308 BURR— THE TREATY-MAKING POWER [April ^o, 



Again, this same position is more conservatively suggested by 

 another essayist who says, speaking of the Supreme Court of the 

 United States : 



"It is still open for that Court to hold that no treaty dealing with 

 matters entrusted to Congress is self-executing.'""* 



If such statement be accurate, it is not because the Supreme Court 

 has failed to discuss the question. In a series of cases about to be 

 considered, the interpretation and application of Article VI. 

 of the Constitution were flatly before the court. This analysis 

 should determine the openness of the question whether or not 

 treaties have the force of law when dealing with subjects com- 

 mitted to Congress. 



Before entering upon this analysis, however, it may be well to 

 record a contemporary interpretation of this clause which has 

 come down to us. George Mason was a member of the Federal 

 Convention from Virginia and was one of those who declined to 

 sign the Constitution. He issued a short pamphlet giving his objec- 

 tions to that instrument, among which he included the operation of 

 the treaty-making power. On this point he said : 



" By declaring all treaties supreme laws of the land, the Executive and 

 the Senate have, in many cases, an exclusive power of legislation ; which 

 might have been avoided by proper distinctions with respect to treaties, and 

 requiring the assent of the House of Representatives, where it could be done 

 with safety.'""* 



Mason was a Virginian of distinction and earnestly opposed the 

 ratification of the Constitution by his State. He spoke frequently 

 in the Virginia Convention, and neither in his speeches nor any- 

 where else in those debates, nor in the debates in the Federal Con- 

 vention, is there to be found a suggestion that Alason's interpreta- 

 tion of the clauses establishing the treaty -making power was not 

 the interpretation of all. 



United States vs. Schooner Peggy^°^ seems to have been the 



"*"The Extent and Limitations of the Treaty-making Power under the 

 Constitution," by Chandler P. Anderson, American Journal of International 

 Law, Vol. I, Part II (1907), p. 654. 



"^ Farrand, Vol. II., p. 639- 



'""I Cranch, 103 (1802). 



