mittee of Five; it was, however, apparently finally intrusted to the Committee of Eleven, which included certain modifications as to this subject in its report on September 4th, which will be hereafter alluded to. § 188. Amendments to draft as to treaties; August 25th. -On August 25th, several days after Article VIII of the draft, afterwards Article VI of the Constitution, had been unanimously adopted, Mr. Madison, seconded by Mr. Morris, offered a resolution, which was adopted nem. con., that the article should be reconsidered by the insertion of the words, "or which shall be made;" this was done so as to obviate all doubt concerning pre-existing treaties, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. The attention of the Convention was thus again especially called to the power which Mr. Mason had already said was great enough "to sell the Union," and the delegates were fully advised that no matter how great the power might be, it related not only to the treaties already made by the Congress of the Confederation, but to every one that might thereafter be made and ratified. 189. Jurisdiction of Supreme Court over treaty cases; Senate to ratify treaties; September 4th-10th. When the articles relating to the power of the Supreme Court were discussed, on motion of Mr. Rutledge, an amendment was unanimously adopted giving that Court jurisdiction in regard to all treaties made by the United States, that branch of its jurisdiction having apparently been overlooked by the Committee of Detail.1 On September 4th the Committee of Eleven, consisting of one member for every State then represented, made a report in which a number of matters on which the Convention had disagreed were disposed of by modified clauses to be inserted at their proper place in the Constitution as already framed. limited terms, and requiring the concurrence of the whole Legislature in other treaties. "The first Section of Article 9, was finally referred, nem. con., to the Committee of five, and the House then adjourned." Madison Papers, vol. III, pp. 1412-1415. 2 See § 189, note 2 on p. 322, post. 1 Madison Papers, vol. III, p. 1430. 1 Madison Papers, Vol. III., p. 1439. The seventh recommendation provided, that the President, by and with the advice and consent of the Senate, should make treaties, thus returning to Mr. Hamilton's original suggestion, with the limitation, however, that no treaty should be made without the consent of two thirds of the members present. Some of the members thought that the negotiation of treaties should be intrusted to the executive alone. After some discussion, on September 6th, as to the sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of twothirds of the Senators present necessary to the ratification of a treaty." Curtis' Constitutional History of the United States, vol. I, p. 468. 2 Tuesday, September 4th, In undertake to dismember a state of Convention. "Mr. Brearly, from part of its territory, or might otherthe Committee of eleven, made a wise affect its individual interests; further partial Report as follows: and even where it concerned only "The Committee of eleven, to the general interests of all the whom sundry resolutions, etc., states, there was a great unwillingwere referred on the thirty-first of ness to intrust the treaty-making August, report, that in their opin-power exclusively to the president. ion the following additions and Here the states, as equal political alterations should be made to the Report before the Convention, viz: "1. The first clause of Article 7, Section 1, to read as follows: 'The Legislature shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.' . . . 7. Section 4. The President, by and with the advice and consent of the Senate, shall have power to make treaties; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers, Judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise herein provided for. But no treaty shall be made without the consent of two-thirds of the members present.'" Madison Papers, Vol. III, pp. 1485-1488. 4 Thursday, September 6th, In Convention. "Mr. Wilson said, that he had weighed carefully, the Report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have, in fact, the appointment of the President, and through his dependence on them, 3" The negotiation of treaties the virtual appointment to of was obviously a function that fices; among others, the officers of should be committed to the execu- the Judiciary department. They tive alone. But a treaty might are to make treaties; and they are 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 "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 ultimately 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 secrecy in the case of treaties forbade 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 dif- of peace also, there is more danficulty than other treaties. It was ger to the extremities of the contiagreed to, nem. con. nent, of being sacrificed, than on any other occasion. con The "Mr. Madison then moved to authorize a concurrence of twothirds of the Senate to make treaties of peace, without the currence of the President. 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. "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, people. Eight men may be a ma jority 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. "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. Be- "On the question for striking sides, if a majority of the Senate out 'except treaties of peace,'be for peace, and are not allowed "New Hampshire, Massachuto make it, they will be apt to ef-setts, Connecticut, Pennsylvania, fect 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 Virginia, North Carolina, South "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, |