required majority, this recommendation was adopted on September 7th;5 but on the following day the matter was reconsidered; there was an active debate during which his wonder at the observations of Mr. Wilson, so far as they preferred the plan in the printed Report, to the new modification of it before the House; and entered into a comparative view of the two, with an eye to the nature of Mr. Wilson's objections to the last." Madison Papers, Vol. III, pp. 1504-1506. 5 Friday, September 7th, In Convention. "The fourth section, to wit.: The President, by and with the advice and consent of the Senate, shall have power to make treaties,' etc., was then taken up. to try all impeachments. In allowing them thus to make the Executive and Judiciary appointments, to be the court of impeachments, and to make treaties which are to be laws of the land, the Legislative, Executive and Judiciary powers are all blended in one branch of the Government. The power of making treaties involves the case of subsidies, and here, as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people, as he ought to be; but the minion of the Senate. He cannot even ap"Mr. Wilson moved to add, after point a tide-waiter without the the word 'Senate,' the words, and Senate. He had always thought House of Representatives.' As the Senate too numerous a body treaties, he said, are to have the for making appointments to office. operation of laws, they ought to The Senate will, moreover, in all have the sanction of laws also. probability, be in constant session. The circumstance of secrecy in They will have high salaries. And the business of treaties formed with all those powers, and the the only objection; but this, he President in their interest, they thought, so far as it was inconsiswill depress the other branch of the tent with obtaining the legislative Legislature, and aggrandize them- sanction, was outweighed by the selves in proportion. Add to all necessity of the latter. this, that the Senate, sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ulti-secrecy in the case of treaties formately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they made a part. "Mr. Sherman thought the only question that could be made was, whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of bade a reference of them to the whole legislature. "Mr. Fitzimmons seconded the motion of Mr. Wilson; and on the question,-Pennsylvania, aye— 1; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, "Mr.Gouverneur Morris expressed no-10. various amendments were offered and the danger of the treaty-making power being vested in too small a coterie was referred to as a probable source of danger by several mem "The first sentence, as to making | curity unnecessary, as the means treaties, was then agreed to, nem. of carrying on the war would not be in the hands of the President, but of the Legislature. con. "The fourth section. The President by and with the advice and consent of the Senate shall have power to make treaties. But no treaty shall be made without the consent of two-thirds of the members present,' — being considered, and the last clause being before the House, "Mr. Wilson thought it objectionable to require the concurrence of two-thirds, which puts it into the power of a minority to control the will of a majority. "Mr. King concurred in the objection; remarking that as the Executive was here joined in the business, there was a check which did not exist in Congress, where the concurrence of two-thirds was required. "Mr. Gouverneur Morris thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general guardian of the national interests. "Mr. Butler was strenuous for the motion, as a necessary security against ambitious and corrupt Presidents. He mentioned the late perfidious policy of the Stadtholder in Holland; and the artifices of the Duke of Marlborough to prolong the war of which he had the management. "Mr. Gerry was of opinion that in treaties of peace a greater rather than a less proportion of votes was necessary, than in other treaties. In treaties of peace the dearest interests will be at stake, as the fish "Mr. Madison moved to insert, after the word 'treaty,' the words 'except treaties of peace;' allow-eries, territories, etc. In treaties ing these to be made with less difficulty than other treaties. It was agreed to, nem. con. "Mr. Madison then moved to authorize a concurrence of twothirds of the Senate to make treaties of peace, without the concurrence of the President. The President, he said, would necessarily derive so much power and importance from a state of war, that he might be tempted, if authorized, to impede a treaty of peace. of peace also, there is more danger to the extremities of the continent, of being sacrificed, than on any other occasion. "Mr. Williamson thought that treaties of peace should be guarded at least by requiring the same concurrence as in other treaties. "On the motion of Mr. Madison and Mr. Butler,-Maryland, South Carolina, Georgia, aye-3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North "Mr. Butler seconded the mo- Carolina, no-8. tion. "On the part of the clause con "Mr. Gorham thought the se- cerning treaties, amended by the bers; the report of the committee was finally readopted as it stood on September 7th." exception as to treaties of peace,— New Hampshire, Massachusetts, Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye-8; New Jersey, Pennsylvania, Georgia, no-3." Madison Papers, Vol. III, pp. 1518-1522. 6 Saturday, September 8th, In Convention. "The last Report of the Committee of Eleven (see the fourth of September) was resumed. "Mr. King moved to strike out the exception of treaties of peace, from the general clause requiring two-thirds of the Senate for making treaties. "Mr. Wilson wished the requisition of two-thirds to be struck out altogether. If the majority cannot be trusted, it was a proof, as observed by Mr. Gorham, that we were not fit for one society. "A reconsideration of the whole clause was agreed to. "Mr. Gouverneur Morris was against striking out the exception of treaties of peace. If two-thirds of the Senate should be required for peace, the Legislature will be unwilling to make war for that reason, on account of the fisheries, or the Mississippi, the two great objects of the Union. Besides, if a majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode of negativing the supplies for the war. "Mr. Williamson remarked, that treaties are to be made in the branch of the Government where there may be a majority of the States, without a majority of the people. Eight men may be a majority of a quorum, and should not have the power to decide the conditions of peace. There would be no danger, that the exposed States, as South Carolina or Georgia, would urge an improper war for the Western territory. "Mr. Wilson. If two-thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority. "Mr. Gerry enlarged on the danger of putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing, perhaps, not one-fifth of the people. The Senate will be corrupted by foreign influence. "Mr. Sherman was against leav ing the rights established by the treaty of peace, to the Senate; and moved to annex a proviso, that no such rights should be ceded without the sanction of the Legislature. "Mr. Gouverneur Morris seconded the ideas of Mr. Sherman. "Mr. Madison observed that it had been too easy, in the present Congress, to make treaties, although nine States were required for the purpose. "On the question for striking out 'except treaties of peace,' "New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye-8; New Jersey, Delaware, Maryland, no—3. "Mr. Wilson and Mr. Dayton moved to strike out the clause, requiring two-thirds of the Senate, for making treaties; on which, Delaware, aye-1; New Hampshire, $ 190. Committee to make final draft; President to make treaties; September 10th and 12th.-On September 10th, all of the disputed questions having been discussed and settled, a "Committee of Style and Arrangement" was appointed to Massachusetts, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, no-9; Connecticut, divided. "Mr. Madison. This may happen to any quorum. "On the question, it passed in the negative, 'Maryland, Virginia, North Carlina, South Carolina, Georgia, "Mr. Rutledge and Mr. Gerry moved that no treaty shall be made without the consent of two-aye-5; New Hampshire, Massathirds of all the members of the Senate,'-according to the example in the present Congress. "Mr. Gorham. There is a difference in the case, as the President's consent will also be necessary in the new government. "On the question, "North Carolina, South Carolina, Georgia, aye-3; New Hampshire, Massachusetts, (Mr. Gerry, aye), Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no-8. "Mr. Sherman moved that no treaty shall be made without a majority of the whole number of the Senate.' "Mr. Gerry seconded him. "Mr. Williamson. This will be less security than two-thirds, as now required. chusetts, Connecticut, New Jersey, Pennsylvania, Delaware, no-6. 'Mr. Williamson and Mr. Gerry, moved that no treaty should be made without previous notice to the members, and a reasonable time for their attending.' "On the question, all the States, no; except North Carolina, South Carolina, and Georgia, aye. "On a question on the clause of the Report of the Committee of eleven, relating to treaties by twothirds of the Senate,-all the States were, aye; except Pennsylvania, New Jersey, and Georgia, no. "Mr. Gerry moved, that 'no officer shall be appointed but to of fices created by the Constitution or by law.' This was rejected as unnecessary,― "Mr. Sherman. It will be less New Jersey, North Carolina, Georembarrassing. gia, aye-5; New Hampshire, Penn "On the question, it passed in sylvania, Delaware, Maryland, Virthe negative,ginia, South Carolina, no-6." Madison Papers, Vol. III, pp. 1524-1528. $ 190. "Massachusetts, Connecticut, Delaware, South Carolina, Georgia, aye-5; New Hampshire, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, no-6. "Mr. Madison moved that a quo-stitution of the United States enrum of the Senate consist of twothirds of all the members. "Mr. Gouverneur Morris. This will put it in the power of one man to break up a quorum. In chapter XI of the second volume of the History of the Con titled "The Last Days of the Convention," Mr. Bancroft says, in regard to this committee, pp. 207–209: "The committee to whom the constitution was referred for the make the final draft.2 That Committee reported on September 12th; in regard to treaties, Section 2, Article II, provided that the President should have the "power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur."4 Section 2, Article III, provided that the judicial power of the United arrangement of its articles and the revision of its style were Johnson, Hamilton, Gouverneur Morris, Madison, and King. The final draft of the instrument was written by Gouverneur Morris, who knew how to reject redundant and equivocal expressions, and to use language with clearness and vigor; but the convention itself had given so minute, long-continued, and oftrenewed attention to every phrase in every section, that there scarcely remained room for improvement except in the distribution of its parts. nine of them, and the states by which it would be ratified could not be foreknown. The deputies in the convention, representing but eleven states, did not pretend to be the people'; and could not institute a general government in its name. The instrument which they framed was like the report of a bill beginning with the words 'it is enacted,' though the binding enactment awaits the will of the legislature; or like a deed drawn up by an attorney for several parties, and awaiting its execution by the principals themselves. Only by its acceptance could the words 'we the people of the United States' become words of truth and power. "The phrase 'general welfare,' adopted from the articles of confed "Its first words are: 'We the people of the United States, in order to form a more perfect union, to establish justice, ensure domestic tranquillity, provide for the common defence, promote the generation, though seemingly vague, eral welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.' Here is no transient compact between parties: it is the institution of government by an act of the highest sovereignty; the decree of many who are yet one; their law of laws, inviolably supreme, and not to be changed except in the way which their forecasters the country presented itself as has provided. "The names of the thirteen States, so carefully enumerated in the articles of confederation and in the treaty of peace, were omitted, because the constitution was to go into effect on its acceptance by was employed in a rigidly restrictive sense to signify the concerns of the union at large, not the particular policy of any state.' The word national' was excluded from the constitution, because it might seem to present the idea of the union of the people without at the same time bringing into view, that the one republic was formed out of many states. Toward foreign pow one nation. The arrangement of 2 Madison Papers, vol. III, p. 1542. |