1 $ 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. 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 "On the question,"North Carolina, South Caro-States, no; except North Carolina, lina, Georgia, aye-3; New Hamp- South Carolina, and Georgia, aye. shire, Massachusetts, (Mr. Gerry, aye), Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no-8. เ "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. "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 offices 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. "Massachusetts, Connecticut, Delaware, South Carolina, Georgia, aye-5; New Hampshire, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, no-6. "Mr. Madison moved that a quorum 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. $ 190. In chapter XI of the second volume of the History of the Constitution of the United States entitled "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. 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 nine of them, and the states by which it would be ratified could not be foreknown. The deputies in the convention, representing but 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 eleven states, did not pretend to 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. 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. States should extend to "all cases, both in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." Article VI composed of a single section, was divided into three clauses, the second of which related to treaties and was as follows: "This Constitution, and the laws of the United States 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 or laws of any State to the contrary notwithstanding." The power of Congress, by Section 8 of Article I, included the right "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Section 10 of the same Article provided that without the consent of Congress no State should "enter into any agreement or compact with another State, or with any foreign power."8 7 In his Constitutional History, Mr. George Ticknor Curtis has summarized the reasons for vesting the treaty-making power in the President, with the limitations thereover involved in the necessary two thirds ratification; they are quoted in the notes to this section." 5 Idem, p. 1556. 6 Idem, p. 1559. * Idem, p. 1551. 8 Idem, p. 1552. 9" The power to make treaties, which had been given to the Senate by the committee of detail, and which was afterwards transferred to the president, to be exercised with the advice and consent of two thirds of the senators present, was thus modified on account of the changes which the plan of government had undergone, and which have been previously explained. The power to declare war having been vested in the whole legislature, it was necessary to provide the mode in which a war was to be terminated. As the president was to be the organ of communication with other governments, and as he would be the general guardian of the national interests, the negotiation of a treaty of peace, and of all other treaties, was necessarily confided to him. But as treaties would not only involve the general interests of the nation, but might touch the particular interests of individual states, and, whatever their effect, were to be part of the supreme law of the land, it was necessary to give to the senators, as the direct representatives of the states, a concurrent authority with § 191. Letter to Congress, accompanying Constitution as to ratification by the people, instead of by legislatures of the States.-This draft of the Committee on Style and Arrangement was accompanied by a letter submitting the Constitution to the consideration of the people of the United the president over the relations to be affected by them. The rule of ratification suggested by the committee to whom this subject was last confided was, that a treaty might be sanctioned by two thirds of the senators present, but not by a smaller number. A question was made, however, and much considered, whether treaties of peace ought not to be subjected to a different rule. One suggestion was, that the Senate ought to have power to make treaties of peace without the concurrence of the president, on account of his possible interest in the continuance of a war from which he might derive power and importance. But an objection, strenuously urged, was that, if the power to make a treaty of peace were confided to the Senate alone, and a majority of two thirds of the whole Senate were to be required to make such a treaty, the difficulty of obtaining peace would be so great that the legislature would be unwilling to make war on account of the fisheries, the navigation of the Mississippi, and other important objects of the Union. On the other hand, it was said that a majority of the states might be a minority of the people of the United States, and that the representatives of a minority of the nation ought not to have power to decide the conditions of peace. "The result of these various objections was a determination on the part of a large majority of the states not to make treaties of peace an exception to the rule, but to provide a uniform rule for the ratification of all treaties. The rule of the Confederation, which had required the assent of nine states in Congress to every treaty or alliance, had been found to work great inconvenience; as any rule must do which should give to a minority of states power to control the foreign relations of the country. The rule established by the Constitution, while it gives to every state an opportunity to be present and to vote, requires no positive quorum of the Senate for the ratification of a treaty; it simply demands that the treaty shall receive the assent of two thirds of all the members who may be present. The theory of the Constitution undoubtedly is, that the president represents the people of the United States generally, and the senators represent their respective states; so that, by the concurrence which the rule thus requires, the necessity for a fixed quorum of the states is avoided, and the operations of this function of the government are greatly facilitated and simplified. The adoption, also, of that part of the rule which provides that the Senate may either ‘advise or consent,' enables that body so far to initiate a treaty as to propose one for the consideration of the president-although such is not the general practice." Curtis' Constitutional History of the United States, vol. I, pp. 579-581. States, and stating, in the following words, that the question of the governmental powers which the States should surrender to, and vest in, the General Government had been the object of great consideration: "The friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union. It is obviously impracticable, in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest. In all our deliber ations on this subject, we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence."1 § 192. Constitution adopted; September 15th.-Even after the Committee on Style and Arrangement had submitted what was supposed to be the final draft, there were several meetings, in which the report was discussed. It does not appear, however, that any of the alterations suggested related to the treaty-making power; on September 15th the Constitution, as amended, was adopted by all the State delegations, although some of the individual members, including Mr. Gerry, Colonel Mason and Mr. Randolph,1 stated that they would withhold their names, their objections as stated did not relate to the fact that the treaty-making power was vested in the Central Government. In fact, Mr. Randolph in his opening remarks had referred to the centralization of the treaty-making power, and the enforcement of treaty stipulations, as some of the chief grounds for lodging more extensive powers in the Central Government.3 § 191. in the State Convention of Virginia. 1 Madison Papers, vol. III, pp. See § 213, post. 1560-1561. § 192. 1 Mr. Randolph, however, afterwards supported the Constitution 2 Madison Papers, vol. III, pp. 1600-1603. 3 See § 171, p. 300, ante. |