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representation in the Senate, but in general, according to population. In the draft of the Constitution as reported by the Committee of Detail, August 6, power to make treaties and to appoint ambassadors was by Article IX vested in the Senate. In the discussion, August 15, on the question of restricting the powers of the Senate in originating bills for raising and appropriating money, Francis Mercer, who had taken his seat in the Maryland deputation on August 6, suggested that the power of concluding treaties belonged to the executive department, adding “that treaties would not be final so as to alter the laws of the land, till ratified by legislative authority."3 In the consideration of Article IX on August 23, Madison observed “that the Senate represented the States alone; and that for this as well as other obvious reasons it was proper that the President should be an agent in treaties.” No amendment, however, was made; but the section was referred back to the Committee. In the report of the Committee of Eleven, September 4, to which, on August 31, the undetermined sections had been referred, it was recommended that “The President, by and with the advice and consent of the Senate,” should have power to make treaties: but that no treaty should be made “without the consent of two-thirds of the members present."'s The discussion that followed was confined chiefly to the

Documentary History of the Constitution, vol. iii, p. 773. On May 30, Hamilton moved that the rights of suffrage in the national legislature ought to be proportioned to the number of free inhabitants; and on June 11, supported a resolution providing that the same ratio of representation should be observed in both houses. Ibid., pp. 24, 108. * Ibid., p. 451. * Ibid., p. 536.

* Ibid., p. 604. 5 Ibid., p. 669. The Committee of Eleven was composed of Nicholas Gilman, Rufus King, Roger Sherman, David Brearley, Gouverneur Morris, John Dickinson, Daniel Carroll, James Madison, Hugh Williamson, Pierce Butler and Abraham Baldwin.


proportion of the Senate required. By an amendment proposed by Madison, September 7, and agreed to nem. con., treaties of peace were excepted from the requirement of a two-thirds vote. Different opinions were expressed as to what should be required in case of such treaties. Madison wished the consent of two-thirds of the Senate without the concurrence of the President. Gouverneur Morris desired the concurrence of the President and a majority only of the Senate, while Gerry would require a greater proportion than in the case of other treaties. On the one hand, it was urged that, if two-thirds were to be required for treaties of peace, the minority might perpetuate the war against the wish of the majority, unless the majority should make its wish effective by the disagreeable means of negativing the supplies of war; on the other, that such vital interests of the country as would most likely fall within treaties of peace, such, for instance, as the fisheries and territories, should not be placed in the hands of a majority only, which might represent less than one-fifth of the people. A reconsideration of the clause resulted in striking out the exception. Motions were also entertained to strike out entirely the clause requiring the consent of two-thirds of the members present, to substitute for two-thirds of the members “present” two-thirds of all the members, and to require a majority of the whole number of the Senate. These were defeated by votes of 9 to 1, 8 to 3, and 6 to 5 respectively. A motion by Madison that two-thirds of all the members should constitute a quorum, likewise failed, as did also an amendment that no treaty should be made without previous notice to the members and a reasonable time for their attendance. The provision was finally agreed to as reported by the committee, Penn

sylvania, New Jersey and Georgia voting in the negative.' The requirement, as adopted, of two-thirds of the members “present,” not only would remove the possibility of the embarrassment that had been experienced under the Articles of Confederation, through the failure of delegates from nine States to attend, but would at the same time serve as an incentive to attendance.

On August 23, while the treaty power was still vested solely in the Senate, Gouverneur Morris, after expressing doubt as to whether he would agree to confer the making of treaties on the Senate at all, moved to amend the section by adding “but no treaty shall be binding on the United States which is not ratified by a law." Nathaniel Gorham, objecting, suggested the disadvantage that must be experienced if treaties of peace and all negotiations were to be previously ratified-and if not previously, the ministers would be at a loss to know how to proceed, for they must go abroad uninstructed by the authority which was to ratify their proceedings. Samuel Johnson also thought there was "something of solecism in saying that the acts of a minister with plenipotentiary powers from one body should depend for ratification on another body.” In reply to Madison's observation on the inconvenience of requiring a “legal ratification of treaties of alliance for the purposes of war, &c., &c.,” Morris said that in general he was not “solicitous to multiply and facilitate treaties,” and that as to treaties of alliance his amendment would necessitate their negotiation at our own seat of government, which he considered desirable. In the debate, several spoke against the amendment. Wilson and Dickinson are recorded as support

* Documentary History of the Constitution, vol. iii, pp. 700, 701, 703, 705, 706.

ing it, and in the vote that followed Pennsylvania stood alone in the affirmative, with North Carolina divided. Subsequently to the vote, Madison raised the query whether a distinction might not be made between different kinds of treaties, allowing to the President and Senate the making of "treaties eventual and of alliance,' but requiring the concurrence in other treaties of the whole legislature. The section was then referred to the Committee of Five.' The significance of the discussion lies especially in the expressions of an idea existing with the members, that the negotiating and ratifying powers should be united in the same body.

In opposing the “dangerous tendency to aristocracy” in the Senate, Wilson, on September 6, observed that treaties were to be “laws of the land ” and that the power to make treaties involved “the case of subsidies.” On the following day he moved to add after the word “Senate" in the section as reported by the Committee of Eleven, the clause "and the House of Representatives,” arguing in favor of his motion that, as treaties were to have the operation of laws, they ought to have the sanction of laws. Against the amendment the necessity of secrecy was advanced, and in the vote Pennsylvania alone supported it. Later, it was also suggested, but without effect, that no rights acquired by the treaty of peace should be ceded without legislative sanction.” The House was thus, not without knowledge of the infra-territorial operation of treaties by virtue of another article of the proposed Constitution, excluded from the treaty-making power by the framers.

Upon one provision, there seemed to be unity of senti

'Documentary History of the Constitution, vol. iii, pp. 604-606. 'Ibid., pp. 686, 687, 704.

ment throughout the Convention. In Randolph's enumeration on May 29 of the defects of the Articles of Confederation, under the first group was placed the inability of Congress to prevent the infraction of treaties.' In the resolutions which he submitted, it was recommended that the national legislature be invested with the power to negative all State laws which in its opinion contravened “the articles of Union,” as well as with the power to coerce a disobedient State. On May 31, on motion of Dr. Franklin, the clause “or any treaties subsisting under the authority of the Union ” was inserted after the word “Union.”. As thus amended, the section was agreed to in the committee of the whole, without debate or dissent. William Paterson, who represented the conservative element, recommended in his resolutions, introduced June 15, that all treaties made and ratified under the authority of the United States should“ be the supreme law of the respective States,” and that the judiciaries of the several States should be bound thereby in their decisions, “anything in the respective laws of the individual States to the contrary notwithstanding.” The executive was authorized to use the power of the confederated States to enforce and compel obedience. On July 17, Paterson's resolu

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i Documentary History of the Constitution, vol. iii, p. 16. ' Ibid., p. 33.

* Ibid., vol. i, p. 325; vol. iii, p. 127. As there seems to be unmistakable evidence that the plan of a Constitution, delivered by Charles Pinckney to the Department of State, December 30, 1818, and to which so much credit has been given, was written subsequently to the Convention and differs from the original draft presented on May 29 to the Convention, it has been entirely passed over in this discussion. It may however be noted that in his letter of December 30, 1818, to the Secretary of the State, communicating the draft, he remarked “I can assure you as a fact that for more than four months and a half out of five, the power of exclusively making treaties, appointing public ministers



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