties being expressly declared to have the force of law, the federal judicial power would have sufficient authority to determine when they were infringed and to order their enforcement

In the state ratifying conventions the fact that treaties were to be superior to state constitutions and laws created not a little fear of possible oppression. In Virginia Patrick Henry raised strong objection to this, and in several States there was urged the necessity of an amendment specifically declaring that no treaty should operate to change the Constitution of a State.